[Federal Register Volume 82, Number 4 (Friday, January 6, 2017)]
[Rules and Regulations]
[Pages 1860-2008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31355]



[[Page 1859]]

Vol. 82

Friday,

No. 4

January 6, 2017

Part III





Department of Defense





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Department of the Army, Corps of Engineers





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33 CFR Chapter II





Issuance and Reissuance of Nationwide Permits; Final Rule

  Federal Register / Vol. 82 , No. 4 / Friday, January 6, 2017 / Rules 
and Regulations  

[[Page 1860]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Chapter II

[COE-2015-0017]
RIN 0710-AA73


Issuance and Reissuance of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is reissuing 50 
existing nationwide permits (NWPs), general conditions, and 
definitions, with some modifications. The Corps is also issuing two new 
NWPs and one new general condition. The effective date for the new and 
reissued NWPs is March 19, 2017. These NWPs will expire on March 18, 
2022. The NWPs will protect the aquatic environment and the public 
interest while effectively authorizing activities that have no more 
than minimal individual and cumulative adverse environmental effects.

DATES: These NWPs, general conditions, and definitions will go into 
effect on March 19, 2017.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street 
NW., Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or 
access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The U.S. Army Corps of Engineers (Corps) issues nationwide permits 
(NWPs) to authorize certain activities that require Department of the 
Army permits under Section 404 of the Clean Water Act and/or Section 10 
of the Rivers and Harbors Act of 1899. The purpose of this regulatory 
action is to reissue 50 existing NWPs and to issue two new NWPs. In 
addition, one new general condition is being issued. The NWPs can only 
be issued for a period of no more than five years and cannot be 
extended. These 52 NWPs go into effect on March 19, 2017 and expire on 
March 18, 2022.
    The NWPs authorize activities that have no more than minimal 
individual and cumulative adverse environmental effects. The NWPs 
authorize a variety of activities, such as aids to navigation, utility 
line crossings, erosion control activities, road crossings, stream and 
wetland restoration activities, residential developments, mining 
activities, commercial shellfish aquaculture activities, and 
agricultural activities. The two new NWPs authorize the removal of low-
head dams and the construction and maintenance of living shorelines. 
Some NWP activities may proceed without notifying the Corps, as long as 
those activities comply with all applicable terms and conditions of the 
NWPs, including regional conditions imposed by division engineers. 
Other NWP activities cannot proceed until the project proponent has 
submitted a pre-construction notification to the Corps, and for most 
NWPs that require pre-construction notifications the Corps has 45 days 
to notify the project proponent whether the activity is authorized by 
NWP.

Background

    The U.S. Army Corps of Engineers (Corps) issues nationwide permits 
(NWPs) to authorize activities under Section 404 of the Clean Water Act 
and Section 10 of the Rivers and Harbors Act of 1899 that will result 
in no more than minimal individual and cumulative adverse environmental 
effects. The NWPs can only be issued for a period of five years or 
less, unless the Corps reissues those NWPs (see 33 U.S.C. 1344(e) and 
33 CFR 330.6(b)). We are reissuing 50 existing NWPs and issuing two new 
NWPs. These NWPs will go into effect on March 19, 2017, and will expire 
on March 18, 2022. Division engineers will add regional conditions to 
these NWPs to ensure that, on a regional basis, these NWPs only 
authorize activities that have no more than minimal individual and 
cumulative adverse environmental effects.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States. The Secretary's authority to 
issue general permits has been delegated to the Chief of Engineers and 
his or her designated representatives. Nationwide permits 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 in 
jurisdictional waters and wetlands that have no more than minimal 
adverse environmental impacts (see 33 CFR 330.1(b)). Activities 
authorized by NWPs and other general permits must be similar in nature, 
cause only minimal adverse environmental effects when performed 
separately, and will have only minimal cumulative adverse effect on the 
environment (see 33 U.S.C. 1344(e)(1)). Nationwide permits can also be 
issued to authorize activities pursuant to Section 10 of the Rivers and 
Harbors Act of 1899 (see 33 CFR 322.2(f)). The NWP program is designed 
to provide timely authorizations for the regulated public while 
protecting the Nation's aquatic resources.
    The phrase ``minimal adverse environmental effects when performed 
separately'' refers to the direct and indirect adverse environmental 
effects caused by a specific activity authorized by an NWP. The phrase 
``minimal cumulative adverse effect on the environment'' refers to the 
collective direct and indirect adverse environmental effects caused by 
the all the activities authorized by a particular NWP during the time 
period that NWP is in effect (which can be no more than 5 years) in a 
specific geographic region. The appropriate geographic area for 
assessing cumulative effects is determined by the decision-making 
authority for the general permit. For each NWP, Corps Headquarters 
prepares national-scale cumulative effects analyses. Division engineers 
consider cumulative effects on a regional basis (e.g., a state, Corps 
district, or other geographic area) when determining whether to modify, 
suspend, or revoke NWPs on a regional basis (see 33 CFR 330.5(c)). When 
evaluating NWP pre-construction notifications (PCNs), district 
engineers evaluate cumulative adverse environmental effects in an 
appropriate geographic area (e.g., watershed, ecoregion, Corps district 
geographic area of responsibility, other geographic region).
    When Corps Headquarters issues or reissues an NWP, it conducts a 
national-scale cumulative impact assessment in accordance with the 
National Environmental Policy Act (NEPA) definition of ``cumulative 
impact'' at 40 CFR part 1508.7. The NEPA cumulative effects analysis 
prepared by Corps Headquarters for an NWP examines the impact on the 
environment which results from the incremental impact of its action 
(i.e., the activities that will be authorized by that NWP) and adds 
that incremental impact to ``other past, present, and reasonably 
foreseeable future actions regardless of what agency (Federal or non-
Federal) or person undertakes such other actions'' (40 CFR 1508.7). In 
addition to environmental impacts caused by activities authorized

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by the NWP, other NWPs, and other types of DA permits, the Corps' NEPA 
cumulative effects analysis in each of its national decision documents 
discusses, in general terms, the environmental impacts caused by other 
past, present, and reasonably foreseeable future Federal, non-Federal, 
and private actions. For example, wetlands and other aquatic ecosystems 
are affected by a wide variety of Federal, non-Federal, and private 
actions that involve land use/land cover changes, pollution, resource 
extraction, species introductions and removals, and climate change 
(Millennium Ecosystem Assessment (MEA) 2005b).
    Corps Headquarters fulfills the requirements of NEPA when it 
finalizes the environmental assessment in its national decision 
document for the issuance or reissuance of an NWP. An NWP verification 
issued by a district engineer does not require separate NEPA 
documentation. (See 53 FR 3126, the Corps' final rule for implementing 
the National Environmental Policy Act, which was published in the 
February 3, 1988, issue of the Federal Register.) When a district 
engineer issues an NWP verification, he or she is merely verifying that 
the activity is authorized by an NWP issued by Corps Headquarters. That 
verification is subject to any activity-specific conditions added to 
the NWP authorization by the district engineer. When reviewing a 
request for an NWP verification, the district engineer considers, among 
other factors, the ``cumulative adverse environmental effects resulting 
from activities occurring under the NWP'' (33 CFR 330.5(d)(1)). When 
documenting the decision to issue an NWP verification, the district 
engineer will explain that the NWP activity, plus any applicable 
regional conditions and any activity-specific conditions added by the 
district engineer (e.g., mitigation requirements) will ensure that the 
adverse environmental effects caused by the NWP activity will only be 
minimal on an individual and cumulative basis.
    If an NWP authorizes discharges of dredged or fill material into 
waters of the United States, the Corps also conducts a national-scale 
cumulative effects analysis in accordance with the Clean Water Act 
section 404(b)(1) Guidelines. The 404(b)(1) Guidelines approach to 
cumulative effects analysis for the issuance or reissuance of general 
permits is described at 40 CFR part 230.7(b).
    For each NWP, Corps Headquarters issues a decision document, which 
includes a NEPA environmental assessment, a public interest review, and 
if applicable, a 404(b)(1) Guidelines analysis. Each NWP is a stand-
alone general permit.
    When the Corps issues or reissues an NWP, Corps divisions are 
required to prepare supplemental decision documents to provide regional 
analyses of the environmental effects of that NWP. Those supplemental 
decision documents are not subject to a public notice and comment 
process. The supplemental decision documents also support the division 
engineer's decision to modify, suspend, or revoke the NWP in a 
particular region. An NWP is modified on a regional basis through the 
addition of regional conditions, which restricts the use of the NWP in 
the geographic area(s) where those regional conditions apply. The 
supplemental decision document includes a regional cumulative effects 
analysis, and if the NWP authorizes discharges of dredged or fill 
material into waters of the United States, a regional 404(b)(1) 
Guidelines cumulative effects analysis. The geographic region used for 
the cumulative effects analyses in a supplemental decision document is 
at the division engineer's discretion. In the supplemental decision 
document, the division engineer may evaluate cumulative effects of the 
NWP at the scale of a Corps district, state, or other geographic area, 
such as a watershed or ecoregion. If the division engineer is not 
suspending or revoking the NWP in a particular region, the supplemental 
decision document also includes a statement finding that the use of 
that NWP in the region will cause only minimal individual and 
cumulative adverse environmental effects.
    For some NWPs, the project proponent may proceed with the NWP 
activity as long as he or she complies with all applicable terms and 
conditions, including applicable regional conditions. When required, 
Clean Water Act section 401 water quality certification and/or Coastal 
Zone Management Act consistency concurrence must be obtained or waived 
(see general conditions 25 and 26, respectively). Other NWPs require 
project proponents to notify Corps district engineers of their proposed 
activities prior to conducting regulated activities, so that the 
district engineers can make case-specific determinations of NWP 
eligibility. The notification takes the form of a pre-construction 
notification (PCN). The purpose of a PCN is to give the district 
engineer an opportunity to review a proposed NWP activity (generally 45 
days after receipt of a complete PCN) to ensure that the proposed 
activity qualifies for NWP authorization. If it does not qualify for 
NWP authorization, the district engineer will inform the applicant and 
advise him or her on the process for applying for another form of 
Department of the Army (DA) authorization. The PCN requirements for the 
NWPs are stated in the text of those NWPs, as well as a number of 
general conditions, especially general condition 32. Paragraph (b) of 
general condition 32 lists the information required for a complete PCN.
    Twenty-one of the NWPs require PCNs for all activities, including 
the two new NWPs. Twelve of the proposed NWPs require PCNs for some 
authorized activities. Nineteen of the NWPs do not require PCNs, unless 
pre-construction notification is required to comply with certain 
general conditions or regional conditions imposed by division 
engineers. All NWPs require PCNs for any proposed NWP activity 
undertaken by a non-federal entity that might affect listed species or 
designated critical habitat under the Endangered Species Act (see 
general condition 18 and 33 CFR part 330.4(f)(2)). All NWPs require 
PCNs for any proposed NWP activity undertaken by a non-federal entity 
that may have the potential to cause effects to historic properties 
listed, or eligible for listing in, the National Register of Historic 
Places (see general condition 20 and 33 CFR part 330.4(g)(2)).
    Except for NWPs 21, 49, and 50, and activities conducted by non-
Federal permittees that require PCNs under paragraph (c) of general 
conditions 18 and 20, if the Corps district does not respond to the PCN 
within 45 days of a receipt of a complete PCN the activity is 
authorized by NWP (see 33 CFR 330.1(e)(1)). Regional conditions imposed 
by division engineers may also add PCN requirements to one or more 
NWPs.
    When a Corps district receives a PCN, the district engineer reviews 
the PCN and determines whether the proposed activity will result in no 
more than minimal individual and cumulative adverse environmental 
effects. The district engineer applies the criteria in paragraph 2 of 
section D, ``District Engineer's Decision.'' If the district engineer 
reviews the PCN and determines that the proposed activity will result 
in more than minimal individual and cumulative adverse environmental 
effects, he or she will notify that applicant and offer the prospective 
permittee the opportunity to submit a mitigation proposal to reduce the 
adverse environmental effects so that they are no more than minimal 
(see 33 CFR 330.1(e)(3)).
    Mitigation requirements for NWP activities can include permit 
conditions

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(e.g., time-of-year restrictions or use of best management practices) 
to avoid or minimize adverse effects on certain species or other 
resources. Mitigation requirements may also consist of compensatory 
mitigation requirements to offset authorized losses of jurisdictional 
waters and wetlands so that the net adverse environmental effects are 
no more than minimal. Any compensatory mitigation that the district 
engineer requires for an NWP activity must comply with the Corps' 
compensatory mitigation regulations at 33 CFR part 332.
    At the conclusion of his or her review of the PCN, the district 
engineer prepares a decision document to explain his or her 
conclusions. The decision document explains the rationale for adding 
conditions to the NWP authorization, including mitigation requirements 
that the district engineer determines are necessary to ensure that the 
verified NWP activity results in no more than minimal individual and 
cumulative adverse environmental effects. The decision document 
includes the district engineer's consideration of cumulative adverse 
environmental effects resulting from the use of that NWP within a 
watershed, county, state, or a Corps district. If an NWP verification 
includes multiple authorizations using a single NWP (e.g., linear 
projects with crossings of separate and distant waters of the United 
States authorized by NWPs 12 or 14) or non-linear projects authorized 
with two or more different NWPs (e.g., an NWP 28 for reconfiguring an 
existing marina plus an NWP 19 for minor dredging within that marina), 
the district engineer will evaluate the cumulative effects of those 
NWPs within the appropriate geographic area. Mitigation required by the 
district engineer can help ensure that the NWP activity results only in 
minimal adverse environmental effects. The decision document is part of 
the administrative record for the NWP verification.
    Because the required NEPA cumulative effects and 404(b)(1) 
Guidelines cumulative effects analyses are conducted by Corps 
Headquarters in its decision documents for the issuance or reissuance 
of the NWPs, district engineers do not need to do comprehensive 
cumulative effects analyses for each NWP verification. For an NWP 
verification, the district engineer only needs to evaluate the 
cumulative adverse environmental effects of the applicable NWP(s) at an 
appropriate geographic scale (e.g., Corps district, watershed, 
ecoregion). In his or her decision document, the district engineer will 
include a statement declaring whether the proposed NWP activity, plus 
any required mitigation, will or will not result in more than minimal 
individual and cumulative adverse environmental effects.
    Some NWP activities that require PCNs also require agency 
coordination (see paragraph (d) of general condition 32). If, in the 
PCN, the applicant requests a waiver of an NWP limit that the terms of 
the NWP allow the district engineer to waive (e.g., the 300 linear foot 
limit for the loss of intermittent and ephemeral stream bed authorized 
by NWP 29), and the district engineer determines, after coordinating 
the PCN with the resource agencies, that the proposed NWP activity will 
result in no more than minimal adverse environmental effects, the 
district engineer's decision document explains the basis his or her 
decision.
    If the district engineer determines, after considering mitigation, 
that there will be more than minimal cumulative adverse environmental 
effects, he or she will exercise discretionary authority and require an 
individual permit for the proposed activity. That determination will be 
based on consideration of the information provided in the PCN and other 
available information. Discretionary authority may also be exercised in 
cases where the district engineer has sufficient concerns for any of 
the Corps public interest review factors (see 33 CFR 330.4(e)(2)).
    Regional conditions may be imposed on the NWPs by division 
engineers to take into account regional differences in aquatic resource 
functions and services across the country and to restrict or prohibit 
the use of NWPs to protect those resources. Through regional 
conditions, a division engineer can modify an NWP to require submission 
of PCNs for certain activities. Regional conditions may also restrict 
or prohibit the use of an NWP in certain waters or geographic areas, if 
the use of that NWP in those waters or areas might result in more than 
minimal individual or cumulative adverse environmental effects. 
Regional conditions may not be less stringent than the NWPs.
    A district engineer may impose activity-specific conditions on an 
NWP authorization to ensure that the NWP activity will result in no 
more than minimal individual and cumulative adverse effects on the 
environment and other public interest review factors. In addition, 
activity-specific conditions will often include mitigation 
requirements, including avoidance and minimization, and possibly 
compensatory mitigation, to reduce the adverse environmental effects of 
the proposed activity so that they are no more than minimal. 
Compensatory mitigation requirements for NWP activities must comply 
with the applicable provisions of 33 CFR part 332. Compensatory 
mitigation may include the restoration, establishment, enhancement, 
and/or preservation of wetlands. Compensatory mitigation may also 
include the rehabilitation, enhancement, or preservation of streams, as 
well as the restoration, enhancement, and protection/maintenance of 
riparian areas next to streams and other open waters. District 
engineers may also require compensatory mitigation for impacts to other 
types of aquatic resources, such as seagrass beds, shallow sandy bottom 
marine areas, and coral reefs.
    Compensatory mitigation can be provided through mitigation banks, 
in-lieu fee programs, and permittee-responsible mitigation. If the 
required compensatory mitigation will be provided through mitigation 
bank or in-lieu fee program credits, the conditions in the NWP 
verification must comply with the requirements at 33 CFR 332.3(k)(4), 
and specify the number and resource type of credits that need to be 
secured by the permittee. If the required compensatory mitigation will 
be provided through permittee-responsible mitigation, the conditions 
added to the NWP authorization must comply with 33 CFR 332.3(k)(3).
    Today's final rule reissuing the 50 existing NWPs with some 
modifications and issuing two new NWPs reflects the Corps commitment to 
environmental protection. In response to the comments received on the 
June 1, 2016, proposed rule, we made changes to the text of the NWPs, 
general conditions, and definitions so that they are clearer and can be 
more easily understood by the regulated public, government personnel, 
and interested parties. The terms and conditions of these NWPs protect 
the aquatic environment and other public interest review factors. The 
changes to the NWPs, general conditions, definitions, and other 
provisions are discussed below.
    Making the text of the NWPs clearer and easier to understand will 
also facilitate compliance with these permits, which will also benefit 
the aquatic environment. The NWP program allows the Corps to authorize 
activities with only minimal adverse environmental impacts in a timely 
manner. The NWP program also provides incentives to project proponents 
to design their activities to avoid and minimize adverse impacts to 
jurisdictional waters and wetlands to qualify for the streamlined NWP 
authorization. In FY 2016, the average

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evaluation time for a request for NWP authorization was 40 days, 
compared to the average evaluation time of 217 days for a standard 
individual permit application. Regional general permits issued by 
district engineers provide similar environmental protections and 
incentives to project proponents. In addition, the NWPs help the Corps 
better protect the aquatic environment by focusing its limited 
resources on those activities that have the potential to result in more 
severe adverse environmental effects.

Benefits and Costs of the NWPs

    The NWPs provide benefits by encouraging project proponents to 
minimize their proposed impacts to waters of the United States and 
design their projects within the scope of the NWPs, rather than 
applying for individual permits for activities that could result in 
greater adverse impacts to the aquatic environment. The NWPs also 
benefit the regulated public by providing convenience and time savings 
compared to standard individual permits. The minimization encouraged by 
terms and conditions of an NWP, as well as compensatory mitigation that 
may be required for specific activities authorized by an NWP, helps 
reduce adverse environmental effects to jurisdictional waters and 
wetlands, as well as resources protected under other laws, such as 
federally-listed endangered and threatened species and designated 
critical habitat, as well as historic properties. For an analysis of 
the monetized benefits of the NWPs, refer to the Regulatory Impact 
Analysis which is available at www.regulations.gov, docket number COE-
2015-0017.
    The costs of the NWPs relate to the paperwork burden associated 
with completing the PCNs. See the section on Paperwork Reduction Act 
for a response to comments and additional discussion of the paperwork 
burden.

Grandfather Provision for Expiring NWPs

    An activity completed under the authorization provided by a 2012 
NWP continues to be authorized by that NWP (see 33 CFR part 330.6(b)). 
Activities authorized by the 2012 NWPs that have commenced or are under 
contract to commence by March 18, 2017, will have one year (i.e., until 
March 18, 2018) to complete those activities under the terms and 
conditions of the 2012 NWPs (see 33 CFR 330.6(b)). Activities 
previously authorized by the 2012 NWPs that have not commenced or are 
not under contract to commence by March 18, 2017, will require 
reauthorization under the 2017 NWPs, provided those activities still 
comply with the terms and conditions of qualify for authorization under 
the 2017 NWPs. If those activities no longer qualify for NWP 
authorization because they do not meet the terms and conditions of the 
2017 NWPs (including any regional conditions imposed by division 
engineers), the project proponent will need to obtain an individual 
permit, or seek authorization under a regional general permit, if such 
a general permit is available in the applicable Corps district and can 
be used to authorize the proposed activity.
    In response to the June 1, 2016, proposed rule, several commenters 
requested that the Corps provide a longer grandfathering period for 
activities authorized under the 2012 NWPs. A few commenters suggested 
changing the grandfather period to 2 years and some commenters 
recommended changing it to 3 years.
    The one-year grandfathering period in 33 CFR 330.6(b) was 
established in the November 22, 1991, final rule amending 33 CFR part 
330 (see 56 FR 59110). It would require a separate rulemaking to change 
section 330.6(b) to establish a longer grandfathering period for 
authorized NWP activities. We believe the one-year period is sufficient 
for project proponents to complete their NWP activities. If they 
determine more time is needed to complete the NWP activity, the one-
year period gives them sufficient time to request verification under 
the reissued NWP(s). If a proposed activity was authorized by the 2012 
NWPs, but is no longer authorized by these new or reissued NWPs, then 
the project proponent should apply for an individual permit during the 
grandfather period to try to obtain the individual permit before the 
one-year grandfather period expires.

Clean Water Act Section 401 Water Quality Certifications and Coastal 
Zone Management Act Consistency Determinations

    The NWPs issued today will become effective on March 19, 2017. This 
Federal Register notice begins the 60-day Clean Water Act Section 401 
water quality certification (WQC) and the 90-day Coastal Zone 
Management Act (CZMA) consistency determination processes.
    After the 60-day period, the latest version of any written position 
taken by a state, Indian Tribe, or U.S. EPA on its WQC for any of the 
NWPs will be accepted as the state's, Indian Tribe's, or EPA's final 
position on those NWPs. If the state, Indian Tribe, or EPA takes no 
action by March 7, 2017, WQC will be considered waived for those NWPs.
    After the 90-day period, the latest version of any written position 
taken by a state on its CZMA consistency determination for any of the 
NWPs will be accepted as the state's final position on those NWPs. If 
the state takes no action by April 6, 2017, CZMA consistency 
concurrence will be presumed for those NWPs.

Discussion of Public Comments

Overview

    In response to the June 1, 2016, Federal Register notice, we 
received more than 54,000 comment letters, of which approximately 
53,200 were form letters pertaining to NWP 12. In addition, we received 
over 700 form letters opposing the reissuance of NWP 21 and over 50 
form letters opposing the issuance of proposed new NWP B. In addition 
to the various form letters, we received a several hundred individual 
comment letters. Those individual comment letters, as well as examples 
of the various form letters, are posted in the www.regulations.gov 
docket (COE-2015-0017) for this rulemaking action. We reviewed and 
fully considered all comments received in response to the proposed 
rule.

Response to General Comments

    Many commenters expressed general support for the proposed rule, as 
well as the NWP program as a whole. Several commenters voiced their 
concerns about the proposed NWPs being able to be issued before the 
2012 NWPs expire. One commenter said the NWPs are duplicative of state 
and local government permit programs. Another commenter requested that 
the final NWPs include a statement informing the public that many of 
the categories of activities authorized by NWP are also regulated by 
state or local government wetland regulatory programs. A commenter 
stated that Corps district engineers should not have the authority to 
add conditions to NWPs or be able to suspend NWP authorizations. One 
commenter expressed appreciation of the policy statements included in 
the NWPs, stating that such statements promote consistency in program 
implementation among Corps districts. One commenter requested that the 
Corps issue the NWPs for a period of ten years. One commenter stated 
that because of the effects of climate change, the predictability and 
confidence in the use of the NWPs are likely to decline, and recommend 
shortening the renewal cycle for certain NWPs, and require more 
frequent monitoring of specific

[[Page 1864]]

projects that have been approved by NWPs.
    We worked to develop and issue the final NWPs before the 2012 NWPs 
expire on March 18, 2017. While there are a number of states that have 
aquatic resource regulatory programs that are similar to the Corps 
regulatory program, there are often important differences between the 
Corps' regulatory program and those state regulatory programs. In 
states where there is close alignment between the Corps and state 
regulatory programs, programmatic general permits can be developed and 
issued by district engineers to reduce duplication and streamline the 
authorization process for the regulated public. In areas where local 
governments also have adopted regulatory programs to protect aquatic 
resources, there is likely to be variability from the Corps regulatory 
program. Despite the existence of state and local regulatory programs 
in some areas, the Corps still has the responsibility for implementing 
section 404 of the Clean Water Act, as well as section 10 of the Rivers 
and Harbors Act of 1899. For section 404 of the Clean Water Act, 
Michigan and New Jersey are exceptions where they have assumed the 
section 404 program. We appreciate the acknowledgment that policy 
statements made through the NWP program help improve Corps regulatory 
program consistency.
    The ability for division and district engineers to modify, suspend, 
or revoke NWPs on a regional or case-by-case basis is a key tool for 
ensuring that the NWPs only authorize activities that cause no more 
than minimal individual and cumulative adverse environmental effects. 
There is substantial variation in aquatic resource types across the 
country, as well as a large amount of variability among geographic 
regions in the quantity of those resources. Those regional differences 
require division and district engineers to have the authority to tailor 
the NWPs to address regional and site-specific concerns. The NWPs can 
only be issued for a period of 5 years because of the statutory 
language in section 404(e) of the Clean Water Act, as well as the 
Corps' regulations at 33 CFR 330.6(b). Section 330.6(b) states that if 
``an NWP is not modified or reissued within five years of its effective 
date it automatically expires and becomes null and void.'' Nationwide 
permits are an important tool for adapting to the effects of climate 
change, by authorizing a variety of activities such as utility line 
crossings, road crossings, bank stabilization activities, living 
shorelines, and aquatic habitat restoration and enhancement activities. 
The 5-year cycle for reissuing the NWPs is sufficient time to make 
necessary changes to the NWPs to ensure the NWPs only authorize those 
activities that result in no more than minimal individual and 
cumulative adverse environmental effects.
    Many commenters objected to the proposed NWPs, stating that they 
authorize activities that result in more than minimal individual and 
cumulative adverse environmental effects and that they do not authorize 
categories of activities that are similar in nature. A few commenters 
said that since the Corps does not require pre-construction 
notifications (PCNs) for all NWP activities, it could not ensure that 
NWP activities result in no more than minimal individual and cumulative 
adverse environmental effects. One commenter said that Corps districts 
should improve their tracking of cumulative impacts. A number of 
commenters opposed the NWPs, stating that they authorize activities 
associated with larger projects that have substantial environmental 
impacts. Several commenters said that the NWPs should either not 
authorize activities that impact streams and rivers occupied by 
anadromous salmon, or compensatory mitigation should always be required 
for those activities. One commenter stated that the NWPs should not be 
used in areas with substantial cumulative impacts, such as essential 
fish habitat and areas inhabited by ESA-listed species.
    The NWP program provides a three-tiered approach to ensure 
compliance with section 404(e) of the Clean Water Act. Those three 
tiers are: (1) The terms and conditions of the NWPs issued by Corps 
Headquarters; (2) the authority of division engineers to modify, 
suspend, or revoke NWPs on a regional basis; and (3) the authority of 
district engineers to modify, suspend, or revoke NWPs on a case-by-case 
basis. We interpret the requirement for general permits to authorize 
categories of activities that are similar in nature broadly, to provide 
program efficiency, to keep the number of NWPs manageable, and to 
facilitate implementation by the Corps and project proponents that need 
to obtain Department of the Army (DA) authorization for activities that 
have only minimal adverse environmental effects.
    The NWP activities that do not require PCNs are those activities 
that have characteristics that do not result in more than minimal 
adverse environmental effects, such as small structures in navigable 
waters subject to section 10 of the Rivers and Harbors Act of 1899 or 
minor fills in waters of the United States associated with maintenance 
activities or temporary impacts. While we recognize that many NWP 
activities are components of larger overall projects, the Corps' 
authorities under the NWP program are limited to discharges of dredged 
or fill material into waters of the United States that are regulated 
under Section 404 of the Clean Water Act, and structures and work in 
navigable waters that are regulated under Section 10 of the Rivers and 
Harbors Act of 1899. The Corps does not regulate other components of 
those larger overall projects, such as activities that occur in upland 
areas. In many cases, the NWPs are authorizing minor features that are 
part of those larger overall projects.
    Division engineers can impose regional conditions on the NWPs to 
protect rivers and streams inhabited by anadromous fish, including 
salmon. For those salmonids that are listed as endangered or threatened 
under the Endangered Species Act (ESA), general condition 18 requires 
PCNs for all NWP activities that might affect those listed species or 
their designated critical habitat, or that occur in their designated 
critical habitat. District engineers have the discretion to require 
compensatory mitigation to offset stream losses caused by NWP 
activities. A division engineer also has the authority to modify, 
suspend, or revoke one or more NWPs in a geographic region if he or she 
determines the use of that NWP or NWPs will result in more than minimal 
cumulative adverse environmental effects. An area that has essential 
fish habitat or is inhabited by ESA-listed species is not necessarily 
experiencing more than minimal cumulative impacts due to activities 
authorized by NWPs. The physical, chemical, and biological 
characteristics of essential fish habitat may be altered by a variety 
of human activities other than the activities authorized by NWPs. 
Essential fish habitat may be altered by land use and land cover 
changes in the watershed, point source and non-point source pollution, 
excess nutrients, resource extraction activities, introductions and 
removals of species, and changing environmental conditions, including 
climate change. Species may be listed as endangered or threatened 
because of habitat destruction and modification, overexploitation, 
disease or predation, the inadequacy of existing regulatory mechanisms, 
and other man-made or natural factors affecting their continued 
existence (see section 4(a)(1)(A)-(E) of the Endangered Species Act).
    One commenter said the NWPs should not authorize activities that 
result in adverse environmental impacts. A commenter asserted that the

[[Page 1865]]

NWPs should not authorize activities in marine or estuarine waters. One 
commenter stated that the terms and conditions of the NWPs should not 
be changed to be less protective of the environment. One commenter said 
that the NWPs should be subjected to a multi-agency peer review 
process. Several commenters said that public notices should be issued 
for NWP PCNs to disclose proposed NWP activities and increase public 
participation. A number of commenters suggested that NWPs should 
require no net loss of aquatic resources. A number of commenters asked 
why the proposed NWPs use the term ``no more than minimal adverse 
environmental effects'' instead of ``no more than minimal adverse 
effects on the aquatic environment.''
    Section 404(e) of the Clean Water Act recognizes that activities 
authorized by general permits, including NWPs, will result in adverse 
environmental impacts, but limits those adverse impacts so that they 
can only be no more than minimal. Regulated activities that occur in 
marine and estuarine waters often result in no more than minimal 
adverse environmental effects, as long as they comply with the NWP 
terms and conditions that are imposed on such activities. We have 
adopted terms and conditions for the NWPs to be sufficiently protective 
of the aquatic environment while allowing activities that result in 
only minimal adverse environmental effects to be conducted. The NWPs 
are already subject to multi-agency peer review process, through the 
rulemaking requirements of Executive Order 12866, Regulatory Planning 
and Review.
    Requiring public notices for PCNs would be contrary to the purpose 
of the general permit program established through section 404(e) of the 
Clean Water Act, for a streamlined authorization process for activities 
that result in no more than minimal individual and cumulative adverse 
environmental effects. In addition, it is unlikely that there would be 
any meaningful public comment submitted to Corps districts in response 
to public notices for the minor activities authorized by these NWPs 
that would warrant the reduction in permitting efficiency providing 
such a comment period would cause. Compensatory mitigation can only be 
required by the district engineer after he or she reviews the PCN and 
determines that compensatory mitigation is necessary to comply with the 
``no more than minimal adverse environmental effects'' requirement for 
NWPs (see 33 CFR 330.1(e)(3)). There is no federal statute or 
regulation that requires ``no net loss'' of aquatic resources. The ``no 
overall net loss'' goal for wetlands articulated in the 1990 U.S. EPA-
Army Memorandum of Agreement for mitigation for Clean Water Act section 
404 permits states that the section 404 permit program will contribute 
to that national goal. The 1990 Memorandum of Agreement only applies to 
standard individual permits.
    The NWP program provides valuable protection to the Nation's 
aquatic resources by establishing incentives to avoid and minimize 
losses of jurisdictional waters and wetlands in order to qualify for 
the streamlined NWP authorizations. A large majority of authorized 
fills in jurisdictional waters and wetlands authorized by general 
permits and individual permits are less than 1/10-acre (Corps-EPA 2015, 
Figure 5). The 2017 NWPs use the term ``no more than minimal adverse 
environmental effects'' to be consistent with the text of section 
404(e) of the Clean Water Act and 33 CFR 322.2(f)(1). When making no 
more than minimal adverse environmental effects determinations for 
proposed NWP activities, the district engineer considers the adverse 
effects to the aquatic environment and any other factor of the public 
interest (e.g., 33 CFR 330.1(d)). The use of the term ``no more than 
minimal adverse environmental effects'' does not expand the Corps' 
scope of analysis. The Corps' control and responsibility remains 
limited to the activities it has the authority to regulate, and the 
effects to the environment caused by those activities.
    One group of commenters requested a public hearing on the proposed 
NWPs because of their concerns about the permitting of oil and gas 
pipelines. Another organization requested a public hearing because of 
the proposal to reissue NWP 48. We denied the requests for a public 
hearing on the proposed 2017 NWPs because we determined that a public 
hearing is unlikely to provide information that was not already 
provided through the thousands of comments we received on the proposal 
to reissue NWP 12, and the many comments we received on the proposed 
NWP 48. See our responses to comments on NWP 12 and 48 below for more 
information.
    One commenter said that Corps districts should not be allowed to 
suspend NWPs to use regional general permits (RGPs) instead of the NWPs 
if the overall project crosses state lines or international boundaries. 
Regional general permits are an acceptable permitting mechanism to 
authorize activities requiring Department of the Army (DA) 
authorization that are part of an overall larger project that crosses 
state boundaries or international boundaries. The NWPs already provide 
an expedited review process for regulated activities that result in no 
more than minimal adverse environmental effects, although we recognize 
that it takes more time to issue NWP verifications that require 
compliance with other federal laws, such as section 7 of the Endangered 
Species Act and section 106 of the National Historic Preservation Act. 
For an NWP activity that requires Clean Water Act section 401 water 
quality certification and/or Coastal Zone Management Act (CZMA) 
consistency concurrence, the district engineer may issue a provisional 
NWP verification, but that activity is not authorized by NWP until the 
project proponent obtains the required water quality certification or 
waiver, and/or the required CZMA consistency concurrence or presumption 
of concurrence.
    A few commenters suggested that the Corps develop procedures to 
expedite the review of proposed NWP activities and that additional 
mitigation should not be required in states that have regulatory 
programs similar to the Corps regulatory program. One commenter said 
that there should be waivers in NWPs for activities reviewed and 
permitted by states. When an NWP activity that also requires 
authorization under state law requires compensatory mitigation, the 
Corps district is encouraged to work with its state counterparts to 
develop compensatory mitigation requirements that satisfy both federal 
and state permit requirements. Waivers for NWP authorization or NWP 
limits cannot be issued solely on the basis that activities may be 
regulated by both the Corps and state regulatory agencies. The 
requirements in Section 404(e) of the Clean Water Act for general 
permits, including NWPs, may be different from the requirements for 
state-issued general permits. For categories of activities authorized 
by NWPs, those NWPs satisfy the permitting requirements of section 404 
of the Clean Water Act and/or section 10 of the Rivers and Harbors Act 
of 1899.
    One commenter said that the expiration dates of NWP verification 
letters issued by Corps districts do not correspond to the expiration 
date of the NWPs themselves. Another commenter stated that individual 
permits, rather than NWPs, should be required for all wetland fills. 
One commenter requested an expedited review process for emergency 
projects. One commenter requested information on how cumulative impacts 
are assessed by the Corps.

[[Page 1866]]

    On January 28, 2013 (78 FR 5733), we issued a final rule amending 
33 CFR 330.6(a)(3)(ii) to allow district engineers to issue NWP 
verifications that expire on the same date the NWPs expire, unless the 
district engineer modifies, suspends, or revokes the NWP authorization. 
Not all wetland fills result in more than minimal adverse environmental 
effects, so authorization by NWP is appropriate when the wetland fill 
activity is authorized by an NWP and complies with all applicable terms 
and conditions, including any regional conditions imposed by the 
division engineer and any activity-specific conditions imposed by the 
district engineer. Those activity-specific conditions may cover wetland 
compensatory mitigation requirements. Emergency projects that are not 
covered by NWPs or regional general permits may be addressed under the 
Corps' emergency permitting procedures at 33 CFR 325.2(e)(4). Our 
general approach for evaluating cumulative effects in the NWP program 
is described above in this final rule.

National Environmental Policy Act Compliance

    We have prepared a decision document for each NWP. Each decision 
document contains an environmental assessment (EA) to fulfill the 
requirements of the National Environmental Policy Act (NEPA). The EA 
includes the public interest review described in 33 CFR part 320.4(b). 
The EA generally discusses the anticipated impacts the NWP will have on 
the human environment and the Corps' public interest review factors. If 
a proposed NWP authorizes discharges of dredged or fill material into 
waters of the United States, the decision document also includes an 
analysis conducted pursuant to the Clean Water Act section 404(b)(1), 
in particular 40 CFR part 230.7. These decision documents evaluate, 
from a national perspective, the environmental effects of each NWP.
    The final decision document for each NWP is available on the 
internet at: www.regulations.gov (docket ID number COE-2015-0017) as 
Supporting Documents for this final rule. Before the 2017 NWPs go into 
effect, division engineers will issue supplemental decision documents 
to evaluate environmental effects on a regional basis (e.g., a state or 
Corps district) and to determine whether regional conditions are 
necessary to ensure that the NWPs will result in no more than minimal 
individual and cumulative adverse environmental effects on a regional 
basis. The supplemental decision documents are prepared by Corps 
districts, but must be approved and issued by the appropriate division 
engineer, since the NWP regulations at 33 CFR 330.5(c) state that the 
division engineer has the authority to modify, suspend, or revoke NWP 
authorizations in a specific geographic area within his or her 
division. For some Corps districts, their geographic area of 
responsibility covers an entire state. For other Corps districts, their 
geographic area of responsibility may be based on watershed boundaries. 
For some states, there may be more than one Corps district responsible 
for implementing the Corps regulatory program, including the NWP 
program. In states with more than one Corps district, there is a lead 
Corps district responsible for preparing the supplemental decision 
documents for all of the NWPs. The supplemental decision documents will 
also discuss regional conditions imposed by division engineers to 
protect the aquatic environment and other public interest review 
factors and ensure that any adverse environmental effects resulting 
from NWP activities in that region will be no more than minimal, 
individually and cumulatively.
    For the NWPs, the assessment of cumulative effects occurs at three 
levels: National, regional, and the activity-specific verification 
stage. Each national NWP decision document includes a national-scale 
NEPA cumulative effects analysis. Each supplemental decision document 
has a cumulative effects analysis conducted for the geographic region 
covered by the supplemental decision document, which is usually a state 
or Corps district. When a district engineer issues an NWP verification 
letter in response to a PCN or a voluntary request for a NWP 
verification, the district engineer prepares a brief decision document. 
That decision document explains the district engineer's determination 
whether the proposed NWP activity, after considering permit conditions 
which might include mitigation requirements, will result in no more 
than minimal individual and cumulative adverse environmental effects.
    If the NWP is not suspended or revoked in a state or a Corps 
district, the supplemental decision document includes a certification 
that the use of the NWP in that district, with any applicable regional 
conditions, will result in no more than minimal cumulative adverse 
environmental effects. When a division engineer adds regional 
conditions to one or more NWPs, the district engineer announces those 
regional conditions in a public notice.
    After the NWPs are issued or reissued, district engineers will 
monitor the use of NWPs, and those evaluations may result the district 
engineer recommending that the division engineer modify, suspend, or 
revoke one or more NWPs in a particular geographic region or watershed. 
For such recommendations, the district engineer would present 
information indicating that the use of one or more NWPs in a particular 
geographic area may result in more than minimal individual or 
cumulative adverse environmental effects. In such cases, the division 
engineer will amend the applicable supplemental decision documents to 
account for the modification, suspension, or revocation of those NWPs, 
and issue a public notice announcing the new regional conditions or the 
suspension or revocation of the applicable NWP(s).
    A few commenters said that the Corps' cumulative effects analyses 
were properly conducted, and a few commenters expressed opinions that 
those analyses were inadequate. One commenter said that cumulative 
effects analyses should not be limited to the NWP verification stage, 
but should also be conducted at national and regional scales to improve 
resource protection. One commenter stated that in its draft decision 
documents, the Corps failed to assess the cumulative impacts of the 
NWPs and did not take into account the full scope of adverse impacts to 
the nation's waters. Another commenter said that the Corps' cumulative 
effects analysis did not properly consider past actions and reasonably 
foreseeable future actions.
    All of the national decision documents have a cumulative impact 
analysis conducted in accordance with the Council on Environmental 
Quality's NEPA regulations at 40 CFR 1508.7 (see section 4.3 of each 
national decision document). For those NWPs that authorize discharges 
of dredged or fill material into waters of the United States, each the 
national decision document includes a cumulative effects analysis 
conducted under 40 CFR 230.7(b)(3). Cumulative effects analyses are 
also conducted at regional scales, in the supplemental decision 
documents approved by division engineers. When issuing an NWP 
verification, the district engineer makes a determination confirming 
that the use of the NWP will result in no more than minimal cumulative 
adverse environmental effects. If the district engineer determines, 
after considering mitigation proposed by the applicant, that the use

[[Page 1867]]

of that NWP will result in more than minimal individual or cumulative 
adverse environmental effects, he or she will exercise discretionary 
authority and require an individual permit.
    The cumulative impact analyses in the national decision documents, 
especially the NEPA cumulative effects analyses, examine the wide 
variety of activities that affect the structure, dynamics, and 
functions of the nation's waters and wetlands. The ecological 
functionality or ecological condition of those waters and wetlands are 
directly and indirectly affected by many types of human activities, not 
just discharges of dredged or fill material regulated under section 404 
of the Clean Water Act or structures or work regulated under section 10 
of the Rivers and Harbors Act of 1899. The Corps' NEPA cumulative 
effects analyses considers past actions in the aggregate, consistent 
with the Council on Environmental Quality's 2005 guidance entitled 
``Guidance on the Consideration of Past Actions in Cumulative Effects 
Analyses.'' The aggregate effects of past actions includes the present 
effects of past actions that were authorized by earlier versions of the 
NWPs, as well as other DA permits. In the national decision documents, 
the Corps added more discussion of the contribution of reasonably 
foreseeable future actions to NEPA cumulative effects, based on general 
information on reasonably foreseeable future actions that can be 
discerned at a national scale for categories of activities associated 
with NWP activities. Many of the reasonably foreseeable future actions 
related to the operation of the facility, after the permitted 
activities were completed. The Corps does not have the authority to 
regulate the operation of facilities that may be been constructed under 
activities authorized by NWPs or other DA permits, unless those 
operation activities involve discharges of dredged or fill material 
into waters of the United States and/or structures or work in navigable 
waters of the United States.
    One commenter declared that NWP verifications do not need to 
include NEPA analyses because compliance with NEPA is accomplished 
through the national decision documents issued by Corps Headquarters. 
Another commenter expressed the opinion that the national decision 
documents, the supplemental decision documents signed by division 
engineers, and NWP verifications issued by district engineers do not 
comply with NEPA. A number of commenters said that making the draft 
decision documents available for public review during the comment 
period for the proposed NWPs does not comply with NEPA requirements. 
One commenter said that the comment period for the draft decision 
documents should be 90 days. A few commenters asserted that the draft 
decision documents prematurely made a ``finding of no significant 
impact.'' One commenter said the national decision documents support a 
``finding of no significant impact'' under NEPA for each of the NWPs. 
Several commenters stated that each NWP requires an environmental 
impact statement.
    When district engineers evaluate NWP PCNs, they are not required to 
conduct NEPA analyses because the Corps fulfills the requirements of 
NEPA through the environmental assessments in the combined decision 
documents prepared by Corps Headquarters when an NWP is issued, 
reissued, or modified. The NWP verification can be simply confirmation 
that a proposed NWP activity complies with the terms and conditions of 
applicable NWP(s), and will result in no more than minimal individual 
and cumulative adverse environmental effects. The administrative record 
for an NWP verification will include a brief document explaining the 
district engineer's determination regarding the NWP authorization for 
that activity, and whether the proposed activity will result in no more 
than minimal individual and cumulative adverse environmental effects. 
The requirements of NEPA are fulfilled by the national decision 
documents issued by Corps Headquarters. The supplemental decision 
documents signed by division engineers and the NWP verifications issued 
by district engineers are part of the tiered decision-making process to 
demonstrate compliance with the ``no more than minimal individual and 
cumulative adverse environmental effects'' requirements for general 
permits. This tiered process is consistent with the requirements under 
section 404(e) of the Clean Water Act and for NWPs issued under the 
authority of section 10 of the Rivers and Harbors Act of 1899, 33 CFR 
322.2(f).
    The Council on Environmental Quality's NEPA regulations require 
agencies to ``involve environmental agencies, applicants, and the 
public, to the extent practicable, in preparing assessments'' (40 CFR 
1501.4(b)) but do not require that environmental assessments be made 
available in draft form for public comment. However, the Corps' NWP 
regulations require that the draft decision documents prepared by Corps 
Headquarters are made available for public comment (see 33 CFR 
330.5(b)(3)). Thus we made them available for public review and 
comment. We believe that 60 days is a sufficient comment period for the 
public to provide meaningful comments on the draft decision documents.
    In its draft decision documents for these proposed NWPs, the Corps 
did not make a ``finding of no significant impact''; the draft decision 
documents had place-holders stating that those decisions could be made 
for the final NWPs. The Corps' ``finding of no significant impact'' in 
each national decision document for an issued or reissued NWP marks the 
completion of the NEPA process. When the Corps issues an EA with a 
finding of no significant impact, the NEPA process is concluded and an 
environmental impact statement is not necessary. Because the NWPs only 
authorize activities that have no more than minimal adverse 
environmental effects, individually and cumulatively, the issuance or 
reissuance of an NWP does not result in significant impacts to quality 
of the human environment and does not trigger the requirement to 
prepare an environmental impact statement.
    One commenter said that a purpose and need statement should be 
included in each national decision document. This commenter also stated 
that the Corps' alternatives analysis and its evaluation of direct, 
indirect, and cumulative impacts is inadequate. One commenter stated 
that the division engineer's supplemental decision documents and the 
imposition of regional conditions does not comply with NEPA and the 
Clean Water Act. Several commenters recommended that the final decision 
documents discuss impacts to climate change.
    The NWPs authorize categories of activities that generally satisfy 
specific purposes (e.g., residential development, maintenance, bank 
stabilization, aquatic habitat restoration). The national decision 
documents describe, in general, the purposes for which the NWP activity 
would be used, and the needs of citizens that would be fulfilled by the 
authorized activities. Therefore, a more specific purpose and need 
statement in the national decision documents is not necessary. Each of 
the national decision documents includes a NEPA alternatives analysis, 
as well as general evaluations of anticipated direct, indirect, and 
cumulative impacts. The NWPs are issued or reissued prior to site-
specific activities being proposed or authorized, so it is not possible 
to provide more than general, prospective impact analyses. The 
supplemental decision documents issued by division engineers provide 
regional analyses to support the use of NWPs in those regions, and with

[[Page 1868]]

regional conditions that are imposed by division engineers, help ensure 
compliance with section 404(e) of the Clean Water Act. As stated above, 
the Corps fulfills the requirements of NEPA when it issues the national 
decision document for the issuance, reissuance, or modification of an 
NWP. The national decision documents have been revised to discuss 
climate change.

Compliance With Section 404(e) of the Clean Water Act

    The NWPs are issued in accordance with Section 404(e) of the Clean 
Water Act and 33 CFR part 330. Section 404(e)(1) allows the Corps to 
issue nationwide permits for ``categories of activities that are 
similar in nature.'' We interpret the ``similar in nature'' requirement 
to be applied in a broad manner, as a general category, rather than as 
a requirement that NWP activities must be identical to each other. We 
believe that this approach is consistent with implementing this general 
permit program in a practical, efficient manner.
    Nationwide permits, as well as other general permits, are intended 
to reduce administrative burdens on the Corps and the regulated public 
while maintaining environmental protection, by efficiently authorizing 
activities that have no more than minimal adverse environmental 
effects, consistent with Congressional intent in the 1977 amendments to 
the Federal Water Pollution Control Act. Keeping the number of NWPs 
manageable is a key component for making the NWPs protective of the 
environment and streamlining the authorization process for those 
general categories of activities that have no more than minimal 
individual and cumulative adverse environmental effects.
    The various terms and conditions of these NWPs, including the NWP 
regulations at 33 CFR 330.1(d) and 33 CFR 330.4(e), allow district 
engineers to exercise discretionary authority to modify, suspend, or 
revoke NWP authorizations to ensure compliance with Section 404(e) of 
the Clean Water Act. District engineers also have the authority to 
exercise discretionary authority and require an individual permit for 
any proposed activity that will result in more than minimal individual 
and cumulative adverse environmental effects. For each NWP that may 
authorize discharges of dredged or fill material into waters of the 
United States, the national and supplemental decision documents include 
national and regional 404(b)(1) Guidelines analyses, respectively. The 
404(b)(1) Guidelines analyses are conducted in accordance with 40 CFR 
230.7.
    The 404(b)(1) Guidelines analyses in the national and supplemental 
decision documents also include cumulative effects analyses, in 
accordance with 40 CFR 230.7(b)(3). A 404(b)(1) Guidelines cumulative 
effects analysis is provided in addition to the NEPA cumulative effects 
analysis because the implementing regulations for NEPA and the 
404(b)(1) Guidelines define ``cumulative impacts'' or ``cumulative 
effects'' differently.
    Many commenters asserted that the proposed NWPs will authorize 
activities that will cause more than minimal adverse environmental 
effects. Several commenters stated that the proposed NWPs do not comply 
with the 404(b)(1) Guidelines. Several commenters said that the 
proposed NWPs authorize activities with only minimal adverse 
environmental effects. One commenter indicated that the proposed NWPs 
authorize categories of activities that are not similar in nature. 
Another commenter said eliminating the NWPs that authorize separate and 
distant crossings of waters of the United States by separate NWP 
authorization would violate the Clean Water Act. One commenter stated 
that activities authorized by NWPs have resulted in significant 
degradation of waters of the United States. One commenter suggested 
that NWP PCNs should include an alternatives analysis.
    The terms and conditions of the NWPs, including the PCN 
requirements that are in many of the NWPs, are designed to ensure that 
the NWPs authorize only those categories of activities that have no 
more than minimal individual and cumulative adverse environmental 
effects. For those NWPs that authorize discharges of dredged or fill 
material into waters of the United States, each national decision 
document includes a 404(b)(1) Guidelines analysis. As stated above, we 
interpret the ``categories of activities that are similar in nature'' 
requirement broadly to keep the NWP program manageable in terms of the 
number of NWPs. With the NWPs issued today, for linear projects (e.g., 
utility lines and roads) we are continuing our approach of authorizing 
separate and distant crossings of waters of the United States through 
separate NWP authorizations, consistent with 33 CFR 330.2(i). As 
demonstrated by our 404(b)(1) Guidelines analyses provided in the 
national decision documents, we have determined that the activities 
authorized by the NWPs do not result in significant degradation. 
Alternatives analyses are not required for specific activities 
authorized by NWPs (see 40 CFR 230.7(b)(1)). Paragraph (a) of general 
condition 23 requires that project proponents avoid and minimize 
adverse effects to waters of the United States to the maximum extent 
practicable on the project site, but an analysis of off-site 
alternatives is not required.

2015 Revisions to the Definition of ``Waters of the United States''

    In the June 1, 2016, proposed rule, we solicited comments from NWP 
users and other interested parties on how the revisions to the 
definition of ``waters of the United States'' published in the June 29, 
2015, edition of the Federal Register (80 FR 37054) might affect the 
applicability and efficiency of the proposed NWPs. We also requested 
comments on changes to the NWPs, general conditions, and definitions 
that would help ensure that activities that result in no more than 
minimal individual and cumulative adverse environmental effects can 
continue to be authorized by the NWPs. On October 9, 2015, the United 
States Court of Appeals for the Sixth Circuit issued a stay of the June 
29, 2015, final rule pending further order of that court.
    Many commenters recommended writing the final NWPs so that they are 
neutral with respect to any particular regulation defining ``waters of 
the United States'' pending the outcome of the litigation that is 
occurring for the June 29, 2015, final rule. These commenters suggested 
that the final NWPs should use general terms relating to jurisdiction 
that would be applied using whichever regulation is in effect at the 
time a PCN or voluntary request for NWP verification is being processed 
and evaluated by the district engineer. Many commenters stated that the 
Corps should not implement the 2015 final rule until the litigation is 
completed. Several commenters expressed support for implementing the 
2015 final rule. Several commenters said that the Corps should delay 
issuing the final NWPs until after the litigation on the 2015 final 
rule has concluded.
    We have changed the text of some NWPs, general conditions, and 
definitions so that they do not cite specific provisions of 33 CFR part 
328, unless those provisions were not addressed in the 2015 final rule. 
We continue to rely on general terms relating to jurisdiction, such as 
``adjacent'' and ``ordinary high water mark,'' which have been used in 
the Corps regulatory program and the NWP program for many years. When a 
Corps district receives a PCN or a voluntary request for NWP 
verification, the district

[[Page 1869]]

will process that PCN or request in accordance with the current 
regulations and guidance for identifying waters of the United States. 
If the stay issued by the Sixth Circuit is still in effect, the current 
regulations and guidance will be the definition of ``waters of the 
United States'' published in the November 13, 1986, issue of the 
Federal Register (51 FR 41206) plus the January 2003 clarifying 
guidance regarding the U.S. Supreme Court's decision in Solid Waste 
Agency of Northern Cook County v. United States Army Corps of 
Engineers, 531 U.S. 159 (2001) (see 68 FR 1995) and the December 2008 
guidance entitled ``Clean Water Act Jurisdiction Following the U.S. 
Supreme Court's Decision in Rapanos v. United States & Carabell v. 
United States.'' Our districts will not implement the 2015 final rule 
defining ``waters of the United States'' unless the stay is lifted and 
that rule goes back into effect. The 2012 NWPs expire on March 18, 
2017, and they cannot be extended. Section 404(e) of the Clean Water 
Act imposes a 5-year limit for general permits, including the NWPs. 
Therefore, we have to reissue the NWPs before the litigation on the 
2015 final rule is completed.
    Many commenters suggested that the Corps conduct additional 
rulemaking to modify the NWPs if the stay of the 2015 final rule is 
lifted. Many commenters recommended increasing the acreage limits and 
PCN thresholds for the NWPs in case the 2015 final rule goes back into 
effect. Several commenters said the Corps should retain the current 
acreage limits, PCN thresholds, and general conditions until the 
litigation concerning the 2015 final rule is concluded. Several 
commenters requested that the Corps withdraw the proposed NWP rule 
until the litigation on the definition of ``waters of the United 
States'' is resolved. Several commenters said that it was inappropriate 
for the Corps to seek comment on the effects of the 2015 final rule on 
the NWPs because the 2015 final rule was only in effect for several 
weeks before the stay was issued by the Sixth Circuit. They said that 
there was not sufficient time to collect data and examples of the 
effects of the 2015 final rule on the utility of the NWPs, and to 
provide meaningful comment to the Corps.
    If the Corps determines that the NWPs issued today need to be 
modified to address changes in the geographic scope of Clean Water Act 
jurisdiction or other regulation changes, the Corps will conduct 
rulemaking in accordance with the Administrative Procedure Act prior to 
making those changes. We are retaining the proposed acreage limits and 
PCN thresholds for these NWPs. It would not be prudent to withdraw the 
proposed NWPs pending the outcome of the litigation on the 2015 final 
rule because the 2012 NWPs expire on March 18, 2017, and cannot be 
extended. We appreciate the challenges with providing data on the 
effects of the 2015 final rule on the proposed NWPs, but we believe it 
was necessary to ask those questions because of concerns that were 
expressed by multiple stakeholders since the 2015 final rule was 
issued.
    Many commenters requested that the Corps clarify the definitions of 
``adjacent'' and ``waterbody'' regardless of whichever regulatory 
definition of ``waters of the United States'' is in effect. One 
commenter asked that the Corps define what constitutes a valid waste 
treatment system. One commenter stated that if the 2015 final rule goes 
back into effect, more activities will be regulated and thus may 
require NWP authorization, which will increase financial burdens on the 
regulated public. Another commenter said that under an increased number 
of waters and wetlands subject to Clean Water Act jurisdiction, the 
NWPs would no longer be consistent with Congressional intent for a 
streamlined permitting process for activities resulting in no more than 
minimal individual and cumulative adverse environmental effects. One 
commenter said that any substantial changes to the final NWPs that are 
made in response to comments must comply with the notice and comment 
requirements of the Administrative Procedure Act.
    We do not believe it would be appropriate to clarify the definition 
of ``adjacent'' in these NWPs. When evaluating a PCN or voluntary 
request for NWP verification, Corps districts will apply the definition 
of ``adjacent'' that is in effect at the time the PCN or NWP 
verification request is received. We have modified the definition of 
``waterbody'' to remove references to specific regulations. Wetlands 
adjacent to a waterbody will be identified through the regulations and 
guidance in effect when the PCN or NWP verification is being reviewed 
by the district engineer. Waste treatment systems will be identified on 
a case-by-case basis by district engineers to determine when the waste 
treatment exclusion applies under the Clean Water Act. Notwithstanding 
which regulations defining ``waters of the United States'' are in 
effect at a particular time, the NWPs continue to provide a streamlined 
authorization process for categories of regulated activities that 
result in no more than minimal adverse environmental effects. We 
believe that the changes made for the final NWPs are a logical 
outgrowth of the proposed rule and are reasoned responses to comments 
received on the June 1, 2016, proposed rule.

Acreage Limits and Pre-Construction Notification Thresholds

    In the June 1, 2016, proposed rule we requested comment on whether 
to retain the \1/2\-acre limit that has been imposed on a number of 
NWPs (i.e., NWPs 12, 14, 21, 29, 39, 42, 43, 44, 50, 51, and 52), or to 
impose different acreage limits on those NWPs. We sought comment on the 
acreage limits to help determine whether there are alternative acreage 
limits that would be more effective at ensuring that the NWPs continue 
to meet their intended purpose of providing a streamlined authorization 
process for activities that result in no more than minimal individual 
and cumulative adverse environmental effects. In the proposed rule we 
said that comments suggesting changes to the acreage limits should 
include relevant data and other information that explain why the 
acreage limits should be changed. Different acreage limits can be 
suggested for NWPs that authorize different categories of activities.
    The proportion of commenters stating that the acreage limits for 
the NWPs should be unchanged was roughly the same as the proportion of 
commenters recommending increases in acreage limits. Many of the 
commenters favoring increases in acreage limits did so because of their 
concerns regarding the effect of the 2015 final rule defining ``waters 
of the United States'' on the NWPs if the stay issued by the Sixth 
Circuit is lifted. Several commenters said the \1/2\-acre limit should 
be increased to one or two acres. A few commenters recommended 
decreasing the acreage limits. One commenter suggested lowering the \1/
2\-acre limit to 5,000 square feet. Some commenters said that acreage 
and linear foot limits should be imposed on all NWPs. One commenter 
recommended establishing acreage limits that are based on a sliding 
scale that is proportional to the project size in acres.
    We are retaining the current acreage limits for those NWPs that 
have acreage limits. Comments suggesting changes to the acreage limits 
of a specific NWP are summarized in the section of the preamble that 
discusses the comments received on that NWP. We believe the current 
acreage limits, along with the current PCN thresholds, provide 
effective environmental protection while allowing district engineers 
flexibility to take into account site-

[[Page 1870]]

specific characteristics of the affected aquatic resources. In 
addition, division engineers have the authority to modify NWPs on a 
regional basis to reduce acreage limits through regional conditions. In 
areas of the United States where higher acreage limits (e.g., one or 
two acres) would be appropriate for general permit authorizations, 
district engineers have the authority to issue regional general 
permits. A number of NWPs are self-limiting, in that the category of 
activities authorized by that NWP acts as a limit (e.g., NWP 10, which 
authorizes a single, non-commercial mooring buoy). For those self-
limiting NWPs, acreage and linear foot limits are not necessary to 
control the adverse environmental effects of those activities. Imposing 
acreage limits by using a sliding scale related to overall project size 
would not ensure compliance with the ``no more than minimal adverse 
environmental effects'' requirement for the NWPs because projects 
larger in size (and general environmental impact) would have higher 
acreage limits and thus larger impacts to jurisdictional waters and 
wetlands. That suggested approach would add complexity to the NWP 
program and involve challenges in determining what the project size is 
for a particular proposal.
    Two commenters stated that the limits of the NWPs should be based 
on the quality of the aquatic resources that would be impacted by the 
NWP activities. Another commenter said there should be no acreage 
limits on the NWPs. Several commenters said that the acreage limits 
should not include temporary impacts. Two commenters recommended 
increasing the acreage limit for NWPs that authorize activities 
associated with renewable energy generation and transmission projects. 
One commenter said the \1/2\-acre limit is arbitrary. Another commenter 
asserted that the NWP acreage limits are too high and reduce the number 
of activities subject to public review.
    Basing the limits of NWPs on the quality of aquatic resources that 
would be impacted by a proposed NWP activity is not practical because 
the rapid ecological assessment methods that would be needed to 
implement such an approach are not uniformly available across the 
country for all types of jurisdictional waters and wetlands. Acreage 
limits are necessary for some NWPs because the type of activity 
authorized by NWPs with acreage limits are not self-limiting due to the 
nature of the category of the activity authorized by the NWP. For 
example, NWP 29, which authorizes discharges of dredged of fill 
material into waters of the United States to construct residential 
developments, requires an acreage limit to satisfy the ``no more than 
minimal adverse environmental effects'' requirement because residential 
developments can vary substantially in size and in the amount of losses 
of jurisdictional waters and wetlands they can cause. Under the NWP 
definition of ``loss of waters of the United States'' temporary impacts 
are not applied to the acreage limit; only permanent adverse effects 
are applied. We are retaining the \1/2\-acre limit for renewable energy 
generation and transmission projects. The \1/2\-acre limit found in 
several NWPs was adopted in 2000 when many of those NWPs were issued 
for the first time. The current acreage limits are based, in part, on 
past experience in soliciting public comment on proposed activities 
that require DA authorization, and those acreage limits relate to 
regulated activities that generated little or no public comment.
    Section 404(e) of the Clean Water Act states that NWPs and other 
general permits may only authorize activities that ``will cause only 
minimal adverse environmental effects when performed separately, and 
will have only minimal cumulative adverse effect on the environment.'' 
33 U.S.C. 1433(e). Section 404(e) does not define the term ``minimal,'' 
so we consider common definitions of ``minimal,'' experience, and sound 
judgement when addressing compliance with section 404(e) through the 
establishment of acreage and other limits for the NWPs.
    For a program that is national in scope, such as the NWP program, 
defining ``minimal'' is extremely challenging because of the 
substantial variation in the structure, functions, and dynamics 
exhibited by the various types of aquatic resources found across the 
country subject to regulation under the Corps' permitting authorities. 
The value that society places on those aquatic resources also varies 
substantially across the country, and from person to person. In 
paragraph 2 of Section D, District Engineer's Decision, we have 
identified a number of factors for district engineers to consider when 
making their ``no more than minimal adverse environmental effects'' 
determinations for proposed NWP activities. All the factors listed 
above result in a degree of complexity that makes it infeasible to use 
a quantitative scientific approach to define an acreage limit that will 
be applied across the country and will ensure that NWP activities will 
have no more than minimal individual and cumulative adverse 
environmental effects. Since a quantitative scientific approach is not 
feasible, we have to rely on other approaches for establishing acreage 
and other limits and ensuring compliance with section 404(e) of the 
Clean Water Act.
    The \1/2\-acre limit found in many of these NWPs, as well as other 
quantitative limits in the NWPs, is in effect a policy decision that is 
made through the rulemaking process. The rulemaking process includes 
solicitation of public comment on what various interested parties think 
the acreage and other numeric limits should be. The Corps also uses its 
experience on soliciting public comment on specific activities, and the 
number and quality of comments it receives in response to a public 
notice for a proposed activity. For proposed activities that will 
result in small amounts of losses of jurisdictional waters and 
wetlands, those public notices rarely result in substantive comments 
that will affect the permit decision. In addition to the acreage and 
other numeric limits, the PCN process is a valuable tool for satisfying 
the ``no more than minimal adverse environmental effects'' requirement 
for the NWPs. The combination of acreage and other numeric limits, with 
the PCN requirements, provides district engineers with the opportunity 
and the responsibility to make site-specific decisions on whether the 
``no more than minimal adverse environmental effects'' requirement has 
been satisfied. In addition, division engineers have the authority to 
modify, suspend, or revoke one or more NWPs to reduce the national 
limits on a regional basis. For those activities that do not qualify 
for NWP authorization because they exceed the acreage or other limits, 
the project proponent must obtain DA authorization through other types 
of permits, such as individual permits or regional general permits.
    The regional conditioning process provides division engineers with 
the opportunity to lower acreage limits on a regional basis to take 
into account local variations in aquatic resource type, functions, and 
services. In addition, the PCN requirements allow district engineers 
evaluate proposed activities on a case-by-case basis and impose 
conditions to ensure that those activities cause no more than minimal 
adverse environmental effects. In response to a PCN, a district 
engineer can also exercise discretionary authority to require an 
individual permit if mitigation cannot be done to satisfy the ``no more 
than minimal adverse environmental effects'' requirement for NWPs.

[[Page 1871]]

    Several commenters expressed support for retaining the 300 linear 
foot limit for losses of stream bed that is in a number of NWPs. A few 
commenters suggested increasing the 300 linear foot limit, and one 
commenter said that limit should be 500 linear feet. Several other 
commenters recommended removing the 300 linear foot limit for stream 
losses and relying solely on the \1/2\-acre limit. Several commenters 
expressed support for limiting losses of intermittent and ephemeral 
stream bed to \1/2\-acre when district engineers waive the 300 linear 
foot limit for such losses. One commenter said that limits for stream 
bed impacts should quantified as linear feet instead of acres. A few 
commenters said the 300 linear foot limit should not apply to ephemeral 
streams. A few commenters suggested that the limits for stream impacts 
should be based on stream order and stream type.
    We have retained the 300 linear foot limit for losses of stream bed 
in those NWPs that have that limit. The 300 linear foot limit is used 
in conjunction with the \1/2\-acre limit to further restrict losses of 
stream bed, although district engineers have the authority to waive the 
300 linear foot limit in a case-by-case basis if they determine that 
the loss of intermittent or ephemeral stream bed (up to \1/2\-acre) 
would result in no more than minimal adverse environmental effects, 
individually and cumulatively. Under no circumstances may the loss of 
stream bed exceed \1/2\-acre under those NWPs that have both a \1/2\-
acre limit for losses of waters of the United States and a 300 linear 
foot limit for losses of stream bed.
    Because the physical, chemical, and biological processes in streams 
occur within the area occupied by the stream channel (with 
contributions of areas outside the stream channel, such as floodplains, 
riparian areas, and hyporheic zones), acres are appropriate for 
quantifying stream impacts. The use of acres to quantify losses of 
stream bed is discussed in more detail in the ``Definitions'' section 
preamble for the definition of ``loss of waters of the United States.'' 
Regulated activities that result in the loss of ephemeral streams that 
are determined to be waters of the United States are subject to the 
terms and conditions of the NWPs, including any applicable acreage or 
linear foot limits. Limiting stream impacts using a classification 
system based on stream order or stream type would requiring choosing a 
classification system that would be applied across the country for the 
NWP program. We believe that is not a practical option for complying 
with the ``no more than minimal adverse environmental effects'' 
requirement because of challenges in relating stream order to the 
degree of adverse environmental effects. When evaluating PCNs, district 
engineers can take into account the stream type and the location of the 
stream in the watershed when determining whether a proposed activity is 
authorized by NWP. They can also use appropriate stream assessment 
tools, if such tools are available.
    We also solicited comments on changing the PCN thresholds for those 
NWPs that require pre-construction notification. Many commenters said 
the current PCN thresholds should remain unchanged. Several commenters 
expressed support for the use of PCNs to provide flexibility and help 
ensure that NWPs authorize only those activities that result in no more 
than minimal individual and cumulative adverse environmental effects. 
Two commenters stated that PCNs are an important tool in helping to 
assess the cumulative impacts of NWP activities. Several commenters 
recommended that PCNs be required for all NWP activities so that the 
impacts of the NWP program can be fully evaluated. One commenter said 
that PCNs should be made available to the public.
    In this final rule, we have retained the PCN thresholds that were 
in the proposal rule. We acknowledge that PCNs are an important 
mechanism to ensure that the NWPs only authorize those activities that 
have no more than minimal individual and cumulative adverse 
environmental effects. Pre-construction notifications allow district 
engineers to evaluate the activity- and site-specific circumstances of 
proposed NWP activities to decide whether those activities are eligible 
for NWP authorization or require individual permits. In addition, PCNs 
provide district engineers with the opportunity to impose activity-
specific conditions on the NWPs, including mitigation requirements, to 
comply with the general permit requirements. Pre-construction 
notifications also facilitate compliance with section 7 of the 
Endangered Species Act and section 106 of the National Historic 
Preservation Act. In our automated information system, we record all 
NWP PCNs and voluntary requests for NWP verification, which assists in 
our monitoring of cumulative impacts that result from activities 
authorized by NWPs. For those NWPs that do not require PCNs or are not 
voluntarily reported to the Corps, we estimate their contribution to 
cumulative impacts.
    A number of categories of NWP activities do not require PCNs 
because they are unlikely to cause more than minimal cumulative adverse 
environmental effects. However, division engineers may modify these 
NWPs on a regional basis to require PCNs if they have concerns about 
the potential for more than minimal cumulative adverse environmental 
effects occurring as a result of those NWP activities. Requiring PCNs 
for all NWP activities is not practical and would be contrary to the 
streamlined authorization process envisioned by section 404(e) of the 
Clean Water Act. Specific activities authorized by NWPs do not require 
public notices and making those PCNs available to the public would add 
no value to the verification process. The public notice and comment 
process for the NWPs takes place at the appropriate phase: The 
rulemaking process for the issuance or reissuance of an NWP. If the 
Corps were to accept public comment on PCNs, it would turn the general 
permit process into an individual permit process.
    Several commenters recommended increasing the PCN thresholds for a 
number of NWPs. Some commenters suggested increasing the PCN threshold 
for all NWPs. A few commenters said that PCN thresholds should be 
raised only if the Sixth Circuit lifts its stay on the 2015 final rule 
defining ``waters of the United States.'' One commenter stated that 
PCNs should not be required for NWP activities that only result in 
temporary impacts. One commenter objected to the use of PCNs, stating 
that PCNs reduce the efficiency of the NWPs. One commenter said that 
reliance on the PCN process to determine whether a proposed NWP 
activity results in no more than minimal adverse environmental effects 
violates section 404(e) of the Clean Water Act.
    Recommendations for changing PCN thresholds for specific NWPs are 
discussed below, in the preamble discussion for each NWP. Most of the 
PCN thresholds apply to ``losses of waters of the United States'' which 
are based on permanent losses, not temporary impacts that are restored 
after completion of the authorized work. We believe the PCN process 
increases the efficiency of the NWP program, by allowing district 
engineers to determine whether activities will have no more than 
minimal adverse environmental effects. If the NWP PCN process were not 
available, the acreage and other limits of the NWPs would probably have 
to be decreased to ensure compliance with section 404(e) of the Clean 
Water Act. That would result in more activities requiring individual 
permits. Section 404(e) of the Clean Water Act is silent

[[Page 1872]]

on whether general permit can use a PCN process to comply with the 
statutory requirements for general permits. We believe that NWP PCNs 
are consistent with Congressional intent as it pertains to section 
404(e), because if PCNs were not an available tool we would have to 
decrease the limits of the NWPs and require individual permits for 
those activities that do not satisfy the lower limits that allow 
activities to proceed under NWP authorization without PCNs.

Waivers of Certain Nationwide Permit Limits

    In the June 1, 2016, proposal to reissue the NWPs, we announced our 
commitment to improve our tracking of waivers issued by district 
engineers, by adding a field to our automated information system to 
indicate whether a waiver was issued for an NWP verification. We also 
requested comments on five aspects of the use of waivers in the NWPs. 
This tool allows district engineers to waive certain NWP limits when 
they find that proposed activities, after agency coordination, will 
result in no more than minimal adverse environmental effects.
    We solicited comments on these five topics relating to waivers: (1) 
Changing the numeric limits that can be waived; (2) whether to retain 
the authority of district engineers to issue activity-specific waivers 
of certain NWP limits; (3) whether to impose a linear foot cap on 
waivers to the 500 linear foot limit for NWPs 13 and NWP 54 or the 20 
foot limit in NWP 36; (4) whether to impose a linear foot cap on losses 
of intermittent and ephemeral stream bed potentially eligible for 
waivers of the 300 linear foot limit for losses of stream bed; and (5) 
whether to require compensatory mitigation to offset all losses of 
stream bed authorized by waivers of the 300 linear foot limit for the 
loss of stream bed in NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. 
We also requested that commenters provide data and other information 
supporting their views on these questions.
    Many commenters expressed support for the current waivers and the 
processes for evaluating waiver requests. A few commenters said there 
should not be any changes to the existing waivable limits of the NWPs. 
Many commenters opposed the use of waivers. Several commenters 
expressed support for the Corps' commitment to modify its automated 
information system to explicitly track the use of waivers, beginning 
with the 2017 NWPs. Several commenters stated that the Corps should 
issue annual reports on the approval of waivers in NWP verifications. A 
few commenters said that agency coordination should be required for all 
PCNs requesting waivers of certain NWP limits. A few commenters stated 
that public notices should be issued for waiver requests.
    We are retaining the waiver provisions in the 2017 NWPs as they 
were proposed in the June 1, 2016, Federal Register notice. Waivers are 
an important tool to provide flexibility in the NWP program to 
authorize activities that are determined by district engineers to have 
no more than minimal adverse environmental effects after coordinating 
certain waiver requests with other government resources agencies. A 
waiver can only occur after the district engineer makes a written 
determination that a waiver is appropriate and that the proposed 
activity will result in no more than minimal individual and cumulative 
adverse environmental effects. If the district engineer does not 
respond to a complete PCN within 45 days of receipt of that PCN, the 
waiver is not authorized through a default authorization.
    In response to several commenters and in keeping with our overall 
commitment toward increasing transparency of regulatory decisions, we 
will develop quarterly reports that show overall summary statistics 
pertaining to the use of each NWP, aggregated per Corps District, and 
display it on our Web site. Some statistics that may be reported 
regarding the NWPs may include number of verifications provided per 
quarter, acres of waters of the United States permanently lost, as well 
as including summary information on the use of waivers during the 
previous quarter. All data provided will be aggregated by NWP and all 
information on waivers will pertain only to those NWPs that include a 
waiver provision. With the exception of NWP 36 (boat ramps), all PCNs 
requesting waivers of specific limits must be coordinated with the 
resource agencies in accordance with paragraph (d) of general condition 
32. We do not believe agency coordination is necessary for requested 
waivers under NWP 36 because the width of a boat ramp or the amount of 
fill used to construct a boat ramp will not be much larger than the 20 
foot width limit or the 50 cubic yard limit. Requiring public notices 
for waiver requests would be inconsistent with the general principles 
of general permits. We believe that agency coordination is sufficient 
to obtain additional information to assist in the district engineer's 
decision on activity-specific waiver requests.
    Many commenters said that there should be no caps on waivers, but 
several commenters suggested that there should be waiver caps on all 
NWPs. One commenter stated that the limits under which a waiver can 
occur should be increased if the Sixth Circuit's stay of the 2015 rule 
defining ``waters of the United States'' is lifted and that rule goes 
back into effect. One commenter stated that all NWPs should have 
waivable limits. Several commenters indicated that some of the acreage 
limits of the NWPs should be able to be waived by district engineers. A 
few of those commenters recommended allowing district engineers to 
waive the \1/2\-acre limit, and allow up to 5 acres of losses of waters 
of the United States under a waiver issued by the district engineer.
    We have not added any additional caps to waivers, because the PCN 
process, the agency coordination process, and the requirement for 
district engineers to make written determinations in response to waiver 
requests are sufficient to ensure that NWPs that include waiver 
provisions continue to comply with section 404(e) of the Clean Water 
Act. Many of the NWPs that have waiver provisions have a \1/2\-acre 
limit that cannot be waived. We do not agree that all limits for the 
NWPs should be waivable. Hard limits or caps, especially for the 
acreage limits (e.g., the \1/2\-acre limit in NWPs 12, 21, 29, 39, 40, 
42, 43, 44, 50, 51, and 52), are critical tools for ensuring the NWPs 
only authorize those activities that will result in no more than 
minimal adverse environmental effects, individually and cumulatively. 
In areas of the country where categories of activities that result in 
the loss of greater than \1/2\-acre of waters of the United States (or 
other limits for other NWPs) generally result in no more than minimal 
adverse environmental effects, district engineers can issue regional 
general permit to authorize those activities.
    Several commenters said that compensatory mitigation should not be 
required for all waivers, and should only be required on a case-by-case 
basis. A few commenters recommended requiring compensatory mitigation 
for waivers for losses of stream bed. One commenter supported the use 
of alternative approaches for providing compensatory mitigation for 
waivers.
    District engineers will continue to make case-by-case 
determinations on whether compensatory mitigation is necessary to 
offset losses of waters of the United States authorized by NWPs, 
including losses authorized by waivers of certain NWP limits. Those 
decisions will be made in accordance with 33 CFR 330.1(e)(3) and 
general condition 23, mitigation. Regional conditions added

[[Page 1873]]

by division engineers may also specify additional compensatory 
mitigation requirements for one or more NWPs. Compensatory mitigation 
for losses of stream bed is determined by district engineers on a case-
by-case basis. When district engineers require stream compensatory 
mitigation for NWP activities, that compensatory mitigation may consist 
of stream rehabilitation, enhancement, or preservation in accordance 
with paragraph (d) of general condition 23 and 33 CFR 332.3(e)(3). 
Mitigation may also be provided for stream impacts authorized by NWP 
through the restoration, enhancement, or protection/maintenance of 
riparian areas next to streams (see paragraph (e) of general condition 
23).

Compliance With the Endangered Species Act

    In the June 1, 2016, proposed rule (see 81 FR 35192-35195), the 
Corps explained that the NWP regulations at 33 CFR 330.4(f) and NWP 
general condition 18, endangered species, ensure that all activities 
authorized by NWPs comply with section 7 of the Endangered Species Act 
(ESA). Section 330.4(f)(2) and paragraph (c) of general condition 18 
require non-federal permittees to submit PCNs ``if any listed species 
or designated critical habitat might be affected or is in the vicinity 
of the activity, or if the activity is located in designated critical 
habitat.'' Federal permittees should follow their procedures for ESA 
section 7 compliance (see 33 CFR 330.4(f)(1)). The Corps evaluates the 
non-federal permittee's PCN and makes an effect determination for the 
proposed NWP activity for the purposes of ESA section 7. The Corps 
established the ``might affect'' threshold in 33 CFR 330.4(f)(2) and 
paragraph (c) of general condition 18 because it is more stringent than 
the ``may affect'' threshold for section 7 consultation in the U.S. 
Fish and Wildlife Service's (FWS) and National Marine Fisheries 
Service's (NMFS) ESA Section 7 consultation regulations at 50 CFR part 
402. The word ``might'' is defined as having ``less probability or 
possibility'' than the word ``may'' (Merriam-Webster's Collegiate 
Dictionary, 10th edition).
    Paragraph (b)(7) of general condition 32 requires the project 
proponent to identify, in the PCN, the listed species that might be 
affected by the proposed NWP activity or utilizes the designated 
critical habitat in which the NWP activity is proposed to occur. If the 
project proponent is required to submit a PCN because the proposed 
activity might affect listed species or critical habitat, the activity 
is not authorized by NWP until either the Corps district makes a ``no 
effect'' determination or makes a ``may affect'' determination and 
completes formal or informal ESA section 7 consultation.
    When evaluating a PCN, the Corps either will make a ``no effect'' 
determination or a ``may affect'' determination. If the Corps makes a 
``may affect'' determination, the district will notify the non-federal 
applicant and the activity is not authorized by NWP until ESA Section 7 
consultation has been completed. If the non-federal project proponent 
does not comply with 33 CFR 330.4(f)(2) and general condition 18, and 
does not submit the required PCN, then the activity is not authorized 
by NWP. In such situations, it is an unauthorized activity and the 
Corps district will determine an appropriate course of action to 
respond to the unauthorized activity.
    Federal agencies, including state agencies (e.g., certain state 
Departments of Transportation) to which the Federal Highway 
Administration has assigned its responsibilities pursuant to 23 U.S.C. 
327, are required to follow their own procedures for complying with 
Section 7 of the ESA (see 33 CFR 330.4(f)(1) and paragraph (b) of 
general condition 18). This includes circumstances when an NWP activity 
is part of a larger overall federal project or action. The federal 
agency's ESA section 7 compliance covers the NWP activity because it is 
undertaking the NWP activity and possibly other related activities that 
are part of a larger overall federal project or action.
    On October 15, 2012, the Chief Counsel for the Corps issued a 
letter to the FWS and NMFS (the Services) clarifying the Corps' legal 
position regarding compliance with the ESA for the February 13, 2012, 
reissuance of 48 NWPs and the issuance of two new NWPs. That letter 
explained that the issuance or reissuance of the NWPs, as governed by 
NWP general condition 18 (which applies to every NWP and which relates 
to endangered and threatened species), and 33 CFR part 330.4(f), 
results in ``no effect'' to listed species or critical habitat, and 
therefore the reissuance/issuance action itself does not require ESA 
section 7 consultation. Although the reissuance/issuance of the NWPs 
has no effect on listed species or their critical habitat and thus 
requires no ESA section 7 consultation, the terms and conditions of the 
NWPs, including general condition 18, and 33 CFR 330.4(f) ensure that 
ESA consultation will take place on an activity-specific basis wherever 
appropriate at the field level of the Corps, FWS, and NMFS. The 
principles discussed in the Corps' October 15, 2012, letter apply to 
the 2017 NWPs as well.
    Division engineers can add regional conditions to the NWPs to 
protect listed species and critical habitat, and to facilitate 
compliance with general condition 18. For the 2017 NWPs, Corps 
districts coordinated with regional or local offices of the FWS and 
NMFS to identify regional conditions for these NWPs. Regional 
conditions can add PCN requirements to one or more NWPs in areas 
inhabited by listed species or where designated critical habitat 
occurs. Regional conditions can also be used to establish time-of-year 
restrictions when no NWP activity can take place to ensure that 
individuals of listed species are not adversely affected by such 
activities. Corps districts will continue to consider through regional 
consultations, local initiatives, or other cooperative efforts 
additional information and measures to ensure protection of listed 
species and critical habitat, the requirements established by general 
condition 18 (which apply to all uses of all NWPs), and other 
provisions of the Corps regulations ensure full compliance with ESA 
section 7.
    In the Corps regulatory program's automated information system 
(ORM2), the Corps collects data on all individual permit applications, 
all NWP PCNs, all voluntary requests for NWP verifications where the 
NWP or general conditions do not require PCNs, and all verifications of 
activities authorized by regional general permits. For all written 
authorizations issued by the Corps, the collected data include 
authorized impacts and required compensatory mitigation, as well as 
information on all consultations conducted under section 7 of the ESA. 
Every year, the Corps districts evaluate over 30,000 NWP PCNs and 
requests for NWP verifications when PCNs are not required, and provides 
written verifications for those activities when district engineers 
determine those activities result in no more than minimal adverse 
environmental effects. During the evaluation process, district 
engineers assess potential impacts to listed species and critical 
habitat and conduct ESA section 7 consultations whenever they determine 
proposed NWP activities may affect listed species or designated 
critical habitat. District engineers will exercise discretionary 
authority and require individual permits when proposed NWP activities 
will result in more than minimal adverse environmental effects.
    Each year, the Corps conducts thousands of ESA section 7 
consultations with the FWS and NMFS

[[Page 1874]]

for activities authorized by NWPs. These section 7 consultations are 
tracked in ORM2. During the period of March 19, 2012, to September 30, 
2016, Corps districts conducted 1,402 formal consultations and 9,302 
informal consultations for NWP activities under ESA section 7. During 
that time period, the Corps also used regional programmatic 
consultations for 9,829 NWP verifications to comply with ESA section 7. 
Therefore, each year NWP activities are covered by an average of more 
than 4,500 formal, informal, and programmatic ESA section 7 
consultations with the FWS and/or NMFS.
    In response to the June 1, 2016, proposed rule many commenters 
expressed their support for the Corps' ``no effect'' determination for 
the issuance or reissuance of the NWPs for the purposes of ESA section 
7. Several commenters recommended that, for the 2017 NWPs, the Corps 
conduct national programmatic ESA section 7 consultations with the FWS 
and NMFS. A few commenters said ESA section 7 consultation is required 
for the issuance or reissuance of the NWPs. Several commenters stated 
their agreement with the Corps' determination that the issuance or 
reissuance of NWPs does not trigger a need to consult under ESA section 
7. One commenter said that the Corps should not conduct a voluntary 
national programmatic ESA section 7 consultation for the NWPs. One 
commenter asked why the Corps uses the term ``might affect'' instead of 
``may affect'' in its regulations at 33 CFR 330.4(f)(2) and in general 
condition 18.
    The Corps has not changed its position, as articulated in the June 
1, 2016, proposed rule, that the issuance or reissuance of the NWPs by 
Corps Headquarters has ``no effect'' on listed species or critical 
habitat. Therefore, ESA section 7 consultation is not required whenever 
Corps Headquarters issues or reissues NWPs. As discussed above and in 
the June 1, 2016, proposed rule, when district engineers evaluate PCNs 
or voluntary requests for NWP verification, they will determine whether 
the proposed activities ``may affect'' listed species or designated 
critical habitat, and will conduct ESA section 7 consultation for any 
proposed NWP activity that ``may affect'' listed species or designated 
critical habitat. Project proponents that want to use NWPs for 
activities that require DA authorization are required to submit PCNs 
whenever their proposed activities might affect listed species or 
designated critical habitat, or if listed species or designated 
critical habitat are in the vicinity of the proposed activity, so that 
district engineers can determine whether those proposed activities will 
have ``no effect'' on listed species or critical habitat, or whether 
they ``may affect'' listed species or critical habitat and thus require 
either informal or formal ESA section 7 consultation. The requirements 
of ESA section 7 may also be fulfilled through programmatic section 7 
consultations. As discussed above, the term ``might affect'' is a lower 
threshold than ``may affect.''
    One commenter asked whether activities authorized by the 2012 NWPs, 
for which ESA section 7 consultation was conducted, would be 
grandfathered under the 2017 NWPs. One commenter said that the Corps 
should allow state agencies, who can act as federal sponsors, to make 
their own effects determinations for listed species and critical 
habitat. A few commenters requested that activity-specific ESA section 
7 consultations be completed within 30 to 60 days.
    Activities authorized under the 2017 NWPs must comply with general 
condition 18. If ESA section 7 consultation was conducted for an 
activity authorized under one of the 2012 NWPs and the project 
proponent needs more time to complete the authorized activity, there is 
a possibility that the previous section 7 consultation could continue 
to apply to the 2017 NWP authorization. The project proponent should 
discuss that situation with the district engineer to determine whether 
the previous section 7 consultation applies or whether a new ESA 
section 7 consultation is needed. Unless a state agency is a department 
of transportation which the Federal Highway Administration has assigned 
its responsibilities pursuant to 23 U.S.C. 327, it remains the Corps' 
responsibility to make ESA section 7 effect determinations for 
activities authorized by the NWPs that will be conducted by non-federal 
permittees. The timeframes for formal ESA section 7 consultation are 
established by the statute, as well as the FWS's and NMFS's interagency 
consultation regulations at 50 CFR part 402. The Corps cannot change 
those timeframes. For informal ESA section 7 consultations, there are 
no timeframes in law or regulation. Under informal section 7 
consultation, the Corps must obtain written concurrence from the FWS 
and/or NMFS for the informal consultation process to be completed.

Compliance With the Essential Fish Habitat Provisions of the Magnuson-
Stevens Fishery Conservation and Management Act

    The NWP program's compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act is achieved through EFH consultations between Corps 
districts and NMFS regional offices. This approach continues the EFH 
Conservation Recommendations provided by NMFS Headquarters to Corps 
Headquarters in 1999 for the NWP program. Corps districts that have EFH 
designated within their geographic areas of responsibility coordinate 
with NMFS regional offices, to the extent necessary, to develop NWP 
regional conditions that conserve EFH and are consistent the NMFS 
regional EFH Conservation Recommendations. For NWP activities, Corps 
districts will conduct consultations in accordance with the EFH 
consultation regulations at 50 CFR 600.920. Division engineers may add 
regional conditions to the NWPs to address the requirements of the 
Magnuson-Stevens Act.

Compliance With Section 106 of the National Historic Preservation Act

    The Corps has determined that the NWP regulations at 33 CFR 
330.4(g) and NWP general condition 20, historic properties, ensure that 
all activities authorized by NWPs comply with section 106 of the NHPA. 
General condition 20 requires non-federal permittees to submit PCNs for 
any activity that might have the potential to cause effects to 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. The 
Corps then evaluates the PCN and makes an effect determination for the 
proposed NWP activity for the purposes of NHPA section 106. We 
established the ``might have the potential to cause effects'' threshold 
in paragraph (c) of general condition 20 to require PCNs for those 
activities so that the district engineer can evaluate the proposed NWP 
activity and determine whether it has no potential to cause effects to 
historic properties or whether it has potential to cause effects to 
historic properties and thus require section 106 consultation.
    If the project proponent is required to submit a PCN and the 
proposed activity might have the potential to cause effects to historic 
properties, the activity is not authorized by NWP until either the 
Corps district makes a ``no potential to cause effects'' determination 
or completes NHPA section 106 consultation.
    When evaluating a PCN, the Corps will either make a ``no potential 
to cause effects'' determination or a ``no historic

[[Page 1875]]

properties affected,'' ``no adverse effect,'' or ``adverse effect'' 
determination. If the Corps makes a ``no historic properties 
affected,'' ``no adverse effect,'' or ``adverse effect'' determination, 
it will notify the non-federal applicant and the activity is not 
authorized by NWP until NHPA Section 106 consultation has been 
completed. If the non-federal project proponent does not comply with 
general condition 20, and does not submit the required PCN, then the 
activity is not authorized by NWP. In such situations, it is an 
unauthorized activity and the Corps district will determine an 
appropriate course of action to respond to the unauthorized activity.
    The only activities that are immediately authorized by NWPs are 
``no potential to cause effect'' activities under section 106 of the 
NHPA, its implementing regulations at 36 CFR part 800, and the Corps' 
``Revised Interim Guidance for Implementing Appendix C of 33 CFR part 
325 with the Revised Advisory Council on Historic Preservation 
Regulations at 36 CFR part 800,'' dated April 25, 2005, and amended on 
January 31, 2007. Therefore, the issuance or reissuance of NWPs does 
not require NHPA section 106 consultation because no activities that 
might have the potential to cause effects to historic properties can be 
authorized by NWP without first completing activity-specific NHPA 
Section 106 consultations, as required by general condition 20. 
Programmatic agreements (see 36 CFR 800.14(b)) may also be used to 
satisfy the requirements of the NWPs in general condition 20 if a 
proposed NWP activity is covered by that programmatic agreement.
    NHPA section 106 requires a federal agency that has authority to 
license or permit any undertaking, to take into account the effect of 
the undertaking on any district, site, building, structure, or object 
that is included in or eligible for inclusion in the National Register, 
prior to issuing a license or permit. The head of any such Federal 
agency shall afford the Advisory Council on Historic Preservation a 
reasonable opportunity to comment on the undertaking. Thus, in 
assessing application of NHPA section 106 to NWPs issued or reissued by 
the Corps, the proper focus is on the nature and extent of the specific 
activities ``authorized'' by the NWPs and the timing of that 
authorization.
    The issuance or reissuance of the NWPs by the Chief of Engineers 
imposes express limitations on activities authorized by those NWPs. 
These limitations are imposed by the NWP terms and conditions, 
including the general conditions that apply to all NWPs regardless of 
whether pre-construction notification is required. With respect to 
historic properties, general condition 20 expressly prohibits any 
activity that ``may have the potential to cause effects to properties 
listed, or eligible for listing, in the National Register of Historic 
Places,'' until the requirements of section 106 of the NHPA have been 
satisfied. General condition 20 also states that if an activity ``might 
have the potential to cause effects'' to any historic properties, a 
non-federal applicant must submit a PCN and ``shall not begin the 
activity until notified by the district engineer either that the 
activity has no potential to cause effects to historic properties or 
that consultation under Section 106 of the NHPA has been completed.'' 
Permit applicants that are Federal agencies should follow their own 
requirements for complying with section 106 of the NHPA (see 33 CFR 
330.4(g)(1) and paragraph (b) of general condition 20), and if a PCN is 
required the district engineer will review the federal agency's NHPA 
section 106 compliance documentation and determine whether it is 
sufficient to address NHPA section 106 compliance for the NWP activity.
    Thus, because no NWP can or does authorize an activity that may 
have the potential to cause effects to historic properties, and because 
any activity that may have the potential to cause effects to historic 
properties must undergo an activity-specific consultation before the 
district engineer can verify that the activity is authorized by NWP, 
the issuance or reissuance of NWPs has ``no effect'' on historic 
properties. Accordingly, the action being ``authorized'' by the Corps 
(i.e., the issuance or re-issuance of the NWPs themselves) has no 
effect on historic properties.
    To help ensure protection of historic properties, general condition 
20 establishes a higher threshold than the threshold set forth in the 
Advisory Council's NHPA section 106 regulations for initiation of 
section 106 consultation. Specifically, while section 106 consultation 
must be initiated for any activity that ``has the potential to cause 
effects to'' historic properties, for non-federal permittees general 
condition 20 requires submission of a PCN to the Corps if ``the NWP 
activity might have the potential to cause effects to 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.'' General 
condition 20 also prohibits the proponent from conducting the NWP 
activity ``until notified by the district engineer either that the 
activity has no potential to cause effects to historic properties or 
that consultation under Section 106 of the NHPA has been completed.'' 
(See paragraph (c) of general condition 20.) The PCN must ``state which 
historic property might have the potential to be affected by the 
proposed activity or include a vicinity map indicating the location of 
the historic property.'' (See paragraph (b)(8) of general condition 
32.)
    During the process for developing regional conditions, Corps 
districts can coordinate or consult with State Historic Preservation 
Officers, Tribal Historic Preservation Officers, and tribes to identify 
regional conditions that can provide additional assurance of compliance 
with general condition 20 and 33 CFR 330.4(g)(2). Such regional 
conditions can add PCN requirements to one or more NWPs where historic 
properties occur. Corps districts will continue to consider through 
regional consultations, local initiatives, or other cooperative efforts 
and additional information and measures to ensure protection of 
historic properties, the requirements established by general condition 
20 (which apply to all uses of all NWPs), and other provisions of the 
Corps regulations and guidance ensure full compliance with NHPA section 
106.
    Based on the fact that NWP issuance or reissuance has no potential 
to cause effects on historic properties and that any activity that 
``has the potential to cause effects'' to historic properties will 
undergo activity-specific NHPA section 106 consultation, there is no 
requirement that the Corps undertake programmatic consultation for the 
NWP program. Regional programmatic agreements can be established by 
Corps districts and State Historic Preservation Officers and/or Tribal 
Historic Preservation Officers to comply with the requirements of 
section 106 of the NHPA.

Tribal Rights

    We received a number of comments from tribes regarding NWP general 
condition 17, which addresses tribal rights. One commenter said that 
general condition 17 does not adequately reflect the Corps' 
responsibility to uphold tribal treaty rights. Another commenter said 
that general condition 17 should be modified to ensure that all 
reserved tribal treaty rights are not impaired, not just reserved water 
rights and treaty fishing and hunting rights. The general condition 
should be expanded to address all tribal rights provided under federal 
law, either through statute or by common law. For example, general

[[Page 1876]]

condition 17 should cover rights regarding tribal lands. One commenter 
said that the NWPs should provide opportunities to consult on specific 
NWP activities that may impact tribal treaty resources or access to 
usual and accustomed hunting and fishing grounds. A few commenters 
stated that general condition 17 should require PCNs for all NWP 
activities to ensure they do not impair treaty rights. Another 
commenter stated that NWPs should not authorize activities that have 
more than a de minimis impact on treaty rights. One commenter cited the 
1998 Department of Defense (DoD) American Indian and Alaska Native 
Policy to demonstrate the need to change general condition 17 to be 
consistent with that policy and ensure that the Corps conducts 
meaningful consultations with tribes to ensure that NWP activities will 
not impair treaty rights.
    In response to these comments, and to address the full suite of 
tribal rights, we have made changes to general condition 17 to make 
this general condition consistent with the 1998 Department of Defense 
American Indian and Alaska Native Policy (1998 DoD Policy) and 
therefore cover all tribal rights, including protected tribal resources 
and tribal lands. We have revised general condition 17 as follows: ``No 
NWP activity may cause more than minimal adverse effects on tribal 
rights (including treaty rights), protected tribal resources, or tribal 
lands.'' The 1998 DoD Policy is available at: http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/techbio/DoDPolicy.pdf .
    To assist users of the NWPs in complying with general condition 17, 
we have added definitions for the following terms to Section F, 
Definitions: protected tribal resources, tribal rights, and tribal 
lands. These definitions were taken from the 1998 DoD Policy.
    We believe that the revised general condition will not change the 
number of activities that qualify for NWP authorization. Compared to 
prior versions of this general condition, the revised general condition 
more clearly identifies the tribal rights that must be considered by 
district engineers. The proposed general condition 17 applied to all 
tribal rights, and provided some examples of those tribal rights: ``. . 
. including, but not limited to, reserved water rights and treaty 
fishing and hunting rights.'' In other words, the proposed general 
condition 17 and the general condition that was in prior sets of NWPs 
was not limited to those examples of tribal rights. In general 
condition 17 for the 2017 NWPs, we have replaced those examples to more 
explicitly cover the suite of tribal rights, including treaty rights, 
protected tribal resources, and tribal lands. We also believe that 
replacing the word ``impair'' with ``no more than minimal adverse 
effects on'' will provide more clarity and consistency in application, 
because it is congruous with the threshold for general permit 
authorization, that is, an NWP activity can cause no more than minimal 
individual and cumulative adverse environmental effects.
    The threshold for consultation with tribes established by the 1998 
DoD Policy is actions that ``may have the potential to significantly 
affect'' protected tribal resources, tribal rights, and tribal lands. 
The 1998 DoD Policy uses the word ``significantly'' as a synonym for 
``material'' or ``important.'' For the modification of general 
condition 17, we have replaced the word ``impair'' with the phrase 
``cause more than minimal adverse effects'' to be consistent with the 
threshold for general permits established by section 404(e) of the 
Clean Water Act. In other words, under general condition 17 no ``NWP 
activity may cause more than minimal adverse effects on tribal rights 
(including treaty rights), protected tribal resources, or tribal 
lands.'' If the district engineer reviews an NWP PCN or a voluntary 
request for an NWP verification, and determines that the proposed NWP 
activity will cause more than minimal adverse effects to tribal rights 
(including treaty rights), protected tribal resources, or tribal lands, 
and the applicant's mitigation proposal cannot reduce the adverse 
effects to that they are no more than minimal, he or she will exercise 
discretionary authority and require an individual permit for the 
proposed activity.

Regional Conditioning of Nationwide Permits

    Under section 404(e) of the Clean Water Act, NWPs can only be 
issued for those activities that result in no more than minimal 
individual and cumulative adverse environmental effects. For activities 
that require authorization under Section 10 of the Rivers and Harbors 
Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f) 
have a similar requirement. An important mechanism for ensuring 
compliance with these requirements is regional conditions imposed by 
division engineers to address local environmental concerns. 
Coordination with federal and state agencies and Tribes, and the 
solicitation of public comments, assist division and district engineers 
in identifying and developing appropriate regional conditions for the 
NWPs. Effective regional conditions protect local aquatic ecosystems 
and other resources and helps ensure that the NWPs authorize only those 
activities that result in no more than minimal individual and 
cumulative adverse effects on the aquatic environment, and are not 
contrary to the public interest.
    There are two types of regional conditions: (1) Corps regional 
conditions and (2) water quality certification/Coastal Zone Management 
Act consistency determination regional conditions.
    Corps regional conditions may be added to NWPs by division 
engineers after a public notice and comment process and coordination 
with appropriate federal, state, and local agencies, as well as Tribes. 
The process for adding Corps regional conditions to the NWPs is 
described at 33 CFR 330.5(c).
    Corps regional conditions approved by division engineers cannot 
remove or reduce any of the terms and conditions of the NWPs, including 
general conditions. Corps regional conditions cannot decrease PCN 
requirements. In other words, Corps regional conditions can only be 
more restrictive than the NWP terms and conditions established by Corps 
Headquarters when it issues or reissues an NWP.
    Water quality certification (WQC) regional conditions are added to 
the NWPs as a result of water quality certifications issued by states, 
Tribes, or the U.S. EPA. Regional conditions are also added to the NWPs 
through the state Coastal Zone Management Act consistency review 
process. These WQC/CZMA regional conditions are reviewed by Corps 
division engineers to determine whether they are consistent with the 
Corps regulations for permit conditions at 33 CFR 325.4. Regulatory 
Guidance Letter 92-4, issued on September 14, 1992, provides additional 
guidance and information on WQC and CZMA conditions for the NWPs.
    For the 2017 NWPs, the division engineer will issue supplemental 
decision documents for each NWP in a specific region (e.g., a state or 
Corps district). Each supplemental decision document will evaluate the 
NWP on a regional basis (e.g., by Corps district geographic area of 
responsibility or by state) and discuss the need for NWP regional 
conditions for that NWP. Each supplemental decision document will also 
include a statement by the division engineer, which will certify that 
the NWP, with approved regional conditions, will authorize only those 
activities that will have no more than

[[Page 1877]]

minimal individual and cumulative adverse environmental effects.
    After the division engineer approves the Corps regional conditions, 
each Corps district will issue a final public notice for the NWPs. The 
final public notice will announce both the final Corps regional 
conditions and any final WQC/CZMA regional conditions. The final public 
notices will also announce the final status of water quality 
certifications and CZMA consistency determinations for the NWPs. Corps 
districts may adopt additional regional conditions after following 
public notice and comment procedures, if they identify a need to add or 
modify regional conditions, and the division engineer approves those 
regional conditions. Information on regional conditions and the 
suspension or revocation of one or more NWPs in a particular geographic 
area can be obtained from the appropriate district engineer.
    In cases where a Corps district has issued a regional general 
permit that authorizes similar activities as one or more NWPs, during 
the regional conditioning process the district will clarify the use of 
the regional general permit versus the NWP(s). For example, the 
division engineer may revoke the NWP(s) that authorize the same 
categories of activities as the regional general permit so that only 
the regional general permit is available for use to authorize those 
activities.
    Two commenters supported the use of regional conditions for the 
NWPs. Three commenters said that there is inconsistency in regional 
conditions and that those inconsistencies add delays and costs in 
obtaining NWP verifications. A few commenters said that Corps 
Headquarters should review and approve regional conditions, as well as 
other requirements districts impose on NWP activities. One commenter 
requested that the Corps compile all regional conditions into one 
document to assist users of the NWPs that do work in more than one 
Corps district. One commenter stated that districts should not propose 
regional conditions until after the final NWPs are issued because there 
are changes made to the NWPs in response to public comments.
    There is substantial variation in aquatic resources across the 
country, the ecological functions and services those aquatic resources 
provide, and the values local people place on those aquatic resources. 
Because of that regional variability, there will be differences in 
regional conditions among Corps divisions and districts. Regional 
conditions that may be appropriate in one Corps district might not be 
appropriate in another Corps district, even if that Corps district is 
located in the same Corps division. Regional conditions are critical 
for ensuring that the NWPs authorize only those activities that result 
in no more than minimal individual and cumulative adverse environmental 
effects. Corps divisions and districts have the best understanding of 
aquatic resources in their geographic areas of responsibility, so Corps 
Headquarters review and approval of regional conditions is not 
necessary for the regional conditioning process. After the regional 
conditions are approved by the division engineer, the Corps district 
should post those regional conditions on its Web site.
    There are not sufficient resources available for Corps Headquarters 
to compile and maintain a single document with all the NWP regional 
conditions, including Corps regional conditions and WQC/CZMA regional 
conditions, and revising that document whenever regional conditions are 
changed. Proposing regional conditions at nearly the same time as the 
proposed NWPs are published in the Federal Register for public comment 
provides efficiency and allows time for discussions among interested 
parties to develop regional conditions that will protect local 
resources. There is not sufficient time between the date the final NWPs 
are issued and their effective date for districts to seek comment on 
proposed regional conditions, submit their supplemental decision 
documents to the division engineer, and get the regional conditions 
approved by the division engineer before the 2017 NWPs go into effect.

Section 401 of the Clean Water Act

    One commenter said that reissuance of the NWPs in a timely manner 
is critical for state water quality certification programs. Regardless 
of when the final NWPs are issued, states will have 60 days to make 
their water quality certification decisions for the 2017 NWPs. If there 
are less than 60 days between the date the final NWPs are issued and 
March 19, 2017 (i.e., the effective date of these NWPs), if a project 
proponent wants to use an NWP that requires water quality certification 
before the end of the 60-day period, he or she must obtain an 
individual water quality certification or waiver from the state if that 
state has not yet made its water quality certification decision for the 
NWP. General condition 25, water quality, requires each project 
proponent to obtain an individual water quality certification or waiver 
for discharges authorized by the NWP if the state or authorized tribe 
has not previously certified compliance of the NWP with CWA section 401 
(see 33 CFR 330.4(c)).

Section 307 of the Coastal Zone Management Act (CZMA)

    One commenter inquired about the CZMA consistency determination 
process for lands held in trust by the United States for tribes, and 
whether the state has a role in making a consistency determination for 
those lands. One commenter asked if a tribe has adopted coastal zone 
management regulations under the tribal government's inherent 
authority, would the Corps seek a consistency concurrence from that 
tribe? Or would the Corps defer to the tribal permitting process to 
protect coastal resources?
    For lands held in trust by the federal government for a tribe, NWP 
activities occurring on those lands that directly affect the coastal 
zone must be consistent, to the maximum extent practicable, with the 
approved state coastal zone management program (see 33 CFR 320.4(h)). 
Under the Coastal Zone Management Act, only states have the authority 
to develop coastal zone management programs and make determinations 
regarding consistency with those state coastal zone management 
programs. If a tribe has developed its own coastal management 
regulations, the Corps will not seek consistency concurrence from that 
tribe because the Coastal Zone Management Act only gives states the 
authority to develop coastal zone management programs and make 
consistency determinations. Tribal permit requirements are an 
alternative means of protecting coastal resources on tribal lands.

Nationwide Permit Verifications

    Certain NWPs require the permittee to submit a PCN, and thus 
request confirmation from the district engineer prior to commencing the 
proposed NWP activity, to ensure that the NWP activity complies with 
the terms and conditions of the NWP. The requirement to submit a PCN is 
identified in the NWP text, as well as certain general conditions. 
General condition 18 requires non-federal permittees to submit PCNs for 
any proposed activity that might affect ESA-listed species or 
designated critical habitat, if listed species or designated critical 
habitat are in the vicinity of the proposed activity, or if the 
proposed activity is located in critical habitat. General condition 20 
requires non-federal permittees to submit PCNs for any proposed 
activity that may have the potential to cause effects to any historic

[[Page 1878]]

properties listed in, determined to be eligible for listing in, or 
potentially eligible for listing in, the National Register of Historic 
Places.
    In the PCN, the project proponent must specify which NWP or NWPs he 
or she wants to use to provide the required Department of Army 
authorization under Section 404 of the Clean Water Act and/or Section 
10 of the Rivers and Harbors Act of 1899. For voluntary NWP 
verification requests (where a PCN is not required), the request should 
also identify the NWP(s) the project proponent wants to use. The 
district engineer should verify the activity under those NWP(s), as 
long as the proposed activity complies with all applicable terms and 
conditions, including any applicable regional conditions imposed by the 
division engineer. All NWPs have the same general requirements: that 
the authorized activities can only cause no more than minimal 
individual and cumulative adverse environmental effects. Therefore, if 
the proposed activity complies with the terms and all applicable 
conditions of the NWP the applicant wants to use, then the district 
engineer should issue the NWP verification unless he or she exercises 
discretionary authority and requires an individual permit. If the 
proposed activity does not meet the terms and conditions of the NWP 
identified by the applicant in his or her PCN, and that activity meets 
the terms and conditions of another NWP identified by the district 
engineer, the district engineer will process the PCN under the NWP 
identified by the district engineer. If the district engineer exercises 
discretionary authority, he or she should explain to the applicant why 
the proposed activity is not authorized by NWP.
    Pre-construction notification requirements may be added to NWPs by 
division engineers through regional conditions to require PCNs for 
additional activities. For an activity where a PCN is not required, a 
project proponent may submit a PCN voluntarily, if he or she wants 
written confirmation that the activity is authorized by NWP. Some 
project proponents submit permit applications without specifying the 
type of authorization they are seeking. In such cases, district 
engineer will review those applications and determine if the proposed 
activity qualifies for NWP authorization or another form of DA 
authorization, such as a regional general permit (see 33 CFR 330.1(f)).
    In response to a PCN or a voluntary NWP verification request, the 
district engineer reviews the information submitted by the prospective 
permittee. If the district engineer determines that the activity 
complies with the terms and conditions of the NWP, he or she will 
notify the permittee. Activity-specific conditions, such as 
compensatory mitigation requirements, may be added to an NWP 
authorization to ensure that the NWP activity results in only minimal 
individual and cumulative adverse environmental effects. The activity-
specific conditions are incorporated into the NWP verification, along 
with the NWP text and the NWP general conditions. In general, NWP 
verification letters will expire on the date the NWP expires (see 33 
CFR 330.6(a)(3)(ii)), although district engineers have the authority to 
issue NWP verification letters that will expire before the NWP expires, 
if it is in the public interest to do so.
    If the district engineer reviews the PCN or voluntary NWP 
verification request and determines that the proposed activity does not 
comply with the terms and conditions of an NWP, he or she will notify 
the project proponent and provide instructions for applying for 
authorization under a regional general permit or an individual permit. 
District engineers will respond to NWP verification requests, submitted 
voluntarily or as required through PCNs, within 45 days of receiving a 
complete PCN. Except for NWPs 21, 49, and 50, and for proposed NWP 
activities that require Endangered Species Act section 7 consultation 
and/or National Historic Preservation Act section 106 consultation, if 
the project proponent has not received a reply from the Corps within 45 
days, he or she may assume that the project is authorized, consistent 
with the information provided in the PCN. For NWPs 21, 49, and 50, and 
for proposed NWP activities that require ESA Section 7 consultation 
and/or NHPA Section 106 consultation, the project proponent may not 
begin work before receiving a written NWP verification. If the project 
proponent requested a waiver of a limit in an NWP, the waiver is not 
granted unless the district engineer makes a written determination that 
the proposed activity will result in no more than minimal individual 
and cumulative adverse environmental effects, and issues an NWP 
verification.

Climate Change

    Climate change represents one of the greatest challenges our 
country faces with profound and wide-ranging implications for the 
health and welfare of Americans, economic growth, the environment, and 
international security. Evidence of the warming of climate system is 
unequivocal and the emission of greenhouse gases from human activities 
is the primary driver of these changes (IPCC 2014). Already, the United 
States is experiencing the impacts of climate change and these impacts 
will continue to intensify as warming intensifies. It will have far-
reaching impacts on natural ecosystems and human communities. These 
effects include sea level rise, ocean warming, increases in 
precipitation in some areas and decreases in precipitation in other 
areas, decreases in sea ice, more extreme weather and climate events 
including more floods and droughts, increasing land surface 
temperatures, increasing ocean temperatures, and changes in plant and 
animal communities (IPCC 2014). Climate change also affects human 
health in some geographic area by increasing exposure to ground-level 
ozone and/or particulate matter air pollution (Luber et al. 2014). 
Climate change also increases the frequency of extreme heat events that 
threaten public health and increases risk of exposure to vector-borne 
diseases (Luber et al. 2014). Climate impacts affect the health, 
economic well-being, and welfare of Americans across the country, and 
especially children, the elderly, and others who are particularly 
vulnerable to specific impacts. Climate change can affect ecosystems 
and species through a number of mechanisms, such as direct effects on 
species, populations, and ecosystems; compounding the effects of other 
stressors; and the direct and indirect effects of climate change 
mitigation or adaptation actions (Staudt et al. 2013). Other stressors 
include land use and land cover changes, natural resource extraction 
(including water withdrawals), pollution, species introductions, and 
removals of species (Staudt et al. 2013, Bodkin 2012, MEA 2005d) and 
changes in nutrient cycling (Julius et al. 2013).
    Mitigation and adaptation can reduce the risk of impacts caused 
climate change (IPCC 2014). Mitigation actions reduce emissions of 
greenhouse gases and help avert the most damaging impacts of climate 
change. Activities authorized by NWPs, such as the construction of 
land-based renewable energy generation facilities authorized by NWP 51 
and the construction and maintenance of utility lines authorized by NWP 
12 to transport and transmit natural gas and electricity will support 
activities that help mitigate the impacts of climate change by 
supporting reductions in greenhouse gas emissions.
    Adaptation can reduce risks associated with climate change and help 
protect communities and ecosystems. Adaptation occurs at various 
levels, including individuals, local

[[Page 1879]]

governments, state governments, and the federal government (NRC 2010). 
Adaptation involves decision-making to deal with climate change to 
avoid or minimize disruptions to American society, its economy, and the 
environment (NRC 2010). Examples of adaptation to respond to climate 
change include improving water consumption, implementing sustainable 
forestry and agricultural practices, and restoring and protecting 
ecosystems that provide carbon storage and other ecosystem services 
including by serving as a natural buffer against extreme weather 
impacts (IPCC 2014). Adaptation to sea level rise and lake level 
changes can involve retrofitting and protecting public infrastructure 
such as stormwater management facilities, wastewater systems, roads, 
bridges, and ports. The improvement of stormwater management facilities 
and other infrastructure can be a response to changes in precipitation 
patterns. Impacts to water supplies and the distribution of water can 
result in the need for adaptation measures such as repairing and 
improving utility lines such as water supply lines. The production and 
distribution of energy also involves climate change adaptation 
measures, including switching to renewable energy generation facilities 
such as solar, wind, and water energy, and improving the utility lines 
that transmit the energy generated by those facilities. Adaptation for 
coastal communities and residents will involve approaches to respond to 
erosion and flooding, as well as sea level rise. Adaptation requires 
regional approaches, because there is increasing scientific uncertainty 
regarding climate risks and vulnerabilities as the geographic scale of 
scope of impact analysis increases, as well as the various stressors 
that interact with climate change to affect communities and ecosystems 
(NRC 2010).
    The adaptation actions described above comprise only a partial list 
taken from a report on climate change adaptation (NRC 2010). Those 
actions were selected from the report because some of those actions may 
be authorized by one or more NWP(s), if those actions involve 
discharges of dredged or fill material into waters of the United States 
and/or structures or work in navigable waters of the United States. The 
NWPs are, and will be, and important tool for climate change 
adaptation, to fulfill the needs of society and communities, and to 
avoid and minimize adverse effects to jurisdictional waters and 
wetlands that help provide resilience to changing environmental 
conditions.
Response to Comments on Specific Nationwide Permits
    NWP 1. Aids to Navigation. We did not propose any changes to this 
NWP and did not receive any comments on this NWP. This NWP is reissued 
without change.
    NWP 2. Structures in Artificial Canals. We did not propose any 
changes to this NWP and did not receive any comments on this NWP. This 
NWP is reissued without change.
    NWP 3. Maintenance. We proposed to modify this NWP to state that it 
also authorizes regulated activities associated with the removal of 
previously authorized structures or fills. We also proposed to modify 
paragraph (c) of this NWP to clarify that the use of temporary mats in 
jurisdictional waters and wetlands is also authorized by this NWP, if 
those mats are used to minimize impacts during regulated maintenance 
activities.
    Many commenters supported all proposed modifications of NWP 3. 
Several commenters objected to the reissuance of this NWP, and some 
stated that it does not authorize a category of activities that is 
similar in nature. Two commenters opposed the reissuance of NWP 3, 
stating that it allows for piecemealing of maintenance activities and 
does not require evaluation of practicable alternatives. A few 
commenters said that maintenance activities should require individual 
permits.
    This NWP only authorizes maintenance activities, a general category 
of activities that is similar in nature. General condition 15 requires 
each NWP activity to be a single and complete project, and states that 
the same NWP cannot be used more than once for the same single and 
complete project. Other than on-site avoidance and minimization 
measures, NWPs do not require the evaluation of practicable 
alternatives (see paragraph (a) of general condition 23, mitigation, 
and 40 CFR 230.7(b)(1)). Maintenance activities involving discharges of 
dredged or fill material into waters of the United States and/or 
structures or work in navigable waters of the United States usually 
have no more than minimal adverse environmental effects, individually 
and cumulatively, so authorization by NWP is appropriate. District 
engineers have the authority to exercise discretionary authority and 
require individual permits for any maintenance activities they 
determine will result in more than minimal adverse environmental 
effects.
    Two commenters requested clarification regarding the use of the 
phrase ``previously authorized'' under paragraph (a), and whether it is 
necessary to supply the district engineer with documentation of the 
previous authorization. One commenter questioned whether a 
grandfathering provision is required for any currently serviceable 
structure or fill authorized by 33 CFR 330.3. Several commenters 
objected to the proposal to modify paragraph (a) of this NWP to 
authorize the removal of previously authorized structures or fills, and 
several commenters expressed their support for that proposed 
modification. Several commenters requested further clarification of the 
meaning of ``minimum necessary'' in paragraph (a), while one commenter 
said that there is no need to clarify this term. Two commenters asked 
for an explanation of the circumstances under which an activity would 
be considered a maintenance activity authorized by this NWP.
    The term ``previously authorized'' means the structure or fill was 
authorized by an individual permit or a general permit, or the 
structure or fill was authorized under the provisions of 33 CFR 330.3. 
To qualify for NWP 3 authorization, it is not necessary for the project 
proponent to produce a copy of the prior authorization. In many cases 
it might not be possible to produce a copy of a written authorization 
because the discharge, structure, or work may have been authorized by a 
general permit that does not require reporting, or it was authorized by 
regulation without a reporting requirement. Once a structure or fill is 
authorized, it remains authorized unless the district engineer suspends 
or revokes the authorization (see 33 CFR 325.6). The district engineer 
has the discretion to determine what constitutes the minimum necessary 
for the purposes of this NWP. In general terms, in the context of this 
NWP maintenance consists of repairing, rehabilitating, or replacing 
previously authorized structures or fills.
    One commenter suggested adding a 200-foot limit to paragraph (a) of 
this NWP. Three commenters suggested adding ``stabilization'' after the 
phrase ``repair, rehabilitation, or replacement'' to clarify that 
stabilization activities are authorized by paragraph (a) of this NWP. 
One commenter recommended authorizing wetland dike maintenance under 
paragraph (a). One commenter said that there should be a limit on the 
size of structures or fills that can be removed under paragraph (a). 
Two commenters requested clarification regarding whether NWP 3 requires 
the removal of structures. Two commenters stated that in site-specific 
cases it may be environmentally preferable to

[[Page 1880]]

abandon a structure or pipeline and keep it in place. A few commenters 
stated that maintenance activities often go beyond the intent of this 
NWP and, occasionally in emergency situations, are more extensive than 
necessary to respond to the emergency. They said those activities 
should require PCNs after the emergency response is completed if 
additional work is required.
    Since this NWP authorizes maintenance activities and only allows 
minor deviations, we do not believe it would be appropriate to impose a 
quantitative limit on this NWP other than the 200-foot limit in 
paragraph (b). Stabilization activities can be authorized by NWP 13 or 
other NWPs. Wetland dikes that were previously authorized and are 
currently serviceable can be maintained under the authorization 
provided by this NWP. The intent of the proposed modification of this 
NWP with respect to authorizing the removal of structures or fills is 
to provide Department of the Army authorization when the landowner or 
other appropriate entity wants to remove a structure or fill from 
jurisdictional waters and wetlands, in case the prior authorization 
does not cover the removal of the structure or fill. This NWP does not 
require the removal of structures or fills. If it would be 
environmentally preferable to keep the structure or fill in place, then 
the structure or fill can remain in place unless the district engineer 
takes action under his or her authority to require the responsible 
party to remove the structure or fill. For example, under paragraph (c) 
of general condition 1, navigation, the district engineer can require a 
permittee to remove structures or works from navigable waters of the 
United States. If a district engineer determines that an activity, 
including an activity conducted to respond to an emergency, did not 
comply with the terms and conditions of NWP 3, and an excessive amount 
of work was done, he or she can take action to address the alleged non-
compliance. One potential approach might be to require an individual 
permit for that activity.
    For paragraph (b) of NWP 3, one commenter recommended removing the 
200-foot limit. Two commenters suggested increasing that limit to 300 
feet. One commenter said that any new riprap should be limited to being 
placed in the original project footprint. One commenter asked whether 
new or additional riprap to protect a structure or fill could be 
authorized by this NWP. Two commenters said the use of riprap should be 
discouraged, and other means of controlling erosion should be used. A 
number of commenters said that the use of riprap in paragraph (b) 
should not require a PCN. One commenter said that in some cases, it is 
not possible to restore the waterway in the vicinity of the existing 
structure to the approximate dimensions that existed when the structure 
was built, because of changes to the stream channel that naturally 
occurred over time since the structure was originally constructed. One 
commenter stated support for the language requiring restoration of the 
waterway to those approximate dimensions.
    We are retaining the 200-foot limit in paragraph (b) because we 
believe it is an appropriate limit, along with the PCN requirement, for 
ensuring that authorized activities result in no more than minimal 
adverse environmental effects. We have removed the last two sentences 
of this paragraph. The use of riprap or other erosion control measures 
such as bioengineering to protect the structure or fill from erosion 
may be authorized by other NWPs, such as NWP 13. The use of the word 
``approximate'' in that sentence in paragraph (b) allows for the 
restoration of the waterway even though changes to the watershed and 
other alterations may have caused stream dimensions to change over 
time. Because all activities authorized by paragraph (b) require PCNs, 
district engineers will have the opportunity to consider the changes 
that have occurred to the stream over time, and determine whether the 
proposed activity is authorized by NWP 3 despite those changes.
    Several commenters supported the addition of timber mats to the 
temporary activities authorized by this NWP. One commenter said that 
the use of timber mats in waters of the United States always requires 
Department of the Army authorization. One commenter requested 
clarification of the circumstances under which the use of timber mats 
in waters of the United States is a regulated activity. One commenter 
questioned whether the use of wetland mats requires a PCN. One 
commenter recommended limiting the use of temporary mats so that 
impacts do not exceed 300 linear feet of stream bed and/or 1/2-acre of 
waters of the United States. One commenter recommended adding the word 
``promptly'' prior to ``removed'' so that the fourth sentence of 
paragraph (c) would read: ``After conducting the maintenance activity, 
temporary fills must be promptly removed in their entirety and the 
affected areas returned to preconstruction elevations.''
    We have retained the use of timber mats in paragraph (c) of this 
NWP. District engineers will determine on a case-by-case basis whether 
using timber mats to conduct NWP activities requires Department of the 
Army authorization. For this NWP, only activities authorized by 
paragraph (b) require PCNs, unless an NWP general condition triggers a 
PCN requirement (e.g., paragraph (c) of general condition 18, 
endangered species or paragraph (c) of general condition 20, historic 
properties) or a regional condition. Since temporary mats authorized by 
paragraph (c) are temporary features, it is not necessary to impose 
quantitative limits on their use. We do not agree that the ``promptly'' 
should be added to the fourth sentence of paragraph (c) because there 
will be circumstances where temporary fills need to remain in place for 
a longer time period. An example would be to allow the affected areas 
to stabilize before removing temporary fills.
    A few commenters said that PCNs should be required for all 
activities authorized by this NWP. One commenter said that proposed 
removals of previously authorized structures or fills should require 
PCNs. Some commenters said that tribes should be notified of proposed 
NWP 3 activities because of potential impacts to tribal trust 
resources. Two commenters stated that PCNs should be required for any 
proposed activity under paragraph (a) that would result in more than a 
minor deviation from the structure's configuration or the filled area.
    Because this NWP only authorizes maintenance activities, we do not 
believe that PCNs should be required for all activities. Division 
engineers have discretion to impose regional conditions on this NWP to 
require PCNs for some or all activities, including removal activities, 
if they believe additional PCNs are necessary to ensure that activities 
authorized in a region result in no more than minimal adverse 
environmental effects. For the 2017 NWPs, Corps districts have been 
consulting with tribes to identify regional conditions that protect 
tribal trust resources. Corps districts may also establish coordination 
procedures with tribes to ensure that NWP 3 activities do not cause 
more than minimal adverse effects on tribal rights, protected tribal 
resources, or tribal lands. Maintenance activities that result in more 
than minor deviations in the structure's configuration or filled area 
are not authorized under paragraph (a), unless it is a structure or 
fill that was destroyed or damaged by a storm, flood, fire, or other 
discrete event, and the structure or fill needs to be reconstructed. 
For repair, rehabilitation, or replacement activities conducted after 
storms or

[[Page 1881]]

other discrete events, the structure or fill should be similar to what 
was damaged or destroyed, and constructed in the same general footprint 
as the original structure or fill.
    One commenter said that a PCN should be required for any placement 
of new or additional riprap under paragraph (b). One commenter stated 
that the placement of riprap to protect an existing structure should 
not require a PCN. Several commenters recommended removing the PCN 
requirement for activities authorized by paragraph (b), because they 
believe that the removal of accumulated sediment results in only 
minimal adverse environmental effects. Three commenters suggested not 
requiring PCNs for removal of accumulated sediments within an existing 
structure, such as a culvert. One commenter asked whether the PCN 
requirement for activities authorized by paragraph (b) only applies to 
activities in section 10 waters.
    All activities authorized by paragraph (b) of this NWP require 
PCNs. As discussed above, we have removed the last two sentences of 
this paragraph. The project proponent has the option of using NWP 13 or 
another NWP to authorize the placement of riprap to protect the 
existing structure, which in some circumstances does not require a PCN. 
The removal of accumulated sediment within an area extending 200 feet 
from a structure or fill has the potential to result in more than 
minimal adverse environmental effects, so we believe requiring a PCN 
for those sediment removal activities is appropriate. We have modified 
paragraph (a) to clarify that it authorizes the removal of accumulated 
sediment and debris within, and in the immediate vicinity of, the 
structure or fill. Therefore, the removal of accumulated sediment and 
debris in those areas does not require a PCN unless a general condition 
or regional condition triggers a PCN requirement for those activities. 
The removal of accumulated sediment and debris outside of the immediate 
vicinity of the structure or fill, and up to 200 feet from that 
structure or fill, could be authorized by paragraph (b) and would 
therefore require a PCN. The PCN requirement for activities authorized 
under paragraph (b) of this NWP applies to activities that require 
section 10 and/or section 404 authorization.
    One commenter expressed concern regarding impacts to endangered or 
threatened species caused by activities authorized by this NWP. One 
commenter recommended a cumulative impact analysis for NWP 3. One 
commenter said that compensatory mitigation should be required for all 
NWP 3 activities. Several commenters stated that this NWP should 
require use of best management practices to avoid sediment inputs to 
downstream waters. One commenter said that NWP 3 activities must comply 
with state or local floodplain management requirements.
    Any proposed NWP 3 activity conducted by a non-federal permittee 
that might affect an ESA-listed species or designated critical habitat 
requires a PCN because of the requirements of general condition 18. 
Cumulative effects analyses under the National Environmental Policy Act 
and Clean Water Act section 404(b)(1) guidelines have been conducted 
for the 2017 NWP 3. Those cumulative effects analyses are presented in 
the national decision document for this NWP. We do not agree that 
compensatory mitigation should be required for all activities 
authorized by this NWP, because maintenance activities generally cause 
no more than minimal adverse environmental effects. For those NWP 3 
activities that require PCNs, district engineers will determine whether 
compensatory mitigation or another form of mitigation is necessary to 
ensure the proposed activities will result in no more than minimal 
adverse environmental effects, in accordance with 33 CFR 330.1(e)(3). 
General condition 12, soil erosion and sediment controls, requires the 
use of appropriate soil erosion and sediment controls for NWP 
activities. General condition 10, fills in 100-year floodplains, 
requires fills in those floodplains to comply with applicable Federal 
Emergency Management Agency (FEMA)-approved state or local floodplain 
management requirements.
    One commenter stated that maintenance of any structure should not 
create or maintain a fish passage barrier. Another commenter 
recommended adding terms to this NWP requiring authorized activities to 
improve aquatic life movements. One commenter recommended that this NWP 
authorize stream channelization to improve aquatic life movements. One 
commenter stated that maintenance of any structure should not create or 
maintain a channel restriction. One commenter stated that treated wood 
should not be used for maintenance activities to protect water quality.
    General condition 2, aquatic life movements, requires NWP 
activities to be constructed so that they do not substantially disrupt 
the life cycle movements of indigenous aquatic species, unless the 
activity's primary purpose is to impound water. We can only condition 
the NWP to minimize adverse effects on aquatic life movements so that 
those adverse effects are no more than minimal, but actions the 
permittee takes to improve aquatic life movements in a waterbody may be 
considered as mitigation that would be considered in the district 
engineer's verification decision. While stream channelization may 
benefit some species, other species are likely to be adverse affected 
by those activities because they alter their habitat. General condition 
9, management of water flows, requires that NWP activities maintain 
water flows to the maximum extent practicable, and that the capacity of 
open waters should be maintained. Treated wood may be considered a 
suitable material for maintenance activities, as long as the district 
engineer determines that its use complies with general condition 6, 
suitable material.
    One commenter recommended adding terms to this NWP to provide 
specific requirements regarding slope stability. One commenter asked 
whether it is more appropriate to conduct pipeline maintenance under 
NWP 3 or NWP 12. One commenter said that NWP 3 should authorize up to 
200 linear feet of stream realignment.
    The appropriate slope for maintenance activities should be 
determined on a case-by-case basis, after considering site- and 
activity-specific factors. Either NWP 3 or NWP 12 may be used to 
authorize pipeline maintenance activities that require DA authorization 
because they involve discharges of dredged or fill material into waters 
of the United States and/or structures or work in navigable waters of 
the United States. Stream realignment is not a maintenance activity and 
may be authorized by another NWP, a regional general permit, or an 
individual permit.
    This NWP is reissued with the modifications discussed above.
    NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. We did not propose any changes to this NWP and 
we did not receive any comments on this NWP. This NWP is reissued 
without change.
    NWP 5. Scientific Measurement Devices. We did not propose any 
changes to this NWP and we did not receive any comments on this NWP. 
This NWP is reissued without change.
    NWP 6. Survey Activities. We did not propose any changes to this 
NWP. One commenter objected to the proposed reissuance of this NWP, 
stating that individual permits should be required for these survey 
activities. Several commenters requested a definition of

[[Page 1882]]

``temporary pads'' and asked for clarification whether the use of 
timber mats would be considered as fill for access roads. Several 
commenters suggested expanding this NWP to include temporary access to 
survey locations. One commenter said that tribes should be provided 
with advance notice of proposed NWP 6 activities. Another commenter 
stated that wetland areas should be protected to the extent possible 
using best management practices.
    The activities authorized by this NWP generally result in no more 
than minimal adverse environmental effects so authorization by general 
permit is appropriate. In regions where there are concerns that the 
activities authorized by this NWP might result in more than minimal 
individual and cumulative adverse environmental effects, division 
engineers have the authority to modify, suspend, or revoke this NWP. We 
do not think it is necessary to define the term ``temporary pad.'' 
Timber mats may be used for temporary access to survey sites to 
minimize adverse environmental effects. District engineers will 
determine on a case-by-case basis whether the use of timber mats 
requires DA authorization as a discharge of fill material into waters 
of the United States. Temporary access activities requiring DA 
authorization may be authorized by NWP 33. For the 2017 NWPs, Corps 
districts have been consulting with tribes to identify regional 
conditions that protect tribal trust resources. Corps districts may 
also establish coordination procedures with tribes to ensure that NWP 6 
activities do not cause more than minimal adverse effects on tribal 
rights, protected tribal resources, or tribal lands. Paragraph (a) of 
general condition 23, mitigation, requires adverse effects to 
jurisdictional wetlands and other waters of the United States to be 
minimized to the maximum extent practicable on the project site.
    One commenter requested that limits be placed on exploratory 
trenching. Another commenter recommended limiting discharges of fill 
material to 25 cubic yards. This commenter also suggested that project 
proponents wanting to construct numerous small pads with a total fill 
volume exceeding 25 cubic yards should be required to obtain individual 
permits.
    The requirements in NWP 6 for exploratory trenching ensure that 
impacts from those activities are temporary and therefore a limit is 
unnecessary. Likewise, because of the nature of the activities 
authorized by this NWP and the small volumes of dredged or fill 
material involved in those activities, it is not necessary to add a 25 
cubic yard limit. If there are regional concerns about the volumes of 
dredged or fill material being discharged under this NWP, the division 
engineer can modify this NWP and impose a volume limit on regulated 
discharges. Each temporary pad that is a single and complete project is 
subject to the 1/10-acre limit.
    This NWP is reissued without change.
    NWP 7. Outfall Structures and Associated Intake Structures. In the 
June 1, 2016, proposed rule, we did not propose any changes to this 
NWP. Several commenters said they support the reissuance of this NWP. 
One commenter recommended limiting bank stabilization for outfall 
structures to 25 feet along the bank. One commenter said that outfall 
structures should be installed in a manner that avoids permanent 
impacts to streams, and that velocity dissipation devices should be 
required to ensure that discharges from outfalls do not cause erosion. 
One commenter stated that outfall structures should not be located 
immediately adjacent to oyster or clam beds so that those clams and 
oysters can continue to be fit for human consumption. One commenter 
said that outfall structures should not be located in areas used by 
fish for foraging or spawning, or in areas inhabited by marine 
vegetation. Another commenter said that advance notice of proposed NWP 
7 activities should be provided to tribes to avoid unresolved tribal 
treaty issues.
    The stabilization of banks next to outfall structures may be 
authorized by NWP 13, and such activities would be subject to the terms 
and conditions of that NWP. A requirement to install velocity 
dissipation devices is more appropriately identified on a case-by-case 
basis by district engineers when they evaluate PCNs for activities 
authorized by this NWP. General condition 5, shellfish beds, protects 
areas of concentrated shellfish populations. Important fish spawning 
areas are protected through the requirements of general condition 3, 
spawning areas. Division and district engineers may modify, suspend, or 
revoke this NWP if there are regional or site-specific concerns about 
the effects of outfall structures on shellfish, spawning areas, or 
marine vegetation. For the 2017 NWPs, Corps districts have been 
consulting with tribes to identify regional conditions that protect 
tribal trust resources. Corps districts may also establish coordination 
procedures with tribes to ensure that NWP 7 activities do not cause 
more than minimal adverse effects on tribal rights, protected tribal 
resources, or tribal lands.
    This NWP is reissued without change.
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. We 
did not propose any changes to this NWP. One commenter objected to the 
proposed reissuance of this NWP and said that individual permits should 
be required for these activities. Another commenter stated that these 
activities should require environmental impact statements and 
consultation with the National Marine Fisheries Service to address 
potential impacts to marine mammals.
    For oil and gas structures on the outer continental shelf, and for 
the purposes of this NWP, the Corps' authority is limited to evaluating 
effects on navigation and national security. Because of their location 
on the outer continental shelf, these activities are unlikely to have 
more than minimal adverse effects on navigation and national security, 
but the PCN review process will ensure compliance with general permit 
requirements. A proposed oil and gas structure on the outer continental 
shelf that may result in ``take'' of marine mammals requires separate 
authorization under the Marine Mammal Protection Act. Requests for 
Marine Mammal Protection Act incidental harassment or take 
authorizations are obtained through a separate process administered by 
the National Oceans and Atmospheric Administration.
    This NWP is reissued without change.
    NWP 9. Structures in Fleeting and Anchorage Areas. We did not 
propose any changes to this NWP. One commenter said that the U.S. Coast 
Guard does not establish anchorage or fleeting areas and requested that 
this language be removed from the NWP. According to the U.S. Coast 
Guard's regulations at 33 CFR 101.105, a barge fleeting facility means 
``a commercial area, subject to permitting by the Army Corps of 
Engineers, as provided in 33 CFR part 322, part 330, or pursuant to a 
regional general permit the purpose of which is for the making up, 
breaking down, or staging of barge tows.'' The barge fleeting activity 
would have to be authorized by the Corps under section 10 of the Rivers 
and Harbors Act of 1899, rather than being designated by the U.S. Coast 
Guard.
    We have modified this NWP by removing the phrase ``the U.S. Coast 
Guard has established'' and adding the phrase ``have been established'' 
after the word ``areas.'' This modification will provide authorization 
under section 10 of the Rivers and Harbors Act of 1899 for barge 
fleeting activities that have not been covered because of the wording 
of NWP 9 that has been in place since 1982.

[[Page 1883]]

    This NWP is reissued with the modification discussed above.
    NWP 10. Mooring buoys. We did not propose any changes to this NWP. 
One commenter said that compensatory mitigation should be required for 
all NWP 10 activities. Several commenters requested that the Corps 
provide tribes with advance notice of proposed NWP 10 activities and 
consult on those activities. One commenter stated that the Corps should 
conduct a study of the entire shoreline of Puget Sound to assess the 
impact of NWP 10 activities. One commenter recommended prohibiting the 
use of NWP 10 in any waterbody where downgrades or closures of 
shellfish beds occur because of the number of vessels in the waterway. 
Several commenters suggested limiting the density of mooring buoys to 
one per acre. Several commenters recommended require PCNs for all NWP 
10 activities.
    Activities authorized by this NWP do not result in losses of 
aquatic resources and, as a general rule, do not require compensatory 
mitigation. Mooring buoys are located in open waters and float on those 
waters. The anchor used to secure the mooring buoy occupies little of 
the bottom of the waterbody. In addition, mooring buoys can help reduce 
the adverse effects the use of vessels can have on bottom habitat of 
navigable waters, by reducing the use of anchors that disturbs that 
bottom habitat each time an anchor is used. For example, mooring buoys 
can be a mitigation measure to reduce adverse effects to corals.
    For the 2017 NWPs, Corps districts have been consulting with tribes 
to identify regional conditions that protect tribal trust resources. 
Corps districts may also establish coordination procedures with tribes 
to ensure that NWP 10 activities do not cause more than minimal adverse 
effects on tribal rights, protected tribal resources, or tribal lands. 
Regional concerns about the mooring buoys authorized by this NWP are 
more appropriately addressed by division and district engineers, who 
have the authority to modify, suspend, or revoke NWP authorizations on 
a regional or activity-specific basis. The Corps does not regulate the 
discharge of pollutants from boats, discharges of stormwater, or non-
point source pollutants that cause restrictions or closures of 
shellfish beds.
    We do not agree that there should be a national limit of one 
mooring buoy per acre. Mooring buoys are small structures that cause no 
more than minimal individual and cumulative environmental effects, but 
in areas where there is potential for these activities to result in 
more than minimal adverse environmental effects, division and district 
engineers will use their authorities to modify, suspend, or revoke NWP 
10 authorizations as appropriate. Division engineers can modify this 
NWP to require PCNs in certain waterbodies.
    This NWP is reissued without change.
    NWP 11. Temporary Recreational Structures. We did not propose any 
changes to this NWP and did not receive any comments on this NWP. This 
NWP is reissued without change.
    NWP 12. Utility Line Activities. In the June 1, 2016, proposed rule 
we proposed to make several changes to this NWP. We proposed to clarify 
that this NWP authorizes discharges of dredged or fill material into 
waters of the United States and structures or work in navigable waters 
of the United States for crossings of those waters associated with the 
construction, maintenance, repair, and removal of utility lines. In 
addition, we proposed to modify the definition of ``utility line'' to 
make it clear that utility lines can also include optic cables and 
other lines that communicate through the internet. We also proposed to 
add a paragraph to this NWP to authorize, to the extent that DA 
authorization is required, discharges of dredged or fill material into 
waters subject to section 404 of the Clean Water Act and structures and 
work in waters subject to section 10 of the Rivers and Harbors Act of 
1899, necessary to remediate inadvertent returns of drilling fluids 
that can occur during horizontal directional drilling operations to 
install utility lines under jurisdictional waters and wetlands. Other 
proposed changes to NWP 12 are discussed in more detail in the preamble 
to the June 1, 2016, proposal (see 81 FR 35198-35199).
    Several commenters expressed their support for the proposed 
modifications to NWP 12. Some of these commenters agreed with the 
clarification that, for utility lines authorized by NWP 12, the Corps 
is only authorizing regulated activities to cross waters of the United 
States, including navigable waters. Several commenters said that 
utility lines crossing multiple waterbodies should require individual 
permits, instead of authorizing each separate and distant crossing by 
NWP. In contrast, several commenters said they support the use of NWP 
12 to authorize separate and distant crossings of waters of the United 
States. One commenter suggested clarifying that ``crossing'' only 
refers to regulated activities, and not to activities such as 
horizontal directional drilling and aerial crossing of jurisdictional 
waters. Several commenters said this NWP does not authorize activities 
that are similar in nature. A couple of these commenters asserted that 
this NWP does not authorize activities that are similar in nature 
because pipelines can carry a variety of types of fluids, some of which 
are harmful and some of which are benign. Other commenters made the 
``not similar in nature'' objection, stating that pipelines that carry 
fluids such as oil are different than pipelines that carry water or 
sewage, which are different than utility lines that carry electricity.
    We are retaining the long-standing practice articulated in the NWP 
regulations at 33 CFR 330.2(i), in which each separate and distant 
crossing of waters of the United States is authorized by NWP. The 
utility line activities authorized by NWP 12 are similar in nature 
because they involve linear pipes, cables, or wires to transport 
physical substances or electromagnetic energy from a point of origin to 
a terminal point. For the purposes of this NWP, the term ``crossing'' 
refers to regulated activities. However, it should be noted that 
installing utility lines under a navigable water of the United States 
subject to section 10 of the Rivers and Harbors Act of 1899 via 
horizontal directional drilling, as well as aerial crossings of those 
navigable waters, require authorization under section 10 of the Rivers 
and Harbors Act of 1899. The substations, tower foundations, roads, and 
temporary fills that are also authorized by NWP 12 (when those 
activities require Department of the Army (DA) authorization) are 
integral to the fulfilling the purpose of utility lines, and thus fall 
within the ``categories of activities that are similar in nature'' 
requirement for general permits stated in section 404(e) of the Clean 
Water Act.
    Many commenters objected to the reissuance of NWP 12, stating that 
it authorizes oil and gas pipelines that should be subject to the 
individual permit process instead. Many commenters said that these 
activities should be subject to a public review process. Many of these 
commenters cited the risk of oil spills as a reason why oil pipelines 
should be evaluated under the Corps' individual permit process. Many 
commenters based their concerns on their views that the Corps is the 
only federal agency that regulates oil pipelines.
    The Corps does not regulate oil and gas pipelines, or other types 
of pipelines, per se. For utility lines, including oil and gas 
pipelines, our legal authority is limited to regulating discharges of 
dredged or fill material into waters of the United States and 
structures or work in navigable waters of the United States, under 
section 404

[[Page 1884]]

of the Clean Water Act and section 10 of the Rivers and Harbors Act of 
1899, respectively. We do not have the authority to regulate the 
operation of oil and gas pipelines, and we do not have the authority to 
address spills or leaks from oil and gas pipelines. General condition 
14, proper maintenance, requires that NWP activities, including NWP 12 
activities, be properly maintained to ensure public safety. The proper 
maintenance required by general condition 14 also ensures compliance 
with the other NWP general conditions, many of which are designed to 
protect the environment, as well as any regional conditions imposed by 
the division engineer and activity-specific conditions imposed by the 
district engineer. In addition, we do not have the legal authority to 
regulate the construction, maintenance, or repair of upland segments of 
pipelines or other types of utility lines. For example, for a recent 
oil pipeline (e.g., the Flanagan South pipeline), the segments of the 
oil pipeline that were subject to the Corps' jurisdiction (i.e., the 
crossings of waters of the United States, including navigable waters of 
the United States, that were authorized by the 2012 NWP 12) was only 
2.3% of the total length of the pipeline; the remaining 97.7% of the 
oil pipeline was constructed in upland areas outside of the Corps' 
jurisdiction. Interstate natural gas pipelines are regulated by the 
Federal Energy Regulatory Commission. The Federal Energy Regulatory 
Commission also regulates some electric transmission projects.
    There are other federal laws that address the operation of 
pipelines and spills and leaks of substances from pipelines. Those laws 
are administered by other federal agencies. Under the Natural Gas 
Pipeline Safety Act of 1968, the Department of Transportation (DOT) 
regulates pipeline transportation of natural gas and other gases. The 
DOT also regulates the transportation and storage of liquefied natural 
gas. Under the Hazardous Liquid Pipeline Safety Act, the DOT regulates 
pipeline transportation of hazardous liquids including crude oil, 
petroleum products, anhydrous ammonia, and carbon dioxide. The DOT 
administers its pipeline regulations through the Office of Pipeline 
Safety (OPS), which is in its Pipelines and Hazardous Materials Safety 
Administration (PHMSA). Specific to oil pipelines, the PHMSA is 
responsible for reviewing oil spill response plans for onshore oil 
pipelines.
    Oil spills are also addressed through the Oil Pollution Act of 
1990, which is administered by the U.S. Environmental Protection Agency 
and the U.S. Coast Guard. Under the Oil Pollution Act of 1990, EPA is 
responsible for addressing oil spills occurring in inland waters and 
the U.S. Coast Guard is responsible for addressing oil spills in 
coastal waters and deepwater ports. The U.S. EPA has issued regulations 
governing its oil spill prevention program, and requires oil spill 
prevention, control, and countermeasures, and facility response plans 
(see 40 CFR part 300 and 40 CFR part 112). Oil spill prevention, 
control, and countermeasures are intended to ensure that oil facilities 
prevent discharges of oil into navigable waters or adjoining 
shorelines. Their facility response plan regulations require certain 
facilities to submit response plans to address worst case oil 
discharges or threats of a discharge. The U.S. Coast Guard has the 
authority to ensure the effective cleanup of oil spills in coastal 
waters and require actions that prevent further discharges of oil from 
the source of the oil spill. Activities regulated under section 404 of 
the Clean Water Act and/or section 10 of the Rivers and Harbors Act 
that are determined by the U.S. EPA or U.S. Coast Guard to be necessary 
to respond to discharges or releases of oil or hazardous substances may 
be authorized by NWP 20.
    Many commenters based their objections to the reissuance of NWP 12 
on the inability for public involvement to occur during the Corps' NWP 
verification process for specific pipelines. Many commenters said the 
Corps' authorization process should be modified to prevent the 
segmentation of pipelines and that the Corps should fully evaluate the 
environmental impacts of individual fossil fuel pipelines, including 
the burning of those fossil fuels. Many commenters cited climate change 
as a reason why oil and gas pipelines should be evaluated under the 
individual permit process instead of the Corps using NWP to authorize 
crossings of waters of the United States.
    The purpose of the NWPs, as well as regional general permits, is to 
provide a streamlined authorization process for activities that result 
in no more than minimal individual and cumulative adverse environmental 
effects. When section 404(e) of the Clean Water Act became law in 1977, 
lawmakers endorsed the general permit concept that was developed by the 
Corps in its 1975 and 1977 regulations (see 40 FR 31335 and 42 FR 
37140, 37145 respectively). For the issuance or reissuance of NWPs and 
other general permits, the public involvement process occurs during the 
development of the general permit. If public notices were required to 
authorize specific activities after the NWP or other general permit was 
issued, it would not provide the streamlined process intended by 
Congress. Individual pipelines may be able to operate independently to 
transport substances from a point of origin to a terminal point, even 
though they may be part of a larger network of pipelines. The Corps may 
authorize these independent pipelines, if all crossings of waters of 
the United States involving regulated activities qualify for NWP 
authorization.
    The Corps does not have the legal authority to regulate the burning 
of fossil fuels that are transported by pipelines where the Corps 
authorized crossings of waters of the United States by NWP 12, other 
general permits, or individual permits. Therefore, in its environmental 
documentation the Corps is not required to fully evaluate the burning 
of fossil fuels, except to respond to specific comments submitted in 
response to a proposed rule (in the case of these NWPs) or comments 
submitted in response to a public notice for an individual permit 
application.
    Activities authorized by NWP 12 are currently playing, and will 
continue to play, and important role in helping the nation achieve 
goals regarding the increased reliance on clean energy projects to meet 
the energy needs of its populace, to help reduce emissions of 
greenhouse gases that contribute to climate change. Clean energy 
projects include the construction, operation, and maintenance of more 
efficient and cleaner fossil-fuel energy generation facilities, nuclear 
power plants, and renewable energy generation projects that use solar 
and wind energy. Natural gas and electricity transmission and 
distribution systems will also need to be constructed or upgraded to 
bring clean energy to consumers.
    The utility line activities authorized by NWP 12 will continue to 
be needed by society, including the goods and services transported by 
those utility lines. In areas of increasing temperatures, there will be 
increased demand for air conditioning and the energy needed to run air 
conditioners. Some areas of the country will receive less 
precipitation, and their water needs may need to be fulfilled through 
the construction and operation of utility lines that carry water to 
those areas that need additional water.
    One commenter said that for any oil pipeline that affects 
aboriginal, historic treaty or reservation lands of an Indian tribe, 
the terms of NWP 12 should require consultation with all affected 
tribes and that any permit decision protect the full range of tribal 
rights

[[Page 1885]]

under federal law. Two commenters stated that all NWP 12 activities 
should require pre-construction notification to ensure that 
consultation occurs with tribes on any utility line that may affect 
protected tribal resources, tribal rights, or Indian lands. One of 
these commenters said that general condition 17 in effect delegates the 
Corps' tribal trust responsibility to project proponents, and that the 
vast majority of impacts to waters of the United States can occur 
without notification to the Corps.
    Activities authorized by NWP 12 must comply with general condition 
17, tribal rights, and general condition 20, historic properties. We 
have modified general condition 17 to more effectively address the 
Corps' responsibilities regarding tribal rights (including treaty 
rights), protected tribal resources, and tribal lands. For the 2017 
NWPs, district engineers have been consulting with tribes to identify 
regional conditions that will facilitate compliance with general 
conditions 17 and 20. As a result of this consultation, district 
engineers can establish coordination procedures to identify utility 
line activities that require government-to-government consultation to 
protect tribal trust resources and tribal treaty rights. These 
consultations will be done in accordance with the Corps' tribal policy 
principles. Further information on the Corps' tribal policy principles 
is available at: http://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations/. In fulfilling its trust responsibilities to tribes, the Corps 
follows the Department of Defense American Indian and Alaska Native 
Policy. The Corps' tribal trust responsibilities apply to the 
activities regulated by the Corps, and do not extend to associated 
activities that the Corps does not have the authority to regulate, such 
as activities in upland areas outside of the Corps' legal control and 
responsibility.
    The consultation between Corps districts and tribes that has been 
conducted for these NWPs can result in additional procedures or 
regional conditions to protect tribal trust resources. District 
engineers will work to establish procedures with interested tribes to 
coordinate on specific NWP 12 activities to assist the Corps in 
executing its tribal trust responsibilities, or add mitigation 
requirements that the district engineer determines are necessary to 
ensure that the verified NWP activity results in no more than minimal 
individual and cumulative adverse environmental effects. Division 
engineers will, as necessary, impose regional conditions on this NWP, 
including requiring more activities to require pre-construction 
notification, to ensure that these activities do not cause more than 
minimal adverse effects on tribal rights, protected tribal resources, 
or tribal lands. When a Corps district receives a pre-construction 
notification that triggers a need to consult with one or more tribes, 
that consultation will be completed before the district engineer makes 
his or her decision on whether to issue the NWP verification. Regional 
conditions and coordination procedures can help ensure compliance with 
general condition 17. The Corps does not, and cannot, delegate its 
tribal trust responsibilities to permit applicants.
    One commenter said that NWP 12 should prohibit construction in 
waters of the United States until all other federal and state permits 
are issued for pipelines. One commenter suggested adding language that 
allows temporary impacts for repair of a utility line parallel a bank, 
which is not a ``crossing.'' Several commenters stated that this NWP 
should not authorize activities in regions in Appalachia because it is 
not possible to mitigate impacts in those mountainous areas. Two 
commenters said this NWP should require the use of best management 
practices to control release of sediments during construction.
    Paragraph 2 of Section E, ``Further Information,'' states that the 
NWPs do not remove the need to obtain other required federal, state, or 
local authorizations as required by law. The NWPs have a 45-day review 
period (with some exceptions), so district engineers cannot wait for 
all other federal, state, or local authorizations to be issued. 
Otherwise, the proposed NWP activity would be authorized after the 45-
day period passed with no response from the Corps. The default NWP 
authorization would not have any activity-specific conditions, such as 
mitigation requirements, to ensure that the adverse environmental 
effects are no more than minimal. This NWP authorizes temporary fills 
to construct a utility line. Concerns about the use of this NWP in 
Appalachia are more appropriately addressed by the appropriate division 
engineer, who has the authority to modify, suspend, or revoke the NWP 
in a specific region. General condition 12 requires the use of soil and 
erosion controls to ensure that sediments associated with an NWP 
activity are not released downstream.
    Several commenters suggested changing the acreage limit from \1/2\-
acre to 1 acre. Some commenters said the \1/2\-acre limit is too high, 
and some commenters stated that the \1/2\-acre limit is appropriate. A 
number of commenters recommended imposing an acreage limit that would 
place a cap on losses of waters of the United States for the entire 
utility line. A few commenters recommended reducing the \1/2\-acre 
limit to \1/4\-acre. One commenter said the \1/2\-acre limit should 
apply to the entire utility line, not to each separate and distant 
crossing. One commenter recommended establishing an acreage limit based 
on a county or state. Another commenter suggested applying the acreage 
limit to a waterbody. One commenter stated that this NWP should not 
authorize waivers of the \1/2\-acre limit. Two commenters said that 
stream impacts should be limited to 300 linear feet, especially in 
headwater streams.
    We are retaining the \1/2\-acre limit for this NWP because we 
believe it is an appropriate limit for authorizing most utility line 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. Division engineers can modify this NWP 
on a regional level to reduce the acreage limit if necessary to ensure 
that no more than minimal adverse environmental effects occur in that 
region. We do not agree that the acreage limit should apply to the 
entire utility line because the separate and distant crossings of 
waters of the United States are usually at separate waterbodies 
scattered along the length of the utility line, and are often in 
different watersheds especially for utility lines that run through 
multiple counties, states, or Corps districts. For utility lines that 
cross the same waterbody (e.g., a river or stream) at separate and 
distant locations, the distance between those crossings will usually 
dissipate the direct and indirect adverse environmental effects so that 
the cumulative adverse environmental effects are no more than minimal. 
If the district engineer determines after reviewing the PCN that the 
cumulative adverse environmental effects are more than minimal, after 
considering a mitigation proposal provided by the project proponent, he 
or she will exercise discretionary authority and require an individual 
permit.
    The \1/2\-acre limit cannot be waived. We do not believe it is 
necessary to impose a 300 linear foot limit for the loss of stream bed 
because most utility line crossings are constructed perpendicular, or 
nearly perpendicular, to the stream. In addition, most utility line 
crossings consist of temporary impacts. This NWP requires PCNs for 
proposed utility lines constructed parallel to, or along, a stream bed, 
and the district engineer will evaluate the adverse environmental 
effects and

[[Page 1886]]

determine whether NWP authorization is appropriate.
    Several commenters said this NWP does not authorize oil pipelines. 
One commenter said that the requirement that utility lines result in 
``no change in pre-construction contours'' will not prevent changes in 
habitats or physical features in some streams, and utility lines may 
become exposed over time. One commenter objected to the requirement 
that there must be no change in pre-construction contours, because it 
is a new requirement and would require the permittee to complete a pre- 
and post- construction survey. One commenter said this NWP should not 
authorize mechanized landclearing in forested wetlands or scrub-shrub 
wetlands. Two commenters supported the addition of ``internet'' to the 
list of examples of utility lines. One commenter recommended removal of 
the reference to ``telegraph lines'' from the list of types of utility 
lines covered by this NWP.
    This NWP authorizes crossings of waters of the United States that 
are part of utility lines used to transport any ``gaseous, liquid, 
liquescent, or slurry substance'' which includes oil. We acknowledge 
that the construction and maintenance of utility lines in 
jurisdictional waters and wetlands will result in some changes to the 
structure of waters and wetlands and to the ecological functions and 
services provided by those waters and wetlands. There is often 
conversion of wetland types within utility line rights-of-way and those 
conversions often need to be permanently maintained while the utility 
line is operational. Periodic maintenance may be necessary to respond 
to erosion exposing utility lines that were buried when they were 
constructed. The requirement to ensure that there are no changes in 
pre-construction contours of waters of the United States does not 
mandate pre- and post-construction surveys. Compliance with this 
requirement can usually be accomplished by examining the nearby 
landscape to determine if there has been a change in pre-construction 
contours. The NWP requires PCNs for mechanized landclearing in the 
utility line right-of-way so that district engineers can evaluate those 
proposed activities and determine whether they qualify for NWP 
authorization and whether compensatory mitigation is necessary to 
ensure no more than minimal adverse environmental effects in accordance 
with general condition 23, mitigation. We have retained the internet as 
a form of communication that may be transmitted by utility lines. We do 
not see the need to remove ``telegraph messages'' from the type of 
communications that may be conveyed by utility lines because there may 
be some use of telegraph messages by historic societies or other 
entities. Some of the existing utility lines that previously conveyed 
telegraph messages may now carry other forms of communication.
    One commenter recommended modifying NWP 12 to authorize activities 
associated with wireless communication facilities, because these 
facilities could be considered substations. Two commenters said that 
NWP 12 should not authorize the construction or expansion of utility 
line substations because these facilities should not be located in 
waters of the United States. Several commenters said that utility line 
substations and access roads should not be limited to non-tidal waters 
of the United States to allow them to be constructed in all waters of 
the United States.
    The substations authorized by this NWP must be associated with 
utility lines. With wireless telecommunication facilities, there are no 
utility lines connecting the various facilities because they transmit 
their information via electromagnetic waves traveling through the 
atmosphere. The construction of wireless communication facilities that 
involves discharges of dredged or fill material into waters of the 
United States may be authorized by NWP 39 or other NWPs. For some 
utility lines, it may not be practicable or feasible to locate a 
substation outside of waters of the United States. As long as the 
construction or expansion of the proposed utility line substation 
results in no more than minimal adverse environmental effects, it can 
be authorized by this NWP. We believe that it is necessary to limit the 
construction of utility line substations and access roads to non-tidal 
wetlands (except for non-tidal wetlands adjacent to tidal waters) to 
ensure that NWP 12 only authorizes activities that result in no more 
than minimal adverse environmental effects. Conducting those activities 
in tidal waters and wetlands, and in non-tidal wetlands adjacent to 
tidal waters is more likely to result in more than minimal adverse 
environmental effects.
    One commenter expressed opposition to moving the provisions 
authorizing access roads to NWPs 14 and 33. One commenter said that 
this NWP should not authorize access roads, because those roads can 
cause fragmentation of the landscape.
    We did not propose to move the provisions authorizing the 
construction of utility line access roads to NWPs 14 and 33. We have 
retained the access road provision in this NWP. The Corps only 
regulates those portions of access roads that require DA authorization 
because they involve regulated activities in jurisdictional waters and 
wetlands. The Corps does not regulate access roads constructed in 
upland areas that, in many areas of the country, are more likely to 
result in substantial habitat fragmentation. In those areas of the 
country where much of the landscape is comprised of wetlands, utility 
line access roads are more likely to exceed the \1/2\-acre limit and 
thus require individual permits. District engineers will review PCNs 
with proposed access roads and determine whether the proposed 
activities will have more than minimal adverse environmental effects on 
wetland functions, including habitat connectivity.
    In the June 1, 2016, proposed rule, we proposed to add a paragraph 
to NWP 12 to authorize, to the extent that DA authorization is 
required, discharges of dredged or fill material into waters of the 
United States, and structures and work in navigable waters, necessary 
to remediate inadvertent returns of drilling fluids that can occur 
during horizontal directional drilling operations to install utility 
lines below jurisdictional waters and wetlands. An inadvertent return 
occurs when drilling fluids are released through fractures in the 
bedrock and flow to the surface, and possibly into a river, stream, 
wetland, or other type of waterbody. For NWP 12 activities where there 
is the possibility of such inadvertent returns, district engineers may 
add conditions to the NWP 12 verification requiring activity-specific 
remediation plans to address these situations, should they occur during 
the installation or maintenance of the utility line.
    The fluids used for directional drilling operations consist of a 
water-bentonite slurry and is not a material that can be considered 
``fill material'' under 33 CFR 323.2(e). This water-bentonite mixture 
is not a toxic or hazardous substance, but it can adversely affect 
aquatic organisms if released into bodies of water. Because these 
drilling fluids are not fill material, inadvertent returns of these 
drilling fluids are not regulated under section 404 of the Clean Water 
Act. However, activities necessary to contain and clean up these 
drilling fluids may require DA authorization (e.g., temporary fills in 
waters of the United States, or fills to repair a fracture in a stream 
bed).
    Several commenters expressed support for adding the paragraph on 
remediation of inadvertent returns of drilling fluids from directional 
drilling

[[Page 1887]]

activities. A few commenters said that the term ``frac-out'' should not 
be used when referring to inadvertent returns of drilling fluids during 
horizontal directional drilling operations. A commenter recommended 
replacing the term ``sub-soil'' with ``subsurface.'' One commenter 
objected to the proposed addition, stating that these inadvertent 
returns of drilling fluids occur too frequently. One commenter asked 
for a definition of ``inadvertent return'' and said the NWP should 
explain that inadvertent returns of drilling fluids during horizontal 
directional drilling activities may require a Clean Water Act section 
402 permit. One commenter requested clarification that activities which 
remediate inadvertent returns of drilling fluids minimize environmental 
impacts. One commenter agreed that inadvertent returns of drilling 
fluids that occur during horizontal directional drilling activities are 
not discharges of dredged or fill material into waters of the United 
States. One commenter said that for horizontal directional drilling 
activities, the NWP should require entry and exit 50 feet from the 
stream bank, and sufficient depths prevent inadvertent returns of 
drilling fluids. One commenter said that the NWP should require upland 
containment of drilling fluids. One commenter requested that this 
paragraph distinguish between horizontal directional drilling for the 
purposes of utility line installation or replacement, and directional 
drilling for oil and gas extraction.
    Horizontal directional drilling for utility line installation and 
replacement is an important technique for avoiding and minimizing 
adverse effects to jurisdictional waters and wetlands during the 
construction of utility lines. We believe that modifying NWP 12 to 
authorize remediation activities that involve discharges of dredged or 
fill material into waters of the United States and/or structures or 
work in navigable waters of the United States and are necessary to 
address these inadvertent returns to protect the aquatic environment is 
a prudent course of action. We have removed the term ``frac-out'' from 
the text of this NWP, and replaced the term ``mud'' with ``fluid.'' We 
have also replaced the term ``sub-soil'' with ``subsurface'' because 
horizontal directional drilling activities usually occur well below the 
soil. District engineers may add conditions to NWP verifications to 
require activity-specific remediation plans to address potential 
inadvertent returns that might occur during the construction of the 
utility line.
    If the horizontal directional drilling activities require DA 
authorization, the district engineer may add conditions to the NWP 
authorization to specify entry and exit points for the drilling 
equipment. If the drilling fluids return to the surface and are not 
considered to be discharges of dredged or fill material regulated under 
section 404 of the Clean Water Act, then the Corps cannot require those 
drilling fluids to be contained in an upland area. The text of this 
paragraph of NWP 12 specifically refers to horizontal directional 
drilling for utility line installation or replacement, but we have 
revised the text of this paragraph to specify that these activities are 
being ``conducted for the purpose of installing or replacing utility 
lines.''
    Several commenters said that for utility lines involving horizontal 
directional drilling, the PCN should require drilling plans and site-
specific spill detection and remediation measures. One commenter stated 
that mitigation should be required for the remediation of inadvertent 
returns of drilling fluids. Two commenters recommended adding a 
requirement that remediation of inadvertent returns of drilling fluids 
must be based on contingency plans submitted in advance of conducting 
horizontal directional drilling. One commenter said that PCNs should be 
required for these remediation activities and agency coordination 
should be conducted. Another commenter said that water quality 
certification agencies should be involved in the review and approval of 
these remediation plans.
    If the horizontal directional drilling involves activities that 
require authorization under section 404 of the Clean Water Act and/or 
section 10 of the Rivers and Harbors Act, the PCN should describe those 
activities and their environmental effects. The PCN should also 
describe mitigation measures that will be used to ensure compliance 
with the terms and conditions of the NWP. We believe that remediating 
the inadvertent returns of drilling fluids and restoring, to the 
maximum extent practicable, the affected jurisdictional waters and 
wetlands is sufficient mitigation. District engineers can add 
conditions to the NWP authorization to require contingency plans for 
utility line activities that require DA authorization. We do not agree 
that it is necessary to require PCNs for inadvertent returns of 
drilling fluids or to conduct agency coordination. Through this 
provision of NWP 12, we are trying to encourage timely remediation of 
these inadvertent returns of drilling fluids to protect the aquatic 
environment. States can determine whether water quality certification 
is required for activities conducted to remediate inadvertent returns 
of drilling fluids. States can require water quality certification for 
any discharge into jurisdictional waters and wetlands, not just 
discharges of dredged or fill material.
    Several commenters said they support the addition of temporary mats 
to minimize impacts of utility line activities. Two commenters 
requested clarification that not all uses of temporary mats in 
jurisdictional waters and wetlands results in a regulated activity. One 
commenter recommended adding language to this paragraph to include 
other measures that distribute the weight of construction equipment to 
minimize soil disturbance. Another commenter stated that this paragraph 
should require best management practices, such as low pressure 
equipment, wide tires, and varying travel paths, to minimize the 
adverse environmental effects of NWP 12 activities. One commenter 
suggested inserting the word ``promptly'' between the words ``be 
removed'' to require the prompt removal of all temporary fills.
    District engineers will determine on a case-by-case basis whether 
the use of timber mats in jurisdictional waters and wetlands requires 
DA authorization. We believe that the proposed language in this 
paragraph allows for a variety of temporary structures, fills, and work 
necessary to construct, maintain, or repair a utility line, substation, 
foundation for overhead utility lines, or access road. We do not 
believe it is necessary to provide, for NWP 12 activities, a 
comprehensive list of techniques to minimize soil disturbance and 
minimize the impacts of construction equipment. We also do not agree 
with the proposed addition of ``promptly'' because it may be more 
protective of the environment to keep temporary fills in place until 
post-construction restoration activities or permanent fills have had 
time to stabilize.
    One commenter stated that the PCN thresholds for NWP 12 should not 
be changed. One commenter said that PCNs should be required for all NWP 
12 activities. Several commenters suggested increasing the \1/10\-acre 
PCN threshold (item 5 in the ``Notification'' paragraph) to \1/2\-acre. 
One commenter asked the Corps to remove the PCN requirement for the 
maintenance of aerial crossings of section 10 waters that do not 
include installation of new structures. One commenter opposed replacing 
the current PCN thresholds with a single \1/10\-acre PCN threshold. One 
commenter requested clarification

[[Page 1888]]

of the PCN threshold for proposed NWP 12 activities that run parallel 
to a stream bed (item 4 in the ``Notification'' paragraph). One 
commenter said that PCNs should be required for utility line crossings 
of streams inhabited by species listed under the Endangered Species 
Act.
    We have not made any changes to the PCN thresholds for this NWP. We 
do not agree that PCNs should be required for all activities authorized 
by this NWP because the current PCN thresholds have been effective in 
identifying proposed NWP 12 activities that should be reviewed by 
district engineers on a case-by-case basis to ensure that they result 
in only minimal individual and cumulative adverse environmental 
effects. In addition, paragraph (b)(4) of general condition 32 requires 
that NWP 12 PCNs (and PCNs for other NWPs) also include information on 
other crossings of waters of the United States for the linear project 
that will use NWP 12 authorizations but do not require PCNs. This 
requirement is also explained in Note 8 of NWP 12.
    All NWP 12 activities that require authorization under section 10 
of the Rivers and Harbors Act of 1899 require PCNs to ensure that these 
utility lines will have no more than minimal adverse effects on 
navigation. This includes the maintenance of aerial crossings of 
navigable waters. We agree that the current PCN thresholds should be 
maintained instead of simplifying the PCN thresholds to a single PCN 
threshold for the loss of greater than \1/10\-acre of waters of the 
United States. Item 4 of the ``Notification'' paragraph requires pre-
construction notification for utility lines placed in jurisdictional 
waters and wetlands if the proposed utility line runs parallel to, or 
along, a stream bed. These activities require PCNs to allow district 
engineers to evaluate potential impacts to the stream. General 
condition 18, endangered species, requires PCNs for all NWP activities 
to be conducted by non-federal permittees that might affect listed 
species or critical habitat (see paragraph (c) of general condition 
18).
    Several commenters expressed agreement with adding the proposed 
Note 2, and some of those commenters requested clarification of the use 
of the term ``independent utility'' in the proposed note. Several 
commenters objected to the proposed Note 2, stating that only the 
crossings of waters of the United States that do not qualify for NWP 
authorization should be evaluated through the individual permit 
process, allowing the remaining crossings to be authorized by NWP 12. 
Several commenters said that the second sentence of Note 2 should be 
removed. Several commenters requested clarification that the phrase 
``independent utility'' in 33 CFR 330.6(d) does not affect the current 
practice for linear projects found in 33 CFR 330.2(i) and in the NWP 
definition of ``single and complete linear project'' in which separate 
and distant crossings of waters of the United States can qualify for 
separate NWP authorization. Several commenters asked for thresholds for 
determining when utility line crossings are ``separate and distant.''
    Note 2 is based on the NWP regulations that were published in the 
Federal Register on November 22, 1991 (56 FR 59110), and represent 
long-standing practices in the NWP program. Those regulations include 
the definition of ``single and complete project'' at 33 CFR 330.2(i) 
and the provision on combining NWPs with individual permits at 33 CFR 
330.6(d). We have removed the phrase ``with independent utility'' from 
the second sentence of Note 2. We believe that the second sentence, 
with this modification, needs to be retained to remind users of NWP 12 
of the requirements in the regulations at 33 CFR 330.6(d). This will 
help ensure that the project proponent submits the appropriate request 
for authorization, specifically an individual permit application or NWP 
PCN.
    If one or more crossings of waters of the United States for a 
proposed utility line do not qualify for authorization by NWP, then the 
utility line would require an individual permit because of 33 CFR 
330.6(d). An exception would be if a regional general permit is 
available to authorize the crossing or crossings that do not qualify 
for NWP authorization. In these circumstances, the project proponent 
also has the option of relocating or redesigning the crossings of 
waters of the United States that does not qualify for NWP authorization 
so that all of the utility line crossings could qualify for NWP 
authorization.
    There is no conflict between 33 CFR 330.6(d) and 33 CFR 330.2(i). 
In addition, these regulations do not conflict with the NWP definition 
of ``single and complete linear project'' in Section F of these NWPs. 
It should be noted that both 33 CFR 330.2(i) and the NWP definition of 
``single and complete linear project'' do not discuss the concept of 
``independent utility.'' We cannot establish national thresholds for 
determining when crossings of waters of the United States are 
``separate and distant'' because a variety of factors should be 
considered by district engineers when making those decisions, such as 
topography, geology, hydrology, soils, and the characteristics of 
wetlands, streams, and other aquatic resources. Corps districts may 
establish local guidelines for identifying ``separate and distant'' 
crossings.
    One commenter said that Note 2 uses the phrase ``utility lines with 
independent utility'' and observes that the definition of ``independent 
utility'' in the ``Definitions'' section of the NWPs states that 
independent utility is a test for ``a single and complete non-linear 
project.'' This commenter said that this inconsistent wording causes 
confusion. One commenter stated that the difference between ``stand-
alone'' activities and ``segments'' is unclear. One commenter 
recommended removing the second sentence of Note 2. One commenter 
requested a definition of ``stand-alone linear project.''
    As stated above, we have removed the phrase ``with independent 
utility'' from the second sentence of Note 2. District engineers will 
apply the concept of independent utility in 33 CFR 330.6(d) to 
determine when NWP authorizations can be combined with individual 
permit authorizations, or whether an individual permit is required for 
the regulated activities. Therefore, there is no need to further 
explain the concept of ``stand-alone'' activities or ``stand-alone 
linear project.'' Note 2 covers linear projects, not single and 
complete non-linear projects, so Note 2 should not be applied to non-
linear projects. There are separate definitions of ``single and 
complete linear project'' and ``single and complete non-linear 
project'' in the Definitions section of these NWPs because these are 
different concepts for the NWP program.
    Several commenters opposed Note 2, stating that it would allow 
utility line proponents to break up large utility lines into separate 
projects and prevent them from being evaluated under the individual 
permit process. One commenter requested clarification whether the 
permittee can identify to the district engineer the origin and terminal 
point for each utility line that has independent utility (i.e., each 
stand-alone utility line).
    The purpose of Note 2 is to prevent the situations the commenters 
opposing the proposed note are concerned about, to ensure that utility 
lines with one or more crossings that do not qualify for NWP 
authorization are evaluated under the individual permit process. To 
assist district engineers in applying 33 CFR 330.6(d), in an individual 
permit application or a PCN, the project proponent can identify the 
point of origin and terminal point of the utility line that could 
function independently of a larger overall utility line project.

[[Page 1889]]

    The objective of Note 2 is to improve consistency in implementation 
of the NWP program, especially the application of 33 CFR 330.6(d). 
Project proponents usually design their utility lines to reduce their 
impacts to waters of the United States to qualify for NWP 
authorization. That avoidance and minimization is a benefit of the NWP 
program. In addition, most of the crossings of waters of the United 
States for utility lines result in temporary impacts to those 
jurisdictional waters and wetlands. The use of the term ``separate and 
distant'' in Note 2 is the same as its use in 33 CFR 330.2(i) and the 
definition of ``single and complete linear project'' in the 
``Definitions'' section of the NWPs (Section F).
    A few commenters asserted that proposed Note 2 does not comply with 
NEPA or the National Historic Preservation Act (NHPA) because the Corps 
should view an entire oil pipeline as a single and complete project. 
These commenters objected to the Corps' practice of authorizing each 
separate and distant crossing by NWP.
    The Advisory Council on Historic Preservation's regulations for 
implementing NHPA section 106 define the term ``undertaking'' as: ``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.'' (See 36 CFR 800.16(y).) It should be noted that 
the Advisory Council's definition of ``undertaking'' refers not only to 
projects, but also to activities. Their definition of ``undertaking'' 
recognizes that federal agencies may not regulate or permit entire 
projects, and that a federal agency might only have the authority to 
authorize an activity or a number of activities that is a component or 
are components of a larger overall project.
    For oil pipelines and other utility lines, the activities that are 
subject to the Corps' regulatory authorities and require DA 
authorization are crossings of jurisdictional waters and wetlands, as 
well as utility line substations, foundations for overhead utility 
lines, and access roads, that involve discharges of dredged or fill 
material into waters of the United States or structures or work in 
navigable waters of the United States. Segments of an oil pipeline or 
other utility line in upland areas outside of the Corps' jurisdiction, 
or attendant features constructed in upland areas, do not require DA 
authorization and therefore are not, for the purposes of the Corps' 
compliance with section 106 of the NHPA, ``undertakings.'' The Corps 
does not have direct or indirect jurisdiction over pipeline segments in 
upland areas. The Corps does not regulate oil pipelines, or other 
utility lines per se; we only regulate those components of oil 
pipelines or other utility lines, that involve activities regulated 
under our authorities (i.e., section 404 of the Clean Water Act and 
section 10 of the Rivers and Harbors Act of 1899).
    The activities regulated by the Corps, as well as the Corps' 
analysis of direct and indirect effects caused by those regulated 
activities, are the same regardless of whether the Corps processes an 
individual permit application or uses NWPs or other general permits to 
authorize the regulated activities. Likewise, for the consideration of 
cumulative effects, the incremental contribution of regulated 
activities to cumulative effects is the same regardless of the type of 
DA authorization. That incremental contribution consists of the direct 
and indirect effects of the activities that require DA authorization.
    One commenter supported the addition of Note 3. One commenter 
requested that this Note clarify that the term ``navigable waters of 
the United States'' refers to the waters defined at 33 CFR part 329. We 
have added a reference to 33 CFR part 329 to Note 3.
    One commenter agreed with the proposed addition of Note 6. Several 
commenters said the word ``that'' should be added before the phrase 
``do not qualify.'' One commenter stated that the phrase ``or another 
applicable 404(f) exemption'' should be added to Note 6 because a 
project proponent may use other Clean Water Act section 404(f) 
exemptions, such as the exemptions for ditch maintenance and the 
construction of temporary sedimentation basins. One commenter requested 
confirmation that the Clean Water Act section 404(f) exemptions that 
are applicable to currently serviceable structures used for 
transportation have not been changed. Another commenter requested 
examples of activities that do not qualify for the Clean Water Act 
section 404(f) exemptions, such as mechanized landclearing outside 
previously authorized right-of-ways.
    We have added the word ``that'' after ``activities'' to correct the 
error in the proposed Note 6. Note 6 does not preclude project 
proponents from utilizing other Clean Water Act section 404(f) 
exemptions that are applicable to activities that may be related to 
utility lines. Note 6 refers to the maintenance exemption because NWP 
12 explicitly refers to maintenance activities, which may require Clean 
Water Act section 404 authorization if the maintenance activity does 
not qualify for the section 404(f) maintenance exemption. Note 6 does 
not affect the application of the maintenance exemption to fill 
structures used for transportation. It is beyond the scope of Note 6 to 
discuss activities related to utility lines that do not qualify for any 
of the Clean Water Act section 404(f) exemptions.
    One commenter pointed out that Note 8 was not discussed in the 
preamble of the June 1, 2016, proposed rule. One commenter asked the 
Corps to explain why it proposed to add Note 8. Another commenter 
requested clarification of whether Note 8 would affect utility lines 
that have stormwater outfalls.
    The lack of discussion of Note 8 in the preamble to the proposed 
rule was an error. As stated on page 35197 of the proposed rule, we 
solicited comments on all of the NWPs, general conditions, definitions, 
and all NWP application procedures presented in the proposed rule. The 
purpose of Note 8 is to remind users of the NWPs that if a utility line 
includes crossings of waters of the United States that are authorized 
by NWP but do not require PCNs, and one or more crossings of waters of 
the United States requires pre-construction notification, then the PCN 
must include those non-PCN crossings, in accordance with the 
requirements of paragraph (b)(4) of general condition 32 . The 
requirements in Note 8 may apply to outfalls for utility lines and 
outfalls for stormwater management facilities, depending on the case-
specific characteristics of the utility line, outfall, and stormwater 
management facility.
    Several commenters said that Corps districts should be prohibited 
from suspending or revoking NWP 12 and using RGPs for utility lines 
that cross state or district boundaries. One commenter recommended that 
NWP 12 include prescriptive national standard best management practices 
(BMPs) and provide notifications to stakeholders when pipelines, 
cables, and utility lines are proposed to be constructed in marine 
transportation routes. These notifications would also be provided to 
the U.S. Coast Guard and the National Marine Fisheries Service. A few 
commenters said that the mitigation process for NWP 12 is not in 
compliance with the National Environmental Policy Act (NEPA) because 
the public is not provided with an opportunity to comment on requests 
for NWP verifications. A few commenters also stated that reliance on a 
district engineer's compensatory mitigation requirement for an NWP 12 
verification is inadequate to support a

[[Page 1890]]

finding of no significant impact under an environmental assessment 
prepared to satisfy NEPA requirements.
    For utility lines that cross Corps district boundaries, each Corps 
district may process the NWP 12 PCNs for crossings located in its 
district, or the Corps districts may designate a lead district to 
provide a single response to the NWP 12 PCNs. If a Corps district has 
had NWP 12 suspended or revoked by the division engineer to use a 
regional general permit or state programmatic general permit instead of 
NWP 12, it can use that regional or programmatic general permit to 
authorize utility line activities. We believe that it would be more 
appropriate to have district engineers determine which BMPs should be 
applied to the construction, maintenance, or repair of utility lines in 
their geographic areas of responsibility, as those BMPs may vary by 
region and utility sector. If the U.S. Coast Guard has a role in 
regulating utility lines in marine transportation routes, the U.S. 
Coast Guard can take its own actions under its authorities to ensure 
compliance with its requirements. We will continue to provide NWP 
verifications to the National Ocean Service for the charting of utility 
lines in navigable waters of the United States.
    The decision document for this NWP includes an environmental 
assessment with a mitigated finding of no significant impact. 
Mitigation measures are discussed throughout the combined decision 
document, which includes the environmental assessment, public interest 
review, and 404(b)(1) Guidelines analysis. Other mitigation measures 
may be required by district engineers through conditions added to 
activity-specific NWP verifications. The mitigation measures discussed 
in the national decision documents include the NWP general conditions, 
which help ensure that NWP activities result in no more than minimal 
adverse environmental effects.
    The draft decision document for NWP 12 was made available for 
public review and comment concurrent with the proposed rule that was 
published in the Federal Register on June 1, 2016. The decision 
document describes, in general terms, mitigation that helps ensure that 
NWP 12 activities result in no more than minimal adverse environmental 
effects. Mitigation requirements, including compensatory mitigation 
requirements, will be determined by district engineers for activity-
specific NWP verifications. Compliance with NEPA is accomplished when 
the NWP is issued by Corps Headquarters, with its decision document. 
Individual NWP 12 verifications do not require NEPA documentation, nor 
do they require an opportunity for public comment. The public comment 
process occurs during the rulemaking procedures to issue or reissue an 
NWP. A public notice and comment process for NWP verifications would 
not be consistent with the Congressional intent of section 404(e) of 
the Clean Water Act, which envisions a streamlined authorization 
process for activities that result in no more than minimal individual 
and cumulative adverse environmental effects.
    One commenter said that utility lines constructed parallel to the 
stream gradient should have the minimum number of crossings, and those 
crossings should intersect the stream as close to 90 degrees to the 
stream centerline as possible. That commenter also stated that trench 
plugs should be no more than 200 feet apart, and plugs must be used on 
either side of the stream crossing. One commenter recommended adding a 
permit condition to prevent utility lines from creating new drainage 
paths away from a waterbody.
    Paragraph (a) of general condition 23, mitigation, requires 
permittees to avoid and minimize adverse effects to waters of the 
United States to the maximum extent practicable on the project site. 
For the purposes of NWP 12, this means that the project proponent 
should design the utility line to minimize the number of crossings of 
waters of the United States. The use of trench plugs will be determined 
on a case-by-case basis by district engineers when processing NWP 12 
PCNs or voluntary requests for NWP verification. District engineers may 
also impose activity-specific conditions on NWP 12 authorizations to 
minimize draining of waters of the United States.
    One commenter said that compensatory mitigation should be required 
for the permanent conversion of forested wetlands to scrub-shrub 
wetlands for utility line rights-of-way. Two commenters stated that 
this NWP should not authorize sidecasting of excavated material into 
waters of the United States because the sidecast material will be 
dispersed by currents or rainfall. One commenter requested 
clarification of a statement made in the preamble to the proposed rule 
that some excavation activities do not require Clean Water Act section 
404 authorization. Two commenters said that if Corps districts consider 
separate and distant crossings of waters of the United States to 
qualify for separate NWP authorization, how are cumulative impacts 
considered in accordance with Section D, District Engineer's Decision?
    District engineers have the discretion to require compensatory 
mitigation for the permanent conversion of forested wetlands to scrub-
shrub wetlands, if that permanent conversion is conducted as a result 
of activities that require DA authorization (see paragraph (i) of 
general condition 23, mitigation). General condition 12, soil erosion 
and sediment controls, requires permittees to stabilize exposed soils 
and fills at the earliest practicable date, to minimize dispersion by 
currents, rainfall, or other erosive forces. Excavation activities 
require Clean Water Act section 404 authorization if they result in 
regulated discharges of dredged or fill material into waters of the 
United States (see the definitions at 33 CFR 323.2).
    Paragraph 1 of Section D, District Engineer's Decision, requires 
district engineers to consider the cumulative effects of all crossings 
of waters of the United States for a single and complete linear project 
that is authorized by NWP, including those crossings that require DA 
authorization but do not otherwise require pre-construction 
notification. A complete PCN requires the project proponent to 
identify, in addition to the NWP 12 activities that require PCNs, the 
NWP 12 activities that do not require PCNs (see paragraph (b)(4) of 
general condition 32 and Note 8). The information regarding the 
cumulative effects of all of the utility line activities authorized by 
NWP 12 will be considered by the district engineer in his or her 
decision-making process for an NWP 12 verification.
    A number of commenters asserted that the issuance of NWP 12 
requires an environmental impact statement. A few commenters stated 
that the cumulative effects analysis for NWP 12 in the draft decision 
document was insufficient. A few commenters said that the cumulative 
effects analysis for NWP 12 in the draft decision document was properly 
done. One commenter indicated that the Corps improperly deferred the 
requirement to do a NEPA cumulative effects analysis to the district 
engineer's NWP verification decision. One commenter opined that the 
Corps defers its NEPA review for later stages in the permitting process 
and that NWP 12 provides no guarantee that the Corps district will 
conduct a NEPA analysis for the NWP verification. One commenter said 
that Corps districts should prepare supplemental environmental impact 
statements for NWP 12 verifications. One commenter stated that the 
decision document should discuss NWP 12 activities and their effects on 
climate change. Many commenters remarked that the Corps should not 
issue permits for pipelines

[[Page 1891]]

because the burning of fossil fuels contributes greenhouse gases that 
cause climate change.
    For the issuance or reissuance of an NWP, including NWP 12, the 
Corps complies with NEPA when Corps Headquarters issues or reissues the 
NWP with its decision document. The decision document issued by Corps 
Headquarters includes an environmental assessment and a finding of no 
significant impact, which concludes the NEPA process. The finding of no 
significant impact is reached because of the terms and conditions of 
the NWP and the mitigation measures (e.g., general conditions and other 
mitigation measures) for NWP 12 activities that are discussed 
throughout the decision document. Therefore, an environmental impact 
statement is not required for the issuance or reissuance of NWP 12. 
When a district engineer issues an NWP 12 verification, he or she is 
confirming that the proposed NWP 12 activity complies with the terms 
and conditions of the NWP, including any regional and activity-specific 
conditions, and will result in no more than minimal individual and 
cumulative adverse environmental effects. If the district engineer 
requires activity-specific mitigation measures, he or she will require 
those mitigation measures through conditions added to the NWP 
authorization.
    To issue an NWP verification the district engineer does not need to 
prepare a NEPA document because the requirements for NEPA were 
fulfilled when Corps Headquarters issued the national decision document 
for the NWP. Since NEPA compliance is achieved by Corps Headquarters 
through the preparation of a combined decision document that includes 
an environmental assessment and finding of no significant impact, Corps 
districts do not need to prepare supplemental environmental impact 
statements for NWP verifications. If a proposed NWP activity will 
result in more than minimal individual and cumulative adverse 
environmental effects after considering the mitigation proposal 
submitted by the prospective permittee, the district engineer will 
assert discretionary authority and require an individual permit if the 
adverse environmental effects will be more than minimal. During the 
individual permit process, the district engineer will prepare the 
appropriate NEPA documentation.
    The NEPA cumulative effects analysis in the NWP 12 decision 
document was prepared in accordance with the Council of Environmental 
Quality's definition of ``cumulative impact'' at 40 CFR 1508.7, and 
utilizes concepts presented in CEQ's 1997 and 2005 guidance on 
conducting cumulative impact analyses. The NEPA cumulative effects 
analysis examines cumulative effects on various resources of concern, 
including wetlands, rivers and streams, coastal areas, and endangered 
and threatened species. Our NEPA cumulative effects analysis examines 
past, present, and reasonably foreseeable future actions that affect 
those resources of concern, including federal, non-federal, and private 
actions. Because the decision document is national in scope it is a 
general cumulative effects analysis.
    We also conducted a cumulative effects analysis in accordance with 
the 404(b)(1) Guidelines because this NWP authorizes discharges of 
dredged or fill material into waters of the United States. The Corps 
does not defer the NEPA cumulative effects analysis to the NWP 
verification stage of the authorization process. Corps Headquarters 
conducts the required NEPA analyses when it issues or reissues the NWP. 
The final national decision document includes a discussion of NWP 12 
activities and climate change. Activities authorized by NWP will result 
in small incremental contributions to greenhouse gas emissions during 
construction periods, if the equipment used to construct the crossings 
of waters of the United States, utility line substations, footings for 
overhead utility lines, or access roads in waters of the United States 
consumes fossil fuels. The Corps does not have the authority to 
regulate the burning of fossil fuels that may be transported by utility 
lines. The Corps does not have the legal authority to regulate 
emissions of greenhouse gases during the operation and maintenance of 
the utility line activities, if those operations and maintenance 
activities do not involve activities that require DA authorization.
    A number of commenters said the draft decision document for NWP 12 
is inadequate, especially in its evaluation of the risks and impacts of 
oil spills, gas pipeline leaks, and inadvertent returns of drilling 
fluids from horizontal directional drilling activities. One commenter 
stated that with respect to the discussion of Subpart G (Evaluation and 
Testing) in the draft decision document, that voluntary compliance is 
rarely as effective as monitored compliance. Another commenter objected 
to the statement that ``this NWP will encourage applicants to design 
their projects within the scope of the NWP'' because the commenter 
believes that the NWP encourages massive cross-country pipeline 
projects. One commenter said the decision document must address impacts 
to forested wetlands caused by NWP 12 activities.
    The decision document for NWP 12 treats oil spills and gas pipeline 
leaks as reasonably foreseeable future actions in the NEPA cumulative 
impact analysis section. The decision document also discusses the 
potential for inadvertent returns of drilling fluids to occur during 
horizontal directional drilling activities used to install or replace 
utility lines. As discussed above, the Corps does not regulate the 
operation of oil or gas pipelines, or leaks that might occur. In 
addition, the Corps does not regulate inadvertent returns of drilling 
fluids that might occur as a result of subsurface fractures during 
horizontal directional drilling activities. Oil spills and gas leaks 
are addressed by other federal agencies under other federal laws.
    As discussed in the proposed rule, it is our position that 
inadvertent returns of drilling fluids from horizontal directional 
drilling are not discharges regulated under section 404 of the Clean 
Water Act, under the current definitions of ``discharge of dredged 
material'' and ``discharge of fill material'' at 33 CFR 323.2. We have 
added provisions to NWP 12 to authorize discharges of dredged or fill 
material into waters of the United States and/or structure or work in 
navigable waters of the United States to remediate inadvertent returns 
of drilling fluids if they occur, to minimize the adverse environmental 
effects of those inadvertent returns of drilling fluids.
    For those NWP 12 activities that do not require PCNs, voluntary 
compliance is an appropriate means of compliance. District engineers 
will take appropriate action if they discover cases of non-compliance 
with the terms and conditions of NWP 12. For utility lines, this NWP 
only authorizes crossings of waters of the United States that involve 
activities regulated under the Corps' authorities. It does not 
authorize segments of utility lines constructed in uplands because 
those segments do not require DA authorization. It does not authorize 
the entire utility line unless the entire utility line is constructed 
in jurisdictional waters and wetlands and involves activities that 
require DA authorization. For the crossings of waters of the United 
States authorized by NWP 12, the terms and conditions of this NWP 
encourage the project proponent to minimize adverse effects to 
jurisdictional waters and wetlands to qualify for NWP authorization, 
instead

[[Page 1892]]

of having to apply for an individual permit.
    For utility lines that cross state and/or Corps district 
boundaries, district engineers will consider the cumulative impacts of 
those NWP 12 activities when determining whether to issue NWP 12 
verifications. The national decision document for NWP 12 discusses, in 
general terms, the impacts that NWP 12 activities have on wetlands of 
all types, including forested wetlands. For some utility lines, 
forested wetlands may be permanently converted to scrub-shrub or 
emergent wetlands to construct a right-of-way.
    A few commenters said this NWP should not authorize utility lines 
in drinking water source areas. One commenter stated that this NWP 
should not authorize pipelines under rivers or near the ocean because 
those pipelines could leak and threaten water supplies. Many commenters 
said that the Corps should consider the environmental effects of the 
entire pipeline, including potential impacts to water supplies, to not 
just the specific activities authorized by NWP 12 or other DA permits.
    General condition 7, water supply intakes, prohibits NWP activities 
in proximity of public water supply intakes except under specific 
circumstances. General condition 14, proper maintenance, requires NWP 
activities to be maintained to ensure public safety. For NWP 12 
activities, this includes maintaining the utility line so that it does 
not leak. The Corps does not regulate the operation and maintenance of 
pipelines, if those activities do not include activities that require 
DA authorization. As discussed above, there are other federal agencies 
that have legal responsibility for addressing the operation of 
pipelines and responding to leaks or spills that may occur. Concerns 
regarding pipeline leaks or spills should be brought to the attention 
of those federal agencies.
    One commenter expressed concern regarding the effects of 
dispersants on public health and the environment. One commenter said 
that in the draft decision document the projected amount of 
compensatory mitigation required for NWP 12 activities is far less than 
the projected authorized impacts, and that difference results in 
inadequate mitigation. One commenter said that the draft NWP 12 
decision document fails to acknowledge that water quality standards 
will be violated in some cases.
    The Corps does not have the legal authority to regulate the use of 
dispersants. Other federal or state agencies may have that 
responsibility. Many of the activities authorized by NWP 12 result in 
temporary impacts to jurisdictional waters and wetlands, and often 
district engineers do not require compensatory mitigation to offset 
those temporary impacts because those waters and wetlands continue to 
provide ecological functions and services. The estimated impacts in the 
draft decision document include both permanent and temporary impacts to 
jurisdictional waters and wetlands. For discharges into waters of the 
United States, general condition 25 requires certification that an NWP 
activity complies with applicable water quality standards unless a 
waiver of the Clean Water Act section 401 water quality certification 
requirement occurs. The district engineer has discretion to take action 
to ensure compliance with the water quality certification issued by the 
state, tribe, or U.S. EPA. The section 401 certifying authority also 
has the authority to enforce the terms and conditions of its water 
quality certification.
    This NWP is reissued with the modifications discussed above.
    NWP 13. Bank Stabilization. We proposed to modify the first 
paragraph of this NWP to clarify that it authorizes a wide variety of 
bank stabilization measures. In addition, we proposed to modify 
paragraph (c) to clarify that the quantity of the dredged or fill 
material discharged into waters of the United States must not exceed 
one cubic yard per running foot below the plane of the ordinary high 
water mark or the high tide line, as measured along the bank.
    Many commenters supported the reissuance of this NWP, including 
many of the proposed changes. Many commenters objected to the 
reissuance of this NWP. Several commenters said that all bank 
stabilization activities should require individual permits. One 
commenter asserted that this NWP should not authorize new bank 
stabilization activities. One commenter stated that NWP 13 should not 
be used to create more land. One commenter opined that the use of NWP 
13 is contrary to the public interest because the only positive value 
of a bulkhead is limited to the landowner, and bulkheads have adverse 
impacts that affect society as a whole. One commenter said that this 
NWP should not be reissued because it does not comply with the 
requirements of section 404 of the Clean Water Act.
    We are reissuing this NWP, with some changes made in response to 
comments that are discussed below. Many bank stabilization activities 
have no more than minimal individual and cumulative adverse 
environmental effects and are appropriate for NWP authorization. The 
Corps' regulations recognize that landowners have the general right to 
protect their property from erosion (33 CFR 320.4(g)(2)). The terms and 
conditions of this NWP provide a means of implementing this provision 
of the Corps' regulations by authorizing bank stabilization activities 
that can be conducted with minimal amounts of dredged or fill material 
being discharged into waters of the United States.
    We acknowledge that bank stabilization will have indirect adverse 
effects on streams, rivers, lakes, estuaries, and oceans. In coastal 
waters, bank stabilization structures change natural shoreline 
processes and alter habitats (Nordstrom 2014). Bank stabilization 
structures in coastal waters create barriers to animal movements 
between habitats, cause the loss of some habitat, reduce or eliminate 
intertidal habitats, and alter species richness and abundance 
(Nordstrom 2014). Gittman et al. (2016) concluded after conducting a 
meta-analysis of coastal shore protection measures that a 23 percent 
decline in biodiversity and a 45 percent decline in organism abundance 
occurred near bulkheads and seawalls. Stone revetments, sills, and 
breakwaters exhibited little or no difference in biodiversity and 
organism abundance compared to natural shorelines (Gittman et al. 
2016). In rivers and streams, bank stabilization measures such as 
riprap affect riverine processes including sediment transport, 
hydrodynamics, water levels, sediment input, sediment characteristics 
of the river or stream bed, and wood input (Reid and Church 2015). 
Riprap to stabilize river and stream banks also alters habitat quality 
and vertebrate and invertebrate populations (Reid and Church 2015).
    We believe that in most cases, the indirect adverse environmental 
effects caused by bank stabilization authorized by NWP 13 are no more 
than minimal. While bank stabilization may result in some losses of 
waters of the United States along the stream or river bank or along the 
shore, the waterbody itself is not lost and that waterbody continues to 
provide ecological functions and services. For those activities that 
require PCNs, district engineers will review those activities and their 
direct and indirect adverse environmental effects. If a proposed bank 
stabilization activity will result in more than minimal individual and 
cumulative adverse environmental effects after the district engineer 
considers the applicant's mitigation proposal, he or she will exercise 
discretionary authority and require an individual permit. This NWP 
authorizes new bank stabilization

[[Page 1893]]

activities and the modification, repair, or replacement of existing 
bank stabilization activities as long as those activities comply with 
the terms and conditions of the NWP.
    Paragraph (a) of this NWP requires that the amount of material 
placed in jurisdictional waters and wetlands for the bank stabilization 
activity must be the minimum necessary for erosion protection. 
Therefore, this NWP does not authorize activities that create more land 
for property owner or the reclamation of previously lost lands. Bank 
stabilization activities authorized by this NWP, including bulkheads, 
revetments, and other erosion control approaches, are conducted not 
only for private property, but for public property as well. Therefore, 
it cannot be stated that NWP 13 activities only benefit private 
landowners; the NWP can also benefit larger communities especially at 
waterfront parks and other public spaces along shorelines that are 
eroding. In the national decision document, we have completed a 
404(b)(1) Guidelines analysis and determined that the reissuance of 
this NWP complies with the Guidelines.
    Many commenters stated that the construction of bulkheads, 
seawalls, revetments, and other shoreline hardening structures should 
not be authorized by this NWP, and they should require individual 
permits. One commenter said that gabion baskets, sills, and stream 
barbs should not be authorized by NWP 13. Two commenters suggested 
replacing the words ``such as'' with ``including, but not limited to'' 
to the list of examples of activities authorized by this NWP to clarify 
that the list is not an all-inclusive list. Several commenters 
expressed their support of including hybrid bank stabilization 
activities that combine vegetated slope protection and riprap 
protection.
    In the June 1, 2016, proposed rule, we proposed to modify the text 
of this NWP to make it clear that NWP 13 authorizes a variety of bank 
stabilization activities, not just the construction and maintenance of 
bulkheads, seawalls, revetments, gabion baskets, and other shoreline 
hardening structures. The construction and maintenance of bulkheads, 
seawalls, revetments, gabion baskets, etc. has, especially in 
waterbodies in urban areas, no more than minimal adverse environmental 
effects. This NWP can be used to authorize vegetative stabilization and 
bioengineering to reduce erosion, as well as other bank stabilization 
techniques. Stream barbs can be effective at reducing bank erosion and 
can have fewer adverse effects to streams and their banks than armoring 
the stream bank. Sills have been authorized by NWP 13 in the past and 
help protect existing fringe marshes from erosion. The use of the 
phrase ``such as'' in the first paragraph of NWP 13 makes it clear that 
the list of bank stabilization activities is not an exhaustive list. 
Other types of bank stabilization activities can be authorized by NWP 
13 as long as those activities comply with the terms and conditions of 
this NWP.
    One commenter stated that NWP 13 should be modified to prohibit 
hard bank stabilization structures landward of, or directly adjacent 
to, tidal marshes, mangroves, or submerged aquatic vegetation. One 
commenter stated that this NWP should not authorize bank stabilization 
activities in coastal estuaries. One commenter suggested adding a 
provision to NWP 13 to encourage the use of living shorelines as bank 
stabilization and erosion prevention methods. Several commenters voiced 
their support that NWP 13 not specify a preference for one bank 
stabilization approach over another approach.
    This NWP requires PCNs for any proposed activities that involve 
discharges of dredged or fill material into special aquatic sites, 
including wetlands and vegetated shallows. Constructing bank 
stabilization activities, including bulkheads and revetments, landward 
of tidal marshes, mangroves, or submerged aquatic vegetation is a means 
of complying with paragraph (a) of general condition 23, mitigation, by 
minimizing adverse effects to those special aquatic sites. If the bank 
stabilization activity is constructed landward of the high tide line 
and there are no jurisdictional wetlands or waters at the proposed site 
for the bank stabilization activity, then DA authorization is not 
required. Many areas of coastal estuaries are subject to strong wave 
energies and other erosive forces (e.g., large vessel wakes) where the 
construction of seawalls, bulkheads, or revetments is the only 
effective and sustainable bank stabilization technique.
    We are issuing a separate NWP to authorize discharges of dredged or 
fill material into waters of the United States and structure or work in 
navigable waters of the United States for the construction and 
maintenance of living shorelines. That new NWP gives coastal landowners 
another option to protect their property from erosion. We agree that 
the NWPs should not establish a preference for one approach to bank 
stabilization over other approaches. The science surrounding living 
shorelines is relatively new and their long-term effectiveness compared 
to other bank stabilization methods has not been well studied (Saleh 
and Weinstein 2016). Therefore, at this time it would be premature to 
establish a regulatory preference for living shorelines.
    Landowners can seek advice from consultants regarding which bank 
stabilization approach will be suitable and sustainable under the 
conditions at a particular site. District engineers will evaluate NWP 
PCNs and voluntary requests for NWP verification to determine whether 
the proposed bank stabilization activity qualifies for NWP 
authorization. Corps district staff cannot design bank stabilization 
activities for landowners because it would create liability for the 
federal government. Some general advice can be offered to landowners, 
but it is up to the landowner to decide how he or she wants to protect 
his or her property from erosion. Corps district staff can only 
evaluate the applicant's proposal and determine whether it qualifies 
for NWP or regional general permit authorization or requires an 
individual permit.
    Several commenters stated that NWP 13 should not be reissued 
because too much shoreline has been armored by bank stabilization 
activities. These commenters cited a study that determined that 14 
percent of the coastal shorelines along the Atlantic and Pacific Oceans 
and the Gulf of Mexico have been altered by the construction of 
bulkheads, seawalls, jetties, and groins (Gittman et al. 2015). One 
commenter said stated that NWP 13 should not authorize hard bank 
stabilization structures on public beaches. Another commenter expressed 
the opinion that hardened bank stabilization projects should only be 
authorized in cases where public safety is at risk. One commenter said 
bank stabilization fills or structures that prevent the establishment 
of rooted vegetation should only be authorized in limited 
circumstances, specifically in areas with excessive and active 
shoreline erosion, areas with highly erodible soils, and shorelines 
exposed to frequent flux and wave action. This commenter also stated 
that hard bank stabilization structures should be limited to areas with 
critical public infrastructure where other bank stabilization 
approaches could not be done.
    According to the National Oceanic and Atmospheric Administration's 
report entitled: ``National Coastal Population Report: Population 
Trends from 1970 to 2020,'' 39 percent of the population of the United 
States (123.3 million people) lives in coastal

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shoreline counties. Approximately 52 percent of the nation's population 
lives in coastal watersheds (NOAA and U.S. Census Bureau 2013). That 
report defines ``coastal shoreline counties'' as counties that are 
``directly adjacent to the open ocean, major estuaries, and the Great 
Lakes.'' These coastal shoreline counties experience most of the direct 
effects of coastal hazards, and therefore people living in these areas 
need bank stabilization activities to protect their property and 
infrastructure. As long as the entities responsible for land use 
planning and zoning (primarily local and state governments) continue to 
allow development in coastal areas, there will be a need for bank 
stabilization activities as people living in areas determine a need to 
take action to protect their property.
    Although according to the study mentioned above (Gittman et al. 
2015), an estimated 14 percent of coastal shoreline in the United 
States estimated has been altered by hard bank stabilization such as 
bulkheads, seawalls, jetties, and groins, it is important to consider 
how much of that hardened shoreline is located in coastal environments 
subject to higher energy erosive forces where bulkheads, seawalls, 
jetties, breakwaters, or revetments are necessary to control erosion 
and protect existing buildings and infrastructure. The percentage of 
shore estimated to be hardened by bank stabilization structures should 
also be considered in the overall context of the large number of people 
that live in coastal areas of the United States and the extensive 
proportion of land area in coastal zones that people have altered for 
their use. The 52 percent of the nation's population that lives in 
coastal watersheds has a large impact on the ecological condition of 
coastal waters because of the cumulative effects of human activities in 
those coastal zones. Those cumulative impacts to coastal ecosystems are 
caused by: Pollution from land, rivers, and oceans; overharvesting 
fishery resources; habitat loss; species introductions; nutrient 
inputs; activities that reduce sediment inputs necessary to maintain 
coastal ecosystems; land use changes that convert coastal habitats such 
as forests, wetlands to urban, industrial, and recreational 
developments; the construction and operation of ports and other 
facilities; transportation projects; dredging; aquaculture activities; 
and shore protection structures (MEA 2005a). In summary, there are many 
other categories of activities in coastal areas besides bank 
stabilization activities that adversely affect coastal waters and their 
associated ecosystems and eliminate or diminish the ecological 
functions and services those waters and ecosystems provide.
    Humans have long had substantial impacts on ecosystems and the 
ecological functions and services they provide (Ellis et al. 2010). 
Over 75 percent of the ice-free land on Earth has been altered by human 
occupation and use (Ellis and Ramankutty 2008). Approximately 33 
percent of the Earth's ice-free land consists of lands heavily used by 
people: Urban areas, villages, lands used to produce crops, and 
occupied rangelands (Ellis and Ramankutty 2008). Human population 
density is a good indicator of the relative effect that people have had 
on local ecosystems, with lower population densities causing smaller 
impacts to ecosystems and higher population densities having larger 
impacts on ecosystems (Ellis and Ramankutty 2008). According to NOAA 
and the U.S. Census Bureau (2013), in 2010 U.S. coastal shoreline 
counties had an average density of 446 people per square mile and U.S. 
coastal watershed counties had an average density of 319 people per 
square mile. Both of these densities are considered high population 
densities under the classification system used by Ellis and Ramankutty 
2008). Human activities such as urbanization, agriculture, and forestry 
alter ecosystem structure and function by changing their interactions 
with other ecosystems, their biogeochemical cycles, and their species 
composition (Vitousek et al. 1997).
    Given the relatively high percentage of the United States 
population that lives in coastal shoreline counties, and the fact that 
many coastal shoreline counties have been long been significantly 
altered by human activities, the estimated percentage of hardened 
shoreline should be considered in the context of the cumulative impacts 
that have occurred in coastal shoreline counties or coastal watersheds. 
As explained above, there is a wide variety of activities that 
contribute to cumulative effects to coastal waters (also see MEA 
2005b). Bank stabilization activities are a small subset of human 
activities that adversely affect coastal waters and wetlands.
    It is also important to consider that a large number of waterfront 
property owners will want to protect their property with bank 
stabilization structures, such as bulkheads, seawalls, and revetments. 
Some waterfront property owners have taken different approaches (e.g., 
vegetative stabilization, bioengineering, living shorelines) to control 
erosion of their lands. Those landowners that perceive that erosion is 
not a problem will choose not to install any erosion control measures. 
Landowners will choose erosion control methods they believe will 
protect their property over a long term. They may have property fronted 
by tidal fringe wetlands that already protects their property. Gittman 
et al. (2015) estimated that only 1 percent of the United States 
coastline with tidal marsh has been armored by seawalls, bulkheads, 
revetments, or other hard structures, and those erosion control 
structures were often constructed landward of the tidal marsh. Gittman 
et al. (2015) does not indicate what proportion of those erosion 
control structures were constructed outside of the Corps' jurisdiction 
(e.g., landward of the high tide line and jurisdictional wetlands) and 
which proportion were authorized by DA permits, including NWPs. Areas 
defined by Gittman et al. (2015) as ``sheltered shorelines'' (i.e., 
shorelines located in bays, sounds, lagoons, or tidally influenced 
rivers) may not have site characteristics where living shorelines or 
vegetative stabilization might be appropriate and effective in 
controlling erosion. Some of these sheltered shorelines have larger 
fetches and be regularly exposed to higher energy waves and therefore 
require hard bank stabilization approaches to effectively protect 
coastal property and infrastructure. In general, living shorelines are 
limited to shores with gentle slopes and small fetches that are subject 
to low- to mid-energy waves.
    The entity responsible for managing a public beach is responsible 
for proposing an appropriate bank stabilization activity and the Corps 
will evaluate the proposal if it requires DA authorization. Bank 
stabilization measures are being used by people that want to protect 
their property, and by federal, tribal, state, and local governments as 
well as private entities that want to protect their infrastructure and 
other facilities. Vegetative stabilization is only effective in certain 
coastal areas where erosive forces (e.g., waves, currents, boat wakes) 
are low or moderate. The need to implement erosion control measures is 
a reaction to a perceived erosion problem that occurs after waterfront 
property has been developed. The responsibility for land use planning 
and zoning, including land use in coastal zones, generally falls on 
state and local governments.
    We recognize that in coastal waters bulkheads, seawalls, and 
revetments have adverse effects on the structure, function, and 
dynamics of coastal ecosystems (e.g., Nordstrom et al. 2014;

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Gittman et al. 2016). We also recognize that other approaches to bank 
stabilization, such as living shorelines, also have some adverse 
effects on coastal ecosystems, such as habitat conversions (e.g., 
Bilkovic et al. 2016; Sutton-Grier et al. 2015). As discussed above, 
bank stabilization activities are not the only activities in coastal 
areas that adversely affect the structure, function, and dynamics of 
coastal waters and wetlands. The cumulative effects of large number of 
people living in these coastal areas over the centuries has altered the 
structure, function, and dynamics of coastal ecosystems.
    Three commenters said this NWP should be modified to increase its 
limits to encourage vegetative stabilization or bioengineering. Two 
commenters stated that they support the Corps' encouragement of 
bioengineering, but that there should be a limitation as to how much 
fill is authorized within a floodplain for bioengineered projects. Two 
commenters requested that NWP 13 clearly state that vegetative bank 
stabilization will not be required by the Corps at any particular site.
    The NWP currently provides sufficient flexibility to landowners, 
public works agencies, and other entities to use a wide range of 
options to stabilize banks. The Corps does not regulate fills in 
floodplains unless there are discharges of dredged or fill material 
into waters of the United States. The Corps regulatory program does not 
regulate activities in floodplains per se; we only regulate activities 
in floodplains that require authorization under section 404 of the 
Clean Water Act and/or section 10 of the Rivers and Harbors Act of 
1899. Corps districts cannot mandate the use of a particular bank 
stabilization approach, such as vegetative stabilization, because 
district engineers can only provide advice on a landowner's proposed 
bank stabilization activity (see 33 CFR 320.4(g)(2)). The district 
engineer will evaluate the proposed activity, and if he or she 
determines the proposed activity will result in more than minimal 
adverse environmental effects, he or she will exercise discretionary 
authority and require an individual permit.
    One commenter said that proposed paragraph (a) allows cumulative 
impacts to fish. Cumulative impacts to fish are caused not only by the 
placement of material into jurisdictional waters and wetlands to 
stabilize banks, but also by a wide variety of other activities that 
the Corps does not have the legal authority to regulate. Examples of 
other contributors to cumulative impacts to fish include: Point source 
discharges of pollutants authorized by Clean Water Act section 402 
permits, non-point sources of pollution, habitat loss and alterations 
that do not involve activities regulated by the Corps under its 
authorities, overharvesting of fish, climate change, land use/land 
cover changes in the watershed draining to the waterbodies inhabited by 
those fish, and resource extraction activities, such as water 
withdrawals.
    Two commenters stated that the 500 linear foot limit is too high, 
and two commenters said the 500 linear foot limit should be removed 
because it is arbitrary. Another commenter said that the 500 linear 
foot limit encourages bank armoring. One commenter stated that the 
linear foot limit for bank stabilization by hard armoring should be 300 
linear feet. Three commenters expressed concern that there is no linear 
foot limit for non-bioengineered bank stabilization projects and they 
recommend a limit of 500 linear feet for those projects. Two commenters 
recommended increasing the linear foot limit to 1,000 feet. One 
commenter stated that 500 linear foot bank stabilization activities 
should only be authorized by NWP on large rivers. One commenter said 
that a 500-foot bulkhead cannot have more than minimal adverse 
environmental effects. Another commenter remarked that NWP 13 
activities should be limited to 300 linear feet in non-tidal waters 
inhabited by state or federally listed threatened or endangered 
freshwater mussel species. One commenter suggested changing the linear 
foot limits for stream bank stabilization authorized by NWP 13 to 500 
linear feet for hard armoring and 200 linear feet for scour protection.
    The 500 linear foot limit was established to help ensure that NWP 
13 activities result in no more than minimal individual and cumulative 
adverse environmental effects. Division engineers can modify this NWP 
through regional conditions to reduce the 500 linear foot limit if 
there are regional concerns regarding the potential for more than 
minimal adverse environmental effects to occur. The district engineer 
can waive the 500 linear foot limit on a case-by-case basis if he or 
she makes a written determination, after conducting agency coordination 
that the proposed activity will result in only minimal individual and 
cumulative adverse environmental effects. However, to address concerns 
about the adverse effects of bulkheads on coastal ecosystems, we have 
imposed a 1,000 linear foot limit on waivers for bulkheads. For 
proposed bulkheads that are 501 to 1,000 feet in length, district 
engineers can waive the 500 linear foot limit if they make written 
determinations after agency coordination that the proposed bulkheads 
will result in no more than minimal adverse environmental effects.
    We are only applying the 1,000 linear foot cap to bulkheads because 
bulkheads have the potential, in some circumstances, to cause more 
severe adverse environmental effects than other bank stabilization 
techniques, such as bioengineering, vegetative stabilization, sills, 
rip rap, revetment, and stream barbs. Bulkheads constructed in 
estuaries cause losses of intertidal habitat through erosion caused by 
reflection of wave energy, changes in sediment transport, and 
inhibiting migration of the shoreline in response to sea level change 
(Dugan et al. 2011; Bilkovic and Mitchell 2013). In a recent meta-
analysis, Gittman et al. (2016) found that species diversity and 
abundance near bulkheads are substantially lower compared to natural 
shorelines, and in general species diversity and abundance near 
shorelines protected by riprap or revetments do not differ from natural 
shorelines. Our decision to cap bulkheads at 1,000 linear feet is based 
on our experience and judgment to provide additional assurance that NWP 
13 only authorizes those bank stabilization activities that have no 
more than minimal individual and cumulative adverse environmental 
effects. Project proponents that want to construct bulkheads longer 
than 1,000 linear feet along the shore can seek Department of the Army 
authorization by applying for an individual permit. Other bank 
stabilization techniques (e.g., bioengineering, vegetative 
stabilization, riprap) are not subject to this 1,000 linear foot cap, 
but for those proposed activities that exceed 500 linear feet in length 
along the shore, to be authorized by NWP 13 the district engineer must 
issue a written waiver of the 500 linear foot limit. That waiver must 
be based on a written determination made by the district engineer that 
the proposed activity results in only minimal adverse environmental 
effects.
    The flexibility provided in the waiver process precludes the need 
to consider higher linear foot limits for this NWP. The 500 linear foot 
limit does not drive the decision whether the proposed bank 
stabilization activity should be a bulkhead or other hard structure; 
that is the decision of the landowner, public works department, or 
other responsible entity. The selected bank stabilization approach is 
mostly dependent on site conditions, and the likely effectiveness of 
that approach in controlling erosion. Any NWP 13 activity proposed by a 
non-federal permittee that might affect

[[Page 1896]]

federally-listed endangered or threatened species or designated 
critical habitat, is in the vicinity of those listed species or 
critical habitat, or is located in critical habitat, requires a PCN 
(see paragraph (c) of general condition 18, endangered species). For 
proposed NWP 13 activities that the district engineer determines ``may 
affect'' listed species or critical habitat, he or she will conduct 
formal or informal ESA section 7 consultation. Impacts to state-listed 
species are more appropriately addressed by state laws and regulations. 
The 500 linear foot limit should be the same for hardened stream bank 
stabilization and scour protection because they are both bank 
stabilization approaches.
    Two commenters supported the proposed modification of paragraph (c) 
of this NWP, and recommended adding ``or as needed for a stable 
maintainable side slope.'' Two commenters stated that NWP 13 should not 
authorize stabilization or fill placement below the ordinary high water 
mark or mean high water line. One commenter said that the one cubic 
yard per running foot limit is arbitrary and should be removed. Another 
commenter remarked that allowing discharges of one cubic yard per 
running foot for bulkheads below the ordinary high water mark or mean 
high water line frequently leads to scouring of the shore in front of 
the bulkhead. One commenter stated that this NWP should clarify that 
buried bank stabilization measures are not included in the quantity or 
length limits. One commenter suggested replacing the terms ``high tide 
line'' and ``ordinary high water mark'' in paragraph (c) with ``high 
astronomical tide,'' except for the Great Lakes where ``ordinary high 
water mark'' would continue to be used.
    We believe that the proposed text of paragraph (c) is sufficient to 
ensure that these activities result in no more than minimal adverse 
environmental effects. We do not believe it is necessary to add a 
requirement to establish a ``stable maintainable side slope.'' If more 
than one cubic yard per running foot in waters of the United States is 
needed to make a suitable side slope, then the project proponent can 
request a waiver from the district engineer. Prohibiting discharges of 
dredged or fill material into waters of the United States below the 
ordinary high water mark or mean high water line would result in most 
bank stabilization activities requiring individual permits, even though 
they would have no more than minimal adverse environmental effects. If 
the bank stabilization activity is not properly integrated into the 
bottom of the waterbody, the bank stabilization activity is likely to 
collapse as erosion undercuts the bank stabilization measure.
    The one cubic yard per running foot limit is intended to limit 
fills to ensure that NWP 13 activities result in only minimal adverse 
environmental effects. District engineers can issue written waivers of 
this one cubic yard per running foot limit, if they determine after 
conducting agency coordination that the proposed activity will result 
in no more than minimal individual and cumulative adverse environmental 
effects. In some situations, the placement of riprap at the bottom of 
the bulkhead is necessary to prevent scouring and undercutting of the 
bulkhead. Any discharges of dredged or fill material below the plane of 
the ordinary high water mark or high tide line are counted towards the 
one cubic yard per running foot limit, even if those fills are keyed 
into the bottom of the waterbody to reduce the potential for 
undercutting of the bank stabilization activity. The term ``high tide 
line'' is provided in the ``Definitions'' section of these NWPs 
(Section F), and is to be used for these NWPs, is identical to the 
definition at 33 CFR 328.3(d) that was published in the Corps' final 
rule issued on November 13, 1986 (51 FR 41251).
    Two commenters said the placement of fill within special aquatic 
sites for bank stabilization should be prohibited. The placement of 
fill in special aquatic sites for the purposes of bank stabilization 
can have no more than minimal adverse environmental effects. A proposed 
discharge of dredged or fill material into a special aquatic site 
requires the submission of a PCN to the district engineer and a request 
for a waiver of that prohibition. The district engineer will coordinate 
the PCN with the other agencies, in accordance with paragraph (d) of 
general condition 32. To waive that prohibition, the district engineer 
must issue a written waiver with a finding of no more than minimal 
adverse environmental effects. A waiver might require mitigation to 
ensure that the authorized activity results in no more than minimal 
adverse environmental effects.
    One commenter supported the proposed modification stating that NWP 
13 authorizes the maintenance and repair of existing bank stabilization 
features. A few commenters said this paragraph should be changed to 
limit maintenance and repair activities to previously authorized bank 
stabilization activities. One commenter objected to proposed paragraph 
(h), stating that it requires maintenance of a bank stabilization 
project in perpetuity. This commenter said the NWP should specify a 
period of time for the bank stabilization activity to become 
established.
    We have concluded that it is not necessary to limit this provision 
to the maintenance and repair of previously authorized bank 
stabilization activities. Such a requirement would discourage the 
maintenance and repair of bank stabilization activities that have 
deteriorated over time and may be allowing sediments and other 
materials to enter the waterbody, adversely affecting water quality. In 
addition, there may be older bank stabilization activities that did not 
require DA authorization at the time they were constructed but changing 
environmental conditions makes their maintenance and repair subject to 
DA permit requirements. Paragraph (h) does not require a landowner or 
other entity to maintain a bank stabilization activity in perpetuity. 
The landowner or other entity also has the option of removing that bank 
stabilization activity and restoring the affected area to the extent 
practical. We do not believe it would be appropriate or practical to 
establish a period of time for a bank stabilization activity to become 
established because bioengineering or vegetative stabilization 
activities generally require more time than bulkheads or revetments. 
There are also a variety of other factors that affect the functional 
lifespan of a bank stabilization activity.
    One commenter suggested adding timber mats to the paragraph 
authorizing temporary structures and fills, to minimize construction 
impacts. One commenter suggested that the word ``promptly'' be inserted 
before ``removed'' in the fourth sentence of this paragraph so that the 
temporary structures or fills are quickly removed after the work is 
completed.
    We have added temporary mats, including timber mats, to this 
paragraph, consistent with the corresponding paragraphs proposed in 
NWPs 3 and 12. We do not agree that the word ``promptly'' should be 
added to that sentence because it may be necessary and environmentally 
beneficial to allow temporary fills to remain in place while the 
permanent fills settle and stabilize.
    One commenter suggested allowing the use of non-native plants for 
bioengineering or vegetative bank stabilization in situations when 
native species are not as well-suited for a given project. Another 
commenter recommended adding ``where practicable'' to this provision to 
allow for flexibility.

[[Page 1897]]

    To make the requirement to use native plants more visible in the 
text of this NWP, we have moved it to a new paragraph (g). If native 
plants cannot be used for a bioengineering or vegetative bank 
stabilization activity, perhaps bioengineering or vegetative 
stabilization is not an appropriate option. There should be native 
plant species available for those activities. Contractors that rely on 
non-native plant species for their bioengineering or vegetative 
stabilization projects should seek sources of native plants that can 
serve those purposes.
    Many commenters said that all NWP 13 activities should require 
PCNs. One commenter asserted that no NWP 13 activities should require 
PCNs. Some commenters stated that PCNs should be required for all NWP 
13 activities involving bank or shoreline hardening. One commenter 
asserted that the terms and conditions of this NWP could not be 
enforced if PCNs are not required for all activities. Several 
commenters stated that the Corps could not track cumulative impacts 
unless PCNs are required for all activities. Some commenters remarked 
that the Corps could not ensure compliance with the Endangered Species 
Act or National Historic Preservation Act if PCNs are not required for 
all activities. Many commenters stated that if all proposed NWP B 
activities require PCNs, then all NWP 13 activities should require PCNs 
to provide more equivalency to those NWPs. Some of these commenters 
said that if not all NWP 13 activities require PCNs, then the NWP 
program would continue to have a bias towards bank stabilization 
activities that harden shorelines.
    We do not believe that all NWP 13 activities, including all hard 
structures such as seawalls, bulkheads, revetments, and riprap, should 
require PCNs because they can often be constructed with only relatively 
small amounts of fill in jurisdictional waters. In shorelines or banks 
where there are strong erosive forces, hard bank stabilization 
structures are likely to be the only feasible options to protect 
property and infrastructure, and they will result in only minimal 
adverse environmental effects. The current PCN thresholds and the PCN 
requirements of certain general conditions (e.g., general condition 18, 
endangered species, and general condition 20, historic properties) are 
sufficient to ensure that NWP 13 activities result in no more than 
minimal individual and cumulative adverse environmental effects. 
Division engineers may modify this NWP to impose regional conditions 
that require PCNs for more activities authorized by this NWP. In our 
automated information system, we track NWP 13 activities that require 
PCNs as well as those NWP 13 activities where project proponents 
request NWP verifications even though they are not required to submit 
PCNs. Those reported activities, as well as estimates of NWP 13 
activities that occurred without the requirement to submit PCNs, are 
considered in the Corps' cumulative effects analyses presented in the 
national decision document.
    General condition 18, endangered species, requires non-federal 
permittees to submit PCNs for any proposed NWP activity that might 
affect ESA-listed species or designated critical habitat, is in the 
vicinity of listed species or designated critical habitat, or is in 
designated critical habitat. A similar requirement applies to general 
condition 20, historic properties. General condition 20 requires non-
federal permittees to submit PCNs for any proposed NWP activity that 
may have the potential to cause effects to historic properties. If a 
non-federal project proponent does not comply with general conditions 
18 and 20 and does not submit the required PCNs under the circumstances 
identified in paragraph (c) of those general conditions, the activity 
is not authorized by NWP and is an unauthorized activity.
    The PCN thresholds for NWPs 13 and the new NWP 54 (proposed NWP B) 
differ because the living shorelines authorized by NWP 54 typically 
involve greater amounts of fill into jurisdictional waters and 
wetlands, as well as fills and structures that typically extend a 
distance into subtidal or shallow waters. In other words, NWP 13 
activities and NWP 54 activities, as a general rule, are not equivalent 
in terms of the amounts of fill that are typically discharged into 
jurisdictional waters and wetlands to conduct those activities, and the 
amount of encroachment into the waterbody. Nationwide permit 54 does 
not have a cubic yard limit on the amount of fill that can be 
discharged below the plane of the high tide line or ordinary high water 
mark. Bank stabilization activities authorized by NWP 13 often have 
small footprints in jurisdictional waters and wetlands and small 
encroachments into waterbodies because of the characteristics of the 
authorized activities. For example, seawalls and bulkheads that may be 
authorized by NWP 13 consist of vertical walls, perhaps with some 
backfilling behind the wall structure. Riprap, stone revetments, and 
gabions can be constructed close to the existing bank, with minor 
amounts of encroachment into the waterbody. Vegetative stabilization 
and bioengineering can also be constructed close to the existing bank 
with minimal encroachment into the waterbody. General condition 23, 
mitigation, requires the adverse effects of NWP activities to be 
avoided and minimized to the maximum extent practicable on the project 
site.
    This NWP requires a PCN for any proposed activity that involves a 
discharge of dredged or fill material that exceeds an average of one 
cubic yard per running foot as measured along the length of the treated 
bank. The district engineer can waive this one cubic yard per running 
foot limit after conducting agency coordination under paragraph (d) of 
general condition 32 and making a written determination that the 
proposed activity will result in no more than minimal adverse 
environmental effects.
    As discussed above, the activities authorized by new NWP 54 usually 
involve larger fills distributed over broader areas of waters to 
achieve the necessary marsh establishment area and/or molluscan reef 
structures to control erosion. If, instead of issuing a new NWP to 
authorize the construction and maintenance of living shorelines, we 
proposed to modify NWP 13 to authorize these activities, the vast 
majority of living shorelines would require PCNs and waivers of the one 
cubic yard per running foot limit. In addition, activities authorized 
by NWP 54 are more likely to encroach into state-owned lands in 
navigable waters that are held in trust for the benefit of the public. 
Because of those likely encroachments into navigable waters, NWP 54 
construction activities will be reviewed on a case-by-case basis to 
ensure that those activities have no more than minimal adverse effects 
on navigation. Therefore, the activities typically authorized by NWPs 
13 and 54 have some fundamental differences in fill quantities and 
encroachment into waters, and potential impacts to navigation and trust 
resources that warrant different PCN thresholds.
    Many commenters said the 500 linear foot PCN threshold is too high, 
and the linear foot threshold should be reduced so that the Corps would 
be required to review more NWP 13 activities to make sure they result 
in no more than minimal adverse environmental effects. One commenter 
recommended requiring PCNs for any bank stabilization activity that 
requires mechanical equipment to be used in aquatic resources to 
construct that bank stabilization activity.
    We believe the 500 linear foot PCN threshold, as well as the other 
PCN thresholds, is sufficient to require PCNs for any proposed NWP 13 
activity that

[[Page 1898]]

might have the potential to result in more than minimal adverse 
environmental effects. Division engineers can modify this NWP on a 
regional basis to lower that PCN threshold by imposing regional 
conditions. By requiring more PCNs for NWP 13 activities, and thus more 
activity- and site-specific evaluations, division engineers can provide 
greater assurance that on a regional basis those activities will result 
in no more than minimal individual and cumulative adverse environmental 
effects.
    In many circumstances, mechanical equipment used to construct or 
maintain bank stabilization activities authorized by NWP 13 can be 
operated from uplands or from barges or types of other work vessels to 
minimize their impacts on the aquatic environment. Division engineers 
can regionally condition this NWP to require PCNs for the use of 
mechanical equipment, if they have identified specific regional 
concerns regarding their use and its effect on aquatic resources. The 
current PCN thresholds, along with the additional PCNs required through 
regional conditions, are sufficient to ensure that NWP 13 activities 
result in no more than minimal individual and cumulative adverse 
environmental effects.
    Several comments regarding the proposed PCN form were received, 
some of which addressed the proposed questions described in the June 1, 
2016, proposed rule. One commenter suggested that questions relating to 
bank stabilization for the proposed PCN form should be addressed 
instead through general condition 32, pre-construction notification. 
Two commenters said that asking if there are qualified professionals in 
the area that construct living shorelines would discourage the use of 
living shorelines. One of these commenters suggested changing the 
question to directly ask whether a living shoreline can be used instead 
of a hardened bank stabilization activity. These two commenters also 
said that the term ``qualified'' needs to be defined and suggested that 
the question distinguish between the concepts of design and 
construction because one person might be qualified to construct a 
living shoreline but not to design it. One commenter said that it 
should not be necessary that the qualified consultant or engineer be a 
local person. One commenter stated that the Corps should provide 
information on methods for protecting and conserving shorelines, 
instead of asking the applicants through the PCN form.
    The purpose of the information requirements in general condition 32 
is to provide the district engineer with information on a specific 
proposed NWP activity, to help the district engineer determine whether 
the proposed activity qualifies for NWP authorization. The intent of 
the questions on the proposed PCN form is to gather information to 
inform future rulemaking efforts, not to evaluate specific NWP 
activities or potential alternatives. Comments on the proposed 
questions on the PCN form will be responded to in the documentation for 
the PCN form, if the form is approved. Alternatives analyses are not 
required for NWP PCNs. The suite of appropriate options for bank 
stabilization approach is highly site-specific. In addition, there are 
different approaches for living shorelines, so asking whether a living 
shoreline ``could'' be used will not provide much useful information. 
District engineers can only provide general information to landowners 
regarding bank stabilization options. District engineers cannot design 
a landowner's bank stabilization activity. They can only evaluate the 
landowner's proposal to determine whether it qualifies for general 
permit authorization or whether an individual permit is required.
    Two commenters stated that PCNs for NWP 13 should discuss whether 
the project site is in an area designated as suitable for living 
shoreline approaches based on a regional or state-level living 
shoreline analysis. They said that the Corps should consider the 
state's determination and apply it to the NWP verification decision. 
Another commenter said that NWP 13 PCNs should include a statement 
whether the proposed activity is consistent with regional policy and 
standards. Several commenters said that NWP 13 PCNs should include a 
statement explaining why a living shoreline is not appropriate for the 
project site, if a living shoreline is not being proposed.
    If regional or state living shoreline analyses have been done, and 
those analyses are available to the public, then landowners can use 
those analyses to help evaluate bank stabilization options to protect 
their property. Because we are not establishing a preference for a 
particular approach to bank stabilization or erosion control, we do not 
believe that PCNs should require information on regional or state 
living shoreline analyses. If the state regulates shore erosion control 
activities, the state's regulations or permit decisions will influence 
or dictate the shore erosion approach proposed by the landowner. If 
that shore erosion activity requires DA authorization, then the state's 
regulations or permit decision will influence the landowner's permit 
application or PCN (if a PCN is required for an NWP activity). Living 
shorelines are feasible and effective in limited circumstances in 
coastal waters, so we do not agree that a statement regarding the 
appropriateness of living shorelines should be required as a standard 
statement in NWP 13 PCNs.
    One commenter stated that, for proposed maintenance activities, the 
NWP 13 PCN should include evidence that the bank stabilization 
structure had been previously authorized. Several commenters said that 
project proponents submitting NWP 13 PCNs should clearly demonstrate 
that there are erosion risks, to justify the proposed bank 
stabilization activities. One commenter requested that NWP 13 PCNs 
include detailed information on the shoreline type and the status of 
adjacent properties, the water quality status of adjacent waters, a 
description of site conditions that demonstrate that it is necessary to 
do a bank stabilization activity rather than taking no action or 
constructing a living shoreline, and a written justification for 
proposing a hardened bank stabilization activity. Two commenters 
recommended using a public database for the collection of NWP 13 PCN 
information.
    We do not believe it is necessary to demonstrate that the bank 
stabilization activity was previously authorized. It may have been 
authorized by a non-reporting NWP or other general permit and there 
might not be a written verification that shows what was previously 
authorized. It is also possible it did not require DA authorization at 
the time it was constructed. Erosion is a natural process. Therefore, 
wherever land and flowing water interact with each other, there will be 
erosion. Requiring permit applicants to demonstrate that erosion is 
occurring would not add value to the PCN process. In general, a 
landowner is not going to expend the time and expense to submit a PCN 
or hire a consultant or contractor to prepare a PCN and construct the 
bank stabilization activity if there is not an erosion problem at his 
or her property. Most landowners will only incur the expenses to 
construct bank stabilization activities if they believe that there is 
an erosion problem that needs to be addressed.
    Landowners or their consultants, when preparing PCNs for NWP 13 
activities, may include information beyond the requirements of 
paragraph (b) of general condition 32, to assist the district engineer 
in his or her decision-making process. Such information can include the 
shoreline type and the types of bank stabilization (if any) already

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present at adjacent properties. The applicant may also describe site 
conditions to support his or her desired approach to bank stabilization 
(e.g., revetment, vegetative stabilization). The applicant does not 
need to demonstrate that a living shoreline is not practical or 
feasible at the site of the proposed NWP 13 activity, or provide a 
written justification for a hard bank stabilization approach. All NWP 
13 verifications are tracked in our automated information system 
(ORM2), but that information is not publicly available on a Web site. 
As discussed above, we will develop quarterly reports that show overall 
summary statistics pertaining to the use of each NWP, aggregated per 
Corps District, and display it on our Web site. Some statistics that 
may be reported regarding the NWPs may include number of verifications 
provided per quarter, acres of waters of the United States permanently 
lost, as well as including summary information on the use of waivers 
during the previous quarter. All data provided will be aggregated by 
NWP and all information on waivers will pertain only to those NWPs that 
include a waiver provision.
    Several commenters stated that no waivers should be granted for NWP 
13 activities. A number of commenters supported the waiver provisions 
for NWP 13. One commenter said that the use of waivers violates the 
Clean Water Act, and another commenter asserted that waivers allow more 
than minimal impacts to occur. One commenter stated that waivers should 
not be issued for bulkheads, revetments, and other bank hardening 
projects. A few commenters said there should be no caps on waivers.
    We are retaining the proposed waiver provisions for NWP 13. Waivers 
are an important tool for providing flexibility in the NWP program, and 
for authorizing activities that have only minimal adverse environmental 
effects. Waivers also allow the Corps to focus its limited resources on 
proposed activities that require DA authorization and have substantial 
impacts on the aquatic environment. The use of waivers in the NWP 
program is not contrary to the Clean Water Act because all waivers 
require a written determination by the district engineer that the 
authorized NWP activity will have no more than minimal individual and 
cumulative adverse environmental effects, consistent with the 
requirements of section 404(e) of the Clean Water Act. No waiver of an 
NWP limit can occur without a written determination by the district 
engineer, and the issuance of an NWP verification letter by that 
district engineer. Waivers can be issued for bulkheads, revetments, and 
other hard bank stabilization activities that the district engineer 
determines will result in only minimal adverse environmental effects. 
All requests for waivers under NWP 13 will be coordinated with the 
appropriate resource agencies, in accordance with paragraph (d) of 
general condition 32, to assist with the district engineer's 
evaluation. We agree that there does not need to be caps on waivers 
because all waivers must be granted in writing by district engineers, 
after making a finding of ``no more than minimal adverse environmental 
effects.''
    One commenter stated that no waivers should be granted to exceed 
the 500-foot limit. Another commenter said that waivers should not be 
granted for discharges of dredged or fill material into special aquatic 
sites. One commenter stated that there should be no limit to waivers 
because most bank stabilization projects are beneficial to streams. One 
commenter recommended allowing waivers for fills in perennial streams. 
One commenter said that if an NWP 13 activity exceeds a limit, the 
applicant should be required to develop a restoration plan to address 
the causes of the erosion problem. A commenter stated that mitigation 
should be required for all waivers of the linear foot limit.
    All requests for waivers of the 500 linear foot limit or the 
prohibition against discharges of dredged or fill material into special 
aquatic sites require site-specific evaluations by district engineers 
as well as agency coordination. The district engineer will evaluate the 
information in the PCN and comments received from the resource agencies 
before making his or her decision whether to grant the waiver. The 
waiver requires a written determination that the proposed activity will 
result in no more than minimal individual and cumulative adverse 
environmental effects. We agree that waivers may be appropriate to 
manage erosion in streams where streams may be impaired by excessive 
erosion, and the bank stabilization activity will result in no more 
than minimal adverse environmental effects. For NWP 13, waivers can be 
issued for bank stabilization activities in perennial streams. We do 
not agree that restoration (or any other form of compensatory 
mitigation) should be required for all NWP 13 activities requiring 
waivers. The district engineer will determine when compensatory 
mitigation should be required for a specific NWP activity, in 
accordance with 33 CFR 330.1(e)(3), to ensure that the authorized 
impacts are no more than minimal.
    Several commenters suggested adding a provision to NWP 13 that 
requires a determination that the proposed bank stabilization activity 
is the least environmentally damaging practicable alternative because a 
living shoreline is not practicable because of site conditions such as 
excessive erosion, high energy conditions, excessive water depths, or 
navigation concerns. Many commenters expressed their position that NWP 
13 must not be reissued because it violates the Clean Water Act. They 
said that proposed NWP B should be used in place of NWP 13. They assert 
that activities authorized by NWP 13 result in more than minimal 
individual and cumulative adverse environmental effects because 
hardened shorelines provide less habitat than natural shorelines. Two 
commenters stated that applicants requesting NWP 13 authorization for 
bulkheads need to demonstrate that a living shoreline is not feasible. 
One commenter suggested modifying NWP 13 to authorize living shorelines 
instead of proposed NWP B.
    Activities authorized by NWP do not require a 404(b)(1) Guidelines 
alternatives analysis, including the identification of the least 
environmentally damaging practicable alternative (see 40 CFR 
230.7(b)(1)). As discussed in its decision document, especially the 
404(b)(1) Guidelines analysis, the reissuance of NWP 13 fully complies 
with the Clean Water Act. A decrease in the amount or quality of 
habitat along a shoreline does not necessarily mean that the adverse 
environmental effects are more than minimal, individual or 
cumulatively. Discharges of dredged or fill material into waters of the 
United States, and structures or work in navigable waters of the United 
States, for activities authorized by NWP 13 and NWP 54 will have no 
more than minimal adverse environmental effects as long as the project 
proponent complies with all applicable terms and conditions of these 
NWPs, including the PCN requirements. All forms of bank stabilization, 
including living shorelines, have some adverse environmental effects 
because they directly and indirectly alter nearshore aquatic habitats, 
including animal and plant communities. As long as those adverse 
environmental effects are no more than minimal, they can be authorized 
by NWP. We do not agree that NWP 13 should include a requirement for 
the permittee to demonstrate that living shorelines are not feasible. 
Living shorelines are limited to coastal waters, including the Great 
Lakes, while NWP 13 activities can be conducted in a wide range of

[[Page 1900]]

waters, from small streams to ocean waters. We believe that a separate 
NWP should be issued to authorize living shorelines, because of the 
limited circumstances in which living shorelines are an effective means 
of erosion control and the limited waters in which they can be used 
(i.e., shorelines in coastal waters with gentle slopes, low fetch, and 
low- to mid-energy waves).
    One commenter stated that living shorelines are a practicable 
alternative to shoreline armoring because they are less expensive to 
construct and maintain. A number of commenters expressed the view that 
NWP 13 should establish a hierarchy for evaluating erosion control 
options to authorize the alternative that would result in the least 
environmentally damaging practicable alternative. Many commenters said 
that landowners should be allowed to select the bank stabilization 
technique used to protect their property from erosion, and that the 
final NWPs should not establish a preference for living shorelines over 
the bank stabilization techniques authorized by NWP 13. These 
commenters emphasized that landowners should be allowed to propose 
their preferred bank stabilization technique from a suite of available 
techniques.
    We agree that, in certain circumstances, living shorelines are a 
feasible alternative to bulkheads, seawalls, and revetments. We also 
agree that landowners should be able to propose their preferred 
approach to bank stabilization, which may be based on guidance provided 
by any contractors or consultants they hire. Corps districts will 
evaluate the PCNs for proposed bank stabilization activities and 
determine whether they qualify for NWP authorization. We believe that 
it is not appropriate to establish a preference hierarchy for bank 
stabilization techniques because the appropriate bank stabilization 
approach for a particular site is highly dependent on site 
characteristics and the types of aquatic resources (e.g., streams, 
rivers, lakes, estuaries, oceans) in which the bank stabilization 
techniques will occur. In addition, there are regional differences 
among bank stabilization practices that cannot be addressed through a 
national rule such as the NWPs.
    One commenter said that the requirements of general condition 3, 
spawning areas, when applied to NWP 13 activities would place an 
increased burden on road stabilization activities near tidal waters and 
may make those activities economically infeasible. Two commenters 
stated that bank armoring activities should require mitigation. One 
commenter said that undeveloped ocean shorelines should not be altered 
except when bank stabilization is justified to prevent or reduce 
threats to adjacent developed areas.
    General condition 3 requires that NWP activities in spawning areas 
during spawning seasons must be avoided to the maximum extent 
practicable. The qualifier ``to the maximum extent practicable'' gives 
some flexibility to NWP 13 activities for roads near tidal waters that 
may need to be stabilized quickly to prevent them from eroding away. 
While there may be circumstances in which bank armoring activities 
warrant mitigation to ensure that the adverse environmental effects are 
no more than minimal, such decisions are made by the district engineer 
after evaluating a PCN. We do not agree that mitigation should be 
required for all bank armoring activities authorized by NWP 13. If a 
parcel of land with an ocean shoreline is undeveloped, but one or both 
adjacent properties are developed (and may be protected by bank 
stabilization structures), the owner of the undeveloped parcel should 
be allowed to protect that bank if the bank will erode and the erosion 
is likely to encroach into the adjacent properties.
    One commenter objected to the statement in the preamble to the 
proposed rule that said there are different PCN thresholds for NWPs 13 
and 54 because living shorelines require substantial amounts of fill 
material. This commenter's objection was based on the assertion that 
living shorelines control erosion by planting vegetation or using a 
combination of vegetation and technical structures, not by the 
introduction of fill material.
    For most living shorelines, it is necessary to discharge fill along 
the shoreline to achieve the proper grade for dissipating wave energy 
and protecting the bank from erosion and undercutting. These fills are 
planted with vegetation to hold the fill in place, and the plant stems 
also help dissipate wave energy. Sills, breakwaters, and other 
structures may also be necessary to reduce the energy of water reaching 
the shore to reduce erosion and protect fringe wetlands. If we had 
proposed to modify NWP 13 to authorize the construction and maintenance 
of living shorelines instead of proposing a new NWP, a large majority 
of proposed living shorelines would require PCNs. This is because they 
would exceed the cubic yard limit in paragraph (c) and require a 
written waiver from the district engineer because of the amount of fill 
required to provide the proper grade for wave energy dissipation and 
vegetation plantings, and stone sills or breakwaters or other fill 
structures. Under NWP 54, waivers are not required unless the proposed 
living shoreline impacts exceed the waivable limits in that NWP. One of 
the waivable limits in NWP 54 is for structures and fills encroaching 
into waters up to 30 feet from the mean low water line is not included 
in NWP 13 because of the differences between living shorelines and the 
forms of bank stabilization authorized by NWP 13.
    The construction of living shorelines does have some adverse 
effects on the waters and special aquatic sites affected by these 
projects, including the organisms that inhabit those areas. Living 
shorelines do not produce the same degree of ecological functions and 
services as natural shorelines (Pilkey et al. 2012). With living 
shorelines, there are trade-offs in ecological functions and services 
as fills convert subtidal waters to intertidal waters. Under the 
404(b)(1) Guidelines, discharges of dredged or fill material into 
waters of the United States are to be avoided and minimized to the 
maximum extent practicable (see also paragraph (a) of general condition 
23, mitigation).
    One commenter stated that this NWP should have conditions requiring 
final bank elevations to be no higher than the bank that existed prior 
to the bank stabilization activity. This commenter said that a floodway 
analysis should be conducted to demonstrate that there would be no 
increase in flood elevation as a result of the bank stabilization 
activity. Two commenters recommended adding provisions to this NWP that 
require the use of best management practices to minimize downstream 
impacts, such as instream sediment booms and oil booms. One commenter 
stated that there should be restrictions imposed on bank stabilization 
activities to protect forage fish spawning areas and critical habitat, 
channel migration zones, and habitat for ESA-listed species.
    District engineers, when evaluating PCNs, can impose activity-
specific conditions regarding final bank elevations to be established 
at the site after the NWP 13 activity is completed. The requirement to 
conduct a floodway analysis is more appropriately addressed through 
state and local floodplain management authorities. Activities 
authorized by NWP 13 and other NWPs must comply with general condition 
10, fills within 100-year floodplains. The use of best management 
practices to minimize downstream impacts is more appropriately 
addressed by district engineers through activity-specific

[[Page 1901]]

conditions imposed on NWP authorizations, taking into account the site-
specific characteristics of the proposed activity. General condition 3 
requires measures to minimize adverse effects to fish spawning areas 
during spawning seasons. General condition 18, endangered species, 
establishes procedures for complying with the requirements of section 7 
of the Endangered Species Act (ESA). District engineers will conduct 
ESA section 7 consultations for any proposed NWP 13 activities that 
they determine, after reviewing PCNs, may affect listed species or 
designated critical habitat.
    Several commenters objected to the following sentence, which 
appeared in the preamble to the proposed rule (81 FR 35200): ``Many 
landowners prefer bulkheads and revetments because well-constructed 
bulkheads last approximately 20 years and revetments can last up to 50 
years (NRC 2007).'' These commenters said this statement was not a 
conclusion of the committee that wrote the 2007 NRC report entitled 
``Mitigating Shore Erosion along Sheltered Coasts.'' These commenters 
asserted that the 2007 NRC report concluded that prior regulatory 
practices and local marine contractors are the main reason why 
landowners choose bulkheads and revetments. They said that in many 
cases landowners are not informed that there are other alternatives to 
erosion control. These commenters also expressed the opinion that the 
decisions of landowners are not driven by the lifespans of bulkheads 
and revetments. They said that it is a lack of understanding of 
alternative approaches to shore protection and institutional bias that 
causes the continued use of seawalls, bulkheads, and revetments.
    The sentence on page 35,200 of the proposed rule should have been 
written as follows, to avoid misrepresenting the 2007 NRC report: 
``Well-constructed bulkheads last approximately 20 years and revetments 
can last up to 50 years (NRC 2007). Many landowners may prefer 
bulkheads and revetments because of the longevity of those structural 
measures to control erosion and protect their properties.''
    The section of the 2007 NRC report (pages 73-76) that discusses 
landowner options for addressing bank erosion presents a number of 
hypothetical scenarios to illustrate those options. If the life 
expectancies of bulkheads or stone revetments are irrelevant to the 
landowner's decision-making process, why were those life expectancies 
discussed in the bulkhead or stone revetment options? That section of 
the 2007 NRC report provides no information on how long marsh plantings 
or marsh plantings combined with stone sills will effectively control 
erosion, other than to say that a planted marsh fringe will require on-
going maintenance and some maintenance will likely be required for the 
stone sill and marsh plantings after they are exposed to storm events. 
The landowner is a critical part of the decision-making process, 
because his or her property is at risk. Some landowners prefer 
bulkheads and revetments because they make them feel more secure 
(Popkin 2015). It should be noted that in response to the proposal to 
issue a new NWP to authorize the construction and maintenance of living 
shorelines, we received many comments opposing the issuance of the new 
NWP 54. Many of those commenters expressed concern that they would be 
required to use living shorelines, instead of being able to use other 
approaches to erosion control.
    In many coastal areas, hard bank stabilization measures are the 
only effective option in coastal environments where high energy erosive 
forces are present. A landowner may prefer a bank stabilization 
approach that he or she views as being more durable and requires less 
maintenance. Current regulatory frameworks and contractor preferences 
are only part of the decision-making process. The landowner makes the 
final decision unless the regulatory agency (federal, state, or local) 
decides to deny the landowner's permit application. Since the options 
(#2a and #2b) in that section of the 2007 NRC report include two living 
shoreline options, the report's discussion of the various options could 
be interpreted as including consideration of the expected longevities 
of those shore erosion control options, as well as their maintenance 
requirements. Living shorelines are relatively new, and there is much 
to be learned about their effectiveness over the long term, and in 
different areas of the country. As discussed above, many commenters 
stated that landowners and other entities should be allowed to choose 
how they protect their waterfront properties and their infrastructure. 
Those comments indicate that landowners are informed about various 
erosion control approaches and are not passively deferring to the 
contractors and consultants they hire to provide advice, design, and 
planning services, and to construct the authorized activities.
    One commenter said that due to the increasing risks and costs of 
protecting ocean shorelines, applicants should be required to share 
substantially in the costs and responsibilities of implementing 
shoreline stabilization projects authorized by NWP 13. One commenter 
stated that the Corps needs to provide advance and meaningful notice to 
tribes to avoid unresolved impacts to tribal treaty natural resources 
and cultural resources. A couple of commenters asked how the Corps will 
enforce the terms and conditions of NWP 13 for bank stabilization 
activities. One commenter stated that the proposed changes to NWP 13 
will cause an unfair burden to local agencies when they try to 
determine whether bank stabilization projects are authorized and 
whether pre-construction notification is required.
    Landowners pay for the bank stabilization activities authorized by 
NWP 13 that they construct to protect their property. For the 2017 
NWPs, the Corps districts consulted with interested tribes to identify 
regional conditions to protect tribal resources, including natural and 
cultural resources retained by, or reserved by or for, tribes through 
treaties. District engineers can also establish coordination procedures 
with interested tribes to coordinate proposed NWP 13 activities to help 
ensure that these activities do not cause more than minimal adverse 
effects on tribal rights (including treaty rights), protected tribal 
resources, or tribal lands. Corps districts will enforce NWP 13 
activities in the same manner as they enforce all individual permits 
and general permit authorizations, which is through the procedures 
described in the Corps' regulations at 33 CFR part 326 and relevant 
guidance and policy documents. Local agencies that are unsure whether 
their proposed bank stabilization activities qualify for NWP 13 
authorization are encouraged to contact the appropriate Corps district 
to seek their advice on whether the proposed activity might qualify for 
NWP 13 or a different general permit or whether an individual permit 
would be needed.
    One commenter requested that the Corps evaluate regional impacts to 
local governments caused by division engineers adding regional 
conditions to this NWP and lengthening the time it takes to receive NWP 
verifications. Two commenters stated that NWP 13 activities should 
require a professional engineer's certification that the proposed bank 
stabilization activity will not exacerbate any upstream or downstream 
flooding problems.
    Division engineers impose regional conditions on the NWPs to ensure 
that those NWPs comply with section 404(e) of the Clean Water Act and 
that authorized activities result in no more than minimal individual 
and

[[Page 1902]]

cumulative adverse environmental effects. The regional conditioning 
process is a key tool for addressing regional differences in aquatic 
resources, as well as the ecological functions and services they 
provide. Regional conditions also facilitate compliance with other 
federal laws, such as section 7 of the Endangered Species Act and 
section 106 of the National Historic Preservation Act, as well as the 
Corps' tribal trust responsibilities. District engineers are required 
to respond to NWP PCNs within 45 days of receipt of a complete PCN, 
regardless of whether division engineers have imposed regional 
conditions on the NWPs. There are some exceptions to the 45-day 
response requirement, such as PCNs that require ESA section 7 and/or 
NHPA section 106 consultations and PCNs for activities authorized by 
NWPs 21, 49, and 50. Establishing requirements for a professional 
engineer's certification of bank stabilization activities and effects 
on upstream and downstream flooding are more appropriately addressed by 
state and local governments that have the authority to manage flooding 
risks. The Corps Regulatory Program does not have this authority.
    Two commenters said that an environmental impact statement must be 
prepared for the reissuance of NWP 13. One commenter said that the 
reissuance of NWP 13 requires an environmental impact statement because 
of impacts to ESA-listed species. One commenter stated that the draft 
decision document failed to take into account the direct, indirect, and 
cumulative effects of NWP 13 activities. A few commenters asserted that 
the reissuance of NWP 13 requires ESA section 7 consultation.
    For the reissuance of this NWP, Corps Headquarters complied with 
the requirements of the National Environmental Policy Act (NEPA) by 
preparing an environmental assessment with a finding of no significant 
impact. The environmental assessment describes, in general terms, the 
mitigation measures (including the requirements of NWP general 
conditions) that ensure that activities authorized by NWP result in no 
more than minimal individual and cumulative adverse environmental 
effects. Certain NWP 13 activities require pre-construction 
notification, another mechanism that helps ensure that NWP activities 
cause no more than minimal adverse environmental effects. The national 
decision document also generally describes compensatory mitigation 
practices that may be required by district engineers for specific NWP 
activities to ensure that those activities have no more than minimal 
adverse environmental effects. Compliance with the requirements in 33 
CFR part 332, and activity-specific compensatory mitigation 
requirements, will help ensure that compensatory mitigation required by 
district engineers will offset the authorized impacts to jurisdictional 
waters and wetlands.
    The decision document prepared for this NWP describes, in general, 
the direct, indirect, and cumulative impacts of these activities. The 
direct and indirect effects caused by NWP 13 activities are described 
throughout the decision document. These direct and indirect effects are 
described in general terms because the decision to reissue this NWP is 
made prior to the NWP going into effect and authorizing specific 
activities at specific project sites. We prepared a NEPA cumulative 
effects analysis based on the Council on Environmental Quality's 
definition of ``cumulative impact'' at 40 CFR 1508.7, as well as a 
404(b)(1) Guidelines cumulative effects analysis based on the 
requirements of 40 CFR 230.7(b)(3).
    The decision document issued by Corps Headquarters discusses 
compliance with section 7 of the ESA, including the ``no effect'' 
determination Corps Headquarters made for the reissuance of this NWP. 
Our ``no effect'' determination is also presented in this final rule. 
The decision document discusses the processes and tools that the Corps 
uses to comply with ESA section 7, to ensure that this NWP is not 
likely to jeopardize the continued existence of listed species, or 
adversely modify or destroy critical habitat that has been designated 
for those listed species. The reissuance of NWP 13 has ``no effect'' on 
listed species or critical habitat because of the requirements of 
general condition 18, endangered species, and 33 CFR 330.4(f). For any 
proposed NWP activity that might affect listed species or designated 
critical habitat, is in the vicinity of listed species or designated 
critical habitat, or is located in designated critical habitat, the 
project proponent must submit a PCN, and the district engineer will 
evaluate that PCN to determine whether ESA section 7 consultation is 
required. If the district engineer makes a ``may affect'' determination 
for a proposed NWP activity, that activity is not authorized by NWP 
until after ESA section 7 consultation is completed.
    The Corps has determined that the reissuance of this NWP does not 
result in a significant impact on the human environment that warrants 
the preparation of an environmental impact statement. This is because 
of the various protections in the NWP program that are applied to ESA-
listed species and designated critical habitat and the fact that an NWP 
can only authorize activities that have no more than minimal adverse 
environmental effects.
    A few commenters said that the proposed reissuance of NWP 13 is 
contrary to Executive Order 13653, Preparing the United States for the 
Impacts of Climate Change, which requires federal agencies to consider 
the challenges that climate change add to their programs, policies, 
rules, and operations, to ensure that those items continue to be 
effective as the climate changes. These commenters also stated that the 
Corps failed to consider the October 7, 2015, Presidential Memorandum 
entitled ``Incorporating Natural Infrastructure and Ecosystem Services 
in Federal Decision-Making.'' These commenters indicated that the 
proposed rule also did not consider current Corps policies concerning 
climate change and sea level rise.
    The activities authorized by NWP 13 are an important tool for 
landowners and communities to adapt to the effects caused by climate 
change, especially sea level rise and increases in the frequency of 
severe storm events. As sea level changes at a particular site, the 
landowner may need to conduct new or modified bank stabilization 
activities to protect his or her property. Nature-based infrastructure 
approaches such as living shorelines may not be feasible or effective 
in higher energy coastlines subject to sea level rise. Existing 
buildings and other infrastructure may prevent inland migration of 
wetlands (Enwright et al. 2016). Public works agencies and utility 
companies may need to use NWP 13 activities to protect roads and 
utility lines from damage caused by erosion. In sum, NWP 13 activities 
will help landowners, public agencies, and other respond to sea level 
rise and other effects of climate change. This NWP authorizes bank 
stabilization activities undertaken by private landowners, who are not 
subject to the policies the Corps developed for the federal water 
resource projects it designs and implements.
    Several commenters said that the Corps, in its draft decision 
document, did not demonstrate that NWP 13 will result in no more than 
minimal impacts, because that draft decision document only provides an 
estimate of impacts that will be authorized over a 5-year period. They 
also stated that the draft decision document ignores cumulative 
impacts, fails to account for climate change, and fails to assess 
impacts on ESA-listed species. One commenter said that the cumulative 
impact analysis

[[Page 1903]]

within the draft decision document is impermissibly narrow and 
improperly delegates the cumulative impact analysis to specific 
projects. This commenter stated that if the Corps cannot conduct an 
adequate cumulative impact at the national level, it should not reissue 
NWP 13. One commenter asserted that the draft decision document did not 
evaluate the secondary impacts of bulkheads, because secondary effects 
are not discussed anywhere in that document. One commenter stated that 
NWP 13 violates the 404(b)(1) Guidelines because it causes significant 
degradation of waters of the United States.
    Because the NWPs are issued before they go into effect and will be 
used over the next five years (unless they are modified, suspended, or 
revoked before the expiration date) to authorize specific activities 
being conducted by project proponents, the estimate of permitted 
impacts is a forward-looking estimate. In addition, the approach used 
in the decision document is fully consistent with the requirements of 
the 404(b)(1) Guidelines at 40 CFR 230.7(b)(3). The decision document 
includes two cumulative effects analyses: One to satisfy the 
requirements of NEPA, using the definition of ``cumulative impact'' at 
40 CFR 1508.7. The other cumulative effects analysis satisfies the 
requirements of the 404(b)(1) Guidelines at 40 CFR 230.7(b)(3). The 
final decision document has been revised to discuss climate change. The 
decision document also discusses compliance with the Endangered Species 
Act, as well as cumulative effects to ESA-listed species (see the NEPA 
cumulative effects analysis, which includes ESA-listed species as a one 
of the ``resources of concern'' discussed in that analysis).
    The cumulative effects analyses in the decision document prepared 
by Corps Headquarters satisfies the requirements of NEPA and the 
404(b)(1) Guidelines and does not defer the cumulative impact analyses 
to district engineers who evaluate PCNs for specific activities. When 
evaluating an NWP PCN or a voluntary request for NWP verification, the 
district engineer will consider cumulative impacts when determining 
whether the proposed NWP activity will result in no more than minimal 
individual and cumulative adverse environmental effects. The district 
engineer's consideration of cumulative impacts does not need to be an 
extensive analysis because he or she is simply verifying whether NWP 
authorization is appropriate. The district engineer is not considering 
whether the issuance of the NWP is appropriate, that is the decision 
that is being made by Corps Headquarters when it issues this rule, 
along with the more extensive cumulative effects analysis.
    The draft decision document, as well as the final decision 
document, discusses in general terms the direct and indirect effects of 
NWP 13 activities on the environment. Secondary effects are analogous 
to indirect effects, and therefore do not warrant separate 
consideration in the decision document. The final decision document 
also concluded that the reissuance of this NWP complies with the 
404(b)(1) Guidelines. Section 7.1.3 of the decision document discusses 
our determination that the reissuance of this NWP will not cause 
significant degradation of waters of the United States.
    Three commenters expressed concern with the apparent overlap of 
authorization of bank stabilization projects using NWPs 13 and 27, and 
the proposed NWP B. These commenters pointed out that there are 
different limits for these NWPs and believe those differences encourage 
applicants to request authorization under the NWP that has the least 
restrictions or requirements. These commenters recommended clarifying 
the purposes of each of these NWPs so that project proponents apply for 
authorization under the most appropriate NWP. One commenter recommended 
that the NWPs provide incentives for landowners to retrofit existing 
seawalls with bioengineered methods. This commenter said that a 
streamlined process for retrofitting bank stabilization projects will 
encourage property owners to do these types of projects, instead of 
replacing an old seawall with a new seawall.
    We have made changes to NWP 27 to limit it to aquatic habitat 
restoration, enhancement, and establishment activities so that it 
should no longer be used to authorize bank stabilization activities. We 
have also modified the definition of ``living shoreline'' in new NWP 54 
to clarify that living shorelines are limited to coastal waters. We 
have also added a Note to NWP 54 to point prospective permittees to NWP 
13 if they want to use an NWP to authorize vegetative stabilization 
activities or bioengineering activities in inland waters, such lakes 
other than the Great Lakes, and inland rivers and streams.
    We cannot require landowners to retrofit existing seawalls with 
bioengineering, but landowners may propose to do those types of 
retrofits. Since we have clarified that NWP 13 authorizes 
bioengineering approaches to bank stabilization, in addition to 
seawalls, bulkheads, and revetments, project proponents may seek 
authorization for such retrofits through this NWP, if those retrofits 
require DA authorization.
    Several commenters objected to the proposal to reissue NWP 13, 
stating that armoring shorelines with bulkheads and revetment prevent 
wetlands from migrating inland in response to sea level rise or land 
subsidence.
    There are a number of reasons why coastal wetlands might not be 
able to migrate inland as sea level rises. Wetland migration may be 
impeded by natural and man-made impediments. Natural impediments 
include topography, such as steep coastal bluffs (Enwright et al. 
2016). Man-made impediments include coastal urbanization and levees 
constructed to protect developed and agricultural areas (Enwright et 
al. 2016). Inland migration of wetlands is usually limited to 
undeveloped coasts and protected areas (e.g., wildlife refuges) with 
low, gentle slopes (Enwright et al. 2016). Other factors that affect 
inland wetland migration are: Erosion, subsidence, sedimentation, 
hydrologic alterations, water management. Inland migration in abandoned 
urban areas is likely to be limited to areas that have soil instead of 
asphalt or other hardened surfaces (Enwright et al. 2016). It should be 
noted that tidal wetlands have demonstrated strong resilience by being 
able to adjust to sea level rise by migrating vertically through 
accelerated soil buildup (Kirwan et al. 2016).
    This NWP is reissued with the modifications discussed above.
    NWP 14. Linear Transportation Projects. We proposed to add a note 
to this NWP similar to proposed Note 2 in NWP 12 to explain that 
separate and distant crossings of waters of the United States for 
linear projects may qualify for separate authorization by NWP.
    Several commenters objected to the proposed reissuance of this NWP 
and several commenters supported reissuing this NWP. One commenter said 
that this NWP does not authorize activities that are similar in nature. 
Another commenter stated that individual permits should be required for 
these linear transportation projects. One commenter said that this NWP 
should authorize parking lots.
    The category of activities authorized by this NWP, that is 
activities necessary for the construction, expansion, modification, or 
improvement of linear transportation projects, is a category of 
activities that are similar in nature because they are limited for use 
in transportation. The activities in jurisdictional waters and wetlands 
authorized by this NWP typically result

[[Page 1904]]

in no more than minimal adverse environmental effects and would 
generate little or no public comment if they were evaluated through the 
individual permit process. This NWP requires PCNs for activities that 
have the potential to result in more than minimal adverse environmental 
effects, so that district engineers can review those activities on a 
case-by-case basis and, after considering any mitigation proposed by 
applicants, assert discretionary authority for those activities 
determined to result in more than minimal adverse environmental 
effects.
    The paragraph preceding the ``Notification'' paragraph states that 
NWP 14 does not authorize parking lots. In the preamble to the final 
2012 NWPs, which was published in the February 21, 2012, issue of the 
Federal Register, we stated that NWP 14 authorized parking lots (see 77 
FR 10200). That statement was an error. The construction of parking 
lots that involve discharges of dredged or fill material into waters of 
the United States may be authorized by other NWPs, if it meets the 
terms and conditions of an applicable NWP.
    Several commenters stated that the acreage limits for this NWP 
should not be changed. Several commenters suggested increasing the 
acreage limits of this NWP, and a few of these commenters recommended a 
one-acre limit for individual crossings of waters of the United States. 
One commenter said the acreage limit for losses of non-tidal waters 
should be increased to 3 acres. One commenter stated that the acreage 
limit should be decreased to \1/4\-acre for both non-tidal waters and 
tidal waters, and another commenter said that the acreage limit should 
be \1/10\-acre for losses of non-tidal and tidal waters. A number of 
commenters requested clarification in how the acreage limit is applied 
to each crossing of waters of the United States. One commenter 
recommended a stream impact limit of \1/10\-acre. One commenter stated 
that the scientific rationale in the draft decision document is 
insufficient to justify the \1/2\- and \1/3\-acre limits.
    In this NWP, we are retaining the \1/2\-acre limit for losses of 
non-tidal waters of the United States and the \1/3\-acre limit for 
losses of tidal waters of the United States. We believe these acreage 
limits, with the PCN requirements, are appropriate for ensuring that 
this NWP only authorizes activities that result in no more than minimal 
individual and cumulative adverse environmental effects. For those 
activities that require PCNs, district engineers will review those 
activities, and may impose conditions such as mitigation requirements, 
to provide assurance that the authorized activities will have no more 
than minimal individual and cumulative adverse environmental effects. 
In addition, division engineers have the authority to modify this NWP 
to reduce the acreage limits, if there are regional concerns for the 
environment that warrant changing the acreage limits. The acreage limit 
is applied to each single and complete crossing of waters of the United 
States (see the definition of ``single and complete linear project'' in 
the Definitions section of these NWPs). The acreage limits for this NWP 
and other NWPs are determined by our experience and judgment regarding 
regulated activities that typically result in no more than minimal 
individual and cumulative adverse environmental effects.
    One commenter stated that use of this NWP for the expansion, 
modification, or improvement of previously authorized projects could 
result in cumulative impacts that exceed these acreage limits and that 
the impacts of previously authorized projects should count towards the 
acreage limit.
    Division and district engineers will monitor the use of this NWP 
and if they determine that the activities authorized by this NWP may be 
resulting in more than minimal cumulative adverse environmental 
effects, they will modify, suspend, or revoke this NWP. In cases where 
the expansion, modification, or improvement of an existing NWP 14 
activity will result in additional losses of waters of the United 
States, the district engineers will determine whether the expansion, 
modification, or improvement is part of the original single and 
complete project. If it is, then the district engineer will combine the 
original loss with the proposed loss to determine if the acreage limit 
has been exceeded.
    A number of commenters stated that this NWP should not authorize 
discharges into wetlands or other special aquatic sites. Two commenters 
suggested adding a linear foot limit to this NWP to ensure that it only 
authorizes activities with minimal adverse effects on the aquatic 
environment. One commenter recommended adding a 200 linear foot limit 
either for individual or cumulative impacts. Three commenters 
recommended a stream impact limit of 300 linear feet.
    This NWP requires PCNs for all discharges into wetlands and other 
special aquatic sites. The PCN review process is an important tool for 
ensuring that NWP 14 only authorize activities with no more than 
minimal adverse environmental effects to special aquatic sites. We do 
not agree that a 200 or 300 linear foot limit is necessary for this 
NWP, because most linear transportation projects cross jurisdictional 
streams either perpendicular, or nearly perpendicular to the centerline 
of the stream. The \1/2\-acre and \1/3\-acre limits, plus the PCN 
requirements, are sufficient to ensure that this NWP only authorizes 
activities that have no more than minimal individual and cumulative 
adverse environmental effects.
    One commenter objected to allowing the district engineer to waive 
any of the limits of this NWP. One commenter recommended modifying this 
NWP to allow district engineers to waive certain limits. One commenter 
said that district engineers should be able to waive the limits of this 
NWP if the proposed activity would take place in low quality waters or 
wetlands.
    This NWP does not include any provisions that allow district 
engineers to waive the acreage limits of this NWP. None of the NWPs 
allow waivers of acreage limits. This NWP does not have a 300 linear 
foot limit for losses of stream bed that is similar to the waivable 300 
linear foot limit in NWPs 29 and 39 and a number of other NWPs.
    Two commenters recommended that the paragraph authorizing temporary 
structures and fills include the language regarding the use of 
temporary mats similar to the proposed changes for NWPs 3 and 12. We 
have added temporary mats to this paragraph of NWP 14 to be consistent 
with NWPs 3, 12, and 13.
    Several commenters said that PCNs should be required for all 
activities authorized by this NWP. A number of commenters stated that 
the PCN thresholds should not be changed for this NWP. A few commenters 
suggested increasing the PCN threshold to \1/2\-acre if the acreage 
limit is increased to one acre. One commenter said that PCNs should not 
be required for all discharges into wetlands; instead the PCN threshold 
for losses of wetlands should be \1/10\-acre. Another commenter 
asserted that the second PCN threshold should be eliminated and that 
PCNs should only be required for discharges resulting in the loss of 
greater than \1/10\-acre of special aquatic sites.
    We are retaining the current PCN thresholds for this NWP. We 
believe these PCN thresholds are necessary for providing opportunities 
for district engineers to review proposed NWP 14 activities that have 
potential for resulting in more than minimal adverse environmental 
effects. In response to a PCN, the district engineer can issue an

[[Page 1905]]

NWP verification, with or without permit conditions. The district 
engineer can also exercise discretionary authority to require an 
individual permit, if after considering the applicant's mitigation 
proposal, he or she determines that more than minimal adverse 
environmental effects will occur.
    Several commenters supported the addition of Note 1 to explain that 
separate and distant crossings of waters of the United States for 
linear projects may qualify for separate authorization under NWP 14. 
Two commenters said that linear transportation projects should be 
reviewed in their entirety and not just at individual crossings. One 
commenter recommended deleting Note 1. One commenter objected to the 
addition of Note 1 because it could require more individual permits for 
railways. One commenter stated that the text of Note 1 does not clearly 
define when it is appropriate to combine this NWP with an individual 
permit. One commenter stated that an individual permit for the entire 
project is appropriate when the entire linear transportation project 
impacts more than \1/2\-acre of jurisdictional waters and wetlands. Two 
commenters stated that an individual permit for the entire project is 
appropriate when one crossing does not qualify for authorization under 
NWP 14. One commenter said that the use of NWP 14 in combination with 
an individual permit should be at the discretion of the district 
engineer.
    Consistent with Note 2 of NWP 12 and for the same reasons, we have 
modified Note 1 for NWP 14 by deleting the phrase ``with independent 
utility'' from the second sentence. The objective of the second 
sentence of this note is to serve as a reminder of 33 CFR 330.6(d), 
which addresses the combining of NWP authorizations with individual 
permit authorizations. Section 330.6(d) has been in effect since 1991, 
so the adoption of Note 1 should not result more individual permits for 
railways. District engineers will determine on a case-by-case basis 
when it is appropriate to combine for linear transportation projects 
NWP authorizations with individual permits, or whether all of the 
proposed activities require individual permit authorization.
    Two commenters requested clarification regarding the difference 
between ``stand-alone'' projects and ``segments'' as described in the 
preamble to the June 1, 2016, proposed rule. Two commenters asked for a 
definition of independent utility and noted that the definition of 
``single and complete linear project'' does not explicitly include the 
term ``independent utility.''
    When evaluating individual permit applications and NWP PCNs, 
district engineers will use their judgment in applying 33 CFR 330.6(d) 
to determine when linear transportation projects can be authorized by 
combinations of NWPs and individual permits, or whether individual 
permits is required for all regulated activities for linear 
transportation projects that require DA authorization. The term 
``independent utility'' is defined in the Definitions section of these 
NWPs (Section F). The definition of ``single and complete linear 
project'' does not include the term ``independent utility'' because 
each crossing of waters of the United States is needed for the single 
and complete linear project to fulfill its purpose of transporting 
people, goods, and services from the point of origin to the terminal 
point.
    One commenter remarked that Note 3 is not a substantive change. Two 
commenters expressed concern that the requirements in Note 3 would 
result in district engineers requiring compensatory mitigation for 
cumulative impacts. One commenter supported the addition of Note 3 to 
explain that the district engineer may require mitigation to ensure the 
authorized activity causes no more than minimal individual and 
cumulative adverse environmental effects. One commenter stated that 
mitigation always should be required because the district engineer has 
too much discretion. One commenter asked if Note 3 is for multiple 
crossings that do not have independent utility. Two commenters said 
that the impacts of separate and distant crossings of waterbodies 
should be considered separately when determining mitigation 
requirements, instead of combining the impacts of separate and distant 
crossings.
    Note 3 is not a substantive change from prior NWPs, but it is a 
clarification. The addition of Note 3 does not impose any new 
compensatory mitigation requirements on this NWP. The purpose of Note 3 
is to remind users of the NWPs that if a linear transportation project 
includes crossings of waters of the United States that are authorized 
by NWP but do not require PCNs, and one or more crossings of waters of 
the United States requires pre-construction notification, then the PCN 
must include those non-PCN crossings, in accordance with the 
requirements of paragraph (b)(4) of general condition 32. The district 
engineer requires information on those non-PCN NWP 14 activities to 
make his or her determination whether the proposed activity will result 
in no more than minimal cumulative adverse environmental effects. Under 
33 CFR 330.1(e)(3), which was promulgated in 1991, the district 
engineer has had the authority to require compensatory mitigation to 
ensure that the cumulative adverse environmental effects caused by NWP 
activities are no more than minimal.
    When it is feasible, project proponents usually design their NWP 
activities so that they do not trigger compensatory mitigation 
requirements. According to the Corps' NWP regulations at 33 CFR 
330.1(e)(3), compensatory mitigation is only required if district 
engineer first determines that the proposed NWP activity would result 
in more than minimal individual and cumulative adverse environmental 
effects, and then offers the applicant the opportunity to propose 
mitigation, including compensatory mitigation, to reduce the adverse 
environmental effects so that they are no more than minimal. If the 
adverse environmental effects cannot be reduced so that they are no 
more than minimal, the district engineer will exercise discretionary 
authority and require an individual permit for the proposed activity.
    Note 3 does not address whether individual crossings of waters of 
the United States authorized by NWP have independent utility. That 
question is more appropriately addressed through implementation of 33 
CFR 330.6(d), and case-by-case decisions made by district engineers. 
When determining compensatory mitigation requirements for linear 
projects authorized by NWPs, district engineers have the discretion to 
require compensatory mitigation at a single site (e.g., an approved 
mitigation bank or a permittee-responsible mitigation project), or at 
multiple sites (e.g., mitigation bank credits from different mitigation 
banks whose service areas are crossed by the linear project).
    One commenter recommended adding a condition to NWP 14 that 
prohibits its use when linear transportation projects are likely to 
result in land use changes that will negatively impact the environment. 
Two commenters requested clarification of the phrase ``minimum 
necessary'' which is used in the last sentence of the first paragraph 
of this NWP, for stream channel modifications. One commenter stated 
that the ``minimum necessary'' phrase is ambiguous and should be 
quantified. Another commenter expressed support for the use of that 
phrase in the NWP.
    Land use decisions are made primarily by state, tribal, and local 
governments, through their zoning programs and their other land use 
authorities (see 33 CFR 320.4(j)(2)). The

[[Page 1906]]

Corps does not have the authority to control land use changes that do 
not involve activities that require DA authorization. Application of 
the term ``minimum necessary'' is subject to the district engineer's 
discretion, and is highly dependent on site-specific and activity-
specific circumstances. It is not possible to develop a quantifiable, 
defensible definition of the term ``minimum necessary.'' It is a 
judgment call that must be made by the district engineer when 
evaluating a PCN and the proposed activity's compliance with the terms 
and conditions of this NWP.
    One commenter asked for clarification regarding whether a linear 
transportation project with multiple separate and distant crossings of 
waters of the United States that require pre-construction notification 
can be provided to the Corps district in one PCN, or if individual PCNs 
are required for each crossing that requires notification. Several 
commenters requested that the Corps define what a separate and distant 
location is. A couple of these commenters asked whether there is a 
minimum distance for two crossings of waterbodies to be considered 
separate and distant. One commenter said that the text of NWP 14 uses 
the terms ``separate and distinct'' and ``separate and distant.''
    A permit application or PCN for a linear transportation projects 
should include all crossings of waters of the United States that 
require DA authorization. Whether proposed crossings of waters of the 
United States are to be considered together or as separate and distant 
is to be determined by district engineers on a case-by-case basis, 
after evaluating site and regional characteristics (e.g., topography, 
geology, hydrology, climate). It is not possible to establish a 
specific distance that could be effectively applied across the country. 
Nowhere in the June 1, 2016, proposed rule is the term ``separate and 
distinct'' used. ``Distant'' is the key word in the phrase ``separate 
and distant'' because it is the distance between crossings of waters of 
the United States at reduces the potential for synergistic interactions 
among regulated activities and their impacts to occur. The greater the 
distance between crossings that are authorized by NWP 14, the more 
attenuated the adverse environmental effects of those crossings 
becomes, so that there is less likelihood of more than minimal adverse 
cumulative impacts occurring.
    Three commenters recommended that the use of best management 
practices should be a specific requirement to minimize sediment loading 
and wetland disturbance. One commenter said that this NWP should 
require that riprap placed in the stream should be installed at grade 
with the existing stream substrate and mimic the existing contours of 
the stream channel. One commenter said that this NWP should prohibit 
the use of grout. One commenter stated that culvert bottoms should be 
installed in a manner to allow natural substrate to become 
reestablished. One commenter said that culvert installation should not 
result in over-widening of the stream channel.
    Several NWP general conditions require practices to minimize 
adverse effects to jurisdictional waters and wetlands. For example, 
general condition 12, soil erosion and sediment controls, requires 
appropriate measures to minimize sediment inputs to waters and 
wetlands. General condition 13, removal of temporary fills, requires 
the permittee to remove temporary fills and restore affected areas, 
which may include wetlands. We do not agree that riprap should be 
required in all cases to be placed at grade of a stream. The use of 
grout is more appropriately determined on a case-by-case basis, if the 
use of grout is a component of a regulated activity. The appropriate 
approach for culvert installation is also a case-by-case determination 
and highly dependent on the characteristics of the stream, including 
its geomorphology. The effects of culvert installation on stream 
widening are also most appropriately evaluated on a case-by-case basis 
by district engineers.
    One commenter stated that NWP 14 should authorize the removal of 
road crossings and require the affected areas to be restored using 
natural channel design principles. One commenter said that this NWP 
should require the evaluation of practicable alternatives. One 
commenter expressed concern that NWP 14 activities could result in 
indirect adverse environmental effects in areas distant from linear 
transportation projects. One commenter stated that this NWP should not 
authorize energy projects.
    We do not believe it is necessary to modify NWP 14 to authorize the 
removal of road crossings. If the road crossing is temporary, the NWP 
14 authorization should include conditions that apply to the removal of 
the temporary road crossing after it has fulfilled its intended 
purpose. If the road crossing is permanent, the removal of the road may 
be authorized by NWP 3 if the removal activity requires DA 
authorization. We do not think it is appropriate to prescribe, at a 
national level, a particular approach to restoring streams that were 
adversely affected by NWP activities. There are a number of different 
techniques that can be used to restore streams, and the appropriate 
approach is dependent on the objectives of the restoration activity, 
the site characteristics, and numerous other factors. Activities 
authorized by NWP 14 can have indirect adverse environmental effects, 
and when PCNs are required for those activities, district engineers 
will evaluate both the direct and indirect adverse environmental 
effects when determining if NWP authorization is appropriate. This NWP 
does not authorize energy projects per se, but it may authorize road 
crossings and other linear transportation projects associated with an 
energy facility, including renewable energy generation facilities.
    One commenter stated that federal and state natural resource agency 
coordination should be required for any stream losses that exceed 300 
linear feet or \1/2\-acre. One commenter said that this NWP should not 
authorize activities that jeopardize ESA-listed species. One commenter 
suggested modifying this NWP by adding a limit for cumulative effects 
to protect endangered species in estuaries. One commenter said that 
this NWP should require linear transportation projects to be designed 
to maintain aquatic organism passage. One commenter stated that this 
NWP should require advanced notice to tribes to avoid impacts on tribal 
treaty natural resources and cultural resources.
    This NWP does not have a 300 linear foot limit for losses of stream 
beds. The \1/2\-acre limit for losses of non-tidal waters cannot be 
waived or exceeded. The NWPs cannot be used to authorize activities 
that jeopardize the continued existence of ESA-listed species or 
adversely modify or destroy critical habitat of those species (see 
paragraph (a) of general condition 18, endangered species, and 33 CFR 
330.4(f)). Division engineers can modify, suspend, or revoke this NWP 
on a regional basis to protect ESA-listed species in specific regions 
or waterbodies. General condition 2, aquatic life movements, requires 
NWP activities to be designed and constructed so that they do not 
substantially disrupt the necessary life cycle movements of indigenous 
aquatic species, unless the primary purpose of the NWP activity is to 
impound water. For the 2017 NWPs, Corps districts initiated 
consultation with tribes to determine whether to develop regional 
conditions or coordination procedures to protect tribal trust 
resources, including natural and cultural resources. District engineers 
can establish procedures to coordinate with tribes to help ensure 
compliance with general condition 17, so that no NWP

[[Page 1907]]

activity will cause more than minimal adverse effects on reserved 
tribal rights, protected tribal resources, or tribal lands.
    One commenter said that NWP 14 activities have the potential to 
cause significant direct and cumulative adverse environmental effects 
and that the reissuance of this NWP requires an environmental impact 
statement. Two commenters asked how the cumulative effect analysis for 
this NWP accounts for activities that do not require pre-construction 
notification.
    The Corps complied with the requirements of NEPA by preparing an 
environmental assessment with a finding of no significant impact. The 
environmental assessment and finding of no significant impact are in 
the national decision document prepared for this NWP. Since NEPA 
compliance was accomplished through the preparation of an environmental 
assessment with a finding of no significant impact, an environmental 
impact statement is not required.
    The decision document for this NWP that was prepared by Corps 
Headquarters analyzes, at a national level, the direct, indirect, and 
cumulative impacts caused by activities authorized by this NWP. The 
decision document includes a cumulative impact analysis prepared in 
accordance with the Council on Environmental Quality's NEPA definition 
of ``cumulative impact'' at 40 CFR 1508.7. We also prepared a 
cumulative effects assessment for the 404(b)(1) Guidelines compliance 
determination, as required by 40 CFR 230.7(b)(3). The cumulative 
effects analysis conducted for the 404(b)(1) Guidelines includes 
estimates of the number of non-PCN activities likely to occur during 
the five year period this NWP is in effect, as well as the estimated 
impacts of these non-PCN activities to jurisdictional waters and 
wetlands. Those estimated impacts include both temporary and permanent 
impacts.
    This NWP is reissued, with the changes discussed above.
    NWP 15. U.S. Coast Guard Approved Bridges. We did not propose any 
changes to this NWP and we did not receive any comments on this NWP. 
This NWP is reissued without change.
    NWP 16. Return Water From Upland Contained Disposal Areas. We did 
not propose any changes to this NWP. One commenter stated that the 
proposed NWP did not include enough information for the state to make a 
decision on its Clean Water Act Section 401 water quality certification 
decision.
    This NWP authorizes activities that will occur during the five year 
period the NWP is in effect. The issuance of this NWP is not associated 
with any specific dredging project or disposal site. States can choose 
to issue water quality certification for the NWP, or require individual 
water quality certifications for case-specific NWP 16 authorizations. 
For those states that choose to require individual water quality 
certifications for activities authorized by this NWP, they can require 
additional information from the project proponent to determine whether 
a proposed discharge from an upland contained dredged material disposal 
area complies with state water quality standards. This NWP is reissued 
without change.
    NWP 17. Hydropower Projects. We did not propose any changes to this 
NWP. One commenter objected to the proposed reissuance of this NWP, 
stating that these activities should require individual permits. One 
commenter recommended increasing the generating capacity limit in item 
(a) of the NWP to 10,000 kilowatts.
    The hydropower projects authorized by this NWP are subject to 
either licensing requirements or licensing exemptions from the Federal 
Energy Regulatory Commission (FERC), and the FERC's oversight of those 
projects warrants use of this NWP to avoid duplicative federal review 
that would occur during the Corps' evaluation of a standard individual 
permit application. We believe that the current generating capacity 
limit of 5,000 kilowatts is appropriate to ensure that associated 
discharges of dredged or fill material into waters of the United States 
authorized by this NWP are relatively small and result in no more than 
minimal adverse environmental effects.
    This NWP is reissued without change.
    NWP 18. Minor Discharges. We did not propose any changes to this 
NWP. Two commenters said these activities should require individual 
permits, instead of being authorized by NWP. Several commenters stated 
that this NWP should include a requirement for permittees to explicitly 
describe their avoidance and minimization efforts. One commenter 
remarked that this NWP should distinguish between dredging in open 
waters and excavation activities that occur in wetlands.
    The activities authorized by this NWP involve only small discharges 
of dredged or fill material into jurisdictional waters and wetlands, 
and the PCN thresholds provide district engineers with opportunities to 
review proposed activities that have the potential to result in more 
than minimal adverse environmental effects. In response to a PCN, a 
district engineer may require mitigation to ensure the no more than 
minimal adverse environmental effects requirement for NWPs is 
satisfied. If mitigation cannot be used to ensure the adverse 
environmental effects are only minimal, the district engineer will 
exercise discretionary authority and require an individual permit (see 
33 CFR 330.1(e)(3)). For those activities that require PCNs, the 
project proponent may describe minimization measures in the PCN (see 
paragraph (b)(4) of general condition 32) to assist the district 
engineer in his or her decision-making process. Paragraph (b) of the 
NWP applies to excavation activities in open waters and paragraph (c) 
applies to discharges of dredged or fill material in wetlands or waters 
that results in a loss of those wetlands or waters. Not all wetland 
excavation activities result in regulated discharges of dredged 
material (see 33 CFR 323.2(d)).
    Several commenters said this NWP should limit its use to once per 
verification, instead of authorizing recurring maintenance activities. 
One commenter recommended increasing the 25 cubic yard limit for 
discharges that only take place in wetlands. Another commenter 
suggested increasing the cubic yard limit to 50 cubic yards. One 
commenter asked the Corps to increase the first PCN threshold to 25 
cubic yards in ephemeral streams because these streams do not have 
flowing water on a regular basis, and they have no permanent fish 
populations.
    If a district engineer determines that this NWP is being used too 
frequently for maintenance activities in the same location, he or she 
may talk with the project proponent to determine if measures can be 
taken to address the cause for the recurring maintenance. The \1/10\-
acre limit applies to losses of jurisdictional wetlands located above 
the plane of the ordinary high water mark or high tide line. The 25 
cubic yard limit applies to discharges located below the plane of the 
ordinary high water mark or high tide line. We believe 25 cubic yards 
is the appropriate limit for ensuring that the activities authorized by 
this NWP result in only minimal individual and cumulative adverse 
environmental effects. In areas of the country where 50 cubic yards is 
an appropriate limit for general permit authorization of minor 
discharges, district engineers can issue regional general permits. We 
do not agree that there should be no PCNs for NWP 18 activities in 
ephemeral streams. Discharges of more than 10 cubic yards of dredged or 
fill material into ephemeral streams might result in more

[[Page 1908]]

than minimal adverse environmental effects in some cases. Therefore, 
PCNs should continue to be required for those activities. Increasing 
the PCN threshold to 25 cubic yards would eliminate that PCN threshold 
since this NWP has a limit of 25 cubic yards.
    This NWP is reissued without change.
    NWP 19. Minor Dredging. We proposed to add a sentence requiring the 
dredged material to be deposited and retained at an area that has no 
waters of the United States, unless the district engineer specifically 
authorizes the placement of that dredged material into jurisdictional 
waters and wetlands through a separate authorization.
    Several commenters expressed their support for the proposed change 
to this NWP. Several commenters recommended modifying this NWP to 
authorize the placement of the dredged material into coastal waters 
below the mean high tide line to nourish the beach. One commenter said 
that requiring a separate authorization for placing the dredged 
material into jurisdictional waters and wetlands is redundant and 
counter to the purpose of a streamlined NWP program. Another commenter 
noted that NWP 18, another NWP, or a regional general permit could be 
used to authorize the placement of the dredged material into 
jurisdictional waters and wetlands. One commenter objected to the 
proposed reissuance of this NWP, and said these activities should 
require individual permits. One commenter said that clamshell bucket 
dredging does not result in only minimal adverse environmental effects.
    If the project proponent wants to use the dredged material for 
beach nourishment, and the dredged material is to be placed in 
navigable waters of the United States (i.e., RHA section 10 waters) or 
waters of the United States (e.g., channelward of the high tide line), 
DA authorization is required. Depending on the quantity of dredged 
material and the amount of area to be filled by the dredged material 
that authorization may be provided through NWP 18, another NWP, a 
regional general permit, or an individual permit. The small amounts of 
dredging authorized by this NWP will result in no more than minimal 
individual and cumulative adverse environmental effects. However, 
division engineers can modify, suspend, or revoke this NWP if they are 
concerned that more than minimal adverse environmental effects will 
occur in a region. In addition, if a proposed NWP 19 activity requires 
pre-construction notification, the district engineer can assert 
discretionary and require an individual permit if he or she determines 
the proposed activity will, after considering mitigation, result in 
more than minimal adverse environmental effects. This NWP authorizes 
minor dredging regardless of the equipment used. Clamshell bucket 
dredging conducted in accordance with the terms and conditions of this 
NWP typically causes no more than minimal adverse environmental 
effects.
    Several commenters stated there should be designation of strategic 
areas for the placement of dredged material to ensure that it is 
available for natural geomorphic processes to move that material to 
eroding shorelines or to ensure that it is available for other 
beneficial uses. One commenter suggested adding a requirement for 
agency coordination when the proposed dredging activity would occur in 
non-tidal waters where special status species are known to occur. 
Another commenter stated that this NWP should not be used in non-tidal 
waters inhabited by special status species. One commenter said that 
tribes should be provided with advance notice of these activities. 
Another commenter expressed concern that the dredged material may have 
sediments that are contaminated and harmful to aquatic organisms.
    The designation of strategic areas of the placement of dredged 
material is beyond the scope of the NWP program. Those designations are 
more appropriately made by district engineers or addressed through 
other federal, tribal, state, and local programs. The requirements of 
general condition 18, endangered species, apply to this NWP and will 
address special status species that are listed as endangered or 
threatened under the federal Endangered Species Act, or proposed for 
listing under the ESA. Division engineers can impose regional 
conditions on this NWP to require coordination for proposed NWP 19 
activities that may affect other types of special status species, or to 
prohibit its use in certain waters. For the 2017 NWPs, Corps districts 
have been consulting with tribes to identify regional conditions that 
protect tribal trust resources. Corps districts may also establish 
coordination procedures with tribes to ensure that NWP 19 activities do 
not cause more than minimal adverse effects on tribal rights, protected 
tribal resources, or tribal lands.
    This NWP is reissued as proposed.
    NWP 20. Response Operations for Oil or Hazardous Substances. We did 
not propose any changes to this NWP, other than to change its title. We 
did not receive any comments on this NWP. This NWP is reissued without 
change.
    NWP 21. Surface Coal Mining Activities. We proposed to remove 
paragraph (a) that was in the 2012 NWP 21. Many commenters objected to 
the proposed reissuance of this NWP. Several commenters stated that 
these activities should require individual permits because they result 
in more than minimal individual and cumulative adverse environmental 
effects. One commenter said that paragraph (a) should be deleted from 
this NWP. Several commenters stated that the Corps should be able to 
evaluate and make decisions on NWP 21 PCNs prior to the issuance of the 
Surface Mining Control and Reclamation Act (SMCRA) permit, regardless 
of whether the Office of Surface Mining or the state agency has an 
integrated permit processing procedure.
    We removed paragraph (a) of the 2012 NWP 21 from this NWP. Surface 
coal mining activities that were authorized under paragraph (a) of the 
2012 NWP 21, where the regulated activities in waters of the United 
States have not yet been completed will require individual permits if 
operators need more time to complete those regulated activities. 
Activities that were authorized under paragraph (a) of the 2012 NWP 21 
may qualify for the one-year grandfather provision at 33 CFR 330.6(b) 
if the operator has commenced the authorized work or is under contract 
to do the authorized work before the 2012 NWP 21 expires on March 18, 
2017.
    All activities authorized by this NWP are subject to the \1/2\-acre 
limit and all other terms and conditions of this NWP. The \1/2\-acre 
and the 300 linear foot limits, as well as the PCN review process, will 
ensure that activities authorized by this NWP will result in no more 
than minimal individual and cumulative adverse environmental effects. 
Division engineers may modify, suspend, or revoke this NWP on a 
regional basis. Division engineers may also impose regional conditions 
to ensure that authorized activities result in no more than minimal 
adverse environmental effects.
    Corps districts can review NWP 21 PCNs concurrent with the Office 
of Surface Mining's or the state's SMCRA review process. Since the 
Office of Surface Mining or the state has authority over the entire 
coal mining activity, and the Corps has jurisdiction only over 
activities that involve discharges of dredged or fill material into 
waters of the United States and/or structures or work in navigable 
waters, the project proponent cannot proceed with the surface coal 
mining activity until he or she has secured his or her SMCRA 
authorization. Therefore, the Corps' completion of its review of the 
NWP 21 PCN prior to the SMCRA

[[Page 1909]]

authorization decision would not benefit the project proponent. We have 
not made any changes to that provision.
    One commenter said that the 1/2-acre limit should be used for all 
NWP 21 activities. One commenter stated that district engineers should 
not be able to waive the \1/2\-acre limit. Several commenters requested 
removal of the provision that allows district engineers to waive the 
300 linear foot limit for losses of intermittent and ephemeral stream 
beds. Many commenters said that the 300 linear foot limit should be 
decreased. Most of these commenters stated that if the waiver provision 
is retained, there should be a maximum waiver limit of 500 linear feet 
and compensatory mitigation should be required for losses of greater 
than 300 linear feet of intermittent and ephemeral stream bed. Many 
commenters supported the provision that does not authorize discharges 
of dredged or fill material into waters of the United States to 
construct valley fills.
    For this NWP rulemaking effort, we believe that both the \1/2\-acre 
and 300 linear foot limits are necessary to ensure that the activities 
authorized by this NWP cause no more than minimal individual and 
cumulative adverse environmental effects. This decision is independent 
of prior rulemakings for NWP 21. The waiver provision for the loss of 
intermittent and ephemeral stream bed gives district engineers 
flexibility to authorize, using NWP 21, surface coal mining activities 
that have no more than minimal adverse environmental effects. Each 
waiver request requires a written determination by the district 
engineer, as well as coordination with the resource agencies. During 
agency coordination, the resource agencies can provide their views on 
whether the proposed activity will or will not result in no more than 
minimal individual and cumulative adverse environmental effects. The 
district engineer will fully consider all agency comments when making 
his or her decision whether to issue the written waiver and issue an 
NWP verification letter to the applicant.
    One commenter suggested requiring agency coordination for all NWP 
21 PCNs for proposed activities that would impact pitcher plant bog 
wetlands or bald cypress/tupelo swamps. One commenter recommended 
increasing the limits for NWP 21 and creating a self-verification 
process to streamline the verification process.
    Division engineers can modify this NWP to add regional conditions 
to protect specific types of wetlands, such as pitcher plant bogs or 
bald cypress/tupelo wetlands. They can restrict or prohibit the use of 
this NWP in certain types of wetlands. A regional condition may also 
require agency coordination for certain NWP 21 activities. The project 
proponent can provide additional information in the PCN to assist the 
district engineer in his or her decision-making process. A self-
verification process will not make the district engineer's verification 
process more streamlined. The PCN process is necessary for all 
activities authorized by this NWP because of the potential for more 
than minimal adverse environmental effects to occur. The PCN process 
requires the district engineer to make an independent determination on 
whether the proposed activity will result in no more than minimal 
adverse environmental effects and whether NWP 21 authorization is 
appropriate.
    This NWP is reissued as proposed.
    NWP 22. Removal of Vessels. We proposed to modify Note 2 to refer 
to the possibility of shipwrecks being historic properties. We did not 
receive any comments on this NWP. This NWP is reissued without change.
    NWP 23. Approved Categorical Exclusions. We proposed to modify this 
NWP by clarifying that environmental documentation may consist of 
either an environmental impact statement or an environmental 
assessment. Several commenters objected to the proposed reissuance of 
this NWP, stating that it does not authorize categories of activities 
that are similar in nature. Some of these commenters also said the NWP 
authorizes some activities with no limits on impacts to jurisdictional 
waters and wetlands. Several commenters requested that the Corps revise 
Regulatory Guidance Letter 05-07 to reflect the changes the Federal 
Highway Administration's list of approved categorical exclusions. One 
commenter said that tribes should receive advance notice of activities 
to be conducted under the authorization provided by this NWP.
    This NWP authorizes categories of activities that are similar 
nature, in that those categories relate to the types of activities 
identified in the approved categorical exclusions. The authorized 
activities that have the potential to result in more than minimal 
individual and cumulative adverse environmental effects require PCNs. 
District engineers will review those PCNs and issue NWP verifications 
only for those activities they determine will cause no more than 
minimal adverse environmental effects.
    The revision of RGL 05-07 to address the Federal Highway 
Administration's current categorical exclusions will be a separate 
future effort. We will publish a notice in the Federal Register to 
solicit comment on which of their revised categorical exclusions that 
involve activities regulated under section 404 of the Clean Water Act 
and/or section 10 of the Rivers and Harbors Act of 1899 should be 
authorized by this NWP. As a result of the Corps districts' 
consultations with tribes on the 2017 NWPs, Corps districts may 
establish procedures to coordinating NWP 23 PCNs with interested tribes 
to ensure that the activities authorized by this NWP do not cause more 
than minimal adverse effects on tribal rights, protected tribal 
resources, or tribal lands.
    This NWP is reissued without change.
    NWP 24. Indian Tribe or State Administered Section 404 Programs. We 
did not propose any changes to this NWP and did not receive any 
comments. This NWP is reissued without change.
    NWP 25. Structural Discharges. We did not propose any changes to 
this NWP. One commenter said that this NWP should require concrete to 
be cured for seven days before coming into contact with water. 
Requirements for curing of concrete used for structural discharges 
authorized by this NWP are more appropriately addressed through 
regional conditions imposed by division engineers or activity-specific 
conditions added to NWP verifications by district engineers. This NWP 
is reissued without change.
    NWP 27. Aquatic Habitat Restoration, Enhancement, and Establishment 
Activities. In the June 1, 2016, proposed rule we did not propose any 
changes to this NWP. One commenter objected to the reissuance of this 
NWP, stating that the authorized activities do not produce benefits. 
Many commenters supported the reissuance of this NWP.
    One of the basic requirements of this NWP is that the aquatic 
habitat restoration, enhancement, or establishment activity must result 
in a net gain in aquatic resource functions and services. It will take 
time for these increases in aquatic resource functions and services to 
occur, as the treated area undergoes ecosystem development processes 
after the restoration, enhancement, or establishment activity takes 
place.
    A number of commenters said that there have been activities, such 
as bank stabilization activities and wetland or stream conversion 
activities that are not aquatic habitat restoration, enhancement, or 
establishment activities but that have been verified as being 
authorized by NWP 27. These commenters suggested modifying this NWP to 
make it clear that project proponents should seek DA authorization for 
those activities

[[Page 1910]]

through other NWPs, regional general permits, or individual permits 
instead of NWP 27. A few commenters said that this NWP should not 
authorize the conversion of wetlands, streams, or other aquatic 
resources to other aquatic resource types (e.g., installing water 
control structures in headwater streams to construct wetland 
impoundments) to reduce sediments, nutrients, and other pollutants 
subject to Total Daily Maximum Loads (TMDLs) established under section 
303(d) of the Clean Water Act. One commenter said that NWP 27 should 
not be used to authorize activities that are more appropriately 
authorized by NWPs 13 (bank stabilization) or 43 (stormwater management 
facilities).
    To address those concerns, we have added a paragraph to NWP 27 to 
state that aquatic habitat restoration, enhancement, and establishment 
activities authorized by this NWP must be based on ecological 
references. This change makes it clear that NWP 27 does not authorize 
bank stabilization activities (including living shorelines to control 
erosion), stormwater management activities, and pollutant-reduction 
best management practice facilities constructed to meet TMDLs 
established under section 303(d) of the Clean Water Act. In coastal 
waters, living shorelines can be authorized by the new NWP 54. Living 
shorelines that use stone sills, breakwaters, or other types of 
structures do not resemble natural shorelines (Pilkey et al. 2012). In 
inland waters, vegetative or bioengineering bank stabilization 
activities may be authorized by NWP 13. We are modifying NWP 43 to 
authorize discharges of dredged or fill material into waters of the 
United States to construct and/or maintain pollutant reduction best 
management practice facilities that reduce inputs of pollutants to 
waterbodies to meet the TMDLs established for those waterbodies.
    Ecological references are often used for aquatic habitat and 
riparian area restoration, enhancement, or establishment activities 
because they can provide templates for planning and designing those 
activities to resemble natural aquatic habitats or riparian areas 
(Smith et al. 2013, Society for Ecological Restoration (SER) 2004). 
Ecological references can help assess the naturalness of aquatic 
habitats and riparian areas and can take into account the direct and 
indirect effects of human disturbances and other activities on 
ecosystem structure, dynamics, and functions (Stoddard et al. 2006). 
There are a variety of approaches for using ecological references for 
planning, designing, and implementing ecological restoration activities 
(Clewell and Aronson 2013, chapter 7), including aquatic habitat 
restoration, enhancement, and establishment activities, as well as 
riparian area restoration and enhancement activities. Ecological 
references should take into account the range of variation exhibited by 
the target ecosystem type in the region (SER 2004).
    For the purposes of this particular modification of NWP 27, we 
suggest a couple of approaches for using ecological references. Project 
proponents can use either of the suggested approaches or other 
ecological reference approaches. One suggested approach is to identify 
and use ecological references based on the structure, functions, and 
dynamics of aquatic habitats and riparian areas that currently exist in 
the region where the NWP 27 activity is proposed. The appropriate 
region can be determined through discussions with the district 
engineer. The ecological reference should be the same type (e.g., 
forested wetland, emergent tidal wetland, forested riparian area) as 
the aquatic habitat or riparian area that is the outcome target of the 
proposed NWP 27 activity.
    Another suggested approach is to construct an ecological reference 
based on a conceptual model for the aquatic habitat type or riparian 
area type to be restored, enhanced, or established as a result of the 
NWP 27 activity. The conceptual model can be simple, and consist of a 
mental picture of the structure, functions, and dynamics of the desired 
type of aquatic habitat or riparian area (Clewell and Aronson 2013). 
That mental picture can be based on various information sources 
(Clewell and Aronson 2013) and take into account the historic range of 
variation for the target habitat type (SER 2004). In other words, the 
conceptual model used as an ecological reference would be based on 
knowledge of the natural aquatic habitats or riparian areas of the same 
type that are, or were, found in the region.
    One commenter requested that we modify NWP 27 to authorize certain 
activities identified in watershed implementation plans to meet TMDL 
requirements, such as activities to reduce sediment and nutrient inputs 
to waters. This commenter said that modifying NWP 27 to authorize these 
activities without an acreage limit would provide a streamlined 
authorization process for these TMDL-related restoration activities. 
This commenter asked that the Corps modify NWP 27 to allow conversions 
of one aquatic habitat type to another (e.g., forested wetland to 
emergent wetland) as long as there will be a net increase in aquatic 
resource functions and services. This commenter pointed to the change 
in NWP 27 that was made in 2012 to allow changes in plant communities 
resulting from restoring wetland hydrology. This commenter also said 
that NWP 27 should authorize stream restoration activities that will 
reduce sediment and nutrient inputs to waters to meet TMDL 
requirements.
    Aquatic habitat restoration, enhancement, and establishment 
activities can help reduce inputs of sediment, nutrients, and other 
pollutants to waterbodies, but they are only authorized by NWP 27 if 
they will result in net increases in aquatic resource functions and 
services, do not involve prohibited conversions, and resemble 
ecological references. For example, the re-establishment of upland or 
wetland riparian areas next to a stream can reduce inputs of sediment 
and nutrients to the stream by physical and biogeochemical processes, 
and can be authorized by NWP 27 if those activities involve discharges 
of dredged or fill material into jurisdictional waters and wetlands. In 
contrast, the constructing a dam or other structure across a headwater 
stream to establish a wetland that will trap sediments and transform 
nutrients is conversion of aquatic habitat type that is not authorized 
by NWP 27. The latter activity might be authorized by the reissuance 
and modified NWP 43.
    There is likely to be differences in opinion in whether conversions 
of forested wetlands to emergent wetlands, other types of aquatic 
habitat conversions, or aquatic habitat enhancement activities will 
result in net increases in aquatic resource functions and services. The 
full suite of aquatic habitat functions and services must be considered 
when determining whether the net gains in aquatic resource functions 
and services required by this NWP will occur. When conducting these 
evaluations to determine NWP 27 eligibility, there should not be a 
focus on a specific aquatic resource function, or the ecological 
service(s) produced from that aquatic resource function. To assist 
district engineers in making these determinations, prospective 
permittees considering such activities should provide supporting 
information in their NWP 27 PCNs or reports to demonstrate net 
increases in aquatic resource functions and services.
    The provision in the fourth paragraph of this NWP that states that 
changes in plant communities resulting from restoring wetland hydrology 
are

[[Page 1911]]

acceptable under this NWP was added to take into account the fact that 
restoring wetland hydrology has a high likelihood of changing the plant 
community, and such changes are usually an objective of those wetland 
restoration activities. A stream restoration activity that also helps 
reduce sediment, nutrient, and pollutant inputs to downstream waters 
and helps meet established TMDLs can be authorized by this NWP, as long 
as the restored stream will resemble an ecological reference for that 
stream type in the region.
    Activities intended to address TMDLs for nutrients, sediment, and 
other pollutants that are not aquatic habitat or riparian restoration, 
enhancement, or establishment activities based on ecological references 
may be authorized by NWP 43, which has a \1/2\-acre limit for losses of 
non-tidal waters of the United States. Activities in tidal waters and 
wetlands intended to address TMDLs that are not authorized by NWP 27 
may be authorized by other NWPs, regional general permits, or 
individual permits.
    One commenter asked for more specific examples of the types of 
projects that can be authorized by NWP 27. One commenter stated that 
this NWP should authorize the conversion of one wetland type to another 
type to support enhancement of a specific function. One commenter said 
that this NWP should be modified to allow sidecasting of material 
removed from a wetland into adjacent wetlands, if the affected area 
would still be a wetland. One commenter suggested adding low head dam 
removal to the types of activities authorized by this NWP. One 
commenter said this NWP should authorize the installation of riprap or 
other energy dissipation measures immediately adjacent to dikes, berms, 
and water control structures. One commenter requested that the Corps 
add ``the removal of stream barriers, such as undersized culverts, 
fords, and grade control structures'' to the list of examples of 
activities authorized by NWP 27.
    This NWP already has a comprehensive list of examples of aquatic 
habitat restoration, enhancement, and establishment activities that can 
be authorized by this NWP. This NWP only authorizes the relocation of 
non-tidal waters, including non-tidal wetlands, on the project site. 
The enhancement of a specific wetland function may cause the loss of, 
or reduce, other wetland functions; to be authorized by this NWP an 
aquatic habitat enhancement activity must result in a net gain in 
aquatic resource functions and services. If the restoration of wetland 
hydrology results in a change in wetland plant community that resembles 
reference wetlands in the region that have that hydrologic regime, we 
do not consider that activity to be a conversion of wetland type. The 
sidecasting of excavated material into jurisdictional waters and 
wetlands as part of the wetland restoration, enhancement, or 
establishment activity is authorized by this NWP as long as the 
activity will result in a net increase in wetland functions and 
services.
    The removal of low-head dams is authorized by NWP 53 (see below). 
The removal of small water control structures, dikes, and berms is 
still authorized by NWP 27, and these small structures will typically 
be found in headwater streams. The removal of low-head dams authorized 
by NWP 53 is not limited to headwater streams. This NWP can be used to 
authorize the placement of riprap in jurisdictional waters and wetlands 
as long as it is part of an aquatic habitat restoration, enhancement, 
or establishment activity that will result in net increases in aquatic 
resource functions and services. We have added ``the removal of stream 
barriers, such as undersized culverts, fords, and grade control 
structures'' to the list of examples of activities authorized by this 
NWP.
    One commenter said this NWP should limit the linear feet of riprap 
placed for bank stabilization projects that also have a restoration 
purpose. If bank stabilization is the primary purpose of the proposed 
activity, then that activity should be considered for authorization by 
NWPs 13 or 54. Aquatic habitat restoration, enhancement, or 
establishment activities may require the placement of some riprap as 
part of the overall activity to increase aquatic resource functions and 
services. For NWP 27 activities, we do not believe that it is necessary 
to place a limit on the length of riprap placed in jurisdictional 
waters and wetlands. The appropriate amount will depend on the specific 
activity authorized by NWP 27.
    One commenter said that all NWP 27 activities convert one wetland 
to another, and suggested revising this NWP by removing the language 
regarding aquatic habitat conversions and simply require a net increase 
in aquatic resource function and services, regardless of the impacts. 
Several commenters stated that this NWP should authorize conversions of 
streams to wetlands that diversify wetland habitats, with an acreage 
limit on those conversions. One commenter said this NWP should be 
modified to allow the conversion of forested wetlands to emergent 
wetlands. One commenter requested examples of when is it appropriate to 
use NWP 27 to authorizes the relocation of non-tidal waters.
    Wetland restoration activities can involve conversions in wetland 
type, and those conversions are authorized by this NWP if they result 
from removing one or more impairments that are preventing the former 
wetland or degraded or disturbed wetland from returning to its pre-
impairment structure, functions, and dynamics. Ecological restoration 
activities should result in a damaged or degraded wetland, stream, or 
riparian area resuming its historic ecological development trajectory 
under contemporary environmental conditions (SER 2004). The prohibition 
against conversions in the fourth paragraph of this NWP focuses on 
conversions of wetlands to streams or the conversions of natural 
wetlands to other aquatic habitat types. The prohibition against 
conversions of natural wetlands, and the general requirement that NWP 
27 activities result in net increase in aquatic resource functions and 
services are intended to prohibit wetland enhancement activities that 
would improve one or two wetland functions but cause substantial 
declines in other wetland functions.
    Streams perform a number of important ecological functions and 
services (e.g., Fischenich 2006) and modifying this NWP to authorize 
the conversion of streams to wetlands would result in losses of those 
stream functions and services. Forested wetlands also perform a number 
of functions and services that differ substantially from those 
performed by emergent wetlands. Project proponents that believe that 
the ecological trade-offs that would occur as a result of converting 
streams to wetlands, or converting forested wetlands to emergent 
wetlands are desirable can seek DA authorization for those activities 
under another NWP, a regional general permit, or an individual permit. 
A project proponent who is uncertain whether proposed relocations of 
non-tidal wetlands on a site would qualify for NWP 27 authorization 
should contact the appropriate Corps district to schedule a pre-
application consultation.
    One commenter said that NWP 27 should not allow the reversion of 
enhanced wetlands if the wetland enhancement was done to fulfill 
compensatory mitigation requirements. This commenter also said that 
activities completed under this NWP should not be allowed to be filled 
at a later date. One commenter expressed concern about the that he 
reversion provision,

[[Page 1912]]

stating that it gives landowners a loophole to convert wetlands to 
other uses.
    The reversion provision in this NWP only applies to the specific 
categories of agreements or activities listed in that paragraph. Those 
agreements or activities do not include compensatory mitigation 
projects required as conditions of DA permits. If there are 
jurisdictional waters and wetlands on the site after the authorized 
reversion is completed, then a separate DA authorization would be 
required if the project proponent wants to do activities that require 
authorization under section 404 of the Clean Water Act and/or section 
10 of the Rivers and Harbors Act of 1899. The reversion provision is 
not a loophole because it is intended to allow the affected land to 
revert to its prior condition when appropriate. Aquatic habitat 
restoration, enhancement, and establishment activities that are 
intended to be implemented only for a limited period of time still 
provide important ecosystem functions and services while they are in 
place.
    Many commenters said there should be no changes to the PCN 
thresholds for this NWP. One commenter stated that the activities that 
require reporting should require PCNs instead. Two commenters 
recommended eliminating the PCN requirement for activities conducted on 
non-federal public and private lands in accordance with the terms and 
conditions of a binding restoration agreement between the U.S. Fish and 
Wildlife Service, Natural Resources Conservation Service, Farm Service 
Agency, National Marine Fisheries Service, National Ocean Service, U.S. 
Forest Service, or state agencies. One commenter said that if the PCN 
does not clearly state the purpose of the restoration project, the 
Corps should require a detailed explanation of the increases in aquatic 
resource functions and services that will be provided, and seek input 
from the public and interest groups.
    We are not making any changes to the PCN thresholds or reporting 
requirements for this NWP. We believe the current PCN thresholds and 
reporting requirements are sufficient to provide assurance that 
proposed activities will comply with the terms and conditions of this 
NWP. The PCN and reporting requirements provide an important mechanism 
for ensuring that NWP 27 activities are aquatic habitat restoration, 
establishment, and enhancement activities that result in net increases 
in aquatic resource functions and services. As stated above, we 
received a number of comments expressing concern about the use of NWP 
27 for activities that are not aquatic resource restoration, 
enhancement, or establishment activities but serve other intended 
purposes. Those concerns validate the need to continue the current PCN 
and reporting requirements. When a Corps district reviews a PCN or a 
report for a proposed NWP 27 activity, if the information in the PCN or 
report does not clearly show that the proposed activity will result in 
net increases in aquatic resource functions and services, the district 
can request additional information from the project proponent. For 
specific activities authorized by NWP 27 or any other NWP, the Corps 
does not issue public notices to solicit public comment. Public comment 
is sought during the rulemaking process to issue, reissue, or modify 
NWPs.
    One commenter said that this NWP should require best management 
practices to avoid sediment loading and introduction of excess sediment 
into jurisdictional waters and wetlands. One commenter stated that this 
NWP should require an analysis of impacts to downstream communities, 
especially communities inhabited by threatened and endangered species. 
One commenter recommended adding a provision prohibiting activities 
that impact federally listed plant species.
    Activities authorized by this NWP must comply with general 
condition 12, soil erosion and sediment controls, to ensure that there 
are not excessive amounts of sediment being released to jurisdictional 
waters and wetlands as a result of these activities. Any non-federal 
permittee proposing an NWP 27 activity that might affect ESA-listed 
species or designated critical habitat, is in the vicinity of listed 
species or designated critical habitat, or is in designated critical 
habitat must submit a PCN instead of a report. The ``might affect'' 
threshold in paragraph (c) of general condition 18, endangered species, 
includes direct and indirect effects anticipated to be caused by the 
NWP activity, including downstream indirect effects caused by the NWP 
activity. The requirements of general condition 18 apply to federally 
listed plant species under the ESA.
    One asked why the Corps oversees NWP 27 activities because many 
other state agencies have stream restoration programs. One commenter 
asserted that NWP 27 should not be used to authorize mitigation banks. 
One commenter stated that requiring monitoring plans for NWP 27 
activities places an undue burden on the applicant, especially if the 
intent was to restore a wetland. One commenter recommended adding to 
the text of this NWP an explanation of which aquatic habitat 
restoration, enhancement, or establishment activities may be eligible 
for Clean Water Act section 404(f) exemptions. One commenter asked if 
this NWP authorizes the removal of bulkheads, derelict structures, and 
piles.
    We require PCNs or reporting for all NWP 27 activities to ensure 
the proposed activities comply with the terms and conditions of this 
permit, especially the requirement that authorized activities result in 
net increases in aquatic resource functions and services. While there 
are a number of states that implement stream restoration programs, 
there is still much debate over the most appropriate methods to use to 
restore streams. Therefore, the Corps' review is necessary to ensure 
that proposed stream restoration activities in jurisdictional waters 
and wetlands are authorized by this NWP. We will continue to use of NWP 
27 to authorize regulated activities associated with the construction 
and management of approved mitigation banks. Nationwide permit 27 may 
also be used to authorize aquatic habitat restoration, enhancement, and 
establishment activities for in-lieu fee projects. Under the 
requirements of 33 CFR 332.8(d), all proposed mitigation banks and in-
lieu fee programs must go through a public notice and comment process, 
as well as interagency review.
    If NWP 27 is used to authorize discharges of dredged or fill 
material into waters of the United States and/or structures or work in 
navigable waters of the United States to conduct a compensatory 
mitigation project required as conditions of a DA permit, monitoring 
will be required (see 33 CFR 332.6). If an NWP 27 activity is not being 
conducted as compensatory mitigation to fulfill the requirements for a 
DA permit, then monitoring may or may not be required, depending on the 
activity-specific circumstances. Monitoring of NWP 27 activities can 
provide information useful to other practitioners of aquatic habitat 
restoration, enhancement, or establishment activities, but it is 
optional unless the district engineer imposes conditions in the NWP 
verification to require monitoring.
    In general, the Clean Water Act section 404(f) exemptions do not 
have much applicability to NWP 27 activities, with the possible 
exception of maintenance activities. Therefore, we do not believe that 
there needs to be text added to this NWP to explain when the Clean 
Water Act section 404(f) exemptions might apply to aquatic

[[Page 1913]]

habitat restoration, enhancement, and establishment activities. The 
removal of bulkheads, derelict structures, and piles could be 
authorized by this NWP if that removal is a component of the aquatic 
habitat restoration or enhancement activity, such as a wetland 
restoration activity in estuarine waters. The removal of those 
structures may also be authorized by NWP 3.
    This NWP is reissued with the modifications discussed above.
    NWP 28. Modifications of Existing Marinas. We did not propose any 
changes to this NWP. One commenter asked whether modifications of 
existing marinas should not include overwater coverage, increases in 
slip size, or additional vessel moorage.
    This NWP authorizes modifications of existing marinas, including 
changes to the arrangement of structures within the previously 
authorized marina boundaries. This NWP does not authorize structures in 
navigable waters outside of the boundaries of the authorized marina. 
The area occupied by the authorized marina cannot change but within 
that occupied area the permittee can increase slip size or decrease 
slip size. If slip size is increased to accommodate larger vessels, 
there will be fewer slips within the marina. If slip size is decreased 
to provide slips for smaller vessels, there will be more slips in the 
marina for those smaller vessels to use. This NWP is reissued without 
change.
    NWP 29. Residential Developments. We proposed to modify the terms 
of this NWP to clarify that any loss of stream bed applies towards the 
1/2-acre limit, and that 1/2-acre limit for all losses cannot be 
exceeded.
    Several commenters objected to the proposed reissuance of this NWP, 
and some said that the activities authorized by this NWP result in more 
than minimal adverse environmental effects. One commenter said this NWP 
should not authorize residential developments in channel migration 
zones and floodplains where direct and indirect impacts to special 
status species could occur. Several commenters stated that NWP 29 
should be limited to residential developments that use low-impact 
development construction practices, demonstrate avoidance and 
minimization of impacts, and do not involve channelization or 
relocation of perennial and intermittent streams. One commenter 
recommended limiting this NWP to single family homes.
    The \1/2\-acre limit, the requirement that all activities 
authorized by this NWP require PCNs, the general conditions that apply 
to these activities including mitigation requirements in those general 
conditions, and the district engineers' review of PCNs ensures that the 
activities authorized by this NWP will result in no more than minimal 
individual and cumulative adverse effects. Division engineers can 
modify, suspend, or revoke this NWP in geographic areas where there is 
potential for more than minimal individual and cumulative adverse 
environmental impacts to occur. Regional conditions can be added by 
division engineers to protect important regional resources by 
restricting or prohibiting impacts to those resources caused by 
discharges of dredged or fill material into jurisdictional waters and 
wetlands. Impacts to 100-year floodplains are minimized through the 
requirements general condition 10, fills in 100-year floodplains, which 
states that all NWP activities must comply with applicable FEMA-
approved state or local floodplain management requirements. The 
protection of federally-listed threatened and endangered species is 
addressed through general condition 18, endangered species. District 
engineers will review PCNs and conduct ESA section 7 consultation for 
any proposed activity that may affect listed species or designated 
critical habitat. Other categories of special status species can be 
protected through regional conditions imposed by division engineers, or 
activity-specific conditions added to NWP authorizations by district 
engineers.
    It is not necessary to limit NWP 29 to low-impact development 
activities because other types of residential development activities 
may also result in no more than minimal adverse environmental effects 
and thus qualify for NWP authorization. Paragraph (a) of general 
condition 23, mitigation, requires permittees to avoid and minimize 
adverse effects to waters of the United States to the maximum extent 
practicable on the project site. If the project proponent is proposing 
to channelize or relocate perennial or intermittent streams, the 
district engineer will evaluate the PCN and determine whether the 
proposed activity will result in only minimal adverse environmental 
effects. The district engineer may add conditions to the NWP 
authorization to require mitigation to reduce the adverse environmental 
effects so that they are no more than minimal. This NWP does not need 
to be limited to single family residences because the terms and 
conditions of the NWP, including the ``subdivisions'' paragraph, will 
ensure that multiple unit residential developments will result in no 
more than minimal individual and cumulative adverse environmental 
effects.
    One commenter said the \1/2\-acre limit should apply cumulatively 
to the original construction and to all subsequent phases of the 
residential development. One commenter recommended reducing the acreage 
limit to \1/10\-acre. Another commenter stated that the acreage and 
linear foot limits of this NWP are too high and compensatory mitigation 
should be required for all impacts to wetlands and streams. One 
commenter said stream impacts authorized by this NWP should be limited 
to ephemeral streams.
    The subdivision provision of this NWP, the requirements of general 
condition 15 (single and complete project), and the application of the 
definition of ``single and complete non-linear project'' will limit the 
environmental impacts of the phases of multi-unit residential 
developments so that they are no more than minimal. The \1/2\-acre 
limit, plus the requirement that all activities require PCNs and thus 
get case-by-case review by district engineers, are sufficient to ensure 
that the NWP authorizes only those activities with no more than minimal 
adverse environmental effects, instead of reducing the acreage limit to 
\1/10\-acre.
    Compensatory mitigation requirements for activities authorized by 
this NWP are determined on a case-by-case basis by district engineers 
when they review PCNs, in accordance with 33 CFR 330.1(e)(3) and 
general condition 23. Compensatory mitigation is only required when the 
district engineer determines the proposed impacts are more than minimal 
and the project proponent submits a compensatory mitigation plan that 
the district engineer determines will ensure that the authorized 
activity will result in no more than minimal adverse environmental 
effects. When district engineers evaluate PCNs, they will evaluate any 
proposed impacts to perennial and intermittent streams, so we do not 
think it is necessary to limit this NWP to ephemeral streams. Division 
engineers can modify this NWP by adding regional conditions to restrict 
or prohibit its use in certain types of waters, such as perennial and 
intermittent streams.
    Several commenters said that district engineers should not be 
allowed to waive the 300 linear foot limit for losses of stream bed. 
One commenter stated that resource agencies should review requests for 
waivers of the 300 linear foot limit.

[[Page 1914]]

    All requests for waivers of the 300 linear foot require PCNs and 
those PCNs will be coordinated with the resource agencies in accordance 
with paragraph (d) of general condition 32. The district engineer will 
fully consider agency comments when making his or her decision whether 
to provide a written waiver of the 300 linear foot limit and issue the 
NWP verification. The district engineer's review process, including the 
agency coordination for waiver requests, will ensure that losses of 
stream bed authorized by this NWP will result in no more than minimal 
adverse environmental effects, individually and cumulatively.
    This NWP is reissued as proposed.
    NWP 30. Moist Soil Management for Wildlife. We did not propose any 
changes to this NWP. Several commenters requested clarification of the 
activities authorized by this NWP. Several commenters suggested 
imposing limits on this NWP. Several commenters said that PCNs should 
be required for NWP 30 activities.
    This NWP authorizes discharges of dredged or fill material into 
non-tidal waters of the United States to manipulate wetland soils so 
that habitat and feeding areas can continue to support target wildlife 
populations. This NWP does not authorize the construction of new 
features on these wildlife management areas, and it does not authorize 
the conversion of wetlands to uplands or open waters. Because this NWP 
only authorizes on-going soil management activities and does not 
authorize any losses of jurisdictional wetlands, we do not think an 
acreage limit or a PCN requirement is necessary. Moist soil management 
activities conducted by non-federal permittees that might affect 
species listed under the Endangered Species Act, are in the vicinity of 
listed species or designated critical habitat, or are in designated 
critical habitat, require PCNs under general condition 18, endangered 
species.
    This NWP is reissued without change.
    NWP 31. Maintenance of Existing Flood Control Facilities. We did 
not propose any changes to this NWP. Several commenters objected to the 
proposed reissuance of this NWP. Several commenters recommended 
changing the definition of ``abandoned'' at the end of the second 
paragraph of this NWP. They said that the definition of ``abandoned'' 
should not include facilities where the owner or responsible party is 
making a good faith effort to secure the required approvals for 
maintenance activities. One commenter stated that the provisions 
regarding abandoned facilities should be removed. One commenter said 
that PCNs should be required for all NWP 31 activities.
    We have added a sentence to the end of the second paragraph of this 
NWP to state that the Corps will not consider the flood control 
facility to be abandoned if the applicant is trying to obtain other 
authorizations or approvals that are required by other agencies to 
conduct the maintenance activities. We understand that there may be 
delays in obtaining authorizations or approvals from other government 
agencies. There may also be delays caused by the time it takes to 
complete Endangered Species Act section 7 consultations for the 
activities authorized by this NWP. Such delays should not cause these 
facilities to be considered ``abandoned'' as long as the entity 
responsible for these flood control facilities is making a good faith 
effort to obtain all required approvals and authorizations. We believe 
the abandonment provision should be retained because this NWP only 
authorizes maintenance activities, not the reconstruction of flood 
control facilities that have been abandoned long enough to require 
rebuilding those facilities. All activities authorized by this NWP 
already require PCNs, and the PCN may cover maintenance activities 
anticipated to take place during the 5 year period this NWP is in 
effect.
    One commenter recommended modifying the last sentence of the first 
paragraph of this NWP to state that all dredged material must be placed 
outside of waters of the United States and the 100-year floodplain, and 
require the use of proper siltation controls. Several commenters 
suggested adding requirements for establishing the maintenance 
baseline, such as specifically identifying the responsible party, the 
completion deadline, and the approval authority. These commenters also 
said that the maintenance baseline should be reviewed and updated at 
prescribed intervals.
    We have modified the last sentence of the first paragraph of this 
NWP to make it consistent with similar provisions in NWPs 19 and 35, 
and to make a separate sentence to address the need for sediment 
controls. In the final NWP, the second to the last sentence of the 
first paragraph reads as follows: ``All dredged and excavated material 
must be deposited and retained in an area that has no waters of the 
United States unless otherwise specifically approved by the district 
engineer under separate authorization.'' We have added ``and 
excavated'' after ``dredged'' to make it clear that the requirement in 
this sentence includes material removed by excavation activities that 
require Clean Water Act section 404 authorization. We have changed the 
word ``siltation'' to ``sediment'' so that the new last sentence of 
this paragraph is consistent with the terminology used in general 
condition 12, soil erosion and sediment controls, and to acknowledge 
that sediment is not limited to silt, but ranges in size from clay 
particles to boulders.
    The Corps does not regulate activities in 100-year floodplains, 
unless they consist of discharges of dredged or fill material into 
waters of the United States and/or structures or work in navigable 
waters of the United States. Therefore, we cannot require that 
materials dredged or excavated for flood control facility maintenance 
be placed outside of 100-year floodplains because in many areas of the 
country 100-year floodplains consist of large areas of uplands. We do 
not believe that the identification of the maintenance baseline 
requires identification of the responsible party, the completion 
deadline, or the approval authority. As already stated in the NWP, 
revocation or modification of the final determination of the 
maintenance baseline can only be done by following the procedures in 33 
CFR 330.5. Since this NWP only authorizes maintenance activities 
relative to a prior constructed or approved capacity, maintenance 
baselines should not require periodic reviews or updates.
    One commenter requested removal of the requirement for mitigation. 
A commenter said that recurring maintenance activities should not 
require mitigation, and that facilities constructed before the 
enactment of the Clean Water Act should not require mitigation. Several 
commenters recommended requiring mitigation for recurring maintenance 
activities. Another commenter stated that this NWP should require 
mitigation for habitat losses, impacts to anadromous fish, and impacts 
to special status species.
    We are retaining the provisions that allow district engineers to 
impose one-time compensatory mitigation requirements after the 
maintenance baseline is established. We are providing additional 
guidance on applying the term ``one-time.'' We have added a Note to 
this NWP to clarify that the one-time compensatory mitigation 
requirement applies only once since NWP 31 was first issued in 1996 (61 
FR 65873). Each subsequent reissuance of NWP 31 did not create an 
opportunity for district engineers to impose a new one-time 
compensatory mitigation requirement on activities authorized by 
previous versions of NWP 31, because

[[Page 1915]]

the activities authorized by NWP 31 are limited to maintenance 
activities. For example, if an entity responsible for an existing flood 
control facility established a maintenance baseline and received an NWP 
verification under the NWP 31 issued in 1996, and did one-time 
compensatory mitigation under that 1996 authorization, then that entity 
does not have to do compensatory mitigation for each subsequent 
reissuance of NWP 31 that authorizes maintenance back to the 
maintenance baseline established under the 1996 NWP 31 authorization.
    We do not believe that compensatory mitigation under section 404 of 
the Clean Water Act and/or section 10 of the Rivers and Harbors Act of 
1899 should be required for recurring maintenance activities. For 
example, if the maintenance activities authorized by NWP 31 are 
determined by the district engineer to ``may affect'' listed species or 
critical habitat, ESA section 7 consultation is required (see general 
condition 18). There may be flood control maintenance activities where 
ESA section 7 compliance is accomplished through informal consultation 
and written concurrence from the U.S. Fish and Wildlife Service and/or 
National Marine Fisheries Services, with mitigation in the form of 
avoidance and minimization so that the flood control maintenance 
activity will have no adverse effects on listed species or critical 
habitat and will not result in incidental take of listed species. If 
formal ESA section 7 consultation is required for the NWP 31 activity, 
the biological opinion may include terms and conditions, including 
mitigation measures in the form of minimization, to minimize incidental 
take of listed species. Mitigation measures conducted for the purposes 
of ESA section 7 are not counted toward the one-time mitigation 
provision in the ``mitigation'' paragraph of this NWP.
    This NWP is reissued with the modifications discussed above.
    NWP 32. Completed Enforcement Actions. We proposed to modify 
paragraph (i)(a) of this NWP to clarify that the 5 acre and 1 acre 
limits apply to the areas adversely affected by the activities that 
remain after resolution has been achieved. Several commenters expressed 
their support for the proposed modification of this NWP. Several 
commenters recommended deleting paragraphs (a) and (b) of this NWP, 
saying there should be no acreage limits for this NWP or a requirement 
to provide environmental benefits.
    We have adopted the proposed modification of this NWP. The acreage 
limits in paragraph (a)(i) of this NWP, as well as the requirement for 
net environmental benefits, are necessary to ensure that authorized 
activities result in no more than minimal individual and cumulative 
adverse environmental effects.
    One commenter said that NWP 32 should be limited to formal 
enforcement actions for intentional and willing violations that warrant 
penalties, instead of after-the-fact authorizations. This commenter 
also stated that use of NWP 32 should not preclude a state's ability to 
pursue enforcement actions under applicable state laws and regulations. 
One commenter suggested deleting the second to last sentence of this 
NWP, which states that the NWP ``does not apply to any activities 
occurring after the date of the decision, decree, or agreement that are 
not for the purpose of mitigation, restoration, or environmental 
benefit.'' One commenter stated that the Corps should consult with 
affected tribes before administering any enforcement action. Another 
commenter said that NWP 32 should be modified to allow additional 
enforcement actions, such as assessment of civil penalties, if the 
permittee does not comply with the NWP 32 authorization.
    We believe that this NWP should be available to authorize 
activities regulated by the Corps to complete the types of enforcement 
actions listed in the text of the NWP. The use of NWP 32 to complete 
enforcement actions only provides DA authorization for applicable 
activities. It does not affect a state's authority to conduct its own 
enforcement actions under applicable state laws and regulations. The 
second to last sentence of this NWP is an important limitation and we 
will not delete it. For the 2017 NWPs, Corps districts are consulting 
with tribes to identify regional conditions to protect tribal trust 
resources. Additionally, Corps districts can develop procedures to 
consult with tribes prior to conducting enforcement actions. We have 
modified the first sentence of the last paragraph of this NWP to state 
that non-compliance with the terms and conditions of an NWP 32 
authorization may result in an additional enforcement action, such as a 
Class I civil administrative penalty under 33 CFR 326.6.
    This NWP is reissued as proposed.
    NWP 33. Temporary Construction, Access, and Dewatering. We proposed 
to modify this NWP to change the PCN threshold to require notification 
only for temporary construction, access, and dewatering activities in 
navigable waters of the United States (i.e., waters subject to Section 
10 of the Rivers and Harbors Act of 1899). Several commenters supported 
the proposed change to this NWP and several commenters opposed the 
proposed change. We have changed the ``Notification'' requirement to 
only require PCNs for activities in waters subject to section 10 of the 
Rivers and Harbors Act of 1899.
    One commenter stated that this NWP should clarify that impact 
thresholds only apply to permanent, not temporary, losses of waters of 
the United States. One commenter recommended defining ``temporary.'' 
One commenter expressed support for reissuing this NWP, as long as it 
does not authorize permanent impacts. One commenter said that temporary 
fills should be authorized for a period of up to two years because 
temporary causeways and work pads are occasionally needed for projects 
that take multiple years to construct. One commenter recommended adding 
a \1/2\-acre limit for losses of waters of the United States and a 300 
linear foot limit for losses of stream bed.
    This NWP only authorizes temporary impacts to jurisdictional waters 
and wetlands. Permanent impacts to jurisdictional waters and wetlands 
are not authorized by this NWP, and this NWP requires restoration of 
affected areas after completion of construction. Permanent impacts to 
jurisdictional waters and wetlands can be authorized by another NWP, a 
regional general permit, or an individual permit. Determining when 
activities regulated under the Corps' authorities result in temporary 
impacts to jurisdictional waters and wetlands versus permanent impacts 
to those waters and wetlands is at the discretion of the district 
engineer. Because this NWP only authorizes temporary impacts to 
jurisdictional waters and wetlands that must be restored upon 
completion of the work, we believe that it is not necessary to impose 
acreage or linear foot limits. For the NWPs, the acreage limits only 
apply to permanent adverse effects to waters of the United States (see 
the definition of ``loss of waters of the United States'' in Section F. 
The linear foot limits apply to losses of stream bed caused by filling 
or excavation.
    One commenter said that NWP 33 should be revised to avoid conflicts 
with excavation activities that do not require Clean Water Act section 
404 authorization, such as removal of accumulated sediment from a dry 
stream channel. In addition, this commenter stated that this NWP should 
not require the removed material be returned to its original location 
or that the excavated area be returned to pre-construction elevations. 
One commenter

[[Page 1916]]

suggested requiring PCNs and coordination with federal and state 
natural resource agencies when proposed activities occur in non-tidal 
waters in which federally- and/or state-listed endangered and 
threatened mussels are known to occur.
    This NWP only authorizes temporary construction, access, and 
dewatering activities that require DA authorization. If an excavation 
activity does not involve regulated discharges of dredged or fill 
material into waters of the United States, then there is no conflict 
with the activities that require DA authorization and are covered by 
this NWP. This NWP requires waters of the United States that are 
temporarily filled as a result of regulated activities to be restored 
to pre-construction elevations. If a proposed activity might affect 
ESA-listed endangered or threatened species or designated critical 
habitat, such species are in the vicinity of the proposed activity, or 
if the proposed activity is in designated critical habitat, general 
condition 18 requires non-federal permittees to submit PCNs. The 
district engineer will review those PCNs and determine if ESA section 7 
consultation is required because the proposed activity may affect 
listed species or designated critical habitat. If ESA section 7 
consultation it is required, the district engineer will conduct formal 
or informal consultation with the U.S. Fish and Wildlife Service and/or 
the National Marine Fisheries Service, as appropriate. Effects to 
state-listed endangered or threatened species are more appropriately 
addressed through state regulatory and non-regulatory programs.
    Several commenters said that this NWP should require PCNs for all 
activities involving discharges of dredged or fill material into 
special aquatic sites. Two commenters stated that not requiring PCNs 
for all activities authorized by this NWP provides no assurance that 
the adverse environmental effects will be no more than minimal. One 
commenter asserted that PCNs are necessary to ensure that pre-
construction contours and hydrology are restored and that affected 
areas are revegetated without invasive species. One commenter said that 
PCNs should be required for activities in non-tidal waters that are 
important tribal resources, so that tribes will have the opportunity to 
review and comment on those activities. One commenter stated that the 
proposed change to require PCNs only for activities in section 10 
waters would result in degradation of the affected waterbodies, and 
dewatering activities are problematic in areas with methane.
    We are retaining the proposed change to this NWP, which is to only 
require PCNs for activities in navigable waters subject to section 10 
of the Rivers and Harbors Act of 1899. In waters subject only to 
section 404 of the Clean Water Act, PCNs will be required for any NWP 
33 activity that triggers a PCN requirement under general condition 18, 
endangered species, and/or general condition 20, historic properties. 
For activities in designated critical resource waters and their 
adjacent wetlands, PCNs are required by general condition 22, 
designated critical resource waters. Division engineers can modify this 
NWP by adding regional conditions to require PCNs in waters subject 
only to Clean Water Act jurisdiction. The terms and conditions of this 
NWP, including regional conditions imposed by division engineers, will 
ensure that NWP 33 activities that do not require PCNs will result in 
no more than minimal adverse environmental effects, and that pre-
construction contours and hydrology are restored after the temporary 
fills are removed. The terms of the NWP also require that affected 
areas are revegetated as appropriate. For the 2017 NWPs, Corps 
districts are consulting with tribes to identify regional conditions to 
protect tribal trust resources. Those regional conditions can require 
PCNs for those NWP 33 activities that have the potential to affect 
tribal trust resources, and district engineers can coordinate those 
PCNs with interested tribes. The terms and conditions of this NWP, plus 
the requirements of water quality certifications issued by states, 
tribes, or the U.S. EPA, will ensure that NWP 33 activities will have 
only minimal adverse effects on water quality. Concerns regarding 
methane emissions are more appropriately addressed by agencies that 
have regulatory authority over such emissions.
    This NWP is reissued as proposed.
    NWP 34. Cranberry Production Activities. We did not propose any 
changes to this NWP. One commenter objected to the reissuance of this 
NWP and said that these activities should require individual permits.
    This NWP requires pre-construction notification for all activities, 
so that the district engineer can determine whether a specific 
cranberry production activity will result in no more than minimal 
adverse environmental effects. The district engineer will exercise 
discretionary authority and require an individual permit for a 
cranberry production activity that requires authorization under section 
404 of the Clean Water Act and is determined, after considering the 
applicant's mitigation proposal, to result in more than minimal adverse 
environmental effects. Corps districts, through their division 
commanders, may also revoke this NWP and develop regional general 
permits with different terms and conditions to authorize these 
activities. This NWP is reissued as proposed.
    NWP 35. Maintenance Dredging of Existing Basins. We proposed to 
modify this NWP to state that all dredged material must be placed in an 
area that has no waters of the United States, unless placement of the 
dredged material into waters of the United States is authorized by a 
separate DA authorization.
    One commenter expressed support for the proposed modification. 
Another commenter objected to the proposed modification, stating that 
the NWP should authorize the placement of dredged material into 
jurisdictional waters. Another commenter objected to the reissuance of 
this NWP, saying that clamshell bucket dredging causes more than 
minimal adverse environmental effects.
    The placement of the dredged material into jurisdictional waters 
and wetlands can be authorized by other NWPs, regional general permits, 
or individual permits. We have revised that sentence so that it is 
consistent with the text of NWP 19. Clamshell bucket dredging within 
existing basins will not cause more than minimal adverse environmental 
effects. Those existing basins are currently being used by vessels and 
the additional adverse effects resulting from dredging these disturbed 
basins will be no more than minimal. Also, the incidental soil movement 
that occurs during clamshell dredging for normal navigational dredging 
activities is not a regulated discharge under section 404 of the Clean 
Water Act (see 33 CFR 323.2(d)(3)(ii)).
    One commenter remarked that beneficial use of dredged material may 
be a better alternative that disposal in upland areas, because 
beneficial use can improve aquatic habitat. One commenter suggested 
authorizing beneficial uses of dredged material after conducting 
coordination with federal and state natural resource agencies. One 
commenter said that this NWP should have a limit to the volume of 
material excavated from existing basins. Another commenter stated that 
this NWP should not authorize activities in waters with known or 
suspected sediment contamination at levels that would be harmful to 
aquatic organisms.
    If the project proponent or other entity identifies beneficial uses 
for the material dredged from the basin, then he or she can seek DA 
authorization

[[Page 1917]]

through another NWP, a regional general permit, or an individual 
permit. If the proposed beneficial use is authorized by a general 
permit, then the project proponent may or may not have to submit a PCN 
to the district engineer, depending on the terms and conditions of the 
applicable general permit. If authorized by general permit, there may 
or may not be agency coordination depending on the procedures 
associated with that general permit. Beneficial uses of dredged 
material that require individual permits will public notices and 
coordination with federal and state natural resource agencies. 
Maintenance dredging activities in areas with known or suspected 
sediment contaminants can use best management practices and other 
techniques to minimize the adverse environmental effects that might be 
caused by exposure of those contaminants during dredging. Concerns 
regarding contaminants in existing basins will be considered by 
district engineers for those NWP 35 activities that require PCNs.
    This NWP is reissued with the modifications discussed above.
    NWP 36. Boat Ramps. We did not propose any changes to this NWP. One 
commenter objected to the proposed reissuance of this NWP and said that 
individual permits should be required for these activities. Several 
commenters recommended limiting fills in jurisdictional waters and 
wetlands to 25 cubic yards. One commenter suggested increasing the 
width limit from 20 to 30 feet and increasing the discharge limit to 
100 cubic yards. Several commenters said that district engineers should 
not be authorized to issue waivers to allow permittees to exceed the 
cubic yard and width limits for this NWP.
    Most boat ramps are constructed within the limits of this NWP and 
result in no more than minimal individual and cumulative adverse 
environmental effects. For those activities that have the potential to 
result in more than minimal adverse environmental effects, this NWP 
requires PCNs so that district engineers can evaluate those proposed 
activities to ensure that they result in no more than minimal adverse 
environmental effects. If the proposed boat ramp will result in more 
than minimal adverse environmental effects, the district engineer will 
ask the prospective permittee to submit a mitigation proposal. If the 
mitigation proposal will ensure the proposed boat ramp will result in 
no more than minimal adverse environmental effects, the district 
engineer will issue the NWP verification with conditions requiring the 
implementation of the mitigation. If the mitigation proposal is not 
sufficient to ensure no more than minimal adverse environmental 
effects, the district engineer will exercise discretionary authority 
and require an individual permit. These procedures also apply to PCNs 
requesting waivers of the 50 cubic yard limit and/or the 20-foot width 
limit.
    We are retaining the 50 cubic yard limit and the width limit of 20 
feet, as well as the waiver provisions for these limits. This is to 
provide flexibility so that district engineers can use NWP 36 to 
authorize those activities that they determine, after reviewing the 
PCNs, to result in no more than minimal individual and cumulative 
adverse environmental effects.
    This NWP is reissued without change.
    NWP 37. Emergency Watershed Protection and Rehabilitation. We did 
not propose any changes to this NWP and did not receive any comments. 
This NWP is reissued without change.
    NWP 38. Cleanup of Hazardous and Toxic Waste. We did not propose 
any changes to this NWP, and no comments were received. This NWP is 
reissued without change.
    NWP 39. Commercial and Institutional Developments. We proposed to 
modify this NWP to clarify that it authorizes discharges of dredged or 
fill material into waters of the United States to construct wastewater 
treatment facilities. We also proposed to modify the terms of this NWP 
to clarify that any loss of stream bed applies towards the \1/2\-acre 
limit, and that \1/2\-acre limit cannot be exceeded.
    Several commenters objected to the proposed reissuance of this NWP, 
stating that commercial and institutional developments should be 
authorized by individual permits instead of NWPs because they result in 
more than minimal adverse environmental effects. Several commenters 
supported the proposed addition of wastewater treatment facilities to 
the list of examples of attendant features that may be authorized by 
this NWP. One commenter said that this NWP should not authorize oil and 
gas wells and their attendant infrastructure. This commenter also 
stated that NWP 39 should not authorize commercial and institutional 
developments in channel migration zones or floodplains critical to 
salmon populations.
    The terms and conditions of this NWP, including the acreage and 
linear foot limits and the reviews of PCNs by district engineers, will 
ensure that the activities authorized by this NWP will result in no 
more than minimal individual and cumulative adverse environmental 
effects. All activities authorized by this NWP require PCNs. The 
district engineer will exercise discretionary authority and require an 
individual permit for any proposed NWP 39 activity that he or she 
determines will result in more than minimal adverse environmental 
effects, after considering the mitigation proposal provided by the 
applicant. We have added wastewater treatment facilities as an example 
of attendant features authorized by this NWP. The construction of oils 
and gas wells that involves discharges of dredged or fill material into 
waters of the United States can be authorized by this NWP as long as 
the proposed activity complies with the terms and conditions of this 
NWP and the district engineer determines the proposed activity will 
result in only minimal adverse environmental effects.
    The construction of commercial and institutional developments in 
jurisdictional waters and wetlands within floodplains must comply with 
general condition 10, fills in 100-year floodplains. All activities 
authorized by this NWP require PCNs and the district engineer will 
review the PCN to determine if the proposed activity may affect any 
ESA-listed endangered or threatened species, or their designated 
critical habitat. If the district engineer determines the proposed 
activity may affect listed species or designated critical habitat and 
the prospective permittee is a non-federal permittee, the district 
engineer will conduct formal or informal ESA section 7 consultation 
with the U.S. Fish and Wildlife Service and/or the National Marine 
Fisheries Service. If the project proponent is a non-federal permittee, 
the activity is not authorized by NWP until section 7 consultation is 
completed and the district engineer issues the NWP verification. 
Division engineers can add regional conditions to this NWP to restrict 
or prohibit its use in waters of the United States in channel migration 
zones. District engineers can add activity-specific conditions to NWP 
verifications to restrict its use in waters of the United States in 
channel migration zones.
    One commenter recommended increasing the acreage limit to 1 acre, 
and the linear foot limit for losses of stream bed to 1,000 feet. 
Another commenter said that this NWP should have flexibility in 
authorizing losses of stream bed, and stated that there should not be a 
hard limit for losses of stream bed. One commenter said that there 
should only be limits for losses of ephemeral streams. One commenter 
suggested decreasing the acreage limit to \1/10\-acre. One commenter 
stated that the limits in this NWP are too high and

[[Page 1918]]

compensatory mitigation should be required for all impacts to wetlands 
and streams.
    We are retaining the \1/2\-acre and 300 linear foot limits for this 
NWP, as well as the ability for district engineers to waive the 300 
linear foot limit for losses of intermittent and ephemeral stream bed 
upon making a written determination that the proposed activity will 
result in no more than minimal individual and cumulative adverse 
environmental effects. All of the activities authorized by this NWP 
require PCNs, which provide case-by-case review to ensure that all 
authorized activities result in no more than minimal adverse 
environmental effects. To assist district engineers in making their 
written determinations for waiver requests, agency coordination is 
required for PCNs requesting waivers of the 300 linear foot limit (see 
paragraph (d) of general condition 32). The loss of stream bed is 
counted towards the \1/2\-acre limit for this NWP, and that \1/2\-acre 
limit cannot be exceeded under any circumstances. The limits for losses 
of stream bed apply to perennial, intermittent, and ephemeral streams. 
Reducing the acreage limit to \1/10\-acre would result in commercial 
and institutional development activities that result in no more than 
minimal adverse environmental effects requiring individual permits. In 
accordance with 33 CFR 330.1(e)(3) and general condition 23, 
compensatory mitigation is only required when the district engineer 
determines that compensatory mitigation is necessary for a particular 
activity to ensure that that NWP activity results in only minimal 
individual and cumulative adverse environmental effects.
    One commenter suggested changing the PCN threshold to losses of \1/
2\-acre of wetlands or open waters or losses of 300 linear feet of 
stream. The \1/2\-acre PCN threshold would be used if the acreage limit 
for this NWP is increased to 1 acre. One commenter requested that the 
NWP clarify whether acreage limits apply cumulatively to the original 
construction and any subsequent expansion of the commercial or 
institutional development.
    We believe that it is necessary to require PCNs for all NWP 39 
activities to ensure they will cause only minimal individual and 
cumulative adverse environmental effects. The acreage limit applies to 
each single and complete project. See the definition of ``single and 
complete non-linear project'' which applies to most NWP 39 activities. 
There could be NWP 39 activities that are linear projects, but they are 
likely to be rare. If the expansion of a commercial or institutional 
development requires DA authorization and the expansion does not have 
independent utility from the existing commercial or institutional 
development, then the acreage limit applies to the original, existing 
commercial or institutional development (if it was originally 
authorized by NWP 39) and the proposed expansion.
    We have modified the second sentence of the second paragraph of 
this NWP by replacing the word ``only'' with the phrase ``no more 
than'' to make this sentence consistent with the corresponding 
sentences in NWPs 29 and 43.
    This NWP is reissued with the modification discussed above.
    NWP 40. Agricultural Activities. In the June 1, 2016, proposed 
rule, we requested comments on whether any clarifications are needed 
for this NWP. We also proposed to modify the terms of this NWP to 
clarify that any loss of stream bed applies towards the \1/2\-acre 
limit, and that \1/2\-acre limit cannot be exceeded.
    Many commenters expressed their support for the proposed reissuance 
of this NWP. A few commenters objected to the proposed reissuance of 
this NWP and said that individual permits should be required for these 
activities. One commenter asserted that NWP 40 should not be reissued 
because it authorizes a broad range of activities that are difficult to 
distinguish from commercial or residential developments. One commenter 
requested clarification of which activities are authorized by this NWP. 
Another commenter said that the Corps should consider the cumulative 
effects of all activities that were ever authorized by this NWP.
    The terms and conditions of this NWP, including the \1/2\-acre and 
300 linear foot limits as well as the PCN requirements, will ensure 
that the activities authorized by this NWP will result in no more than 
minimal individual and cumulative adverse environmental effects. All 
activities authorized by this NWP require PCNs, so all proposed 
activities are reviewed by district engineers. This NWP complies with 
section 404(e) of the Clean Water Act because it authorizes a distinct 
category of activities that is similar in nature, that is agricultural 
activities that involve discharges of dredged or fill material into 
waters of the United States. There may be some overlap with NWP 39, for 
people who consider farm buildings to be commercial buildings. There 
are a number of activities that may be authorized by more than one NWP, 
and such redundancy is not problematic because the statutory 
requirement for all NWPs and other general permits is the same: those 
general permits can only authorize activities that have no more than 
minimal individual and cumulative adverse environmental effects. We 
believe that the current list of examples of activities authorized by 
this NWP is sufficient. If a project proponent or concerned individual 
has questions about whether a particular activity is authorized by NWP 
40, then he or she can contact the local Corps district office to ask 
those questions. In our NEPA cumulative effects analysis in the 
decision document for this NWP, we considered the aggregate impacts of 
activities authorized by past versions of NWP 40.
    One commenter stated that the acreage limit for this NWP is too 
high, and that waivers of the 300 linear foot limit for losses of 
stream bed should not be authorized for impacts to streams inhabited by 
anadromous salmon. Another commenter opposed allowing district 
engineers to waive the 300 linear foot limit for losses of intermittent 
or ephemeral stream bed, while another commenter voiced support for 
that provision. One commenter said that district engineers should be 
allowed to waive the \1/2\-acre limit. This commenter said that all NWP 
40 activities should require mitigation. One commenter said the acreage 
limit should be reduced to \1/16\-acre. One commenter asked for 
clarification of ``loss of stream bed'' as it applies to the 300 linear 
foot limit. One commenter said that impacts to intermittent streams 
should not be authorized by this NWP. Another commenter said that 
compensatory mitigation should not be required for activities 
authorized by this NWP.
    The \1/2\-acre limit, and the review of PCNs by district engineers, 
will ensure that activities authorized by this NWP will result in no 
more than minimal individual and cumulative adverse environmental 
effects. Proposed NWP 40 activities that might affect anadromous salmon 
that are listed under the Endangered Species Act, or their designated 
critical habitat, must comply with general condition 18, endangered 
species. District engineers will review PCNs and conduct ESA section 7 
consultations for any proposed NWP 40 activities that will be conducted 
by non-federal permittees, when they determine that the proposed 
activities may affect listed species or designated critical habitat. In 
those cases, the activities are not authorized by NWP until ESA section 
7 consultation is completed and the

[[Page 1919]]

district engineers issue the NWP verifications.
    We are retaining the ability for district engineers to waive the 
300 linear foot limit for losses of intermittent and ephemeral stream 
bed. To be authorized by NWP 40, the district engineer must issue a 
written waiver after conducting agency coordination with a finding that 
the proposed activity will result in no more than minimal adverse 
environmental effects. We are retaining the \1/2\-acre limit for this 
NWP and that \1/2\-acre limit cannot be waived. Any loss of stream bed 
applies to that \1/2\-acre limit. Agricultural activities resulting in 
the loss of greater than \1/2\-acre of waters of the United States 
require authorization by individual permit, or if available, by 
regional general permit. Compensatory mitigation requirements are 
determined by district engineers on a case-by-case basis during the 
evaluation of PCNs. District engineers will apply 33 CFR 330.1(e)(3) 
and general condition 23 to determine when compensatory mitigation is 
to be required for NWP 40 activities. The definition of ``loss of 
waters of the United States'' in Section F explains how losses of 
stream bed are calculated for the purposes of the NWPs. The district 
engineer will evaluate proposed losses of intermittent streams and 
determine whether those losses qualify for NWP 40 authorization.
    This NWP is reissued as proposed.
    NWP 41. Reshaping Existing Drainage Ditches. In the June 1, 2016, 
proposal, we solicited comment on clarifications or changes to NWP 41 
that might encourage more landowners to reshape their drainage ditches 
to help improve local water quality. We also requested suggestions for 
text to clarify the NWP for circumstances where original ditch 
configuration information is not available. We also proposed to remove 
the requirement to submit a PCN if more than 500 linear feet of ditch 
is to be reshaped.
    One commenter expressed support for the reissuance of NWP 41. One 
commenter asked if this NWP applies to agricultural ditches. Several 
commenters suggested adding a list of ditch modifications that are 
authorized by NWP 41. Several commenters recommended removal of the 
prohibition against increasing the amount of land area drained by the 
ditch. One commenter said this NWP should authorize discharges for 
small berms or grade breaks to manage flows. Another commenter stated 
that this NWP should authorize minor ditch relocation and stabilization 
activities.
    This NWP authorizes the reshaping of existing, currently 
serviceable drainage ditches constructed in waters of the United States 
that are used for any purpose, including agricultural ditches. We do 
not believe it is necessary to provide a list of ditch modifications 
authorized by this NWP because this NWP only authorizes modifications 
of the cross-sectional configuration of the ditch to improve water 
quality. Other types of ditch modifications require separate DA 
authorization if those activities involve discharges of dredged or fill 
material into waters of the United States. This NWP does not authorize 
ditch relocation activities; those activities may be authorized by NWPs 
29, 39, or 40, or other NWPs, or may be authorized by regional general 
permits or individual permits. Bank stabilization activities may be 
authorized by NWP 13.
    Several commenters said that NWP 41 should authorize standard ditch 
reshaping activities that have 1:6 front slopes and 1:4 back slopes, or 
require ditch reshaping activities to match adjoining ditch segments. 
Another commenter asserted that slope stability should be addressed by 
requiring, at a minimum, 2:1 ditch side slopes, prohibiting vertical 
side slopes, and conducting the ditch reshaping activity in a manner 
that prevents the release of excavated material into the water.
    For this NWP, it would not be appropriate for us to prescribe 
specific side slopes for the reshaped ditches. The appropriate side 
slopes should be determined on a case-by-case basis by the project 
proponent, and that project proponent may want to consult with people 
that have expertise in modifying ditch configurations to improve water 
quality without changing the area drained by the ditch. Sediment 
erosion controls should be used when appropriate to minimize releases 
of excavated material into jurisdictional waters. See general condition 
12, soil erosion and sediment controls, for additional information.
    Many commenters supported removing the PCN requirement, and many 
commenters objected to removing the PCN requirement. One commenter 
stated that it is unclear how removing PCN requirements for NWP 41 
would facilitate reshaping of drainage ditches. One commenter 
recommended requiring PCNs for all NWP 41 activities. One commenter 
stated that the Corps should accept electronic PCNs.
    We have removed the PCN requirement for this NWP, but it should be 
noted that proposed NWP 41 activities must comply with general 
condition 18, endangered species, and general condition 20, historic 
properties. Those general conditions require non-federal permittees to 
submit PCNs when any proposed activity might affect ESA-listed species 
or designated critical habitat and/or may have has potential to cause 
effects to historic properties. See the text of those general 
conditions for more information. If PCNs are not required for the 
activities authorized by this NWP, potential project proponents may be 
less reluctant to pursue these activities. Paragraph (c) of general 
condition 32, pre-construction notification, allows district engineers 
to accept electronic copies of PCNs when district engineers have 
established mechanisms for accepting electronic documents.
    Several commenters said that this NWP should require best 
management practices for NWP 41 activities. A few commenters suggested 
adding a requirement for excavated material to be placed in upland 
areas. One commenter asked for an explanation of how to determine 
whether a ditch is subject to Clean Water Act jurisdiction.
    Division engineers can add regional conditions to this NWP to 
require regional best management practices associated with the 
reshaping of existing drainage ditches to improve water quality. 
Regional conditions are a more appropriate mechanism for ensuring that 
NWP 41 activities are consistent with regional water quality management 
approaches. Requiring excavated material to be placed in upland areas 
would prohibit using the excavated material to reshape the ditch, and 
be contrary to the objective of this NWP of providing a means of 
improving water quality by changing ditch configurations. The district 
engineer will apply the regulations and guidance that are in effect at 
the time he or she is processing a request for a jurisdictional 
determination for a ditch or ditches.
    This NWP is reissued as proposed.
    NWP 42. Recreational Facilities. We proposed to modify the terms of 
this NWP to clarify that any loss of stream bed applies towards the \1/
2\-acre limit, and that \1/2\-acre limit cannot be exceeded. One 
commenter said that this NWP should not authorize recreational 
facilities in channel migration zones and floodplains where those 
facilities might have direct and indirect impacts to special status 
species or essential fish habitat. One commenter said that the \1/2\-
acre limit is too high. Another commenter stated that this NWP should 
not authorize activities in perennial and intermittent streams; it 
should only authorize activities in ephemeral streams.
    Activities authorized by this NWP must comply with general 
condition 18, endangered species. All activities

[[Page 1920]]

authorized by this NWP require PCNs. District engineers will review 
these PCNs, and if the district engineer determines that a proposed 
activity that will be conducted by a non-federal permittee may affect 
listed species or designated critical habitat, the district engineer 
will conduct formal or informal ESA section 7 consultation with the 
U.S. Fish and Wildlife Service and/or the National Marine Fisheries 
Service. The proposed activity is not authorized by NWP until ESA 
section 7 consultation is completed.
    Division engineers can impose regional conditions on this NWP to 
restrict or prohibit its use to protect other regionally important 
species. Activities authorized by NWP 42 that may adversely affect 
essential fish habitat require consultation with the appropriate office 
of the National Marine Fisheries Service. We believe that the \1/2\-
acre limit, along with the requirement that all NWP 42 activities 
require PCNs and thus activity-specific review by district engineers, 
will ensure that only those activities with no more than minimal 
adverse environmental effects are authorized by this NWP. The activity-
specific review of PCNs by district engineers will ensure that the 
authorized activities will have no more than minimal adverse effects on 
perennial, intermittent, and ephemeral streams. Division engineers can 
add regional conditions to this NWP to restrict or prohibit its use in 
specific high-value rivers or streams.
    This NWP is reissued without changes.
    NWP 43. Stormwater Management Facilities. We proposed to modify the 
sentence that states that the maintenance of stormwater management 
facilities that are determined to be waste treatment systems under 33 
CFR part 328.3(a)(8) generally does not require a section 404 permit. 
We also proposed to modify the terms of this NWP to clarify that any 
loss of stream bed applies towards the \1/2\-acre limit for 
construction of stormwater management facilities, and that \1/2\-acre 
limit cannot be exceeded.
    We have removed the reference to 33 CFR 328.3(b)(6) from the last 
sentence of the second paragraph of this NWP, because the 2015 final 
rule defining ``waters of the United States'' is currently under a stay 
issued by the U.S. Court of Appeals for the Sixth Circuit. We have 
revised this sentence so that it simply states that the maintenance of 
stormwater management facilities that are not waters of the United 
States does not require a section 404 permit. We have retained the \1/
2\-acre limit for the construction of stormwater management facilities, 
and the statement that any losses of stream bed apply towards that \1/
2\-acre limit.
    Several commenters said that the maintenance and expansion of 
existing stormwater management facilities in upland areas should be 
authorized without requiring PCNs. One commenter stated that stormwater 
management facilities should only be constructed in upland areas. One 
commenter said that only constructed wetlands should be used for 
stormwater detention or treatment. One commenter stated that NWP 43 
should not be issued for developments that are proposed in channel 
migration zones and floodplains where direct and indirect impacts to 
special status species could occur.
    If a stormwater management facility is expanded into an upland 
area, and that expansion does not involve discharges of dredged or fill 
material into waters of the United States, then that expansion does not 
require Clean Water Act section 404 authorization. It is not always 
possible or desirable to site stormwater management facilities in 
upland areas, and locating them in jurisdictional wetlands or other 
waters of the United States may be the only practicable option for 
effectively managing stormwater. This NWP authorizes the construction 
of these facilities in non-tidal jurisdictional wetlands and waters, as 
long as those activities result in no more than minimal individual and 
cumulative adverse environmental effects. Division engineers may add 
regional conditions to this NWP to protect other special status 
species. Activities authorized by this NWP must comply with general 
condition 10, fills in 100-year floodplains.
    We have retained the provision that prohibits discharges of dredged 
or fill material into waters of the United States for the construction 
of new stormwater management facilities in perennial streams. 
Stormwater management facilities may or may not include constructed 
wetlands, depending on the design decisions made by the project 
proponent. Activities authorized by this NWP must comply with general 
condition 18, endangered species. For the construction of new 
stormwater management facilities, or the expansion of existing 
stormwater management facilities, all activities require PCNs. District 
engineers will review those PCNs and will conduct ESA section 7 
consultation for any proposed activity that may affect listed species 
or designated critical habitat. For the maintenance of stormwater 
management facilities, if proposed activities that require DA 
authorization might affect listed species or designated critical 
habitat, are in the vicinity of listed species or designated habitat, 
or are in designated critical habitat, non-federal permittees are 
required to submit PCNs. District engineers will review those PCNs and 
conduct ESA section 7 consultation for any proposed maintenance 
activity that may affect listed species or designated critical habitat.
    One commenter recommended removing any references to waste 
treatment systems from the text of this NWP. Several commenters stated 
their support for clarifying language regarding application of the 
waste treatment system exclusion to the facilities covered by this NWP. 
These commenters recommended that the final NWP clarify that both the 
1986 final rule (51 FR 41250-41251) and the 2015 final rule defining 
``waters of the United States'' state that waste treatment systems 
designed to meet the requirements of the Clean Water Act are not 
subject to Clean Water Act section 404 jurisdiction. A few commenters 
requested clarification that, under NWP 43, PCNs are not required for 
stormwater management facilities constructed in upland areas and areas 
that are not waters of the United States.
    As discussed above, we have removed the reference to 33 CFR 
328.3(b)(6) from this NWP. The district engineer will determine whether 
a particular stormwater management facility is, or is not, a water of 
the United States by using the regulations and guidance for identifying 
waters of the United States that are in effect at the time the PCN is 
being evaluated. We do not believe it is necessary to cite specific 
regulations in the text of this NWP. Pre-construction notification is 
only required for the construction or expansion of new stormwater 
management facilities and pollutant load reduction best management 
practice facilities that involve discharges of dredged or fill material 
into waters of the United States. We have modified the first sentence 
of the ``Notification'' paragraph of this NWP to make it clear that 
PCNs are only required for certain regulated activities authorized by 
this NWP.
    One commenter asserted that the \1/2\-acre limit is too high. One 
commenter said that the provision allowing the district engineer to 
waive the 300 linear foot limit for losses of intermittent and 
ephemeral stream bed should be consistent with the provision in NWPs 29 
and 39. Another commenter remarked that this NWP should not authorize 
losses of perennial and intermittent stream beds; authorized

[[Page 1921]]

losses of stream bed should be limited to ephemeral streams. A few 
commenters stated their support for allowing district engineers to 
waive the 300 linear foot limit for losses of intermittent and 
ephemeral stream bed when district engineers determine in writing that 
proposed activities will result in no more than minimal adverse 
environmental effects. A few commenters said there should be no caps on 
waivers.
    The \1/2\-acre limit and the PCN requirements, as well as the 
district engineer's review of activities that require PCNs, will ensure 
that the activities authorized by this NWP will result in no more than 
minimal adverse environmental effects. The second sentence of the third 
paragraph of this NWP is the same as the corresponding sentence in NWP 
29. We have corrected the corresponding sentence in NWP 39 so that it 
is consistent with NWPs 29 and 43.
    This NWP does not authorize discharges of dredged or fill material 
into waters of the United States for the construction of new stormwater 
management facilities in perennial streams. Maintenance activities in 
perennial steams are authorized, if such activities require 
authorization under section 404 of the Clean Water Act. This NWP also 
authorizes losses of stream bed for the construction and maintenance of 
pollutant reduction best management practice facilities and those 
losses are subject to the \1/2\-acre and 300 linear foot limits. We are 
retaining the authority for district engineers to waive the 300 linear 
foot limit for losses of intermittent and ephemeral stream bed if they 
make written determinations granting these waivers after reviewing PCNs 
and comments received during agency coordination. Under no 
circumstances may the \1/2\-acre limit be exceeded for the losses of 
stream bed and other jurisdictional waters and wetlands.
    In response to comments received on the proposal to reissue NWP 27, 
we are modifying NWP 43 to authorize the construction and maintenance 
of pollutant reduction green infrastructure features. Some commenters 
expressed concern about NWP 27 being used to authorize nutrient and 
sediment reduction features that are not aquatic habitat restoration or 
enhancement activities. Green infrastructure uses a combination of the 
natural environment and engineered features to help improve water 
quality and conserve ecosystem functions and services, to benefit 
people and wildlife.\1\ The construction of these pollutant reduction 
green infrastructure features in jurisdictional waters and wetlands 
will be subject to the \1/2\-acre limit in NWP 43. These pollutant 
reduction green infrastructure features may be constructed in 
jurisdictional waters and wetlands and involve discharges of dredged or 
fill material into those waters and wetlands. Those features may be 
constructed to reduce inputs of sediments, nutrients, and other 
pollutants into waterbodies to meet Total Daily Maximum Loads (TMDLs) 
established under the Clean Water Act. In cases where green 
infrastructure features do not resemble ecological references for 
aquatic habitats or riparian areas in the region, authorization by NWP 
43 instead of NWP 27 is appropriate. District engineers will review 
PCNs for the construction of these proposed pollutant reduction green 
infrastructure features and determine whether they qualify for NWP 43 
authorization. These features may also require periodic maintenance 
that involves discharges of dredged or fill material into 
jurisdictional waters and wetlands. These maintenance activities may 
also be authorized by NWP 43.
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    \1\ https://www.americanrivers.org/threats-solutions/clean-water/green-infrastructure/what-is-green-infrastructure/ (accessed 
December 9, 2016).
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    This NWP is reissued with the modifications discussed above.
    NWP 44. Mining Activities. We proposed changes to the terms of this 
NWP to clarify the application of the \1/2\-acre limit for losses of 
waters of the United States. In addition, we proposed to amend the text 
of this NWP to clarify that the loss of non-tidal waters of the United 
States, plus the loss of stream bed, cannot exceed \1/2\-acre.
    Several commenters said that mining activities result in more than 
minimal individual and cumulative adverse environmental effects, and 
should require individual permits. One commenter recommended that the 
Corps issue a separate NWP for aggregate mining activities with a 
higher acreage limit. A couple of commenters said that the limits for 
NWP 44 should be based on impacts instead of losses of waters of the 
United States. One commenter suggested reducing the acreage limit to 
\1/16\-acre. One commenter stated that there is a difference in 
regulation of these activities under section 404 of the Clean Water Act 
and section 10 of the Rivers and Harbors Act of 1899. Under Clean Water 
Act section 404, excavation activities that result in only incidental 
fallback are not regulated, but any dredging of navigable waters under 
section 10 of the Rivers and Harbors Act of 1899 requires DA 
authorization. One commenter said this NWP should prohibit discharges 
of processed materials created from mining activities into waters of 
the United States.
    The terms and conditions of this NWP, including the \1/2\-acre 
limit and the requirement that all activities require PCNs, will ensure 
that the activities authorized by this NWP will result in no more than 
minimal individual and cumulative adverse environmental effects. 
District engineers will review these PCNs, and can add conditions to 
the NWP authorization, including mitigation requirements, to comply 
with the ``no more than minimal adverse environmental effects'' 
requirement for NWPs and other general permits. If a proposed activity 
will result in more than minimal adverse environmental effects, after 
considering the mitigation proposal provided by the prospective 
permittee, the district engineer will exercise discretionary authority 
and require an individual permit. Division engineers may also add 
regional conditions to this NWP to protect aquatic resources in certain 
regions or specific waterbodies. This NWP authorizes aggregate mining 
activities, and we do not believe a separate NWP for those activities 
is warranted.
    Because of the types of waterbodies in which these activities are 
conducted (i.e., open waters and wetlands), the acreage limits of this 
particular NWP are a hybrid of losses and impacts. There is a \1/2\-
acre limit for losses of non-tidal wetlands, and a \1/2\-acre limit for 
impacts to open waters such as rivers and lakes. A mining activity that 
involves regulated activities in both non-tidal wetlands and non-tidal 
open waters is subject to an overall \1/2\-acre limit. The \1/2\-acre 
limit and the PCN requirements are sufficient to ensure that authorized 
activities result in no more than minimal individual and cumulative 
adverse environmental effects, so it is not necessary to reduce the 
acreage limit to \1/16\-acre. The acreage limits only apply to 
regulated activities. Mining activities in waters subject only to Clean 
Water Act jurisdiction (i.e., non-section 10 waters) that do not result 
in regulated discharges of dredged or fill material into waters of the 
United States are not counted towards the \1/2\-acre limit. All mining 
activities in non-tidal waters subject to section 10 of the Rivers and 
Harbors Act of 1899 are subject to the \1/2\-acre limit. Discharges of 
processed mine materials into waters of the United States may require 
authorization under section 402 of the Clean Water Act.

[[Page 1922]]

    We have modified the fourth paragraph as follows, to be consistent 
with the other NWPs that have similar terms: ``The discharge must not 
cause the loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects.''
    This NWP is reissued with the modification discussed above.
    NWP 45. Repair of Uplands Damaged by Discrete Events. To provide 
flexibility in the use of this NWP after major flood events or other 
natural disasters, we proposed to modify the PCN requirement to allow 
district engineers to waive the 12-month deadline for submitting PCNs.
    One commenter said this NWP should not authorize restoration or 
repair activities involving structures waterward of the ordinary high 
water mark unless there is an immediate threat to the primary structure 
or associated infrastructure. One commenter recommended requiring the 
use of upland material to restore upland areas. One commenter asserted 
that the repair of upland areas damaged as a result of natural 
disasters should require individual permits. Another commenter stated 
that living shorelines should be encouraged as an alternative to 
restoring the affected upland areas and protecting them with hard bank 
stabilization techniques. One commenter said these activities should 
require advance notice to tribes. A commenter said that this NWP should 
state it does not authorize rerouting a stream to a historic course or 
alignment.
    Any structures placed in navigable waters of the United States 
(i.e., channelward of the ordinary high water mark or the mean high 
water in waters subject to section 10 of the Rivers and Harbors Act of 
1899) require separate DA authorization. That authorization may be 
provided by another NWP, a regional general permit, or an individual 
permit. This NWP only authorizes restoration of the damaged upland 
areas up to the contours or ordinary high water mark that existed prior 
to the occurrence of the damage. It also authorizes bank stabilization 
activities, as long as those activities do not extend beyond the prior 
ordinary high water mark or contours. If the eroded material is still 
in the vicinity of the damaged upland areas, then that material can be 
used to repair those upland areas. The project proponent can use some 
material from the bottom of the waterbody, but cannot substantially 
alter the contours of the waterbody that existed before the damaging 
event occurred. The repair of upland areas damaged by discrete events 
is limited to the ordinary high water mark and contours that existed 
prior to that discrete event, so the adverse environmental effects will 
be no more than minimal unless the district engineer reviews the PCN 
and determines that the proposed activity will result in more than 
minimal adverse environmental effects and exercises discretionary 
authority.
    As an alternative to using this NWP, the property owner can 
approach mitigating the damage done by the discrete event in a 
different way. He or she can propose to construct a living shoreline 
and submit a PCN for NWP 54 authorization. Alternatively, he or she can 
propose another method of bank stabilization that might be authorized 
by NWP 13. Corps districts have consulted with tribes on the 2017 NWPs. 
These consultations may result in regional conditions on this NWP or 
other NWPs that ensure that the NWPs do not cause more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands. These consultations may also result 
in coordination procedures to seek a tribe's views on a PCN for a 
proposed NWP 45 activity. This NWP only authorizes repair of upland 
areas damaged by storms, floods, or other discrete events. It does not 
authorize the relocation or rerouting of streams.
    One commenter said that minor dredging should be limited to 25 
cubic yards. Several commenters expressed support for the proposed 
modification that would allow district engineers to waive the 12-month 
deadline for submitting PCNs.
    The NWP limits dredging to the minimum necessary to restore the 
damaged uplands and does not allow significant changes to the pre-event 
bottom contours of the waterbody. Limiting the dredging to 25 cubic 
yards could prevent removal of eroded material that would be used to 
restore the upland areas and restore the dimensions of the waterbody, 
if more than 25 cubic yards of material eroded ended up in the 
waterbody. We have adopted the proposed modification that allows the 
district engineer to waive the 12-month deadline.
    This NWP is reissued as proposed.
    NWP 46. Discharges in Ditches. We did not propose any changes to 
this NWP. One commenter requested that the acreage limit be reduced to 
1/2-acre from the current 1 acre limit. This commenter also said that 
there should be no waivers of the acreage limit.
    We have had a 1-acre limit for this NWP since it was first issued 
in 2007. This acreage limit differs from the 1/2-acre limit in a number 
of other NWPs because NWP 46 is limited to authorizing discharges of 
dredged or fill material into upland ditches that are determined to be 
waters of the United States. Pre-construction notification is required 
for all activities authorized by this NWP, to allow district engineers 
to evaluate the ecological functions and services being provided by 
specific ditches constructed in uplands and determine whether the 
adverse environmental effects caused by filling those ditches will be 
no more than minimal. When reviewing the PCN, the district engineer may 
also determine whether mitigation (e.g., minimization) should be 
required to satisfy the terms and conditions of the NWP.
    This NWP is reissued without change.
    NWP 47. [Reserved].
    NWP 48. Commercial Shellfish Aquaculture Activities. We proposed to 
modify this NWP to clarify that it authorizes new and continuing 
commercial shellfish aquaculture operations in authorized project 
areas. In addition, we proposed to define the project area as the area 
in which the operator is authorized to conduct commercial shellfish 
aquaculture activities during the period the NWP is in effect. Also, we 
proposed to define a ``new commercial shellfish aquaculture operation'' 
as an operation in a project area where commercial shellfish 
aquaculture activities have not been conducted during the past 100 
years. We also proposed to modify the PCN thresholds and requirements 
and those proposed changes are more fully described in the June 1, 
2016, proposed rule.
    Several commenters expressed their support for the proposed 
reissuance of this NWP, including the proposed changes. Many commenters 
objected to the reissuance of this NWP, stating that it authorizes 
activities with substantial adverse environmental impacts. Several of 
these commenters said that commercial shellfish aquaculture activities 
should require individual permits. One commenter remarked that these 
activities should be authorized by regional general permits instead of 
an NWP, to take into account regional differences in aquaculture 
activities and the ecosystems in which they occur. Several commenters 
stated that NWP 48 does not authorize a category of activities that is 
similar in nature. Several commenters said that this NWP does not 
comply with section 404(e) of the Clean Water Act because it has no 
limits.

[[Page 1923]]

    The terms and conditions of this NWP, including its PCN 
requirements, will ensure that commercial shellfish aquaculture 
activities authorized by this NWP will result in no more than minimal 
individual and cumulative adverse environmental effects. Any commercial 
shellfish aquaculture activity to be conducted by a non-federal 
permittee that might affect Endangered Species Act (ESA) listed species 
or designated critical habitat, or is located in designated critical 
habitat, requires a PCN under general condition 18, endangered species. 
The district engineer will evaluate the PCN, and if he or she 
determines the proposed activity may affect listed species or 
designated critical habitat, the district engineer will conduct ESA 
section 7 consultation with the U.S. Fish and Wildlife Service and/or 
the National Marine Fisheries Service. Division engineers may impose 
regional conditions to require PCNs for proposed NWP 48 activities that 
might affect treaty rights, tribal trust resources, submerged aquatic 
vegetation, or other concerns.
    When reviewing a PCN, if the district engineer determines that the 
proposed activity, after considering mitigation proposed by the 
prospective permittee, will result in more than minimal individual and 
cumulative adverse environmental effects, he or she will exercise 
discretionary authority and require an individual permit for that 
activity. Commercial shellfish aquaculture activities occur in various 
regions of the country, and NWP 48 has been used in Washington State, 
Alabama, California, Florida, New Jersey, New York, Oregon, and South 
Carolina. The availability of this NWP reduces the need for the Corps 
districts in those states to develop regional general permits, and an 
NWP can promote national consistency in the authorization of these 
activities.
    This NWP only authorizes discharges of dredged or fill material 
into waters of the United States and structures and work in navigable 
waters of the United States associated with commercial shellfish 
aquaculture activities. That is a specific category of activities that 
is similar in nature. Section 404(e) of the Clean Water Act does not 
require that general permits, including NWPs, have acreage or other 
numeric limits. Section 404(e) only requires that general permits 
authorize categories of activities that are similar in nature that have 
no more than minimal individual and cumulative adverse environmental 
effects.
    One commenter said that the Corps should clarify the scope of its 
authority under section 404 of the Clean Water Act as it applies to 
commercial shellfish aquaculture activities. This commenter expressed 
the position that these activities are not regulated under section 404. 
One commenter requested that the Corps add a new Note to NWP 48 that 
would state that commercial shellfish aquaculture activities are not 
regulated under section 404 of the Clean Water Act. This commenter said 
that the Clean Water Act exempts normal farming activities from the 
requirement to obtain section 404 permits, and that on-going commercial 
shellfish aquaculture operations are normal farming operations eligible 
for the Clean Water Act section 404(f)(1)(A) exemption. This commenter 
remarked that NWP 48 should clearly state that the farming exemption 
applies to any commercial shellfish aquaculture operation in a project 
area where those activities have occurred during the past 100 years. 
This commenter also stated that bottom culture and off-bottom culture 
shellfish farming activities do not involve regulated discharges of 
dredged or fill material. This commenter said that sediment movement 
during shellfish harvesting activities are de minimis and should not be 
regulated under section 404 of the Clean Water Act. This commenter 
stated that only concentrated aquatic animal production facilities are 
point source aquaculture operations under the U.S. EPA's National 
Pollutant Discharge Elimination System regulations issued pursuant to 
section 402 of the Clean Water Act, and that shellfish farms are not 
included in EPA's regulations because there is no feed added to the 
water.
    Typical commercial shellfish aquaculture activities, including 
those described in the provisions of NWP 48, may involve discharges of 
dredged or fill material into waters of the United States. For example, 
mechanized harvesting activities typically involve a discharge of 
dredged or fill material, but the culture of oysters in bags suspended 
on long-lines, where there is no discharge of shell or gravel for bed 
preparation, typically does not result in a discharge of dredged or 
fill material and therefore does not require authorization under 
section 404 of the Clean Water Act. The term ``discharge of dredged 
material'' is defined at 33 CFR 323.2(d). The term ``discharge of fill 
material'' is defined at 33 CFR 323.3(f). The U.S. EPA has the 
authority to make the final determination as to which activities 
qualify for the exemptions in section 404(f) of the Clean Water Act. 
That authority is described in the 1989 ``Memorandum of Agreement 
Between the Department of the Army and the Environmental Protection 
Agency Concerning the Determination of the Geographic Jurisdiction of 
the Section 404 Program and the Application of the Exemptions Under 
Section 404(f) of the Clean Water Act.''
    Several commenters said that commercial shellfish aquaculture 
activities cause minimal adverse environmental effects and that they 
can have beneficial effects on aquatic habitat and water quality. Many 
commenters stated that commercial shellfish aquaculture activities 
cause adverse impacts to intertidal zones, submerged aquatic vegetation 
(especially eelgrass), community structure and function of intertidal 
and subtidal habitats, species composition, sediment and water 
chemistry, soil integrity, impediments to migration, exclusion or 
displacement of native species, endangered species, competition for 
food and space, fish spawning and migration areas, and aesthetics.
    The effects of commercial shellfish aquaculture activities on the 
structure, dynamics, and functions of marine and estuarine waters are 
complicated, and there has been much discussion in the scientific 
literature on whether those effects are beneficial or adverse (e.g., 
Dumbauld et al. 2009). Oysters are ecosystem engineers that have 
substantial impacts on coastal ecosystems by adding habitat for other 
species, altering ecological and biogeochemical processes, and 
filtering large volumes of water, thus providing a number of ecosystem 
goods and services (Ruesink et al. 2005). For example, in Willapa Bay, 
Washington, two introduced cultured bivalve species (Crassostrea gigas 
and Ruditapes philippinarum) have increased secondary production in the 
waterbody by approximately 2.5 times more than the peak historic 
secondary production of native oysters (Ostreola conchaphila) (Ruesink 
et al. 2006). Sites where Pacific oysters (Crassostrea gigas) are grown 
provide hard substrate used by fish, invertebrates, and macroalgae in 
estuaries where such substrate is rare because those estuaries have 
mostly soft bottom habitats (Ruesink et al. 2006). The scale at which 
impacts are evaluated is an important factor in determining whether 
impacts are positive or negative (Dumbauld and McCoy 2015). For 
example, at a small spatial scale (e.g., the site directly impacted by 
a specific aquaculture activity) there will be an adverse effect, but 
at a landscape scale the adverse effects may be minor or there may be 
beneficial effects because of

[[Page 1924]]

management approaches and ecosystem resilience (Dumbauld and McCoy 
2015).
    While commercial shellfish aquaculture activities have some adverse 
effects on the biotic and abiotic components of coastal waters, 
including intertidal and subtidal areas, those adverse effects should 
to be considered in a cumulative effects context. Commercial shellfish 
aquaculture activities also provide some ecosystem functions and 
services, such as water filtration that removes plankton and 
particulates from the water column, secondary production that results 
in food, and habitat for other organisms in the waterbody including 
fish and invertebrates (Ruesink et al. 2005). Under the Council on 
Environmental Quality's definition of ``cumulative impact'' at 40 CFR 
1508.7, cumulative impacts are due to the effects of past, present, and 
reasonably foreseeable future actions taken by federal, non-federal, 
and private entities. In 2010, over 123,000,000 people (39 percent of 
the population of the United States) were living in coastal counties 
(NOAA and U.S. Census Bureau 2013). Categories of activities that 
directly and indirectly affect coastal intertidal and subtidal habitats 
include land use/land cover changes in the watershed (e.g., coastal 
development, agriculture), pollution from point and non-point sources 
throughout coastal watersheds, overexploitation of estuarine and marine 
resources including fish and shellfish, resource extraction, and human 
activities that contribute to climate change (MEA 2005b). Commercial 
shellfish aquaculture activities are a minor subset of human activities 
that affect coastal intertidal and subtidal habitats and contribute to 
cumulative effects to those coastal habitats.
    Terrestrial areas, which include coastal lands, have been 
substantially altered by people for millennia (Perring and Ellis 2013). 
The high proportion of people living along the coasts have directly and 
indirectly altered coastal waters and their productivity (Vitousek et 
al. 1997). All marine ecosystems have also been altered to varying 
degrees by people (Halpern et al. 2008). Nearly all landscapes have 
been influenced or altered to some extent by past and present use by 
human communities, resulting in cultural, semi-cultural, and natural 
landscapes (Clewell and Aronson 2013). The bays and other waterbodies 
in which commercial shellfish aquaculture activities take place can be 
considered semi-cultural ecosystems because of their use by people over 
long periods of time for various activities. While shellfish 
aquaculture activities have local and temporary effects on the 
structure, function, and dynamics of estuaries, they do not cause 
losses of intertidal and subtidal areas or degrade water quality, in 
contrast to the habitat losses and water quality degradation caused by 
other types of human activities in or near coastal waters, such as 
coastal development, pollution, wetland losses, and freshwater 
diversions (Dumbauld et al. 2009). According to Dumbauld et al. (2009), 
the disturbances caused by commercial shellfish aquaculture activities 
are similar in scope and intensity to natural disturbances such as 
storm events and disturbances caused by other ecosystem engineers such 
as eelgrass and burrowing shrimp.
    Several commenters said that the Corps has not fully documented 
that commercial shellfish aquaculture activities provide water quality 
benefits similar to wild bivalves. Many commenters expressed concern 
about conversions of natural shorelines to commercial shellfish 
production and impacts to native shellfish, forage fish, salmon, 
eelgrass, and birds. One commenter stated that a certain amount of 
natural shoreline should be required between aquaculture sites. One 
commenter stated that NWP 48 should restrict the use of mechanical 
harvesting.
    Both commercially-grown bivalves and wild bivalves are filter 
feeding molluscs with the same basic anatomy and physiology. Different 
oyster species have different filtration rates, with larger oyster 
species filtering more water (Ruesink et al. 2005). Bivalves influence 
water quality by filtering out particles from the water column and 
removing nutrients, which increases the clarity of the water in the 
waterbody and can help reduce anthropogenic causes of eutrophication 
(Dumbauld et al. 2009). While commercial shellfish aquaculture 
activities have some impacts on intertidal and subtidal habitats, fish, 
eelgrass, and birds, coastal development and other human activities in 
these waterbodies and the watersheds that drain to these waterbodies 
have substantial impacts on those resources as well (e.g., MEA 2005b). 
Commercial shellfish aquaculture activities are conducted near 
shorelines and coastal lands that have long been occupied and altered 
by people. The human occupation of these shorelines over time has 
changed the structure, function, and dynamics of these nearshore 
ecosystems, including the other species that use those ecosystems. 
Various coastal development activities have substantially altered 
shoreline characteristics, as well the water quality of coastal waters 
and the species that utilize nearshore waters. Shorelines have been 
altered by a variety of human activities for many years. Land use 
decisions, including the use and development of shorelines, is the 
primary responsibility of state and local governments. States can 
manage coastal development through their authorities under the Coastal 
Zone Management Act and state laws. The Corps' authorities are limited 
to regulating activities that involve discharges of dredged or fill 
material into waters of the United States and/or structures or work in 
navigable waters of the United States.
    Glascoe and Christy (2004) examined the effects of coastal 
urbanization on water quality, especially microbial contamination of 
shellfish production areas. The quality of coastal waters and their 
habitats are strongly influenced by coastal development, and the 
pollution generated by the people that live in coastal areas (Glascoe 
and Christy 2004). They found that non-point source pollution, 
including pollution from stormwater runoff, wastes generated by 
livestock on land-based farms, and failing on-site septic systems, is 
the leading cause of declines in water quality in shellfish growing 
areas. Point source discharges from industrial and municipal wastewater 
systems also contribute to declining water quality in estuaries where 
shellfish production occurs (Glascoe and Christy 2004). While 
commercial shellfish aquaculture activities do have some adverse 
effects on eelgrass and other species that inhabit coastal waters, 
especially competition for space (Tallis et al. 2009), there are also 
substantial adverse effects caused by coastal land use and land cover 
changes, other uses of coastal lands and waters by people, and the 
activities of people who live in these coastal watersheds, especially 
the pollution they generate through those activities.
    Division engineers can also add regional conditions to ensure that 
mechanical harvesting activities that require Department of the Army 
authorization result in no more than minimal individual and cumulative 
adverse environmental effects.
    Several commenters asserted that the use of canopy nets has caused 
extensive modification of shorelines. They said these nets also make it 
difficult for birds to feed and may trap birds. One commenter stated 
that commercial shellfish aquaculture operators should not be allowed 
to harass birds and use large canopy net to keep birds from feeding on 
planted shellfish. One commenter remarked that the Corps

[[Page 1925]]

must comply with regulations to protect migratory birds. Many 
commenters also expressed concern about use of chemicals to remove 
eelgrass and native invertebrates, the introduction of non-native 
species, the introduction of plastics into the marine food web, and 
risks of parasitism and disease.
    The use of canopy nets and their effects on birds are more 
appropriately addressed by district engineers on a case-by-case basis 
if the use of canopy nets is directly linked to commercial shellfish 
aquaculture activities that require DA authorization. General condition 
19 addresses the requirements of the Migratory Bird Treaty Act. The 
Corps does not have the authority to regulate discharges of pesticides. 
Discharges of pesticides may require authorization by states or the 
U.S. EPA under section 402 of the Clean Water Act. Division engineers 
can impose regional conditions to address the use of plastics, if 
plastic materials are used for the activities regulated under the 
Corps' authorities.
    Invasions of species from one area to another is a natural 
biological phenomenon, while human activities have greatly sped up the 
rates of those invasions (Vitousek et al. 1997). Introductions of non-
native species occur through a variety of mechanisms, such as land use/
land cover changes, commerce (e.g., intentional introductions), and 
inadvertent introductions due to accidental transport (Vitousek et al. 
1997), not just commercial shellfish aquaculture activities. Most 
ecosystems and human dominated lands are inhabited by native and non-
native species and ecosystems, including their species composition, are 
changing a very rapid rate (Davis et al. 2011). The Corps does not have 
the authority to regulate the introduction of non-native species into 
waterbodies. In addition, the Corps does not have the authority to 
address risks of parasitism and disease from shellfish production or 
consumption. Those concerns are more appropriately addressed by state 
or local public health agencies.
    Many commenters also said that there has not be a sufficient 
cumulative impact analysis conducted for NWP 48. One commenter said 
that the Corps needs to track cumulative impacts of these activities.
    The cumulative effects analyses prepared by Corps Headquarters for 
the reissuance of this NWP were done in accordance with the definitions 
of ``cumulative impact'' provided in the applicable federal 
regulations. For the environmental assessment in the national decision 
document, we used the definition of ``cumulative impact'' in the 
Council on Environmental Quality's NEPA regulations at 40 CFR 1508.7. 
For the 404(b)(1) Guidelines analysis in the national decision 
document, we predicted cumulative effects using the approach specified 
at 40 CFR 230.7(b)(3), which states that the permitting authority is to 
predict the number of activities expected to occur until the general 
permit expires. Corps districts track the use of NWP 48 and other NWPs 
in our automated information system, ORM2. In ORM2, we track NWP 
activities that require PCNs as well as NWP activities that do not 
require PCNs but are voluntarily reported to Corps districts in cases 
where the project proponents want written verifications from the Corps.
    Many commenters objected to the proposed definition of ``new 
commercial shellfish aquaculture operation'' which stated that it is 
``an operation in an area where commercial shellfish aquaculture 
activities have not been conducted during the past 100 years.'' Many 
commenters objected to using 100 years as a threshold for identifying 
new commercial shellfish aquaculture activities. These commenters 
stated that the proposed definition would greatly expand fallow 
shellfish aquaculture areas, which they assert have recovered to their 
former natural state. Several of these commenters said that the 
proposed definition ``grandfathers'' commercial shellfish aquaculture 
operations, in contrast to the five year limits of other NWPs. One 
commenter recommended changing the threshold from 100 years to 5 years 
and another commenter suggested changing it to 4 years. Several 
commenters objected to paragraph (d) of the proposed NWP, which 
prohibits commercial shellfish aquaculture activities that directly 
affect more than \1/2\-acre of submerged aquatic vegetation beds in 
project areas that have not been used for those activities during the 
past 100 years. They said that this paragraph essentially places no 
limits on the amount of submerged aquatic vegetation that can be 
disturbed by these activities.
    Paragraph (d) of the proposed NWP 48 is linked to the proposed 
definition of ``new commercial shellfish aquaculture operation'' in the 
first paragraph of the proposed NWP as well as the definition of 
``project area.'' Our intent with the definition of ``new commercial 
shellfish aquaculture operation'' and the 100-year period is to 
recognize that many of these activities have taken place over long 
periods of time, even though some sections of project areas may have 
been fallow for a number of years. The long time frame provided by the 
100-year period is also in recognition that commercial shellfish 
aquaculture activities do not cause losses of intertidal and subtidal 
habitats and that components of those intertidal and subtidal 
ecosystems (e.g., submerged aquatic vegetation, benthic organisms, and 
nekton that utilize those habitats) are resilient to the impacts of 
these activities and other disturbances. In general, those groups of 
organisms recover in a relatively short time after disturbances caused 
by planting, harvesting, or other commercial shellfish aquaculture 
activities. The Corps' regulatory authorities are limited to discharges 
of dredged or fill material into waters of the United States and 
structures or work in navigable waters, and the direct and indirect 
effects caused by those activities. The use of rotation cycles for 
farmed and fallow areas of commercial shellfish aquaculture operations 
will not affect the Corps' determination of eligibility for NWP 48 
authorization. This is because the Corps considers the entire project 
area, as well as the description of the 5-year commercial shellfish 
activity provided in the PCN in the context of the overall ecosystem 
function, when determining whether the proposed activities will, or 
will not, result in no more than minimal adverse environmental effects, 
and thus qualify, or not, for NWP 48 authorization.
    In addition, commercial shellfish aquaculture activities and 
submerged aquatic vegetation have been shown to co-exist with each 
other. The combination of shellfish and submerged aquatic vegetation 
provides a number of ecosystem functions and services (Dumbauld and 
McCoy 2015). Submerged aquatic vegetation is resilient to disturbances 
caused by oyster aquaculture activities, and the disturbances caused by 
oyster aquaculture activities are comparable to natural disturbances 
caused by winter storms (Dumbauld and McCoy 2015). Intertidal and 
subtidal marine and estuarine ecosystems, as well as other ecosystems, 
are dynamic, not static. As long as ecosystems are not too degraded by 
human activities and other environmental factors, they have resilience 
to recover after disturbances. Compared to the disturbances and 
degradation caused by coastal development, pollution, and other human 
activities in coastal areas, commercial shellfish aquaculture 
activities present relatively mild disturbances to estuarine and marine 
ecosystems. Dumbauld et al. (2009) presents a review of empirical 
evidence of the resilience of estuarine ecosystems and their recovery 
(including the

[[Page 1926]]

recovery of eelgrass) after disturbances caused by shellfish 
aquaculture activities. Because of the demonstrated co-existence of 
shellfish aquaculture and submerged aquatic vegetation and their 
resilience to withstand disturbances, we do not believe it is necessary 
to impose buffers around submerged aquatic vegetation beds. In areas 
where there are concerns regarding impacts to submerged aquatic 
vegetation, division engineers can modify NWP 48 to require PCNs for 
all activities, so that district engineers can review each proposed NWP 
48 activity to ensure that those activities result in no more than 
minimal individual and cumulative adverse effects on submerged aquatic 
vegetation.
    One commenter expressed concern that the proposed definition of 
``new commercial shellfish aquaculture operation'' would adversely 
affect treaty rights. One commenter said that the Corps has no legal 
basis to apply the 100-year threshold to tribal uses or treaty rights. 
Several commenters recommended reverting back to the requirements in 
the 2007 NWP 48, which limited commercial shellfish aquaculture 
operations to the ``the area of waters of the United States occupied by 
the existing operation.'' These commenters also suggested an 
alternative of limiting new commercial shellfish aquaculture activities 
to areas where the operator can document that those areas have been 
part of a regular rotation of cultivation. One commenter stated that 
U.S. v. Washington subproceeding No. 89-3 set forth specific 
requirements to prove prior aquaculture activities and that these same 
requirements should be used for NWP 48. Several commenters expressed 
concern about the unknown quantity of new operations that would occur 
because of the 100-year threshold, the lack of a baseline, the lack of 
harvest records, cumulative impacts of changes to aquaculture species, 
and the potential to harm other species, including species listed under 
the Endangered Species Act. One commenter stated that large shellfish 
corporations have been gathering large numbers of leases in 
anticipation of the adoption of the 100-year threshold in NWP 48.
    The definition of ``project area'' is focused on the geographic 
area in which the operator is authorized to conduct commercial 
shellfish aquaculture activities through a variety of instruments, 
including treaties. All NWP activities, including NWP 48 activities, 
must comply with general condition 17, tribal rights. General condition 
17 has been modified to state that no NWP activity may cause more than 
minimal adverse effects to tribal rights (including treaty rights), 
protected tribal resources, or tribal lands. Division engineers can add 
regional conditions to this NWP to ensure that commercial shellfish 
aquaculture activities do not result in more than minimal adverse 
effects on tribal rights. These regional conditions may require PCNs 
for activities that might have the potential to affect tribal rights 
(including treaty rights), protected tribal resources, or tribal lands, 
to provide district engineers the opportunity to consult with the 
appropriate tribe(s) to ensure that the NWP activity complies with 
general condition 17. If the district engineer is uncertain whether a 
proposed NWP 48 activity might cause more than minimal adverse effects 
on tribal rights, protected tribal resources, or tribal lands, he or 
she should consult with the appropriate tribe or tribes, as well as his 
or her Office of Counsel staff, to understand the relevant treaty or 
treaties and applicable case law when determining the applicability of 
NWP 48.
    We do not agree that NWP 48 should revert to the 2007 terms and 
conditions of that NWP, which limited the project area to the area for 
an existing commercial shellfish aquaculture activity. After the 
experience of implementing the 2007 and 2012 versions of NWP 48, as 
well as our understanding of the no more than minimal adverse 
environmental effects caused by these activities, we believe the 
definition of project area in this NWP, as well as the 100-year 
threshold, is appropriate to allow long established commercial 
shellfish aquaculture operations to be authorized by this NWP. This 
approach takes into account the dynamic nature of these operations over 
space and time, and does not discourage shellfish growers from letting 
portions of their project areas go fallow for periods of time.
    Nationwide permits, as well as other DA permits, do not grant any 
property rights or exclusive privileges (see 33 CFR 330.4(b)(3) and 33 
CFR 325, Appendix A). If the operator has an enforceable property 
interest established through a lease or permit issued by an appropriate 
state or local government agency, a treaty, or any easement, lease, 
deed, contract, or other legally binding agreement, then the activity 
can be authorized by NWP 48 as long as the operator complies with all 
applicable terms and conditions of the NWP, including regional 
conditions imposed by the division engineer and activity-specific 
conditions imposed by the district engineer. As discussed above, we 
believe that commercial shellfish aquaculture activities that comply 
with the terms and conditions of NWP 48 will have no more than minimal 
individual and cumulative adverse environmental effects because the 
disturbances caused by these activities on intertidal and subtidal 
ecosystems are temporary and those ecosystems have demonstrated their 
ability to recover from those temporary disturbances. These activities 
will cause little change to the environmental baseline of these 
intertidal and subtidal areas. They cause far less change to the 
environmental baseline than the adverse effects caused by development 
activities, pollution, and changing hydrology that results from the 
people living and working in the watersheds that drain to coastal 
waters where commercial shellfish aquaculture activities occur. To 
comply with the requirements for general permits issued under its 
authorities (i.e., section 404 of the Clean Water Act and section 10 of 
the Rivers and Harbors Act of 1899), we do not need to examine historic 
records of harvests or cultivated species. Many species co-exist with 
commercial shellfish aquaculture activities and many species benefit 
from these activities (Dumbauld et al. 2009). Compliance with the 
Endangered Species Act is achieved through the requirements of general 
condition 18, and activity-specific and regional programmatic ESA 
section 7 consultations.
    The 100-year threshold is used only to identify new commercial 
shellfish aquaculture activities for the purposes of applying the \1/
2\-acre limit for direct effects to submerged aquatic vegetation. If a 
commercial shellfish aquaculture activity is identified as a new 
activity and it will directly affect more than \1/2\-acre of submerged 
aquatic vegetation, then the proposed activity does not qualify for NWP 
48 authorization and an individual permit or a regional general permit 
would be required.
    A couple of commenters supported the proposed 100-year threshold 
for identifying new commercial shellfish aquaculture operations because 
portions of shellfish farms lie fallow for extended periods of time. 
One commenter suggested modifying the definition to refer to a 
``project area'' instead of an ``area'' because the term ``project 
area'' is used throughout the NWP. This commenter said that the general 
term ``area'' could be interpreted as applying to a smaller portion of 
the ``project area.'' This commenter also recommended using the term 
``project area'' in paragraph (d) of this NWP.
    We have changed ``an area'' to ``a project area'' to consistently 
refer to

[[Page 1927]]

``project area'' throughout the text of NWP 48. We have modified 
paragraph (d) to refer to ``project area'' instead of ``area.'' 
Paragraph (a) of this NWP states that the NWP does not authorize the 
cultivation of a nonindigenous species unless that species has been 
previously cultivated in the waterbody. The first PCN threshold in the 
``Notification'' paragraph states that a PCN is required if the 
proposed NWP activity will include a species that has never been 
cultivated in the waterbody. To clarify the relationship between the 
prohibition in paragraph (a) and this PCN threshold, if an operator 
proposes to cultivate a nonindigenous species in the waterbody that has 
never been cultivated in that waterbody, an individual permit is 
required. If the operator wants to continue to grow that nonindigenous 
species in the waterbody after the 2017 NWP 48 expires, the regulated 
activities associated with the continued cultivation of that 
nonindigenous species could be authorized by future versions of NWP 48, 
if NWP 48 is reissued and the terms and conditions of the future NWP 
48s are the same as the 2017 NWP 48.
    One commenter referenced NWPs 19 and 27 and their restrictions or 
prohibitions of impacts to submerged aquatic vegetation and said that 
similar limitations should be placed on NWP 48. One commenter stated 
that commercial shellfish aquaculture activities should be separated by 
submerged aquatic vegetation beds by buffers that are a minimum of 25 
feet wide. One commenter said that the Corps has ignored the 
recommendations of other federal agencies relating to the protection of 
eelgrass. One commenter stated that this NWP should impose strict 
limits on these activities.
    Nationwide permit 19 prohibits dredging in submerged aquatic 
vegetation because the dredging may result in water depths in which the 
submerged aquatic vegetation might take a long time to recover. 
Nationwide permit 27 authorizes aquatic habitat restoration, 
enhancement, and establishment activities, as long as those activities 
result in net increases in aquatic resource functions and services. 
Nationwide permit 27 prohibits the conversion of tidal wetlands to 
other uses, including the explicit prohibition against the construction 
of oyster habitat in vegetated tidal waters, to help ensure that there 
are not trade-offs that will result in net decreases in aquatic 
resource functions and services. The terms and conditions of NWP 48 
serve a different purpose: to authorize commercial shellfish 
aquaculture activities that require DA authorization and result in no 
more than minimal individual and cumulative adverse environmental 
effects. In areas where there are concerns about cumulative effects to 
eelgrass or other species inhabiting areas where commercial shellfish 
aquaculture activities occur, division engineers can impose regional 
conditions to restrict or prohibit the use of this NWP.
    One commenter stated that commercial shellfish aquaculture 
activities should be at least 100 feet from spawning areas to protect 
the species that spawn in those areas. In addition, this commenter said 
that this NWP should impose time-of-year restrictions to minimize 
impacts during spawning seasons. One commenter said that NWP 48 should 
not authorize activities that involve the cultivation of non-native 
species.
    General condition 3, spawning areas, requires NWP activities to 
avoid, to the maximum extent practicable, being conducted in spawning 
areas during spawning seasons. We do not believe it is necessary, at a 
national level, to impose a buffer from spawning areas. Division 
engineers may impose regional conditions to restrict or prohibit NWP 
activities during certain periods during a year, such as spawning 
seasons. District engineers can impose similar conditions on specific 
NWP activities by adding conditions to the NWP authorization on a case-
by-case basis. We do not agree that NWP 48 should be limited to the 
cultivation of native shellfish species. Five of the nine species of 
shellfish commonly cultivated on the west coast for commercial 
production are native species, and the other four species are from 
Europe or Asia. On the west coast, introduced shellfish species have 
been cultivated for decades (Ruesink et al. 2006), and are an important 
commercial commodity that provides more food for people than native 
oyster species.
    One commenter said that the definition of ``project area'' could be 
interpreted in two different ways. One interpretation could be that the 
project area is the area in which an agreement specifically authorizes 
the operator to conduct aquaculture activities. Another interpretation 
could be that the project area is the area where a legally binding 
agreement establishes an enforceable property interest for the 
operator. This commenter stated that the proposed definition could mean 
that anyone who has a property interest in tidelands is also authorized 
to conduct commercial shellfish aquaculture activities. This commenter 
suggested modifying the definition of project area as: ``the area in 
which the operator conducts commercial shellfish aquaculture 
activities, as authorized by a lease or permit or other legally binding 
agreement.''
    The definition of ``project area'' can be applied under either 
approach, depending on other laws and regulations that apply to areas 
that could be used for commercial shellfish aquaculture activities. An 
operator might not have an enforceable property interest because the 
state might own the subtidal lands that are needed for commercial 
shellfish aquaculture activities, but the state might issue a permit 
that allows that operator to conduct those activities on state 
submerged lands. In other states, the operator might be granted an 
enforceable property interest through an easement, lease, deed, 
contract, or other legally binding agreement to do commercial shellfish 
aquaculture. For example, in Washington State in 1895, the Bush and 
Callow Acts allowed nearly 19,000 acres of tidelands to be deeded for 
private ownership for the specific purpose of commercial shellfish 
aquaculture (Dumbauld et al. 2009). We believe the proposed definition 
is needed to provide clarity on the various types of instruments that 
could be used to establish an enforceable property interest for the 
grower, and provide flexibility to authorize these activities.
    One commenter expressed support for the proposed definition of 
``project area'' by including a lease or permit issued by an 
appropriate state or local government agency because such a lease or 
permit establishes a clear use or a clear intention of use of an area. 
A couple of commenters said that the definition of ``project area'' 
should not refer to deeds. One commenter said that in the State of 
Washington, large areas of tidelands were sold by the state that were 
made unsuitable for cultivation, but since those sales were made 
aquaculture practices have changed and those areas can now be used for 
cultivation.
    A deed might be an appropriate instrument for conveying an 
enforceable property interest, depending on state law. If the tidelands 
can now be used for commercial shellfish aquaculture, even if they were 
unsuitable at the time the land was sold, then those activities can be 
authorized by NWP 48 if they require DA authorization.
    One commenter requested that the NWP define ``commercial shellfish 
aquaculture operations'' and that the definition must not conflict with 
a tribe's treaty-secured rights to take shellfish. Another commenter 
suggested adding a definition of ``existing activity,'' and define that 
term as the

[[Page 1928]]

area under cultivation when NWP was first issued in 2007 or where the 
operator can document that the area has been subject to a regular 
rotation of cultivation.
    We do not think it is necessary to define the term ``commercial 
shellfish aquaculture activity'' in the text of the NWP. It is simply 
the commercial production of shellfish. General condition 17 states 
that NWP activities cannot cause more than minimal adverse effects on 
tribal rights (including treaty rights), protected tribal resources, or 
tribal lands. If there are disputes between operators with valid 
commercial shellfish aquaculture permits or leases or other enforceable 
property interests, and a tribe's rights under one or more treaties to 
take shellfish, those disputes need to be resolved by the appropriate 
authorities. It is not necessary to define ``existing activity'' in NWP 
48 because the NWP is because NWP 48 authorizes existing commercial 
shellfish aquaculture activities as long as they have been conducted in 
the project area at some time during the past 100 years.
    Two commenters voiced their support for the proposed changes to the 
PCN requirements for this NWP. Several commenters objected to the 
proposed removal of the PCN threshold for dredge harvesting, tilling, 
or harrowing in areas inhabited by submerged aquatic vegetation because 
they said submerged aquatic vegetation is important habitat. One 
commenter said the proposed removal of this PCN threshold is contrary 
to the Corps' and the Department of Defense's tribal consultation 
policies. One commenter said that a PCN should be required for an NWP 
48 activity if the proposed activity will include a species that has 
never been cultivated in the waterbody, or the proposed activity occurs 
in a project area that has not been used for commercial shellfish 
aquaculture activities during the past 100 years.
    We have determined it is no longer is necessary to require PCNs for 
dredge harvesting, tilling, or harrowing activities in areas inhabited 
by submerged aquatic vegetation because the submerged aquatic 
vegetation recovers after those disturbances occur. In a geographic 
area where dredge harvesting, tilling, or harrowing activities might 
result in more than minimal adverse effects to submerged aquatic 
vegetation, the division engineer can add regional conditions to this 
NWP to require PCNs for those activities. The removal of this PCN 
requirement is not contrary to Corps tribal consultation policies and 
the Department of Defense American Indian and Alaska Native Policy, 
because those policies do not directly address commercial shellfish 
aquaculture activities in areas inhabited by submerged aquatic 
vegetation. In addition, for the 2017 NWPs, Corps districts are 
consulting with tribes, and those consultations may result in regional 
conditions that address tribal concerns about impacts to submerged 
aquatic vegetation. Those consultations may also result in the 
development of procedures for coordinating NWP 48 PCNs with tribes 
before making decisions on whether to issue NWP 48 verifications to 
ensure that NWP 48 activities do not cause more that minimal adverse 
effects to treaty fishing rights or other tribal rights. A division 
engineer can impose a regional condition to require PCNs for dredge 
harvesting, tilling, or harrowing activities in areas inhabited by 
submerged aquatic vegetation, if he or she determines such a regional 
condition is necessary to ensure that NWP 48 activities cause no more 
than minimal individual and cumulative adverse environmental effects, 
which includes adverse effects to tribal rights (including treaty 
rights), protected tribal resources, and tribal lands. We have retained 
the proposed PCN thresholds in the final NWP.
    Several commenters objected to the proposed removal of the PCN 
threshold for activities that involve a change from bottom culture to 
floating or suspended culture. One commenter stated that floating 
aquaculture facilities should be required to complete benthic surveys 
to adequately evaluate impacts to the benthos. Several commenters said 
that notification to tribes is important to avoid tribal treaty fishing 
access issues, especially in situations where the operator is proposing 
to change from bottom culture to suspended culture. These commenters 
stated that suspended culture can impact tribal net fisheries. One 
commenter stated that floating aquaculture disrupts the ability of the 
tribe to exercise their treaty rights as overwater structures interfere 
with net fisheries and takes away surface water areas of usual and 
accustomed fishing areas.
    Because of the terms and conditions of this NWP, the activities it 
authorizes will result in no more than minimal individual and 
cumulative adverse environmental effects. The intertidal and subtidal 
habitats in which these activities occur are dynamic systems that 
recover after the short-term disturbances caused by commercial 
shellfish aquaculture activities and other short-term activities or 
natural events. The short-term disturbances caused by bottom culture 
versus floating culture are not substantive enough to warrant requiring 
PCNs for those changes in culture methods. Given the dynamic nature of 
these intertidal and subtidal ecosystems, the ecological benefits of 
commercial shellfish aquaculture activities, and the minimal 
disturbances those activities cause, we do not believe it is necessary 
to require benthic surveys. For the 2017 NWPs, Corps districts have 
been consulting with tribes to identify regional conditions to protect 
tribal rights (including treaty rights), protected tribal resources, or 
tribal lands and ensure compliance with revised general condition 17, 
tribal rights. District engineers can also develop coordination 
procedures with interested tribes to ensure that proposed NWP 48 
activities do not cause more than minimal adverse effects on tribal 
rights, protected tribal resources, or tribal lands. If an operator is 
authorized to conduct a commercial shellfish aquaculture activity 
because he or she was granted a permit, lease, or other enforceable 
property interest, and there is a dispute regarding the effects of that 
activity on net fisheries conducted by tribes, then that dispute needs 
to be resolved by the appropriate authorities.
    Two commenters objected to the proposed change in the PCN threshold 
from ``new project area'' to an ``area that has not been used for 
commercial shellfish aquaculture activities during the past 100 
years.'' One commenter said tribes require notification and opportunity 
to comment on shellfish aquaculture projects as they may have impacts 
to treaty rights. One commenter said by defining new commercial 
shellfish aquaculture operations as operations occurring within the 
footprint of a previously authorized lease site within the past 100 
years, almost all leases in North Carolina would be considered ``new 
operations'' and potentially require PCNs.
    The proposed change in that PCN threshold is consistent with the 
proposed definition of ``new commercial shellfish aquaculture 
operation.'' For this NWP, Corps districts can develop coordination 
procedures with interested tribes to help district engineers determine 
whether proposed NWP 48 activities comply with general condition 17, 
tribal rights. Division engineers can add regional conditions to this 
NWP to require PCNs for NWP 48 activities that have the potential to 
affect treaty rights, so that districts can review those activities and 
consult with the tribes that might be affected. The definition of ``new 
commercial shellfish aquaculture activities'' and the associated PCN

[[Page 1929]]

threshold do not require existing commercial shellfish aquaculture 
activities to have continuously conducted those activities in the 
project area for 100 years. Those activities only need to be conducted 
for some period of time during that 100-year period. Those activities 
may have been conducted by different operators over time. For example, 
if a particular tract has been used for commercial shellfish 
aquaculture during the past 100 years, and that tract has been 
transferred or leased to a different commercial shellfish aquaculture 
operator then that tract is not considered a ``new'' project area. As 
explained in the proposed rule, for NWP 48 we are including areas that 
have been fallow for some time as part of the ``project area.'' We have 
also modified the ``Notification'' paragraph to state that if the 
operator will be conducting commercial shellfish aquaculture activities 
in multiple contiguous project areas, he or she has the option of 
either submitting one PCN for those contiguous project areas or 
submitting a separate PCN for each project area. We also made 
conforming changes to the last paragraph of NWP 48 to reference the 
project area or a group of contiguous project areas.
    Two commenters suggested adding text to paragraph describing the 
information to be included in an NWP 48 PCN. Their suggested text is: 
``No more than one pre-construction notification must be submitted for 
a commercial shellfish operation during the effective term of this 
permit. The PCN may include all species and culture activities that may 
occur on the project area during the effective term of the permit. If 
an operator intends to undertake unanticipated changes to the 
commercial shellfish operation during this period, and those changes 
involve activities regulated by the Corps, the operator may contact the 
Corps district to request a modification of the NWP verification, 
instead of submitting another PCN. If the Corps does not deny such a 
modification request within 14 days, it shall be deemed approved.'' As 
an alternative to including this text in the terms of NWP 48, these 
commenters said that there could be a form signed by the operator in 
which he or she attests that there will be no changes in operation 
during the five year period this NWP is in effect.
    We have added the suggested text to that paragraph, with some 
modifications. If the operator requests a modification of the NWP 
verification, he or she must wait for the verification letter from the 
district engineer. We cannot include a 14-day default approval of a 
proposed modification. For example, the proposed modification may 
trigger a need to re-initiate ESA section 7 consultation if the prior 
NWP verification was for an activity that required an activity-specific 
ESA section 7 consultation. The added text to the paragraph discussing 
the information to be included in a PCN is a more appropriate means of 
reducing the number of PCNs that need to be submitted during the five 
year period this NWP is in effect. The development of a new form would 
likely require review and approval under the Paperwork Reduction Act. 
The added text to the ``Notification'' paragraph is a more efficient 
alternative to developing a new form.
    One commenter said that NWP 48 PCNs should include information 
demonstrating compliance with the limits on impacts to submerged 
aquatic vegetation, providing mitigation for impacts to submerged 
aquatic vegetation and other special aquatic sites. One commenter 
stated that PCNs should include recent surveys identifying eelgrass, 
macroalgae, and forage fish. Several commenters said that PCNs should 
be required for each commercial shellfish aquaculture operation (i.e., 
farm). Several commenters stated that any conversions of natural 
intertidal areas to intensive aquaculture farms should require PCNs. 
One commenter remarked that the PCN should state whether the operator 
will be applying pesticides to manage ghost shrimp or sand shrimp, 
which pesticides he or she will use, and if the operator will be using 
neonicotinoids.
    As discussed above, we believe that the activities authorized by 
NWP 48 will have no more than minimal individual and cumulative adverse 
environmental effects on submerged aquatic vegetation and other special 
aquatic sites. The only limit to impacts to submerged aquatic 
vegetation is the \1/2\-acre limit that applies to new commercial 
shellfish aquaculture operations. In areas where a Corps district 
determines that NWP 48 activities may have more than minimal adverse 
effects on submerged aquatic vegetation or other special aquatic sites, 
the district can request that the division engineer add a regional 
condition to this NWP to require PCNs for activities that have impacts 
to submerged aquatic vegetation or other special aquatic sites or 
impose limits on impacts to submerged aquatic vegetation or other 
special aquatic sites. As stated in paragraph (b)(5) of general 
condition 32, if a PCN is required then the PCN must include a 
delineation of special aquatic sites. We do not think it is necessary 
to require NWP 48 PCNs to include surveys of macroalgae or forage fish. 
Only NWP 48 activities that trigger one or both PCN thresholds in the 
``Notification'' paragraph require PCNs. Pre-construction notifications 
are also required for proposed activities to be conducted by non-
federal permittees that trigger the PCN requirements in paragraph (c) 
of general condition 18, which addresses compliance with the Endangered 
Species Act. We do not think it is necessary to require PCNs for each 
farm. If there are concerns within a particular region regarding 
conversions of intertidal areas to commercial shellfish aquaculture, 
the division engineer can modify this NWP to add PCN requirements for 
those activities. The Corps does not have the authority to regulate the 
use of insecticides and other pesticides, so we cannot modify the PCN 
requirements to gather that information. The use of insecticides and 
other pesticides may be regulated under other federal or state laws.
    Many commenters said that mitigation should be required for all 
impacts to submerged aquatic vegetation and other special aquatic 
sites. Several commenters asserted that compensatory mitigation should 
be required for conversions of intertidal and subtidal areas. Several 
commenters stated that if the NWP 48 activity does not require a PCN, 
then compensatory mitigation cannot be required. One commenter said 
that compensatory mitigation should be required for the following 
activities: Removal of embedded natural rocks, shells, et cetera; 
removal or relocation of aquatic life; clearing native aquatic 
vegetation; grading, filling or excavation of tidelands; adding gravel 
or shell to make tidelands suitable for aquaculture; operations near 
intertidal forage fish spawning sites; unnaturally high densities of 
filtering bivalves; plastic and canopy pollution from aquaculture gear; 
and the effects of periodic substrate harvest. Many commenters 
indicated that commercial shellfish aquaculture activities have adverse 
effects on aquatic ecosystems because they use large amounts of 
plastic. These plastics include PVC tubes, poly lines, and synthetic 
canopy nets. One commenter said that plastics pose threats to human and 
aquatic life. One commenter stated that the Corps failed to adequately 
describe the possible direct, indirect, and cumulative effects caused 
by commercial shellfish aquaculture activities or how Corps district 
might require mitigation measures to ensure that the adverse 
environmental effects of these activities are no more than minimal.
    Commercial shellfish aquaculture activities are compatible with

[[Page 1930]]

submerged aquatic vegetation and other special aquatic sites, because 
those special aquatic sites quickly recover after disturbances caused 
by those aquaculture activities. Commercial shellfish aquaculture 
activities also provide important ecological functions and services. 
Therefore, as a general rule, we do not believe that these activities 
should require compensatory mitigation. We agree that if an NWP 48 
activity does not require a PCN and the project proponent does not 
submit a voluntary request for an NWP verification, then the district 
engineer cannot require compensatory mitigation. None of the activities 
listed by these commenters in the preceding paragraph would normally 
result in a compensatory mitigation requirement, primarily because they 
are unlikely to cause resource losses that would result in more than 
minimal adverse environmental effects. Trash, garbage, and plastic 
wastes are not considered fill material regulated under section 404 of 
the Clean Water Act (see 33 CFR 323.2(e)(3), which excludes trash and 
garbage from the definition of ``fill material''). As discussed above, 
we believe that the adverse effects of commercial shellfish aquaculture 
activities that comply with the terms and conditions of this NWP, 
including regional conditions imposed by division engineers and 
activity-specific conditions imposed by district engineers, will result 
in only minimal individual and cumulative adverse environmental 
effects.
    Many commenters said that the terms and conditions of NWP 48 are 
not sufficient to protect species listed under the Endangered Species 
Act. Two commenters said that for NWP 48 the Corps must conduct ESA 
section 7 consultation and essential fish habitat consultation. One 
commenter stated that the Corps does not have enough staff to monitor 
compliance with those terms and conditions.
    All activities authorized by this NWP must comply with general 
condition 18, endangered species. Paragraph (c) of general condition 18 
requires that a non-federal permittee submit a PCN if any listed 
species or designated critical habitat might be affected or is in the 
vicinity of the activity, or if the activity is located in designated 
critical habitat. Corps districts will conduct ESA section 7 
consultation for any activity proposed by a non-federal applicant that 
may affect listed species or designated critical habitat. The Corps 
district may conduct either formal or informal section 7 consultations, 
depending on whether there will be adverse effects to listed species or 
designated critical habitat. Corps districts may also conduct regional 
programmatic ESA section 7 consultations, if appropriate. For proposed 
NWP 48 activities that may adversely affect essential fish habitat, 
district engineers will conduct essential fish habitat consultation 
with the appropriate office of the National Marine Fisheries Service. 
District engineers may also conduct regional programmatic essential 
fish habitat consultations. Corps districts have sufficient staff and 
other resources to monitor compliance with the terms and conditions of 
NWP 48 and the other NWPs.
    Several commenters stated that commercial shellfish aquaculture 
activities pose navigation hazards because netting can become caught on 
boat props and wind surfers, limiting the use of waters of safe 
recreation and navigation. Two commenters said that the Corps should 
coordinate with Puget Sound recovery goals and should use the Puget 
Sound model to identify where impacts from NWP 48 activities are likely 
to occur and may result in more than minimal individual and cumulative 
adverse environmental effects.
    All NWP 48 activities must comply with general condition 1, 
navigation. The U.S. Coast Guard may require the operator to install 
aids to navigation to ensure that boaters and recreational users of the 
waterbody do not accidentally encroach on the structures in navigable 
used for the commercial shellfish aquaculture activities. Note 1 
recommends that the permittee contact the U.S. Coast Guard. The 
locations for NWP 48 activities will be identified through permits or 
leases or other instruments or documents that establish enforceable 
property interests for the operators. Corps participation in Puget 
Sound recovery goals is more appropriately conducted at the Corps 
district level, in coordination with the Corps division office, rather 
than a rulemaking effort by Corps Headquarters (i.e., the reissuance of 
this NWP). Any regional conditions added to NWP 48 to support Puget 
Sound recovery goals must be approved by the division engineer.
    Several commenters said that the draft decision document does not 
comply with the requirements of the National Environmental Policy Act 
(NEPA). Several commenters asserted that the reissuance of NWP 48 
requires an environmental impact statement. Several commenters said 
that the draft decision document for NWP 48 did not provide sufficient 
information on cumulative impacts and the potential effects of NWP 48 
activities, and insufficient analysis of information to support a no 
more than minimal adverse environmental effects determination. 
Commenters also stated that the decision document did not include 
monitoring requirements. One commenter noted that the draft decision 
document stated that NWP 48 would result in impacts to approximately 
56,250 acres of waters of the United States, including wetlands, and no 
compensatory mitigation would be required to offset those impacts. 
Several commenters said that the Corps did not present any peer 
reviewed scientific studies that have examined the effects of 
commercial shellfish aquaculture on natural shorelines, aquatic 
species, and birds. One commenter said that the Corps made no effort to 
provide information to the public on impacts of past NWP 48 activities, 
and there is no system in place to monitor and evaluate these impacts.
    We believe that the final decision document fully addresses the 
requirements of NEPA, the 404(b)(1) Guidelines, and the Corps' public 
interest review. We prepared an environmental assessment with a finding 
of no significant impact to fulfill NEPA requirements. Therefore, an 
environmental impact statement is not required for the reissuance of 
this NWP. In addition, we determined that the reissuance of this NWP 
complies with the 404(b)(1) Guidelines. We also determined that the 
reissuance of this NWP, with the modifications discussed above, is not 
contrary to the public interest.
    The NWP does not include explicit monitoring requirements. District 
engineers can conduct compliance inspections on NWP 48 activities, to 
ensure that the operator is complying with all applicable terms and 
conditions of this NWP, including any regional conditions imposed by 
the division engineer and activity-specific conditions imposed by the 
district engineer. If the district engineer determines that the 
permittee is not complying with those terms and conditions, he or she 
will take appropriate action. While the decision document states that 
we estimate that NWP 48 activities will impact approximately 56,250 
acres of jurisdictional waters and wetlands during the 5-year period 
this NWP is in effect, it is important to remember that the vast 
majority of activities authorized by this NWP are on-going recurring 
activities in designated project areas. Many of these activities have 
been conducted in these project areas for decades. It is also important 
to understand that these activities do not

[[Page 1931]]

result in losses of jurisdictional waters and wetlands and that their 
impacts are temporary. The estuarine and marine waters affected by 
these activities recover after the disturbances caused by shellfish 
seeding, rearing, cultivating, transplanting, and harvesting 
activities. Those temporary impacts and the recovery of ecosystem 
functions and services results in no losses that require compensatory 
mitigation.
    In this final rule, as well as the decision document, we discuss 
the effects of commercial shellfish aquaculture on natural shorelines, 
aquatic species, and birds. The Corps is not required to provide the 
public with information on the past use of NWP 48. The NEPA cumulative 
effects analysis in the decision document for this NWP includes past 
commercial shellfish aquaculture activities as the present effects of 
past actions.
    Several tribes requested the development of regional conditions to 
address tribal concerns about NWP 48 activities. One commenter said 
that regional conditions must be consistent with treaty-reserved rights 
and support protection of nearshore habitat. One commenter said that 
NWP 48 is used a lot in some areas of the country, and that commenter 
believes that high usage results in more than minimal cumulative 
adverse environmental effects. One commenter recommended transferring 
the responsibility for processing NWP 48 PCNs for commercial shellfish 
aquaculture activities in Washington State to either North Pacific 
Division or Corps Headquarters.
    The development of regional conditions is achieved through efforts 
conducted by the division engineer and the Corps district, and the 
approval of the regional conditions is made under the division 
engineer's authority. For the 2017 NWPs, Corps districts conducted 
consultation with tribes to develop regional conditions for this NWP 
and other NWPs. Those regional conditions can help ensure compliance 
with general condition 17, tribal rights, so that no NWP 48 activity 
will cause more than minimal adverse effects on reserved tribal rights 
(including treaty rights), protected tribal resources, or tribal lands. 
Division engineers can also modify, suspend, or revoke this NWP in 
geographic areas where there may be more than minimal individual and 
cumulative adverse environmental effects. Examples of such geographic 
areas include specific waterbodies, watersheds, ecoregions, or 
counties. Review of NWP 48 PCNs is the responsibility of Corps 
districts, and Corps divisions have oversight over their districts.
    This NWP is reissued with the modifications discussed above.
    NWP 49. Coal Remining Activities. We did not propose any changes to 
this NWP. One commenter said this NWP should not be reissued. A 
commenter suggested that aquatic resources within previously mined 
areas should not be considered to be subject to Clean Water Act 
jurisdiction. One commenter recommended encouraging NWP 49 activities 
by allowing the permittee to use the net increases in aquatic resource 
functions to produce compensatory mitigation credits for sale or 
transfer to other permittees. One commenter said that a watershed 
approach should be used to quantify ecological lift resulting from NWP 
49 activities.
    The purpose of this NWP is to provide general permit authorization 
for the remining of an unreclaimed coal mining site. Requiring that 
these activities result in net increases in aquatic resource functions 
will help restore unreclaimed areas that might otherwise not be 
restored. The restoration of unreclaimed coal mining areas is one of 
the most effective ways to reverse degraded water quality in a 
watershed. District engineers will determine on a case-by-case basis 
using applicable regulations and guidance whether aquatic resources on 
previously mined areas are waters of the United States and therefore 
subject to the Clean Water Act. A former coal mining site might be a 
suitable mitigation bank or in-lieu fee project if the sponsor obtains 
the required approvals from the Corps in accordance with the procedures 
in 33 CFR 332.8. Rapid ecological assessment tools, or other tools, can 
be used to determine whether a proposed NWP 49 activity will result in 
net increases in aquatic resource functions. Such tools may include 
watershed considerations in determining increases in specific 
ecological functions or overall ecological condition.
    One commenter asked if the net increase in aquatic resource 
functions applies to the new mining activities or collectively to the 
new mining and the remining activities. Several commenters requested 
clarification of the requirement that the total area disturbed by new 
mining must not exceed 40 percent of the total acreage covered by both 
the remined area and the area needed to do the reclamation of the 
previously mined area. One commenter said that the 40 percent 
requirement should be removed from this NWP.
    The overall coal remining activity, which consists of the remining 
and reclamation activities, plus the new mining activities, must result 
in the required net increases in aquatic resource functions. The text 
of the NWP states that the ``total area disturbed by new mining must 
not exceed 40 percent of the total acreage covered by both the remined 
area and the additional area necessary to carry out the reclamation of 
the previously mined area.'' For examples illustrating the application 
of the 40 percent requirement, please see the preamble discussion for 
NWP 49 in the 2012 final NWPs, which were published in the February 21, 
2012, issue of the Federal Register (77 FR 10233).
    This NWP is reissued without change.
    NWP 50. Underground Coal Mining Activities. We did not propose any 
changes to this NWP, other than to clarify that any loss of stream bed 
applies to the \1/2\-acre limit. Several commenters objected to the 
reissuance of this NWP, stating that these activities should require 
individual permits because they result in more than minimal adverse 
environmental effects.
    The \1/2\-acre limit for this NWP, as well as the requirement that 
all activities require PCNs and written verifications from district 
engineers, will ensure that this NWP only authorizes activities that 
result in no more than minimal adverse environmental effects, 
individually and cumulatively. If the district engineer reviews the PCN 
and determines that the proposed activity, after considering any 
mitigation proposal submitted by the applicant, will result in more 
than minimal adverse environmental effects, he or she will assert 
discretionary authority and require an individual permit for that 
activity.
    This NWP is reissued as proposed.
    NWP 51. Land-Based Renewable Energy Generation Facilities. We 
proposed to split Note 1 of the 2012 NWP 51 into two notes. We also 
sought comments on changing the PCN threshold in this NWP, which 
currently requires PCNs for all authorized activities.
    One commenter said that these activities should require individual 
permits, instead of being authorized by an NWP. One commenter 
recommended adding terms to this NWP to authorize temporary structures, 
fills, and work that are necessary to construct, expand, or modify 
land-based renewable energy generation facilities. One commenter stated 
that this NWP should not authorize facilities in channel migration 
zones and floodplains where there will be direct and indirect impacts 
to special status species. Several commenters said that Note 1 should 
be modified to include linear transportation projects

[[Page 1932]]

and their potential authorization by NWP 14. One commenter suggested 
splitting the revised Note 1 into two notes. Several commenters 
recommended the removal of Note 3.
    The \1/2\-acre limit, along with the PCN requirements and 
compliance with the NWP general conditions, will ensure that the 
activities authorized by this NWP will result in no more than minimal 
individual and cumulative adverse environmental effects. In response to 
a PCN, if the district engineer determines after considering the 
applicant's mitigation proposal that the proposed activity will cause 
more than minimal adverse environmental effects, he or she will 
exercise discretionary authority and require an individual permit for 
that activity. Temporary structures, fills, and work necessary to 
construct, expand, or modify these facilities may be authorized by NWP 
33. Since we have removed the PCN requirement for temporary 
construction, access, and dewatering activities in waters and wetlands 
subject only to Clean Water Act section 404, the use of NWP 33 with 
this NWP will not result in a PCN requirement unless a PCN is required 
because of general condition 18, endangered species, general condition 
20, historic properties, or another general condition.
    Activities authorized by this NWP must comply with general 
condition 10, fills in 100-year floodplains. Proposed activities that 
might affect ESA-listed species or designated critical habitat or are 
in the vicinity of such species or critical habitat, or are located in 
designated critical habitat, require PCNs if the project proponent is a 
non-federal permittee (see paragraph (c) of general condition 18). 
Division engineers may impose regional conditions that require PCNs for 
impacts to other types of special status species. We do not believe it 
is appropriate to add NWP 14 activities to Note 1. The purpose of Note 
1 is to address utility lines that transmit the energy generated by 
these land-based renewable energy generation facilities to other areas. 
There is no need to split Note 1 into separate notes because those two 
sentences cover the general concept of utility lines that transmit the 
energy to other places.
    Several commenters stated that the acreage limit should be 
increased to one acre. One commenter asked why NWP 51 has a \1/2\-acre 
limit when other NWPs have a \1/10\-acre limit. One commenter said that 
NWP 51 should not authorize activities in known areas of special status 
species or critical habitat. A few commenters recommended adding 
waivers to NWP 51.
    We are retaining the \1/2\-acre limit for this NWP because it has 
been effective in ensuring that activities authorized by this NWP 
result in no more than minimal individual and cumulative adverse 
environmental effects. In geographic areas where an acreage limit 
greater than \1/2\-acre is appropriate for land-based renewable energy 
generation facilities that involve activities that require DA 
authorization and will result in only minimal adverse environmental 
effects, district engineers can issue regional general permits. Only 
two NWPs have a \1/10\-acre limit and 12 NWPs have a \1/2\-acre limit.
    The category of activities authorized by this NWP, and the adverse 
environmental effects of those activities, more closely resemble the 
categories of activities authorized by the NWPs that have the \1/2\-
acre limit. Activities authorized by NWP 51 must comply with general 
condition 18, endangered species. Division engineers can add regional 
conditions to this NWP to increase protection of other categories of 
special status species or particular habitat types. The \1/2\-acre 
limit for this NWP cannot be waived, but the 300 linear foot limit for 
losses of intermittent and ephemeral stream beds can be waived by a 
district engineer on a case-by-case basis after conducting agency 
coordination and making a written determination that the proposed will 
result in no more than minimal adverse environmental effects.
    Several commenters said the PCN threshold should be increased to 
\1/2\-acre. A few commenters recommended changing the PCN threshold to 
\1/10\-acre. One commenter stated that the Corps should continue to 
require PCNs for all NWP 51 activities. One commenter suggested 
requiring PCNs for proposed losses of greater than \1/10\-acre of 
waters of the United States or losses of greater than 500 linear feet 
of stream bed. Several commenters said that agency coordination should 
be required for all NWP 51 PCNs. One commenter stated that the removal 
of the PCN requirement for NWP 51 will not ensure that those activities 
have no more than minimal adverse impacts, because those impacts would 
not be assessed or tracked. This commenter said that these types of 
projects have the potential to impact ESA-listed species.
    We are changing the PCN threshold to require PCNs for losses of 
greater than \1/10\-acre of waters of the United States. Land-based 
renewable energy projects provide an important public interest function 
by producing energy while contributing to energy industry reductions in 
greenhouse gas emissions. Changing the PCN threshold to \1/2\-acre 
would result in no activities requiring PCNs because we are retaining 
the \1/2\-acre limit for this NWP and not adopting the one acre limit 
suggested by several commenters. For non-federal permittees, all 
proposed activities that might affect ESA-listed species or designated 
critical habitat, are in the vicinity of listed species or critical 
habitat, or are in designated critical habitat require PCNs under 
general condition 18, endangered species. All proposed NWP 51 
activities to be conducted by non-federal permittees that may have the 
potential to cause effects to historic properties require PCNs under 
general condition 20, historic properties. We will continue to track 
NWP 51 activities that require PCNs and that are voluntarily reported 
to Corps districts. To assess cumulative impacts of these activities, 
we will estimate the number of activities that are conducted but did 
not require PCNs.
    This NWP is reissued with the modifications discussed above.
    NWP 52. Water-Based Renewable Energy Generation Pilot Projects. We 
proposed to add floating solar panels to the types of water-based 
renewable energy generation pilot projects authorized by this NWP 
because they are another technology for generating renewable energy in 
waterbodies. We also requested comment on whether to continue limiting 
this NWP to pilot projects, or to modify the NWP to authorize permanent 
water-based renewable energy generation facilities.
    One commenter said that these activities should require individual 
permits instead of being authorized by NWP. Several commenters opposed 
removing the limitation in NWP 52 to pilot projects. Several commenters 
supported removing the limitation to pilot projects. Several commenters 
asked whether wave-generated energy pilot projects are authorized by 
this NWP. Several commenters expressed support for adding pilot 
floating solar energy generation facilities. One commenter stated that 
activities that interfere with treaty fishing rights should be required 
to obtain individual permits.
    We are retaining the limitation to pilot projects, to allow project 
proponents to collect data and determine whether they want to apply for 
individual permit authorization for permanent water-based renewable 
energy generation facilities. We have added wave energy devices to the 
list of types of water-based renewable energy generation pilot projects 
that can be authorized by this NWP. Activities authorized by this NWP 
must comply with general condition 17, tribal rights,

[[Page 1933]]

and not cause more than minimal adverse effects on tribal rights 
(including treaty rights), protected tribal resources, or tribal lands. 
For the 2017 NWPs, Corps districts are consulting with tribes to 
identify regional conditions that protect reserved tribal rights and 
tribal trust resources. District engineers may also develop 
coordination procedures with tribes to help determine whether a 
proposed NWP activity might cause more than minimal adverse effects on 
tribal rights, protected tribal resources, or tribal lands.
    One commenter stated that the NWP should require the collection of 
robust data to inform future decisions. Another commenter said that the 
NWP should make a clear distinction between navigable waters of the 
United States subject to the Rivers and Harbors Act of 1899 and 
jurisdictional waters that are only subject to the Clean Water Act. 
Several commenters objected to Note 4, which states that hydrokinetic 
renewable energy generation projects that require authorization by the 
Federal Energy Regulatory Commission (FERC) under the Federal Power Act 
of 1920 do not require separate DA authorization under section 10 of 
the Rivers and Harbors Act of 1899.
    The Corps' review is limited to evaluating the adverse 
environmental effects caused by the permitted activities, and that 
review does not require extensive amounts of data collection. The 
collection of data to assess the renewable energy generation 
capabilities of these pilot projects is for the benefit of the project 
proponent, to help him or her decide whether to apply for individual 
permits for more permanent facilities. Navigable waters of the United 
States are defined at 33 CFR part 329, and under section 10 of the 
Rivers and Harbors Act of 1899, DA permits are required for structures 
and work in those waters. The term ``structure'' is defined at 33 CFR 
322.2(b) and includes any obstacle or obstruction, as well as power 
transmission lines. Renewable energy generation facilities placed in 
navigable waters are structures under that definition. Under section 
404 of the Clean Water Act, the Corps regulates discharges of dredged 
or fill material into waters of the United States. If the water-based 
renewable energy generation facility does not involve discharges of 
dredged or fill material into waters of the United States, then it does 
not require section 404 authorization. If it is in navigable waters, 
then it requires section 10 authorization which may be provided by this 
NWP. Note 4 is based on current law, and it needs to remain in the NWP. 
In the paragraph preceding the ``Notification'' paragraph we have 
changed the last word of that paragraph from ``issued'' to ``required'' 
because NWP applicability only occurs if FERC authorization is not 
required for the activity.
    Several commenters voiced their support for the \1/2\-acre limit 
for floating solar generation units. One commenter said that floating 
solar panels should be limited to 50 square feet. Several commenters 
said that there should be no limits on the number of water-based 
renewable energy generation units. One commenter stated that this NWP 
should not authorize activities in submerged aquatic vegetation, areas 
inhabited by shellfish, and shellfish spawning areas. One commenter 
remarked that NWP 52 activities should be prohibited in fish-bearing 
streams. This commenter also said that the NWP should only authorize 
activities in ephemeral streams. Several commenters recommended 
prohibiting all activities in special aquatic sites. One commenter said 
that the 300 linear foot limit for losses of stream bed is too high. A 
few commenters suggested allowing waivers to the limits of this NWP.
    We are retaining the \1/2\-acre limit for floating solar panels. A 
50 square foot floating solar panel would have little practical use in 
determining the feasibility of potential permanent facilities. The 10-
unit limit is necessary to ensure that the activities authorized by 
this NWP will result in only minimal individual and cumulative adverse 
environmental effects, including adverse effects on navigation. General 
conditions 3 and 5 provide protection to spawning areas and shellfish 
beds, respectively, to ensure that NWP activities have no more than 
minimal adverse effects on those resources. Division engineers can 
impose regional conditions that restrict or prohibit these activities 
in areas with submerged aquatic vegetation, areas inhabited by 
shellfish, and shellfish spawning areas.
    The renewable energy generation units authorized by this NWP 
require deeper waters and most fish will be able to avoid these units. 
Therefore, these units will have no more than minimal adverse effects 
on fish inhabiting those deep rivers. Since ephemeral streams only have 
flowing water during, and a short time after, precipitation events, 
they are not suitable for water-based renewable energy generation 
facilities. All activities authorized by this NWP require PCNs, which 
gives district engineers the opportunity to evaluate the effects these 
activities have on special aquatic sites. The loss of stream bed will 
be limited to losses caused by the construction of attendant features. 
While district engineers can waive the 300 linear foot limit for losses 
of stream bed if the affected streams are intermittent or ephemeral, 
they cannot waive the \1/2\-acre limit. This NWP is consistent with the 
other NWPs that have \1/2\-acre limits in that the \1/2\-acre limit 
cannot be waived.
    Several commenters recommended requiring agency coordination for 
all NWP 52 PCNs. One commenter said the PCN threshold should be 
increased to \1/10\-acre. Another commenter suggested changing the PCN 
threshold from all activities to only those activities that result in 
losses greater than \1/10\-acre, or losses of greater than 400 linear 
feet of stream bed. One commenter supported the current PCN 
requirements.
    Agency coordination is only required for proposed NWP 52 activities 
that involve losses of greater than 300 linear feet of intermittent and 
ephemeral stream bed in cases where project proponents request waivers 
from district engineers. Because of the potential for more than minimal 
adverse effects on navigation to occur we believe that all activities 
authorized by this NWP should require PCNs.
    We have also made some additional changes to this NWP. Some of 
these other changes are intended to be consistent with other NWPs. We 
have modified the third paragraph of this NWP by adding a sentence to 
explain that the loss of stream bed plus any other losses of 
jurisdictional waters and wetlands caused by the NWP activity cannot 
exceed \1/2\-acre. We have modified Note 3 to remove the phrase ``pre-
construction notification and'' to be consistent with Note 1 of NWP 12. 
Corps districts will send a copy of the NWP verification to the 
National Ocean Service for charting. The facility and its associated 
utility lines do not need to be charted if the district engineer does 
not issue an NWP verification letter. If the district engineer 
exercises discretionary authority and requires an individual permit, 
the relevant information will be provided to the National Ocean Service 
if the individual permit is issued.
    This NWP is reissued with the modifications discussed above.
    NWP 53. Removal of Low-Head Dams. This NWP was proposed as NWP A to 
authorize structures and work in navigable waters of the United States, 
as well as associated discharges of dredged or fill material into 
waters of the United States, for the removal of low-head dams. The 
removal of low-head dams restores rivers and streams and helps improve 
public safety. This NWP only authorizes the removal of low-head

[[Page 1934]]

dams; it does not authorize the construction of new dams to replace 
low-head dams that are removed. The removal of dams restores stream and 
riparian area functions (Roni et al. 2013, Doyle et al. 2005, Bushaw-
Newton et al. 2002) and improves public safety (Tschantz and Wright 
2011), especially for dams that are in need of repair or replacement or 
are no longer being used for their intended purposes.
    Several commenters said they support the issuance of this new NWP. 
A few commenters expressed their support because the proposed NWP would 
authorize the removal of dams larger than the small water control 
structures that can be removed under the authorization provided by NWP 
27. Several commenters stated that the activities authorized by this 
new NWP would restore small streams, restore floodplain connectivity, 
improve recreational access, improve public safety, and improve fish 
passage. Some commenters stated that NWP 27 could be modified to 
authorize these activities instead of issuing a new NWP. Other 
commenters said that low-head dams could be removed using NWP 3. One 
commenter objected to the proposed NWP. One commenter said that due to 
the wide variety of dam shapes and sizes, individual permits should be 
required for the removal of low-head dams.
    We believe that there should be a separate NWP to authorize the 
removal of low-head dams instead of modifying NWP 27 to authorize these 
activities. Nationwide permit 27 authorizes a broad range of aquatic 
habitat restoration and enhancement activities, including wetland and 
stream restoration and enhancement. By issuing a separate NWP, we can 
keep this NWP focused on low-head dam removal activities and allow 
division engineers to add regional conditions to address regional 
concerns specific to low-head dam removal activities. While we have 
modified NWP 3 to authorize the removal of previously authorized 
structures or fills, there is and would be limited use of NWP 3 to 
authorize low-head dam removal activities. Many low-head dams were 
constructed long before DA permits were required for those activities. 
Many of these dams were built in the 19th century or earlier, to 
provide water and power for towns and cities, as well as power for 
industry (Tschantz and Wright 2011). Since many low-head dams were not 
authorized by the Corps because they did not require such authorization 
at the time they were constructed, NWP 3 cannot be used to remove those 
dam structures. This NWP only authorizes the removal of low-head dams 
that meet the definition provided in the text of the NWP. The removal 
of small water control structures is still authorized by NWP 27. Other 
dam removal activities, including dams that are not low-head dams, will 
require individual permits unless the Corps district has issued a 
regional general permit to authorize the removal of those other types 
of dams.
    One commenter expressed support for the proposed definition of 
``low-head dam'' and stated that the removal of dams that do not meet 
this definition should require an individual permit. Many commenters 
requested clarification of the definition of ``low-head dam.'' Several 
commenters suggested adding a definition of the term ``dam crest'' to 
clarify that this refers to the top of the dam from left abutment to 
right abutment, including if present, an uncontrolled spillway.
    To respond to comments received on the proposed definition of 
``low-head dam'' we have expanded the definition to provide additional 
criteria to identify low-head dams that can be removed under the 
authorization provided by this NWP. The revised definition is as 
follows:

    For the purposes of this NWP, the term ``low-head dam'' is 
defined as a dam built across a stream to pass flows from upstream 
over all, or nearly all, of the width of the dam crest on a 
continual and uncontrolled basis. (During a drought, there might not 
be water flowing over the dam crest.) In general, a low-head dam 
does not have a separate spillway or spillway gates but it may have 
an uncontrolled spillway. The dam crest is the top of the dam from 
left abutment to right abutment, and if present, an uncontrolled 
spillway. A low-head dam provides little storage function.

    The revised definition is a functional definition to limit this NWP 
to the removal of low-head dams that will result in no more than 
minimal individual and cumulative adverse environmental effects. Under 
this definition a low-head dam does not function as a storage dam. 
While a low-head dam imposes a barrier to the movement of fish and 
other aquatic organisms, especially those species that travel upstream, 
it still allows continuous water flow and does not substantially 
disrupt sediment transport (Csiki and Rhoads 2014). Downstream sediment 
transport continues despite the presence of the low-head dam, 
especially during higher flow events (Fencl et al. 2015). Another 
important feature of this definition is that it explicitly states that 
the low-head dam has little storage function. Since these low-head dams 
do not provide much storage, the amount of sediment that might be 
stored in the impoundment will be small and therefore relatively small 
amounts of sediment will be transported downstream after the low-head 
dam structure is removed. An example of a low-head dam with small 
storage function is a 2-meter high low head dam in Pennsylvania, which 
had a 2-hour hydraulic residence time in the impoundment before the 
low-head dam was removed (Bushaw-Newton 2002).
    We have also added a parenthetical to address situations where a 
drought may result in no water flowing over the dam crest. We did not 
want to preclude the use of this NWP in situations where an applicant 
or a district engineer did not observe water flowing over the dam crest 
during a prolonged drought. The abutment is the valley side or valley 
wall against which the dam structure is constructed. To respond to 
commenters, we also defined the term ``dam crest.'' There are some low-
head dams that have uncontrolled spillways. For an uncontrolled 
spillway, the crest of the spillway is what controls which specific 
water flows are discharged from the dam. A controlled spillway has 
gates that are manipulated to control water flows from the dam. There 
may be some low-head dams that have small navigational locks or 
millrace diversions, but these will be relatively rare. However, if 
these features are present, the removal of those low-head dams may be 
authorized by this NWP. These features do not occur frequently enough 
to include them in the definition in the text of the NWP. The district 
engineer will use his or her discretion to determine whether a dam 
proposed for removal is a low-head dam as defined by this NWP.
    One commenter recommended defining ``low-head dam'' by using 
standards for ``small'' dams established by the Federal Energy 
Regulatory Commission (FERC) and Federal Emergency Management Agency 
(FEMA). One commenter suggested defining ``low-head dam'' as a dam less 
than five meters in height. Another commenter recommended defining 
``low-head dam'' as ``a dam built across a stream designed to pass 
flows from upstream to downstream over the entire width of the dam 
crest on an uncontrolled basis, or any dam up to 25 feet in height.'' 
This commenter said that the definition needs to be clear that a low 
head dam is designed and constructed to pass flows from upstream to 
downstream. One commenter said that the proposed rule appeared to treat 
low-head dams as run-of-the-river dams, which includes large 
hydroelectric dams that operate in a run-of-the-river mode. One 
commenter stated that the

[[Page 1935]]

definition should be based on height criteria to authorize the removal 
of small dams that have different structural designs. This commenter 
noted that this would allow the NWP to authorize the removal of: (1) 
Small earthen dams that spill through low-level outlets, (2) uniquely 
constructed dams, and (3) dam-like structures such as fords or grade 
control structures that some states may define as dams.
    As discussed above, we are using a functional definition to 
identify low-head dams for this NWP in order to limit the use of this 
NWP to dams that have the key features presented in the definition. 
There may be low-head dams slated for removal that district engineers, 
local agency staff, and others might not consider to be ``small'' but 
could still be removed under the authorization provided by this NWP 
because they satisfy the components of the definition provided in the 
NWP text. The term ``small dam'' and how it has been used in various 
contexts makes that term too ambiguous to use in this NWP. For example, 
as stated in the proposed rule, some people consider small dams to be 
dams that are not included in the National Inventory of Dams (see 81 FR 
35204). There is a substantial amount of variability in those small 
dams because different states use different criteria to determine 
whether to include specific dams in the inventory. Definitions used by 
FERC and FEMA serve purposes other than river and stream restoration. 
As stated in the June 1, 2016, proposed rule, we proposed this NWP to 
provide a general permit to authorize a category of activities that 
restores rivers and streams and improves safety for users of small 
craft such as canoes and kayaks.
    We believe that the functional definition provided in the NWP text 
is more effective than establishing a threshold height for identifying 
low-head dams. Dams that are five meters (16.4 feet) or 25 feet in 
height may have a substantial storage function. The definition in the 
final NWP does recognize that the low-head dam passes flows from 
upstream to downstream on a continual and uncontrolled basis, unless 
there is a drought. In the final NWP, we are providing more detail in 
the definition of ``low-head dam'' and are not using the term ``run-of-
the-river dam.'' The preamble discussion of the proposed new NWP in the 
June 1, 2016, proposed rule was a general discussion of different dam 
classification approaches, and included a discussion of differences 
between run-of-the-river dams and storage dams. The preamble also 
included a general discussion of the scientific literature on dam 
removal. Some of the dam removal studies cited in the proposed rule 
examined the outcomes of removal of run-of-the-river dams or other 
types of dams, not just low-head dams. The removal of large hydropower 
run-of-the-river dams may be authorized by individual permits. The 
removal of small dam structures in headwater streams that do not meet 
the definition of low-head dam in this NWP might be authorized by NWP 
27. If the proposed dam removal activity does not qualify for 
authorization under this NWP or NWP 27, then an individual permit will 
be required unless the Corps district has issued a regional general 
permit that could be used to authorize the proposed activity. District 
engineers can also issue regional general permits to authorize the 
removal of other types of dams, such as run-of-the-river dams, or fords 
or grade-control structures. The removal of fords or in-stream grade-
control structures might also be authorized by NWP 27 as a stream 
restoration activity.
    One commenter asked for more details on the scale of low-head dam 
removal that is authorized by this NWP. One commenter said that after 
the low-head dam is removed, it might be necessary to conduct a 
hydraulic analysis to update FEMA's Flood Insurance Rate Map for the 
affected area. One commenter stated that low-head dam removal projects 
will have both positive and negative impacts well beyond the dam 
footprint as a result of dewatering the former impoundment, releasing 
stored sediment, depositing surplus sediment on downstream benthic 
habitats, and changing the sediment dynamics. This commenter also said 
that low-head dam removal activities could affect state water rights, 
state owned stream channels, and other local jurisdictions. This 
commenter also said that lowering of water levels could impact state 
listed species. This commenter recommended coordinating PCNs for these 
activities with state resource agencies.
    This NWP authorizes the removal of the low-head dam structure. It 
does not authorize discharges of dredged or fill material into waters 
of the United States or structures or work in navigable waters to 
restore the river or stream channel or its riparian areas after the 
low-head dam is removed. The restoration of the river or stream channel 
and associated riparian areas may be authorized by NWP 27, if the 
project proponent wants to do restoration work beyond removing the low-
head dam. The project proponent may also choose to allow the river or 
stream and its riparian areas to recover through natural processes. 
Updating Flood Insurance Rate Maps after a low-head dam is removed is 
the responsibility of either the project proponent or the appropriate 
federal, state, or local floodplain management authority in that 
jurisdiction.
    We recognize that the removal of low-head dams will have both 
positive and negative adverse impacts, generally with short-term 
adverse environmental effects and long-term beneficial environmental 
effects. Ecological restoration activities are intentional 
interventions intended to bring back ecological processes that were 
impaired, usually by human actions, to restore the historic continuity 
or ecological trajectory of the impaired ecosystem (Clewell and Aronson 
2013). For this NWP, the intentional intervention is the removal of the 
low-head dam that has been impairing river and stream structure, 
functions, and dynamics. The removal of the low-head dam allows the 
structure, functions, and dynamics of the river or stream to recover in 
its contemporary watershed condition. The construction of the low-head 
dam resulted in long-term impairment of the river or stream by altering 
its hydrology and hydrodynamics, sediment transport processes, the 
movement of aquatic organisms through the stream network, and other 
ecological processes. The changes to river and stream structure, 
functions, and dynamics caused by the low-head dam resulted in losses 
or reductions of riverine functions and services. The adverse effects 
caused by the removal of low-head dams will be temporary, and the river 
or stream where the low-head dam was located will recover from those 
temporary adverse effects. Over time, as ecosystem development 
processes take place in the absence of the removed low-head dam, the 
structure, functions, and dynamics of the river or stream will recover. 
That recovery may not be full recovery if there were substantial 
changes to the watershed since the low-head dam was constructed (Doyle 
et al. 2005).
    Low-head dam removal activities may require other authorizations 
from state governments. The authorization provided by this NWP does not 
obviate the need for the project proponent to obtain other federal, 
state, or local permits, approvals, or authorizations required by law 
(see item 2 of Section E, Further Information). Impacts to state listed 
species are more appropriately addressed by state agencies that are 
responsible for ensuring compliance with state laws and regulations. We 
do not believe it is necessary to require agency coordination for the 
PCNs for these activities. District engineers have the expertise to 
evaluate these activities,

[[Page 1936]]

and, if necessary, they can discuss specific proposals with their 
counterparts at federal, tribal, state, or local resource agencies.
    One commenter said that this NWP should not authorize low-head dam 
removals if there are undesirable non-native species downstream of the 
low-head dam, because removal of dam structure would open a corridor to 
allow them to move upstream and colonize upstream reaches. This 
commenter also recommended that the NWP require staged dewatering of 
the impoundment if the low-head dam is located in a low-gradient 
stream. Another commenter suggested limiting removal activities to 
periods of low flow to prevent downstream adverse effects. This 
commenter recognized that many of the potential adverse effects are 
mitigated through the requirements of various NWP general conditions.
    If the low-head dam is preventing harmful non-native species from 
reaching upstream reaches, the district engineer can exercise 
discretionary authority if he or she determines that the adverse 
environmental effects resulting from the removal of a barrier that 
prevents the migration of a harmful non-native species would be more 
than minimal. In such cases, an individual permit would be required and 
the district engineer could determine whether the proposed activity is 
not contrary to the public interest. Under the individual permit 
process, the district engineer could deny the authorization. In 
response to a PCN, a district engineer may add conditions to the NWP 
authorization to require staged dewatering of the impoundment to ensure 
that the individual and cumulative adverse environmental effects caused 
by the removal of the low-head dam are no more than minimal. Division 
engineers can add regional conditions to this NWP to limit low-head dam 
removal activities to certain times of the year in order to protect 
species during important life cycle events such as spawning seasons. 
The district engineer may also impose time-of-year restrictions on a 
case-by-case basis by adding conditions to a specific NWP 
authorization. We agree that a number of environmental concerns about 
these activities are already addressed by the NWP general conditions.
    Several commenters stated that they agreed that district engineers 
should have discretion to determine whether sediment testing is 
necessary. One of these commenters said that the decision document for 
this NWP should make clear that questions related to sediment 
management should be addressed through the Clean Water Act section 401 
water quality certification process. This commenter expressed concern 
that having district engineers require sediment testing would create a 
process that duplicates the state's water quality certification 
process.
    The risk for contaminant-laden sediments is dependent on past and 
present uses of the watershed, the location of the impoundment, the 
history of excavating material from the impoundment, and sediment 
composition (Bushaw-Newton 2002). Prior to making such a determination, 
the district engineer should apply the guidance provided in Regulatory 
Guidance Letter 05-04, entitled: ``Guidance on the Discharge of 
Sediments From or Through a Dam and the Breaching of Dams, for Purposes 
of Section 404 of the Clean Water Act and Section 10 of the Rivers and 
Harbors Act of 1899.'' That guidance will inform the district engineer 
whether the release of sediment from the low-head dam removal activity 
will result in a regulated discharge of dredged or fill material under 
section 404 of the Clean Water Act. If that sediment release will not 
result in a regulated discharge under section 404 of the Clean Water 
Act, the district engineer should defer to the state water quality 
agency regarding whether sediment testing is necessary to ensure 
compliance with applicable water quality standards. If release of 
sediments will result in a regulated discharge of dredged or fill 
material, the district engineer has the discretion to determine that 
there is a need to test sediment that might be stored in the 
impoundment for contaminants, based on a ``reason to believe'' approach 
similar to the EPA's inland testing manual for dredged material.
    We agree with the commenters that said that decisions to require 
testing of sediments stored by low-head dams are more appropriately 
made by the agencies responsible for making water quality certification 
decisions under section 401 of the Clean Water Act. Under section 401, 
those agencies have broader authority over those concerns than the 
Corps because they can require water quality certification for any 
discharge into waters of the United States, not just discharges of 
dredged or fill material into those jurisdictional waters and wetlands. 
We have made the appropriate changes to the decision document for this 
NWP to recognize the water quality certification agencies' authorities 
to ensure that any discharges from low-head dam removal activities 
comply with applicable water quality standards. For example, one study 
of a low-head dam removal (Bushaw-Newton et al. 2002) found that the 
removal of the low-head dam did not cause a substantial change in water 
quality.
    Several commenters stated that the phrase ``under separate 
authorization'' should be removed from second paragraph of the proposed 
NWP. These commenters said that this NWP should authorized beneficial 
uses of natural material that was removed during low-head dam removal. 
One of these commenters remarked that the phrase ``in an area that has 
no waters of the United States'' is unclear and recommended replacing 
it with ``not in waters of the United States'' for clarity.
    We are retaining this provision of the NWP because the NWP is 
intended to only authorize the removal of these low-head dams. After 
the low-head dam is removed, rivers and streams can re-establish 
themselves through natural ecosystem development processes. If the 
project proponent wants to conduct activities to accelerate the re-
establishment of the river or stream channel and its riparian area and 
use material from the removal of the low-head dam structure he or she 
can seek authorization under NWP 27 or another form of DA 
authorization. Under NWP 27 or other forms of DA authorization, the 
material removed from the dam structure may be used for the restoration 
activity. We are using the phrase ``an area that has no waters of the 
United States'' because it is consistent with other NWPs that have 
similar terms. An area in which material removed from the low-head dam 
is deposited might have no jurisdictional waters or wetlands, it might 
have some jurisdictional waters or wetlands, or it might consist 
entirely of jurisdictional waters and wetlands. If it is the last two 
situations, then another form of DA authorization would be needed to 
authorize the placement of that material into those jurisdictional 
waters and wetlands. That authorization may be another NWP, a regional 
general permit, or an individual permit.
    One commenter suggested that the PCN should require a description 
of how the low-head dam will be removed, the timing of the removal 
activity, and how the removed materials will be disposed. One commenter 
said that timing of the low-head dam removal is important to protect 
aquatic organisms from sediment plumes generated by low-head dam 
removal. One commenter observed that the proposed NWP does not include 
a requirement to sample pre- and post-removal sediment loads. Several 
commenters said that PCNs for these activities should include site 
assessments of legacy sediments, which

[[Page 1937]]

would describe the quality, quantity, and types of sediments stored 
behind the low-head dam. Several commenters stated that the PCN should 
also include a sediment assessment and sediment management plan and 
that the PCN should be coordinated with the applicable Clean Water Act 
section 401 agency.
    The method, timing, and disposal practices for low-head dam removal 
should be determined on a case-by-case basis, and prospective 
permittees should describe these aspects of the proposed low-head dam 
removal in their PCNs. Paragraph (b)(4) of general condition 32 states 
that the prospective permittee may describe in the PCN proposed 
mitigation measures intended to reduce the adverse environmental 
effects caused by the NWP activity. For activities authorized by this 
NWP, this may include a description of how the low-head dam will be 
removed to avoid or minimize adverse environmental effects. For 
example, the project proponent may propose to conduct the low-head dam 
removal during a specific time of the year to protect aquatic species. 
He or she may also propose to remove the low-head dam in phases, to 
control releases of water and sediment from upstream of the dam. The 
PCN should also identify where the removed materials will be deposited, 
to ensure that they will not be deposited in waters of the United 
States unless the district engineer authorizes, under separate 
authorization, that disposal those jurisdictional waters and wetlands.
    This NWP does not include a requirement to sample pre- and post-
sediment loads because it is limited to low-head dams that have little 
storage capacity. Therefore, there will be little sediment stored in 
the low-head dam impoundments. Removal of the low-head dam structure 
will restore sediment transport functions to the river or stream, and 
any adverse effects caused by the small amount of sediment released 
from the removal of the low-head dam will be temporary as water flows 
transport and distribute that sediment downstream.
    As discussed above, we agree with commenters that stated that 
agencies with responsibility for implementing section 401 of the Clean 
Water Act are the appropriate authorities for deciding whether sediment 
releases comply with applicable water quality standards. When 
evaluating water quality concerns during the PCN review process, the 
district engineer should also consider water quality in a watershed 
context, specifically adverse effects to water quality caused by non-
point sources of pollution and stormwater discharges in that watershed. 
Under the Clean Water Act, the states have the authority to address 
non-point sources of pollution. Section 402(p) of the Clean Water Act 
addresses stormwater discharges. When considered in the context of non-
point source pollution and stormwater pollution throughout the 
watershed that reaches the river or stream, the incremental 
contribution of pollutants associated with sediments that might be 
released as a result of low-head dam removal activities may be small.
    One commenter said that these activities may result in a need to 
re-establish stream banks, and recommended that the PCN require 
information on how the applicant will re-establish a stable stream 
bank. Another commenter said that the PCN should describe how stream 
bank erosion will be prevented after the low-head dam is removed. One 
commenter requested that the PCN explain how the permittee will prevent 
streambank erosion once the water is drawn down.
    After the low-head dam is removed, the river or stream channel 
upstream of the low-head dam will adjust to the change in hydrology and 
sediment transport. Downstream of the removed low-head dam, the river 
or stream channel will also adjust. For low-head dams with little 
storage function, there will likely be minor changes to river or stream 
channel bed morphology as the stream adjusts itself to a more natural 
water flow and sediment transport regime. The adjustment of a river or 
stream channel to low-head dam removal involves bed aggradation, bed 
degradation, bar development, and floodplain formation, to eventually 
resemble reference stream reaches (Bushaw-Newton et al. 2002). The low-
head dam impaired those stream functions, and the removal of the low-
head dam allows those functions to recover to the degree they can 
recover in a watershed that has changed during the period the low-head 
dam was in place (Doyle et al. 2005). After a dam is removed, 
vegetation rapidly colonizes the sediments exposed in the former 
impoundment (Orr and Stanley 2006). If the project proponent wants to 
conduct discharges of dredged or fill material into jurisdictional 
waters and wetlands or other regulated activities to repair the river 
or stream channel and riparian areas, then he or she can request 
authorization under NWP 27 or other form of DA authorization. We have 
added a Note to this NWP to make it clear that NWP 27 or another form 
of DA authorization is required for those other river or stream 
restoration activities, because this NWP only authorizes regulated 
activities conducted to remove the low-head dam.
    The PCN does not need to describe how the permittee will re-
establish stable stream banks. Rivers and streams are dynamic systems 
and erosion and deposition are natural processes. If the project 
proponent or riparian landowners want to conduct bank stabilization 
activities, they may seek authorization under NWP 13, other NWPs, or 
other forms of DA authorization. In the Note we added to this NWP, we 
also added a sentence to inform permittees that bank stabilization 
activities may be authorized by NWP 13. In the PCN, the prospective 
permittee may describe mitigation measures to minimize the adverse 
effects of the low-head dam removal activity. Such mitigation measures 
could include phased removal of the dam structure, sediment management 
activities, or conducting the low-head dam removal activity to a time 
of year when aquatic organisms are not spawning.
    One commenter stated that compensatory mitigation should be 
required for wetland losses resulting from changes in hydrology caused 
by the removal of a low-head dam. One commenter stated that the PCN for 
these activities should describe how the project proponent will offset 
any losses of riparian wetlands that were established by the presence 
of the low-head dam. One commenter suggested that upstream wetlands 
should be monitored after the low-head dam is removed, to determine if 
there are adverse impacts to those wetlands. One commenter recommended 
adding a provision to this NWP similar to a provision of NWP 27 that 
states that compensatory mitigation is not required for those 
activities because they must result in net increases in aquatic 
resource functions and services. This commenter said such a provision 
is appropriate because any wetlands that were established as a result 
of the construction and operation of a low-head dam became established 
through losses of river and stream functions.
    We have added a sentence to this NWP to state that, as a general 
rule, wetland compensatory mitigation is not required for low-head dam 
removal activities authorized by this NWP because these activities are 
restoration activities. Because the activities authorized by this NWP 
are intended to restore river and stream structure, functions, and 
dynamics, we do not believe that for most cases wetland compensatory 
mitigation should be required for losses of wetlands that were 
established as a result of the water

[[Page 1938]]

stored by the low-head dam. However, there may be cases where the 
wetlands associated with the low-head dam impoundment provide high 
levels of ecological functions and services and the district engineer 
may determine that compensatory mitigation should be required to ensure 
that the wetland losses caused by the NWP activity result in no more 
than minimal adverse environmental effects. River and stream functions 
provide important ecological services, and one of the objectives of 
this NWP is to facilitate the restoration of those ecological functions 
and services. Wetlands that were present before the low-head dam was 
constructed may recover if local hydrology has not changed 
substantially since the low-head dam was constructed. For these 
reasons, the PCN should not include a wetland compensatory mitigation 
proposal. There also does not need to be monitoring of upstream 
wetlands after the low-head dam is removed.
    One commenter asked for clarification on how the Corps would 
determine whether a low-head dam is actually being used for its 
intended purpose. Many commenters said that the Corps should issue 
public notices for proposed low-head dam removals to solicit the views 
of upstream riparian landowners and to notify downstream landowners 
that additional water will be released in an effort to avoid property 
damage or hazards to people who use the river or stream for recreation.
    This NWP only authorizes the removal of low-head dams. It does not 
authorize the construction or maintenance of low-head dams. Therefore, 
the current use of the low-head dam is not relevant to PCN review 
process because the district engineer is evaluating the reasonably 
foreseeable direct and indirect adverse environmental effects of the 
removal of the low-head dam. The NWP authorization would apply to the 
entity that has the authority to remove the low-head dam. That entity 
may be the dam owner or a federal, state, or local government agency if 
there is no private owner of the low-head dam. Riparian landowners 
upstream of the low-head dam should address their concerns to the owner 
of the low-head dam, or other party responsible for deciding whether to 
remove the low-head dam or conduct the repairs necessary to bring the 
low-head dam in compliance with current dam safety requirements.
    We are limiting this NWP to the removal of low-head dams, which 
have little storage volume. There will be little additional water 
released downstream as the dam structure is removed. For low-head dams, 
storm flows pass over the dam crest (Tschantz and Wright 2011), and any 
damage to downstream properties is likely to be due to the higher 
stream discharges that occur during, and for a period of time after, 
those storm events. The removal of low-head dams will improve public 
safety, because these dams present a safety hazard to users of small 
craft such as canoes and kayaks (Tschantz and Wright 2011). We believe 
that limiting this NWP to low-head dams helps ensure that adverse 
effects on downstream landowners will be no more minimal. The removal 
of other types of dams (e.g., storage dams or run-of-the-river dams), 
which may have substantial effects on downstream landowners, is more 
appropriately evaluated under the individual permit process.
    Several commenters stated their support for requiring PCNs for all 
activities authorized by this NWP. One of these commenters said that 
the PCNs should be coordinated with the resource agencies.
    We are requiring PCNs for all activities authorized by this NWP. 
There are a number of variables that need to be considered when 
evaluating dam removal activities, such as the physical characteristics 
of the dam, sediment loads, geomorphology of the stream system, 
hydrodynamics, and potential contaminants attached to fine sediments 
(Bushaw-Newton 2002). We believe that limiting this NWP to the removal 
of low-head dams reduces narrows the potential activity-specific 
expression of those variables so that these low-head dam removal 
activities will result in no more than minimal individual and 
cumulative adverse environmental effects. If the district engineer 
evaluates the activity-specific characteristics and determines the 
proposed activity will result in more than minimal adverse 
environmental effects, after considering mitigation proposed by the 
applicant, he or she will exercise discretionary authority and require 
an individual permit. We are not requiring agency coordination for 
these PCNs, but district engineers have the discretion to conduct 
agency coordination on a case-by-case basis if they need assistance 
from other agencies in making their decisions on whether to issue NWP 
verifications.
    Proposed NWP A is issued as NWP 53, with the modifications 
discussed above.
    NWP 54. Living Shorelines. This NWP was proposed as NWP B to 
authorize structures and work in navigable waters of the United States 
and discharges of dredged or fill material into waters of the United 
States for the construction and maintenance of living shorelines. While 
some activities associated with living shorelines have been authorized 
by NWPs 13 and 27, the construction of living shorelines usually 
requires individual permits because the structures, work, and fills do 
not fall within the terms and conditions of the NWPs. Therefore, we 
proposed to issue this NWP to authorize the construction and 
maintenance of living shorelines, and make available to landowners 
another NWP that authorizes shore erosion control activities in coastal 
waters, to provide another option for streamlined NWP authorization to 
control coastal erosion.
    We received many comments supporting the issuance of this NWP and 
many comments opposing the issuance of this NWP. Many commenters stated 
that they should have the right to protect their waterfront property 
from erosion using whatever techniques authorized by NWP that they 
choose as long as those activities will have no more than minimal 
adverse environmental impacts. Many commenters voiced their concerns 
that this new NWP would mandate the use of living shorelines over other 
approaches to bank stabilization. These commenters said that landowners 
should continue to be allowed to use bulkheads or revetments for shore 
erosion control if they want to protect their land in that way. Several 
commenters stated that this NWP should be withdrawn and that all bank 
stabilization and shore erosion control activities should require 
individual permits. One commenter opposed this NWP stating that it has 
the potential to result in impacts to tribal treaty fishing rights.
    We are issuing this NWP to provide general permit authorization for 
the construction of maintenance of living shorelines in order to offer 
landowners an alternative general permit authorization to the various 
types of bank stabilization activities authorized by NWP 13. Built 
infrastructure (e.g., bulkheads, revetments), natural infrastructure 
(e.g., fringe wetlands, oyster reefs, beach dunes), and hybrid 
infrastructure (e.g., living shorelines) to control erosion all have 
various strengths and weaknesses (Sutton-Grier et al. 2015, Table 1). 
The strengths of built shoreline infrastructure include long periods of 
experience in using these approaches, expertise in how to design and 
construct these features, understanding the level of protection 
provided by these structures, and their immediate effectiveness in 
controlling erosion after they are constructed (Sutton-Grier et al. 
2015). Weaknesses of

[[Page 1939]]

built shore protection infrastructure include an inability to adjust to 
changing environmental conditions (e.g., sea level rise), decreasing 
effectiveness over time as structures deteriorate, and negative impacts 
to coastal ecosystems on the project site (Sutton-Grier et al. 2015).
    The strengths of living shorelines and other hybrid infrastructure 
shore protection approaches include the ability to use the best 
features of built and natural infrastructure, the provision of some 
ecological services other than erosion protection, the ability to 
design and implement innovative shore protection systems, and their 
ability to be used in coastal areas where there is not sufficient space 
for natural infrastructure (Sutton-Grier et al. 2015). Living 
shorelines may be an approach to adapting to sea level rise in coastal 
areas where there is space available for landward migration of fringe 
wetlands (Bilkovic et al. 2016). The weaknesses of living shorelines 
and other hybrid infrastructure approaches include: The present lack of 
empirical data demonstrating their performance, the need for more 
studies on the most effective designs for these hybrid approaches, 
their inability to provide all the ecological services that natural 
infrastructure supplies, the limited expertise of coastal planners and 
developers with these approaches, their negative impacts on species 
diversity, and the lack of cost-benefit data for these approaches 
(Sutton-Grier et al. 2015).
    In these NWPs, we are not establishing a preference over one 
approach to shore erosion control over other approaches because there 
are numerous factors that must be considered when choosing an 
appropriate shore erosion control technique. The appropriate approach 
for shore erosion control is dependent on a variety of factors, such as 
substrate characteristics, site topography, water depths near the 
shore, fetch, and the extent of coastal development in the area (Saleh 
and Weinstein 2016). The type of waterbody is also important.
    We are limiting this NWP to coastal waters, which consists of 
estuarine and marine waters and the Great Lakes. Another consideration 
in determining the appropriate shore erosion technique is the lack of 
space on urban coasts where there is not enough area to implement 
hybrid or natural approaches to shore erosion control (Sutton-Grier et 
al. 2015). We have revised the definition of ``living shoreline'' in 
this NWP using information in the Systems Approach to Geomorphic 
Engineering (SAGE) publication entitled: ``Natural and structural 
measures for shoreline stabilization'' \2\ which was published in 2015 
by the National Oceanic and Atmospheric Administration (NOAA) and the 
U.S. Army Corps of Engineers (USACE). According to this publication, 
living shorelines are only applicable in coastal waters with low- to 
mid-energy waves, small fetch, and gentle slopes. Landowners and other 
entities that identify a need to protect their property and 
infrastructure from erosion can request authorization (if the proposed 
activity requires a PCN) under the NWP that is appropriate for the 
erosion control approach they propose to use.
---------------------------------------------------------------------------

    \2\ http://sagecoast.org/.
---------------------------------------------------------------------------

    There are other factors to consider when evaluating appropriateness 
and feasibility of living shorelines (Bilkovic et al. 2016). The 
construction of a living shoreline may require grading the riparian 
area and removing riparian vegetation (Bilkovic et al. 2016), which 
provides a number of ecological functions and services (NRC 2002). The 
removal of that riparian vegetation may not be consistent with local 
water quality or habitat protection requirements (Bilkovic et al. 
2016). As an alternative to grading the riparian area and removing the 
vegetation, the living shoreline components may be constructed further 
into the waterbody, which may require variances from state or local 
tidewater regulations and impair navigation (Bilkovic et a. 2016). 
Finally, the construction of living shorelines in subtidal waters can 
infringe on state subaqueous lands (Bilkovic et al. 2016) and affect 
the finfish, shellfish, and other resources that use those tidewaters 
and submerged lands.
    We have added a Note to this NWP to inform prospective permittees 
that bank stabilization activities outside of coastal waters, such as 
bioengineering and vegetative stabilization in inland rivers and 
streams, may be authorized by NWP 13. This NWP authorizes the 
construction and maintenance of living shorelines, as long as those 
activities result in no more than minimal individual and cumulative 
adverse environmental effects. Paragraphs (e) and (f) of this NWP 
require structures and fills in jurisdictional waters and wetlands, 
including navigable waters, to be minimized to the maximum extent 
practicable on the project site (see also paragraph (a) of general 
condition 23, mitigation). The district engineer will review the PCN 
and if the proposed activity will result in more than minimal 
individual and cumulative adverse environmental effects after 
considering mitigation proposed by the applicant, the district engineer 
will exercise discretionary authority and require an individual permit. 
Activities authorized by this NWP must comply with general condition 
17, tribal rights. Under that general condition, NWP activities cannot 
cause more than minimal adverse effects on tribal rights (including 
treaty rights), protected tribal resources, or tribal lands.
    Several commenters said that this NWP should be withdrawn and that 
these activities should be authorized by modifying NWP 13. Many 
commenters expressed support for this proposed NWP because they are 
concerned that it is easier to obtain NWP 13 authorization than 
authorization to construct a living shoreline. These commenters said 
that under the current NWPs, living shorelines usually require 
individual permits, which discourage use of living shorelines as an 
alternative to hardened bank stabilization measures such as bulkheads, 
seawalls, and revetments. Several commenters said they support a new 
NWP that reduces the amount of time to obtain DA authorization for 
these activities. These commenters acknowledged the shorter timeframes 
in which an NWP authorization can be provided. One commenter noted that 
the issuance of this NWP would relieve regulatory burdens and support 
landowner preferences for the aesthetics and ecosystem services of 
living shorelines.
    We have determined that it would be more appropriate to issue a 
separate NWP to authorize the construction and maintenance of living 
shorelines. Living shorelines are effective in specific areas of 
coastal waters, while NWP 13 authorizes a variety of bank stabilization 
approaches in a range of different categories of waters, from headwater 
streams to small lakes, larger rivers, high energy coastlines, and open 
ocean waters. The PCN thresholds differ between NWPs 13 and this new 
NWP because bank stabilization activities authorized by NWP 13 can 
often be constructed with small amounts of fill. On the other hand, 
living shorelines require larger amounts of fill to achieve desired 
grades for wave dissipation and vegetation establishment to reduce 
erosion, as well as fill structures such as sills to protect the sand 
fills and vegetation. If we had modified NWP 13 to authorize living 
shorelines, most proposed living shorelines would require written 
waivers from district engineers because they would exceed the limit of 
one cubic yard of fill material per running foot. Under this new NWP, 
written waivers from district engineers are only required if the 
structures or fills extend more than 30

[[Page 1940]]

feet from the mean low water line in tidal waters or the ordinary high 
water mark in the Great Lakes, or if more than 500 linear feet of 
shoreline as measured along the bank is to occupied by the proposed 
living shoreline. Despite the differences in PCN thresholds, this NWP 
provides general permit authorization for the construction and 
maintenance of living shorelines. During FY 2106, the average (mean) 
evaluation time for NWP verifications was 40 days and the mean 
evaluation time for standard individual permits was 217 days.
    Several commenters stated that living shorelines are not 
appropriate in the Great Lakes or other inland waters, especially 
inland lakes because long-term fluctuations of lake levels and major 
impacts of ice on the shorelines of these lakes.
    We have modified the definition of ``living shoreline'' in the NWP 
to state that it can be used to authorize living shorelines in the 
Great Lakes. Living shorelines are not appropriate for streams, rivers, 
small lakes, and other inland waters. Vegetative stabilization and 
bioengineering may be used in inland waters to control erosion, and we 
have added a Note to this NWP to inform potential users of this NWP of 
the availability of NWP 13 to authorize those activities. If ice is 
likely to periodically damage or destroy the living shoreline and cause 
frequent maintenance and repair activities to be conducted after ice 
seasons, then other approaches to shore erosion control might be more 
appropriate for those sites.
    Several commenters said that the NWP should use NOAA's definition 
of living shoreline. One commenter stated that under the certain 
conditions living shorelines can be used in higher energy shorelines. 
Another commenter said that properly engineered living shorelines can 
be used in any environment. One commenter recommending deleting the 
terms ``low-energy'' and ``mid-energy'' from the definition.
    As discussed above, we have modified the definition of ``living 
shoreline'' to incorporate the site characteristics amenable to living 
shorelines that are identified in the 2015 NOAA-USACE SAGE publication 
that describes nature-based measures for shoreline protection. For the 
definition used for this NWP, we have used some concepts from NOAA's 
2015 guidance on considerations for the use of living shorelines. We 
have utilized NOAA's definition with respect to a living shoreline 
being comprised mostly of native material, and incorporating living 
materials such as marsh plants with or without hard structures such as 
oyster reefs or stone sills.
    We have deleted the following sentence from the first paragraph of 
the proposed NWP B: `` `Living shoreline' is a broad term that 
encompasses a range of shoreline stabilization techniques along 
estuarine coasts, bays, sheltered coastlines, and tributaries.'' This 
sentence conveys an expansive view of living shorelines and where they 
are appropriate for use, and could lead to landowners and other 
entities considering the use of living shorelines on sites where they 
will not be appropriate or effective and where other approaches to 
erosion control should be used instead. We do not agree that living 
shorelines can be used in high energy coastlines. For those sites, 
substantial amounts of hard structures would be needed to protect the 
shoreline, and it is doubtful that there would be much of a sustainable 
living component in that higher energy erosive forces (Pilkey et al. 
2012). We are not deleting the term ``low- to mid-energy'' from the 
definition because it is a critical component of the definition and it 
helps prospective permittees better understand where living shorelines 
are appropriate and feasible.
    One commenter asked whether an oyster reef, by itself, could serve 
as the biological element of a living shoreline. This commenter said 
the text of this NWP should clarify that ``reef structures'' refers to 
oyster reefs. One commenter stated that this NWP should authorize 
restoration of sandy beaches in front of existing bulkheads.
    An oyster reef can provide the biological element of a living 
shoreline. We have modified the first paragraph of this NWP to state 
that the reef structures may be inhabited by oysters or mussels. We 
have also modified paragraph (e) to refer to oyster or mussel reef 
structures. Sandy beaches restored in front of existing bulkheads may 
not be sustainable because the wave energy reflected from the bulkhead 
may erode the sand.
    Many commenters said that living shorelines are not appropriate for 
man-made hydropower reservoirs where water levels are determined by the 
operator of the reservoir. Many commenters stated that living 
shorelines are not appropriate for shores subject to waves from boats, 
wind, and storms and that bulkheads and riprap are the appropriate 
erosion control measures for these types of sites. Several commenters 
opined that living shorelines are impractical for any waterbody that 
does not have a ``no wake'' restriction. Several commenters requested 
clarification on which other lakes and inland waters this NWP could be 
used. One commenter said this NWP should not authorize activities in 
inland freshwater lakes or rivers other than the Great Lakes and that 
NWPs 13 and 27 should be modified to allow for natural shoreline 
stabilization in inland waters.
    We have modified the definition of ``living shoreline'' to make it 
clear that living shorelines are limited to coastal waters, including 
the Great Lakes. This NWP cannot be used to authorize erosion control 
activities in other lakes or inland waters, including hydropower 
reservoirs. In coastal waters, living shorelines may be successfully 
used for shorelines exposed to short fetches and subject to low- to 
mid-energy waves, including waves generated by moving vessels, wind, 
and storms. Landowners may seek advice from contractors and consultants 
to determine which shore erosion control approaches would be most 
appropriate and effective for their waterfront properties. Living 
shorelines can be effective for coastal shorelines subject to low to 
moderate boat wakes. We do not believe further clarification is 
necessary regarding which types of lakes living shorelines can be used 
because we are limiting this NWP to the Great Lakes and other coastal 
waters. We have added a Note to this NWP to notify prospective 
permittees of the availability of NWP 13 to authorize bank 
stabilization activities, including vegetative stabilization and 
bioengineering, in waters that are not coastal waters. Nationwide 
permit 27 only authorizes aquatic habitat restoration, enhancement, and 
establishment activities and does not authorize bank stabilization 
activities per se. Please see the preamble discussion of the 
modifications we made to NWP 27 to help ensure that it only authorizes 
aquatic habitat restoration, enhancement, and establishment activities.
    One commenter requested justification of the following sentence, 
which appeared in the preamble of the proposed rule (81 FR 35206): 
``Living shorelines maintain the continuity of natural land-water 
interface and provide ecological benefits which hard bank stabilization 
structures do not, such as improved water quality, resilience to 
storms, and habitat for fish and wildlife.'' This commenter stated that 
the statement should be removed or modified to improve its accuracy.
    There is a growing number of studies and other documents that 
explain the features of living shorelines and the ecological services 
or benefits they can provide. Living shorelines, such as marsh-sill 
features, are nature-based measures to control shore erosion that

[[Page 1941]]

provide some degree of ecological functions and services through fringe 
wetlands or shellfish reefs that are integral components of those shore 
protection measures (NOAA-USACE 2015, Bilkovic and Mitchell 2013, 
Gittman et al. 2016). A bulkhead or seawall results in an abrupt 
barrier between aquatic and terrestrial environments (Dugan et al. 
2011, Peterson and Lowe 2009). Both hard shore protection structures 
and living shorelines provide protection against storms and offer 
varying degrees of resilience, and sills and breakwaters and protect 
shorelines while continuing to allow fish and wildlife to access 
intertidal areas. Bulkheads, revetments, and seawalls do little to 
improve water quality, except to reduce sediment loads to waterbodies. 
Constructed fringe marshes along estuarine shorelines sequester carbon 
and nitrogen as those fringe wetlands develop over time (Craft et al. 
2003).
    One commenter recommended changing the 30-foot limit in paragraph 
(a) to 70 feet. Another commenter said the 30-foot limit should be 
increased to 35 feet, or use a \1/2\-acre limit instead. A third 
commenter said that either the 30-foot limit should be eliminated or 
measured from the mean low water shoreline. This commenter recommended 
using the mean low water shoreline in tidal waters because using the 
mean high tide line would often require oyster reef components of 
living shorelines to be installed in intertidal waters rather than 
subtidal waters. One commenter said the proposed 30-foot limit is 
appropriate for the Great Lakes. One commenter said that the proposed 
30-foot limit should be measured from the highest astronomical tide 
determined by the current National Tidal Datum Epoch. One commenter 
suggested replacing the 30-foot limit with a provision that limits the 
placement of structures and fills into waters less than 3 feet deep at 
mean low water in tidal waters or the ordinary high water elevation in 
non-tidal waters. Another commenter recommended authorizing living 
shorelines in regions with tidal ranges between 4 and 8 feet. The 4-
foot tidal range would allow encroachment to 45 feet from the mean high 
water line and the 8-foot tidal range would allow encroachment up to 85 
feet from the mean high water line.
    We have changed paragraph (a) to measure the 30-foot encroachment 
from the mean low water line instead of the mean high water line in 
tidal waters. Since tidal range is not an issue in the Great Lakes, we 
are retaining the ordinary high water mark as the shoreline from which 
the 30-foot limit would be applied. This change should reduce the 
number of waivers needed by project proponents to construct oyster or 
mussel reef structures in subtidal waters. Using the highest 
astronomical tide to measure the 30-foot limit would result in nearly 
every living shoreline requiring a written waiver of that limit from 
the district engineer. We believe that using a linear foot limit for 
encroachments into the waterbody will be more effective at ensuring 
that these activities result in no more than minimal adverse 
environmental effects. For a narrow waterfront property an acreage 
limit could allow substantial encroachment into the waterbody. Using 
tidal ranges or water depths to limit encroachments of structures and 
fills into a waterbody would not be an effective approach for ensuring 
no more than minimal adverse environmental effects because substantial 
areas of the waterbody could be filled if it has shallow water depths 
that extend over a substantial distance.
    One commenter said the 30-foot limit for this NWP should be changed 
to require fills to extend no more than 5 feet waterward from the edge 
of natural wetlands or to the mid-tide depth contour, whichever is 
deeper. This commenter also recommended that along shores where no 
wetlands exist, the landward edge of the sill should not extend greater 
than 30 feet waterward of the mean high water mark of tidal waterbodies 
or the ordinary high water mark of n non-tidal waterbodies. One 
commenter stated that grading steeper banks up to 30 feet into the 
water in an attempt to establish vegetation is likely to have the 
effect of altering the natural shoreline and extending the uplands. One 
commenter asked whether this NWP authorizes fills, especially sand 
fills, landward of sills, breakwaters, or other fill structures.
    Changing the 30-foot limit to a 5-foot limit measured from the edge 
of existing wetlands would not be practical because there might not be 
vegetated wetlands along the existing shore, or the wetland vegetation 
might be sparse and the shore would need to be filled with sand and 
graded to construct a marsh fringe. The 30-foot limit, as measured from 
mean low water in tidal waters or the ordinary high water mark in non-
tidal waters, is a simpler approach than trying to establish different 
limits based on the presence or absence of an existing marsh. As stated 
in the definition of ``living shoreline'' provided in the final NWP, 
living shorelines are constructed along shores with gentle slopes. 
Living shorelines may be less desirable to landowners with waterfront 
property that has steep slopes or bluffs if substantial grading of 
nearshore lands is necessary to install a living shoreline. We have 
modified paragraph (a) to include sand fills along with sills, 
breakwaters, or reefs, to make it clear that this NWP authorizes sand 
fills landward of sills, breakwaters, or reefs. Such fills may be 
necessary to achieve the proper shore elevations for the establishment 
of a wetland fringe, either through plantings or natural recruitment.
    One commenter said that the 30 foot and 500 linear foot limits are 
too prescriptive, given the variability of shorelines across the United 
States. This commenter said that these limits should be determined 
through the regional conditioning process.
    We are allowing the 30-foot and 500 linear foot limits to be waived 
by the district engineer on a case-by-case basis, after reviewing the 
PCN and coordinating that PCN with the resource agencies. For a waiver 
to occur, the district engineer has to issue a written determination 
with a finding that the proposed activity will result in no more than 
minimal individual and cumulative adverse environmental effects. 
Division engineers can reduce these 30-foot and 500 linear foot limits 
through the regional conditioning process. If these limits and the 
ability to waive these limits make the use and administration of this 
NWP challenging in a particular geographic region, the district 
engineer can issue a regional general permit with different limits and 
procedures than this NWP and its general conditions.
    One commenter recommended removing the 500 linear foot limit to 
encourage landowners and community groups to collectively implement 
living shorelines in a more cost effective manner. One commenter stated 
that activities in the Great Lakes that are over 500 feet long should 
require individual permits. One commenter stated that there should be 
no length limit on shoreline projects as long as those activities 
comply with state Coastal Zone Management Act (CZMA) policies.
    The 500 linear foot limit does not preclude groups of adjoining 
landowners from working together to construct living shorelines at the 
same time, and working out arrangements with contractors to lower 
costs. For a proposed living shoreline in the Great Lakes that exceeds 
500 feet in length, the district engineer will review the PCN and 
coordinate that PCN with the resource agencies. If the district 
engineer makes a written determination that the proposed living 
shoreline will result in no more than minimal

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individual and cumulative adverse environmental effects, he or she will 
issue an NWP verification with or without additional conditions. The 
criteria under which states can issue CZMA consistency concurrences may 
be different from the ``no more than minimal adverse environmental 
effects'' requirement for NWPs and other general permits. States can 
impose conditions on these activities through their CZMA consistency 
determinations. To be authorized by this NWP, these activities require 
either CZMA consistency concurrences or presumptions of concurrence 
(see general condition 26, coastal zone management).
    One commenter stated that the length limit should be defined as the 
total shoreline length of an activity minus any breaks in the treated 
shoreline. In other words, if the total length, minus the length of 
breaks, is greater than 500 feet, then a waiver would be required. One 
commenter said there should be no linear foot limits for this NWP. 
Several commenters asked how the length of a proposed activity would be 
calculated. One commenter suggested that as technology improves with 
the use of living shorelines, the 500 linear foot limit should be 
increased.
    The 500 linear foot limit applies to the entire length of the 
treated shoreline. The treated shoreline is the footprint of the 
structures and fills for the living shoreline. If there are segments of 
the shore where no living shoreline will be constructed and those shore 
segments will be left in their current condition, then those segments 
are not counted towards the 500 linear foot limit. The 500 linear foot 
limit is necessary to ensure that these activities result in no more 
than minimal individual and cumulative adverse environmental effects. 
The waiver provision for this limit adds flexibility to the NWP, to 
allow district engineers to authorize activities that exceed the 500 
linear foot limit without going through the individual permit process. 
To determine whether the 500 linear foot limit is exceeded, the length 
of treated shoreline for a single and complete project would be added. 
The 500 linear foot limit will be reevaluated during future rulemakings 
to reissue this NWP.
    Several commenters recommended adding terms to this NWP to limit 
the use of oysters, mussels, and vegetation in living shoreline 
projects to native species. One commenter said that the NWP should 
allow natural processes to vegetate the living shoreline, instead of 
requiring vegetation to be planted. One commenter said that this NWP 
should authorize the use of mud for substrate to establish vegetation. 
Many commenters stated that this NWP should specify a minimum amount of 
living material to be required to meet the definition of living 
shoreline. One commenter asked for a definition of ``native material.''
    We have revised paragraph (d) of this NWP to state that native 
plants appropriate for site conditions, including salinity, must be 
used for living shorelines that have tidal or lacustrine fringe 
wetlands, if the site is planted by the permittee. Natural revegetation 
is an effective approach to establishing or re-establishing coastal 
fringe wetlands, as long as the appropriate sediment elevations are 
provided for the development of the fringe wetland (Mitsch and 
Gosselink 2015, Chapter 18). In different areas of the country, various 
oyster and mussel species have been introduced into waterbodies and 
provide important ecosystem functions and services. If those non-native 
molluscan species are already the waterbody, there is not likely to be 
a substantive benefit to prohibiting their use in reefs for living 
shorelines. Mud is not an appropriate substrate for living shorelines, 
because it will be rapidly transported by tides, waves, and currents. 
For constructed marshes in estuaries, coarse grain sands are often used 
to reduce the likelihood of erosion of the substrate used for marsh 
plantings. The term ``native material'' generally applies to the plant 
materials that may be used for living shorelines. It may also refer to 
other organic materials such as oyster shell, coir logs, or wood that 
may be used for the construction and maintenance of living shorelines 
(Bilkovic et al. 2016).
    One commenter said that the NWP should allow the use of beneficial, 
non-native structural material as long as that material does not pose a 
risk to wildlife. One commenter stated that if fill material is used 
the fill material must meet water quality standards and support the 
target vegetation. One commenter stated that sills can be constructed 
of native material found in a particular part of the country or use 
other local native materials that may have higher biological value than 
traditional slab concrete. This commenter also said that placement of 
clean, soft, dredged sediment can be beneficially reused for living 
shorelines and placed in coastal areas that have subsided.
    The use of non-native structural materials may be necessary for 
some living shorelines. General condition 6 requires that suitable 
materials be used for NWP activities. Sills are usually constructed 
with stone, rather than concrete, slabs. If dredged material is 
suitable for the construction or maintenance of living shorelines then 
that material may be used.
    One commenter stated that this NWP should require planting plans 
that show that no invasive species will be planted. One commenter said 
that this NWP should allow natural recruitment to establish the wetland 
fringe, instead of requiring the permittee to install plants for the 
wetland fringe. One commenter suggested adding a condition to require 
that all habitats altered or created by a living shoreline be free from 
non-native invasive plants for a minimum of 5 years. One commenter said 
this NWP should have a condition prohibiting the introduction of non-
native species.
    Paragraph (d) requires the use of native plants appropriate for 
current site conditions, including salinity, to be used for living 
shorelines that will have a wetland fringe, if the permittee wants to 
install plants to facilitate the development of the wetland fringe. As 
discussed above, the permittee may also allow natural recruitment to 
vegetate the wetland fringe for the living shoreline. A condition 
requiring permittees, over a five-year period, to remove any non-native 
plants that colonize a living shoreline is not reasonably enforceable, 
so adding such a condition would be contrary to the Corps' policy for 
permit conditions at 33 CFR 325.4(a). There have been a number of non-
native species introduced to coastal waters over time. Those non-native 
plants and animals have naturalized and are as likely to occupy living 
shorelines as they have established themselves in a variety of coastal 
habitats.
    Several commenters stated that breakwaters and groins should not be 
authorized by this NWP. One commenter requested clarification of what 
constitutes an artificial reef. One commenter said that this NWP should 
include a design standard for sills. This commenter expressed concern 
that not having a design standard would result in hardening of the 
shoreline in a manner inconsistent with the intent of the proposed NWP.
    Breakwaters and groins may be a necessary component of living 
shorelines in coastal environments subject to higher energy waves, boat 
wakes, and currents. For the purposes of this NWP, a reef structure may 
consist of oyster or mussel bags, or other fill structures occupied by 
oysters or mussels. We do not use the term artificial reef, to avoid 
confusion with artificial reefs constructed for other purposes under 33 
CFR 322.5(b). There are a variety of approaches for constructing living 
shorelines, so it

[[Page 1943]]

would not be appropriate to establish a national design standard in an 
NWP that can be used in coastal waters across the country.
    One commenter said that many living shorelines are armored 
shorelines given a different name. This commenter stated that living 
shorelines have substantial adverse effects on estuarine beaches by 
altering their habitat characteristics and decreasing their ability to 
support estuarine communities. This commenter recommended requiring 
minimal use of larger hard, engineered structures, to prevent unneeded 
and damaging hard stabilization of these shorelines.
    We have added a new paragraph (f) to this NWP to require sills, 
breakwaters, and other structures that are needed to protect the living 
shoreline's fringe wetlands to be the minimum size necessary to protect 
those wetlands. New paragraph (f) follows the recommendation in 
Bilkovic et al. (2016) which states that engineered structures should 
only be used when they are needed to support the wetland fringe and 
beach habitat of the living shoreline. Engineered structures such as 
sills and breakwaters should not be oversized relative to the living 
components (Bilkovic et al. 2016, Pilkey et al. 2012). Paragraph (a) of 
general condition 23, mitigation, also requires NWP activities, 
including the activities authorized by this NWP, to be designed and 
constructed to avoid and minimize permanent and temporary adverse 
effects to the maximum extent practicable on the project site.
    One commenter remarked that if the proposed activity would 
compromise the flow of water, it should require an individual permit. 
One commenter stated that proposed paragraph (f) should require that 
any temporary impacts to living shorelines resulting from seawall 
repair or replacement should be exempt from mitigation requirements, as 
long as the area is restored after that seawall is repaired or 
replaced.
    Living shorelines, especially living shorelines with sills or 
breakwaters, will have some effects on water flows because they are 
constructed to decrease the energy of incoming waves and other erosive 
water flows. Paragraph (f) of the proposed NWP has been redesignated as 
paragraph (g). This NWP requires that living shorelines be designed, 
constructed, and maintained so that they only have minimal adverse 
effects on water flows between the waterbody and the shore. Repair 
activities do not generally require compensatory mitigation. If a 
bulkhead or seawall is located landward of a living shoreline, and 
repair activities will have temporary impacts on the living shoreline, 
then the living shoreline should be repaired as well.
    Several commenters said that paragraph (g) of the proposed NWP 
should be removed. One commenter stated that living shorelines should 
not be authorized in special aquatic sites.
    We have removed the requirement to obtain a waiver for discharges 
of dredged or fill material into special aquatic sites. All activities 
authorized by this NWP require PCNs. Pre-construction notifications for 
this NWP require delineations of special aquatic sites (see the 
``Notification'' paragraph of this NWP), as well as a delineation of 
other waters and wetlands on the project site (see paragraph (b)(4) of 
general condition 32). The construction and maintenance of living 
shorelines in special aquatic sites can be authorized by this NWP, as 
long as the permanent and temporary impacts to those special aquatic 
sites are minimized to the maximum extent practicable, and the district 
engineer determines that the adverse environmental effects are no more 
than minimal.
    One commenter suggested adding language to the NWP to clarify that 
the maintenance of structures cannot increase the size of those 
structures beyond what was originally authorized. One commenter asked 
for clarification of the duration of this NWP and how that duration 
applies to long-term maintenance and repair activities. One commenter 
said paragraph (h) in the proposed NWP should be eliminated.
    General condition 14 requires activities authorized by NWP to be 
properly maintained. The requirement for proper maintenance is 
emphasized by paragraph (h) of this NWP, because living shorelines 
require periodic maintenance to continue to serve as living shorelines. 
After storm events, it may be necessary to repair stone sills, 
breakwaters, reef structures, sand fills for fringe wetlands, and other 
components of the living shoreline. We have included maintenance 
activities in this NWP so that any required maintenance can be 
conducted under the authorization provided by this NWP. The NWP 
authorization applies for the length of time the authorized structures 
and fills are in place. If the landowner or other responsible party no 
longer wants to maintain the living shoreline, the structures and fills 
should be removed and the affected area restored.
    Several commenters stated that beach nourishment to control erosion 
should be authorized by this NWP. We have not included beach 
nourishment in this NWP because they do not have a living component 
such as fringe wetland vegetation or oysters or mussels and are not 
considered living shorelines. When using the term ``beach 
nourishment,'' we are referring to larger scale beach fill projects, 
which usually occur on open coasts. This NWP does not authorize those 
beach restoration or replenishment activities because those types of 
shore protection approaches do not include a living component as 
required by the definition of ``living shoreline.'' For a living 
shoreline, there may be a portion of the living shoreline that consists 
of unvegetated sandy substrate (e.g., a micro-beach or pocket-beach 
within or next to the fringe wetland). In this NWP we do not specify a 
minimum percent cover for vegetation, if the living shoreline 
authorized through an NWP 54 verification is designed to have a wetland 
fringe. In addition, we recognize that some movement of sand fill may 
be necessary to maintain the living shoreline. We have also revised 
paragraph (h) to make it clear that for maintenance activities the 
permittee has the option of planting vegetation or allowing natural 
recruitment of vegetation.
    Many commenters said that the PCN requirements should be changed to 
provide a more streamlined authorization process. Many commenters 
supported the proposed PCN thresholds. Several commenter stated that 
PCNs should not be required for activities authorized by this NWP. 
Several commenters said that the PCN thresholds should be changed to 
make them equivalent to the PCN thresholds for NWP 13. Several 
commenters stated that all activities authorized by this NWP should 
require PCNs because living shorelines result in adverse environmental 
effects that need to be evaluated on a case-by-case basis to ensure 
that they are no more than minimal, individually and cumulatively. One 
commenter supported the proposal to not require PCNs for maintenance 
activities, but stated that if native corals or other organisms settle 
on the structure to be repaired, then a PCN should be required and the 
relocation of corals should be required.
    We are requiring PCNs for all activities authorized by this NWP 
because living shorelines usually require substantial amounts of fill 
material, and the structures and work may extend 30 feet into the 
waterbody, with potential impacts to navigation and public resources in 
submerged lands. Living shorelines often convert subtidal habitats to 
intertidal habitats, so there are ecological tradeoffs (e.g., Bilkovic 
and Mitchell 2013) that need to be considered by district engineers 
when

[[Page 1944]]

making their decisions on whether to issue NWP verifications. As stated 
elsewhere in this final rule, NWP 13 activities can often be 
constructed with minor amounts of fills in waters of the United States, 
whereas activities authorized by this new NWP typically require larger 
amounts of fill to construct fringe wetlands (Bilkovic and Mitchell 
2013), protective structures such as sills and breakwaters, and oyster 
or mussel reefs. We have retained the provision that does not require 
PCNs for maintenance activities. If the proposed maintenance activity 
might affect Endangered Species Act (ESA) listed species or designated 
critical habitat, including ESA-listed coral species, and the 
prospective permittee is a non-federal permittee, then a PCN is 
required under general condition 18, endangered species.
    Several commenters suggested that the PCN require information on 
the types of materials to be used for the proposed activity and to 
specify the height and slope of the proposed activity. One commenter 
said that the PCN should include information on how the methods and 
timing of construction may affect threatened or endangered species. One 
commenter said that the PCN should include a detailed biological 
assessment of the habitat that is proposed to be altered by the 
proposed living shoreline. One commenter stated that the PCN should 
include an alternatives analysis and explain why installation of a 
living shoreline is needed to control erosion.
    The PCN must include the information required in paragraph (b)(4) 
of general condition 32. The PCN must include a description of the 
proposed living shoreline. We also recommend that the PCN include 
sketches or plans of the proposed NWP activity. If, during the review 
of the PCN, the district engineer determines that the proposed activity 
may affect ESA-listed species or designated critical habitat, then he 
or she will conduct ESA section 7 consultation. The formal or informal 
ESA section 7 consultation may result in permit conditions that impose 
time-of-year restrictions and other conditions to protect listed 
species and critical habitat. Those consultations may also result in 
conditions that affect the construction methods to avoid or minimize 
impacts to listed species or critical habitat. We do not believe a 
detailed biological assessment of the potentially impacted coastal 
habitat is required. If ESA section 7 consultation is required for the 
proposed activity, then a biological assessment or biological 
evaluation will be prepared for that formal section 7 consultation. If 
informal section 7 consultation is conducted and a written concurrence 
is issued by the U.S. Fish and Wildlife Service and/or National Marine 
Fisheries Service, the district engineer will add applicable conditions 
to the NWP authorization that were necessary to get the written 
concurrence for the informal consultation request. Activities 
authorized by NWPs do not require an alternatives analysis (see 40 CFR 
230.7(b)(1)). However, paragraph (a) of general condition 23, 
mitigation, requires permittees to avoid and minimize adverse effects 
to waters of the United States to the maximum extent practicable on the 
project site.
    Many commenters expressed support for the proposed waiver 
provisions and many other commenters stated their opposition to the 
proposed waiver provisions. One commenter said that waivers not be 
issued for any of these activities. This commenter stated that if 
waivers are included, they should be capped at 50 feet for structures 
or fills extending into the water from the mean high tide line or 
ordinary high water mark. This commenter also recommended capping the 
length along the shore to no more than 750 linear feet. Proposed 
activities exceeding these thresholds would require individual permits. 
This commenter also said there should be no waivers for discharges in 
special aquatic sites. One commenter stated that waiver requests should 
be coordinated with other natural resource agencies prior to issuing 
those waivers.
    We have retained the waiver provisions for the 30-foot limit for 
structures and fills extending into the waterbody, and for the 500-foot 
limit. The waivers provide the district engineer with the flexibility 
to authorize a living shoreline activity by NWP if he or she determines 
in writing, after coordinating the PCN with the resource agencies, that 
the proposed activity will result in no more than minimal individual 
and cumulative adverse environmental effects. We do not believe that 
caps on waivers are necessary for the numeric limits in paragraphs (a) 
and (b) because of the requirement for the district engineer to issue a 
written waiver determination. A proposed activity that requires a 
waiver of one or both of these limits is not authorized unless the 
district engineer issues that written determination and an NWP 
verification is issued to the permittee. If the district engineer does 
not issue that written waiver determination, then the waiver is not 
granted and an individual permit is required. As discussed above, we 
have removed the provision requiring waivers for discharges in special 
aquatic sites. Paragraph (d)(2)(iv) of general condition 32 states that 
requests for waivers for this NWP require agency coordination.
    One commenter asked how it would be determined if a living 
shoreline is appropriate for a particular location. Several commenters 
suggested rewording the text of this NWP to include shoreline 
restoration, shoreline softening, and shoreline enhancement projects. 
One of these commenters said the Corps should collect data on all 
shoreline stabilization projects to share with applicants examples of 
successful projects. Two commenters stated that there should be an 
evaluation period for new living shorelines to determine their 
effectiveness. One commenter suggested requiring multi-landowner 
projects that would result in large-scale living shorelines.
    The project proponent determines whether to propose a living 
shoreline to control erosion at the coastal shoreline. The project 
proponent may hire a consultant or contractor to evaluate options for 
controlling erosion and determine which approach would satisfy the 
project proponent's needs. A coastal waterfront property owner may feel 
safer with a bulkhead, seawall, or revetment (Popkin 2015). The 
district engineer may offer advice to the project proponent on 
potential alternatives for controlling erosion at the site (see 33 CFR 
320.4(g)(2)). Shoreline restoration, shoreline softening, and shoreline 
enhancement projects likely mean different things to different people, 
so we have not changed the text of this NWP to incorporate those terms. 
For example, shoreline restoration may be an ecological restoration 
activity authorized by NWP 27 because it returns structure, functions, 
and dynamics to a shoreline that has been damaged or degraded by human 
activities. Shoreline softening may mean the removal of a bulkhead, 
seawall, or revetment and replacing those hard structures with a tidal 
fringe wetland protected by stone sills. Shoreline enhancement projects 
may be actions taken to improve ecological functions performed by the 
shore at a particular site. These activities are likely to serve 
different purposes and authorization by other NWPs may be appropriate, 
or those activities may require other forms of DA authorization.
    It would be more appropriate for consultants and contractors to 
share information on successful living shoreline activities with 
landowners and other entities that are considering using living 
shorelines to protect their property or infrastructure. As this NWP is 
used over the next five years, we

[[Page 1945]]

expect to receive feedback from Corps districts, permittees, 
contractors, consultants, and other interested parties. That feedback 
will be considered as we develop the proposed rule for the 2022 NWPs. 
There is also likely to be evaluations conducted by scientists and 
other academics on the effectiveness and long-term sustainability of 
living shorelines. Adjoining landowners can work together to plan, 
design, and implement living shorelines.
    One commenter stated that this NWP should require the use of 
qualified consultants and contractors. Another commenter suggested that 
this NWP require that the work to design the proposed living shoreline 
be done under the supervision of a certified ecological designer. 
Several commenters stated that Corps districts should work with local 
designers and agencies to determine the availability of living 
shoreline contractors in their geographic areas of responsibility. 
Several commenters said that this NWP should require consultation with 
local watershed planning entities, water supply entities, or other 
local government agencies to ensure that proposed NWP activities do not 
interfere with a local level project or issue. One commenter said that 
living shorelines should not be built on undeveloped shorelines. One 
commenter stated that this NWP should require the installation of 
reflectors or other types of markers at intervals along the living 
shoreline. One commenter said that the PCN should require a monitoring 
plan for these activities.
    An NWP cannot specify qualifications for consultants and 
contractors. Project proponents need to do their due diligence in 
selecting a consultant or contractor. We cannot add terms to this NWP 
to require the living shoreline to be designed and constructed under 
the supervision of a certified ecological designer. General condition 
7, water supply intakes, states that no NWP activity may occur in the 
proximity of a public water supply intake, unless it is needed to 
repair or improve that intake or for adjacent bank stabilization. 
Authorization of the construction and maintenance of living shorelines 
by this NWP does not eliminate the need for the permittee to obtain 
other required federal, state, or local permits, approvals, or 
authorizations that are required by law. If the shoreline is 
undeveloped, then there might not be a need for a living shoreline to 
control erosion. However, if the parcel in question is zoned for 
development, it may be developed in the near future and the developer 
or landowner might request NWP authorization for a living shoreline in 
advance of constructing a house or other structure on that parcel. 
Paragraph (b) of general condition 1, navigation, requires for 
authorized activities the installation of any safety lights or signals 
prescribed by the U.S. Coast Guard. District engineers can add 
conditions to this NWP to require monitoring of the living shoreline to 
ensure that it is developing the intended features. However, we do not 
believe a monitoring plan should be required for all PCNs for these 
activities.
    One commenter suggested adding a provision to this NWP that 
requires living shorelines to be designed, constructed, and maintained 
for the specific lifetime of the project. This commenter stated that 
this NWP should authorize temporary fills for the construction of these 
activities, similar to the language in NWP 13. One commenter stated 
that working at low tide should not be a requirement of this NWP. One 
commenter requested a definition of the term ``shoreline.'' One 
commenter stated that this NWP should require the permittee to provide 
assurances that the structures are sound and that they will not pose 
hazards to navigation.
    Paragraph (h) of this NWP requires the authorized activity to be 
properly maintained. We have modified this paragraph as follows: ``The 
living shoreline must be properly maintained, which may require 
periodic repair of sills, breakwaters, and reefs, or replacing sand 
fills and replanting vegetation after severe storms or erosion events. 
This NWP authorizes those maintenance and repair activities, including 
any minor deviations necessary to address changing environmental 
conditions.'' These changes are intended to authorize repair 
activities, plus minor deviations needed to response to changing 
environmental conditions such as an increase in sea level at the site, 
so that the living shoreline can continue to function as a living 
shoreline. We have removed the phrase ``to the original permitted 
conditions'' that was in the proposed paragraph (h) to recognize the 
dynamic nature of coastal shorelines and the likely need to adjust 
living shoreline projects over time as environmental conditions change.
    All activities authorized by this NWP require PCNs, so using NWP 33 
to authorize temporary structures or fills that are not covered by this 
NWP would not place any additional burdens on prospective permittees. 
Their PCNs would specify this NWP and NWP 33 as the NWPs for which they 
are seeking verification from the district engineer. We have not added 
any terms and conditions that require regulated activities to be 
conducted at low tide. A shoreline is where a land mass intersects with 
a waterbody. That intersection may be identified in a number of ways, 
such as a high tide line, mean high tide line, mean low tide line, or 
other criteria. Activities authorized by this NWP must comply with 
general condition 1, navigation. Under that general condition, the 
Corps may require the permittee to remove the authorized structures or 
work (see paragraph (c) of that general condition).
    One commenter stated that if the proposed living shoreline will 
impact one resource type and replace it with another resource type, the 
proposed activity should only qualify for this NWP if the district 
engineer determines the resource type substitution represents a 
desirable ecological outcome for the affected system. One commenter 
said that this NWP should not authorize activities in areas with 
Endangered Species Act listed species or designated critical habitat. 
One commenter asked for clarification whether mitigation is required 
for activities authorized by this NWP. One commenter stated that 
mitigation should not be required for living shorelines even if those 
activities result in impacts greater than \1/10\-acre, because these 
activities result in net ecological gains through enhancement. One 
commenter said that this NWP should not be used by a permittee to 
provide compensatory mitigation for another activity.
    All activities authorized by this NWP require PCNs, to provide 
district engineers the opportunity to review proposed activities to 
ensure that they result in no more than minimal individual and 
cumulative adverse environmental effects. We recognize that these 
activities will require ecological tradeoffs, as shallow water habitats 
are filled to construct features that reduce erosion, even though those 
features will have some living component such as fringe wetlands or 
oyster or mussel reefs and provide some ecological functions and 
services. Activities authorized by this NWP must comply with general 
condition 18, endangered species. District engineers will review PCNs 
and determine whether the proposed activities may affect ESA-listed 
species or designated critical habitat. For those activities that 
district engineers determine may affect listed species or designated 
critical habitat, they will conduct formal or informal ESA section 7 
consultations.
    District engineers may require mitigation for activities authorized 
by this NWP. If the district engineer

[[Page 1946]]

reviews a PCN and determines that the proposed activity will result in 
more than minimal adverse environmental effects, he or she will notify 
the project proponent and offer the applicant an opportunity to submit 
a mitigation proposal. If the applicant submits a mitigation proposal 
that is acceptable to the district engineer, then the district engineer 
will add conditions to the NWP authorization to require implementation 
of the mitigation proposal. Living shorelines are likely to provide 
some ecological functions and services, but they might not produce net 
gains because of the ecological tradeoffs that occur as a result of the 
structures and fills for living shorelines causing changes to plant and 
animal communities in nearshore estuarine waters (e.g., Gittman et al. 
2016, Bilkovic and Mitchell 2013, Pilkey et al. 2012). Those changes 
may be beneficial for some organisms and harmful to other organisms.
    The construction and maintenance of a living shoreline could be 
considered by a district engineer to be a mitigation measure, 
especially if the project proponent proposes to replace a bulkhead, 
seawall, or revetment with a living shoreline to provide some 
additional ecological functions and services at a coastal site. But a 
living shoreline would not be considered compensatory mitigation 
because its primary purpose is shore erosion control, not aquatic 
resource restoration, enhancement, or preservation to offset 
unavoidable losses of jurisdictional waters or wetlands.
    One commenter stated that the text of this NWP should make it clear 
that it authorizes the construction and maintenance of living 
shorelines on the west coast. More specifically, this commenter said 
that this NWP should authorize activities in bodies of water, such as 
the San Francisco Bay. One commenter remarked that the final NWP rule 
should recognize that coastal areas have other types of habitats, such 
as tidal marshes, mudflats, shellfish beds, submerged aquatic 
vegetation, microalgal and other vegetative beds. Many commenters 
expressed their support for the use of regional conditions to tailor 
this NWP to different geographic areas of the country.
    This NWP authorizes the construction and maintenance of living 
shorelines in all coastal waters, not just the east and Gulf coasts. 
Approaches to designing and constructing living shorelines may vary by 
geographic region. Division engineers can impose regional conditions on 
this NWP to account for regional differences in aquatic resource 
functions and services, and potential regional impacts and benefits of 
living shorelines. San Francisco Bay is a coastal waterbody, so this 
NWP can be used to authorize living shorelines in that waterbody. There 
are many different types of habitats in coastal waters, and evaluation 
of impacts to the habitat types present at a specific site will be 
conducted during the PCN review process.
    Proposed NWP B is issued as NWP 54, with the changes discussed 
above.
General Conditions
    We received a number of comments recommending new general 
conditions for the NWPs. A few commenters suggested adding a new 
general condition that would require the permittee to clearly mark the 
limits of disturbance on the project site, or areas where the use of 
equipment would be excluded. A few commenters said that a new general 
condition should be added to require the permittee to provide post-
construction reports that would include as-built plans, a description 
of the types of material discharged, the actual impacts, photo 
documentation of the completed activity, and a description of the 
compliance measures that were implemented to address the NWP general 
conditions.
    District engineers can add conditions to NWP authorizations to 
require permittees to mark authorized limits of disturbance to avoid 
and minimize direct and indirect impacts to jurisdictional waters and 
wetlands. Because the NWPs authorize a wide variety of activities, many 
of which do not involve land disturbance activities, we do not think an 
NWP general condition is warranted. In general, compliance with the 
terms and conditions of the NWP verification are already addressed 
through the requirements of general condition 30, compliance 
certification. For an NWP authorization where permittee-responsible 
mitigation is required by the district engineer, permit conditions may 
be added to the NWP authorization or through the approved mitigation 
plan to require submission of as-built plans, photo documentation of 
the compensatory mitigation project, and other compensatory mitigation 
requirements (see 33 CFR 332.3(k) and 33 CFR 332.6(a)). It is not 
necessary for a permittee to address compliance with each NWP general 
condition through a post-construction report submitted to the district 
engineer.
    One commenter recommended adding a general condition that would 
require reporting of any activity that involves water withdrawals, 
water withdrawal structures, or related appurtenances that do not 
require state wetland or stream permits. One commenter requested a new 
general condition that prohibits the use of treated wood except for 
framing structures above waters inhabited by salmonids. One commenter 
suggested adding a general condition that would require best management 
practices, such as horizontal directional drilling, the use of double 
silt fences, and doubling soil stabilization measures, in riparian 
areas to minimize impacts to mussels and fish during construction 
activities. Another commenter said that there should be a general 
condition that requires project areas to be assessed for the presence 
or absence of rare mussel habitat, pre-construction mussel surveys, and 
avoidance of direct disturbance of habitat and degradation of water 
quality when ESA-listed mussels and their habitat are found.
    The Corps does regulate the withdrawal of water from waterbodies. 
Department of the Army authorization is required for structures in 
navigable waters subject to section 10 of the Rivers and Harbors Act of 
1899, including structures that withdraw water from those waterbodies. 
If the waterbody is only subject to section 404 of the Clean Water Act, 
DA authorization is not required for a water intake structure unless 
there is an associated discharge of dredged or fill material into 
jurisdictional waters and wetlands that requires Clean Water Act 
section 404 authorization. Water intake structures that require DA 
authorization under section 10 of the Rivers and Harbors Act of 1899 
and/or section 404 of the Clean Water Act may be authorized by NWP 7, 
which requires PCNs to Corps districts. The use of treated wood for 
activities authorized by NWP is more appropriately addressed by Corps 
districts on a case-by-case basis, after considering the specific NWP 
activity and its potential direct and indirect adverse environmental 
effects. Nationwide permit activities that might affect ESA-listed 
mussels or their designated critical habitat are addressed though 
compliance with general condition 18, endangered species. District 
engineers will conduct ESA section 7 consultation for any proposed NWP 
activity that they determine may affect listed mussel species or their 
designated critical habitat.
Discussion of Proposed Modifications to Nationwide Permit General 
Conditions
    GC 1. Navigation. We did not propose any changes to this general 
condition. Two commenters asked for an explanation of what constitutes 
a more

[[Page 1947]]

than minimal adverse effect to navigation. These commenters also asked 
if temporary obstructions could be mitigated with portage.
    District engineers will determine on a case-by-case basis whether 
proposed impacts of NWP activities on navigation will be no more than 
minimal after considering site-specific circumstances. District 
engineers will also use their discretion to determine whether temporary 
obstructions to navigation that would block the transport of interstate 
of foreign commerce will have more than minimal adverse effects on 
navigation and would thus require individual permits. During the 
evaluation of the individual permit application, the district engineer 
could determine whether portage is an appropriate mitigation measure 
while the temporary obstruction is in place.
    The general condition is adopted as proposed.
    GC 2. Aquatic Life Movements. We did not propose any changes to 
this general condition. Several commenters supported the proposed text 
of this general condition. Several commenters recommended changes to 
the general condition.
    One commenter said that the general condition be revised to require 
avoidance and minimization of interference to all necessary life cycle 
movements of aquatic species indigenous to the waterbody. One commenter 
stated that this general condition should include additional 
requirements for proper culvert sizing to ensure unhindered fish 
passage and to reduce blow-outs that cause major impacts to river and 
stream channels. One commenter said that the stream bed should be 
returned to pre-construction contours unless the purpose of the NWP 
activity is to eliminate a fish barrier and restore the natural 
substrate of the stream and its contours. One commenter expressed 
concern that the minimal adverse environmental impacts required by this 
general condition are not being tracked or enforced, stating that NWP 
activities often disrupt necessary life cycle movements of aquatic life 
indigenous to the waterbody, including their migration.
    Requiring avoidance and minimization of interference to all 
necessary life cycle movements of indigenous aquatic species in a 
waterbody is usually not practical or feasible. Road crossings and 
other fills in jurisdictional waters are likely to cause some 
interference to the necessary life cycle movements of indigenous 
aquatic species. At best, disruptions of movement should be reduced as 
much as is practicable. The purpose of this general condition is to 
ensure that the disruptions to the necessary life cycle movements of 
indigenous aquatic species are no more than minimal, unless the NWP 
activity's primary purpose is to impound water. Proper culvert sizing 
is more appropriately determined on a case-by-case basis, after 
considering site and watershed characteristics and climate, and the 
life cycle characteristics of the species indigenous to the waterbody. 
Large storm events will occasionally cause some authorized culverts to 
fail and become damaged or washed out, with adverse effects to 
downstream segments of the river or stream caused by those large flows.
    The general condition requires the permittee to design the NWP 
activity so that it does not substantially disrupt the necessary life 
cycle movements of indigenous aquatic species, except under certain 
circumstances. It may not be practicable to return the stream bed to 
pre-construction contours because of site and engineering constraints, 
as well as costs. Those factors influence the practicability of road 
crossing options. The NWP activity should be constructed to allow 
expected high flows to continue unless its primary purpose is impound 
water or manage high flows (also see general condition 9). For some 
types of culverts, sediment transport should continue to maintain the 
natural stream substrate and general channel morphology. Activities 
authorized by NWP can have no more than minimal adverse effects on 
necessary aquatic life movements, and if a district engineer determines 
that a permittee is not complying, with the requirements of this 
general condition, he or she will take appropriate action. One action 
may be to require requiring remediation to ensure that the activity 
complies with general condition 2 and other applicable NWP general 
conditions or suspending. Another action could be to revoke the NWP 
authorization and require an individual permit for the activity if it 
substantially disrupts the necessary life cycle movements of indigenous 
aquatic species or otherwise cannot be conducted so that it has no more 
than minimal adverse environmental effects.
    One commenter said this general condition should be more specific 
in terms of protocols to be used to ensure that NWP activities have no 
more than minimal adverse environmental effects. One commenter stated 
that there is a growing body of scientific literature that shows that a 
large percentage of culverted stream crossings across the country are 
not properly designed to allow for the safe passage of fish and other 
aquatic organisms. This commenter said there should be changes to this 
general condition to encourage the use of best management practices in 
the design, construction, modification, and replacement of bridges or 
culverts that cross waterbodies. This commenter recommended changing 
this general condition to require the use of stream-simulation 
principles to maintain or restore the waterbody's natural course, 
condition, capacity, and flows necessary to sustain the movement of 
those aquatic species. This commenter also said that this general 
condition should also require the use of open-bottom bridges and 
culverts whenever possible, or if the waterbody cannot be spanned with 
an open-bottom bridge or culvert the bottom of the bridge or culvert 
should be covered with natural substrate. This commenter also stated 
that the minimum crossing width must be 1.2 times the width of the 
waterbody from ordinary high water mark to ordinary high water mark. 
This commenter also said that the general condition should require the 
gradient or slope of the crossing structure to match the stream 
profile, so that the velocity and depth of water in the structure 
matches that of the stream. One commenter stated that this general 
condition should require maintenance of the natural bank full capacity 
or cross-sectional area of the stream channel.
    Given the wide variation in river and stream structure, functions, 
and dynamics across the country, as well as the various geomorphic and 
hydrologic settings in which NWP activities are conducted, it is not 
possible to add more specific requirements to this general condition. 
Compliance with this general condition is more appropriately determined 
by district engineers on a case-by-case basis after considering the 
specific regional and site characteristics (e.g., hydrology, geology, 
and climate), as well as the life cycle requirements of the aquatic 
species indigenous to the waterbody. This general condition requires 
culverted stream crossings to be properly designed and constructed to 
allow for the passage of fish and other aquatic organisms during 
migration and other life cycle events. Planning, design, construction, 
and maintenance practices are more appropriately determined for 
specific NWP activities. Attempting to impose the same practices, 
including best management practices, across the entire country is not 
practical and will not be effective. For some rivers and streams, it is 
not practicable to use bottomless culverts. We have modified this 
general condition to state that if a bottomless culvert cannot be used, 
then

[[Page 1948]]

the crossing should be designed and constructed to minimize adverse 
effects to aquatic life movements.
    Given the wide variation in river and stream crossings across the 
country, the variability in the valleys in which those rivers and 
streams are located, and the need to consider hydrology and climate, it 
would not be appropriate to specify in this general condition a numeric 
minimum crossing width. It may also not be practicable to require, in 
all cases, that the gradient in the slope within the crossing structure 
to match the gradient or slope of the river or stream in the vicinity 
of the crossing. The purpose of this general condition is to ensure 
that adverse effects to aquatic life movements are no more than 
minimal. There may be methods to achieving that objective other than 
maintaining natural bank full capacity or the cross-sectional area of 
the stream channel. When reviewing PCNs, district engineers will 
evaluate proposed NWP activities to ensure that they comply with the 
requirements of this general condition.
    The general condition is adopted as proposed.
    GC 3. Spawning Areas. In the June 1, 2016, proposed rule, we did 
not propose any changes to this general condition. One commenter said 
that NWP activities should not be allowed in spawning areas. One 
commenter suggested revising the general condition to prohibit 
activities that would inhibit access of migratory species to their 
spawning areas. One commenter noted that spawning areas could be 
adversely affected by activities outside of those spawning areas, and 
that those indirect effects could also have negative impacts on 
species.
    It is not practical to completely avoid impacts to spawning areas. 
The purpose of this general condition is to require permittees to 
avoid, to the maximum extent practicable, conducting NWP activities in 
spawning areas during spawning seasons. This requirement helps minimize 
adverse effects to spawning activities of aquatic organisms. General 
condition 2, aquatic life movements, addresses the movement of aquatic 
organisms in the waterbody. This includes access of migratory species 
to spawning areas, such as upstream spawning areas used by anadromous 
salmon. The general condition already recognizes that activities 
distant from spawning areas can physically destroy important spawning 
areas because of sediment transport to downstream areas and deposition 
of sediment in those spawning areas. Those indirect adverse effects are 
prohibited by this general condition.
    This general condition is adopted as proposed.
    GC 4. Migratory Bird Breeding Areas. We did not propose any changes 
to this general condition and no comments were received. The general 
condition is adopted as proposed.
    GC 5. Shellfish Beds. We did not propose any changes to this 
general condition. A few commenters expressed support for the general 
condition as proposed. One commenter requested that the Corps define 
the term ``concentrated shellfish bed'' and clarify whether it refers 
to oyster and clam beds and not to streams inhabited by mussels. One 
commenter asked if this general condition only applies to marine 
waters. A commenter asked for clarification as to what constitutes a 
``concentrated shellfish population'' and how that term relates to 
living shorelines that would be authorized by proposed new NWP B. This 
commenter inquired whether this general condition applies to waters 
that have large shellfish populations and whether it prohibits NWP 
activities on extant shellfish reefs.
    The term ``concentrated shellfish bed'' refers to shellfish beds 
inhabited by shellfish species, such as oysters, clams, and mussels. 
This general condition is not limited to marine or estuarine waters, 
but could also apply to fresh waters that support concentrated beds of 
native shellfish. This interpretation is supported by the history of 
this general condition. Prior to the 2000 NWPs, this general condition 
was focused on shellfish production beds. In 2000, we modified this 
general condition by changing the title from ``Shellfish Production'' 
to ``Shellfish Beds'' so that it would cover more than areas actively 
managed for shellfish production (see 65 FR 12868). It should also be 
noted that the general condition applies to NWP 27 which authorizes 
habitat restoration activities to benefit shellfish in both tidal and 
non-tidal waters including freshwater streams. There are regional 
variations in what constitutes a shellfish concentration depending on 
the species and habitat types present. The identification of 
concentrated shellfish populations, for the purposes of determining 
compliance with this general condition, is more appropriately conducted 
by district engineers using local criteria and methods.
    Areas that have concentrated shellfish populations are not suitable 
for the construction of living shorelines, because this general 
condition prohibits NWP activities in those areas, except for 
activities authorized by NWPs 4 or 48. District engineers will review 
PCNs for NWP 54 activities to determine if the proposed activity is 
precluded from NWP authorization by general condition 5 because it 
occurs in an area of concentrated shellfish populations. If it is 
precluded, the district engineer will inform the project proponent that 
an individual permit will be required for the construction of the 
proposed living shoreline. This general condition applies to areas 
within a waterbody that have concentrated shellfish populations. It 
does not apply to other areas of the waterbody that do not have 
concentrated shellfish populations. If there is an extant shellfish 
reef, this general condition prohibits NWP activities, except for 
activities authorized by NWPs 4 and 48.
    This general condition is adopted as proposed.
    CG 6. Suitable Material. We did not propose any changes to this 
general condition. One commenter supported the proposed general 
condition. One commenter suggested adding tires and encapsulated 
flotation devices to the list of unsuitable materials in the 
parenthetical in the text of the general condition.
    Whether tires or encapsulated flotation are unsuitable materials is 
at the district engineer's discretion. In addition, division engineers 
can add regional conditions to this NWP to provide regional examples of 
unsuitable materials that are prohibited by this general condition. 
This general condition is adopted as proposed.
    GC 7. Water Supply Intakes. We did not propose any changes to this 
general condition. Three commenters requested clarification on what 
constitutes ``proximity'' to a water supply intake for the purposes of 
this general condition. They also expressed concern over the review 
procedures used to determine compliance with this general condition. 
Two commenters said that all NWP activities should be prohibited within 
water source protection areas for public water systems. One commenter 
asserted that district engineers are not ensuring compliance with 
general condition 7, and suggested that this general condition should 
be modified to mirror the review and documentation requirements for 
general condition 18, endangered species, and general condition 20, 
historic properties.
    The term ``proximity'' is to be applied using the commonly 
understood definition of that term (``very near, close'' according to 
Merriam-Webster's Collegiate Dictionary, 10th edition). Therefore, the 
proposed NWP activity would have to be very near, or close to, the 
public water supply intake for

[[Page 1949]]

general condition 7 to apply. For those NWP activities that require 
PCNs or are voluntarily reported to Corps districts, district engineers 
will review the PCNs to determine if general condition 7 applies. For 
those NWP activities that do not require PCNs and are not voluntarily 
reported to Corps districts, district engineers have the authority to 
determine whether those unreported NWP activities comply with all 
applicable general and regional conditions. If an activity does not 
comply with one or more applicable conditions, the district engineer 
will take appropriate action under 33 CFR part 326.
    We do not agree that all NWP activities should be prohibited in 
water source protection areas for public water systems. NWP activities 
can be conducted in those areas with little or no minimal adverse 
effects to water quality. In addition, all NWPs that authorize 
discharges into waters of the United States require Clean Water Act 
section 401 water quality certification. States can deny water quality 
certification for any NWP activity that might result in a discharge 
that is not in compliance with applicable water quality standards. 
General conditions 18 and 20 are based on federal laws impose specific 
requirements (e.g., ensure its actions are not likely to jeopardize the 
continued existence of any endangered species or threatened species) or 
trigger consultation requirements. There is no federal law that imposes 
a comparable requirement for federal actions that take place in 
proximity to a public water supply intake. Division engineers can add 
regional conditions to the NWPs to prohibit the use of one or more NWPs 
in areas used for public water supplies.
    One commenter stated that PCNs should be required for all NWP 12 
activities within a certain distance of public water supply intakes. 
This commenter also said that if PCNs are not required for those NWP 12 
activities, then that NWP should be prohibited in the watershed of the 
public water supply intake. A commenter said that this general 
condition does not provide sufficient safeguards against pollution of 
drinking water supplies.
    For those NWP 12 activities that require PCNs or are voluntarily 
reported to the Corps, district engineers will review those proposed 
activities to ensure that they comply with this general condition. 
Division engineers can restrict or prohibit the use of NWP 12 in water 
source protection areas for public water systems. District engineers 
can also take action if they determine that a specific activity does 
not comply with this general condition and therefore does not qualify 
for NWP authorization.
    This general condition is adopted as proposed.
    GC 8. Adverse Effects from Impoundments. We did not propose any 
changes to this general condition. One commenter supported the proposed 
general condition. One commenter asked for a definition of the term 
``maximum extent practicable'' as it applies to this general condition, 
or for examples of activities that satisfy that provision.
    District engineers will use their discretion in determining whether 
specific impoundments authorized by NWP have minimized, to the maximum 
extent practicable, adverse effects to the aquatic system as a result 
of accelerated water flows or restricted water flows. The application 
of that term is dependent on case-specific circumstances and site 
conditions. This general condition is adopted as proposed.
    GC 9. Management of Water Flows. We did not propose any changes to 
this general condition. A few commenter expressed support for the 
proposed general condition. One commenter stated that this general 
condition: Helps ensure that proper floodplain functions are 
maintained, helps safeguard communities during natural disasters, and 
preserves connectivity among aquatic habitats. One commenter said that 
this general condition should recognize that structures or fills, such 
as a temporary causeway or work pad, placed into open waters will raise 
backwaters to some degree, and that rise in water level should be 
acceptable as long as it does not cause significant flooding or damage 
to property.
    The proposed general condition provides an exception to the 
prohibition against restricting or impeding the passage of normal or 
high flows, in cases where the primary purpose of the NWP activity is 
to impound water or manage high flows. It is the permittee's 
responsibility to ensure that such impoundments do not cause flood 
damage or other types of property damage. Paragraph 4 of Section E, 
Further Information, states that the NWPs ``do not authorize any injury 
to the property or rights of others.''
    One commenter stated that this general condition should be modified 
to ensure that the pre-construction course and condition of a waterbody 
is maintained during the construction of permanent and temporary 
crossings of the waterbody. This commenter said that this is especially 
important because road crossings of streams that do not account for 
various flow conditions may fail during severe storms and flooding 
events. This commenter recommended adding ``and the construction, 
replacement, or rehabilitation of temporary and permanent crossings 
(e.g., bridges or culverts)'' after ``stormwater management 
activities''.
    We have modified the first sentence of this general condition by 
removing the word ``and'' before ``stormwater'' and adding the phrase 
``and temporary and permanent road crossings'' after ``stormwater 
management activities'' to add road crossings to the examples of 
activities where the pre-construction course, condition, capacity, and 
location of open waters must be maintained to the maximum extent 
practicable.
    This general condition is adopted with the modification discussed 
above.
    GC 10. Fills Within 100-Year Floodplains. We did not propose any 
changes to this general condition. One commenter said that this general 
condition is not a surrogate for E.O. 11988 (Floodplain Management) 
compliance. This commenter recommended modifying general condition 10 
to require an evaluation of existing flood risk data to satisfy 
floodplain management requirements, and to ensure that NWP activities 
are outside of the floodway or have minimal hydraulic impacts and do 
not place critical facilities at high risk. Two commenters said that 
NWPs that authorize development activities should not be allowed to 
authorize activities in 100-year floodplains. One commenter stated that 
Federal Emergency Management Agency (FEMA)-approved floodplain 
management requirements in one area of the country also protect 
essential fish habitat.
    The only fills in 100-year floodplains that are regulated by the 
Corps are discharges of dredged or fill material into jurisdictional 
waters and wetlands. The NWP program supports the objectives of E.O. 
11988 by encouraging minimization of losses of waters of the United 
States to qualify for NWP authorization, including losses of waters of 
the United States in 100-year floodplains. The NWPs also require 
avoidance and minimization of temporary and permanent impacts to waters 
of the United States to the maximum extent practicable on the project 
site (see paragraph (a) of general condition 23, mitigation). We do not 
have the authority to regulate the filling of uplands within 100-year 
floodplains, including upland floodways. The primary responsibility for 
determining land use and zoning lies with state, local, and tribal 
governments (see 33 CFR 320.4(j)(2)), which includes land use within 
100-year floodplains.

[[Page 1950]]

Concerns about adverse effects on floodplains and floodways are more 
appropriately addressed by the state and local agencies that have the 
primary responsibility for floodplain management. General condition 10 
reminds permittees that they must comply with applicable FEMA-approved 
state or local floodplain management requirements.
    Development activities in jurisdictional waters and wetlands within 
100-year floodplains can be authorized by NWPs 29, 39, and other NWPs 
as long as they have no more than minimal individual and cumulative 
adverse environmental effects. We acknowledge that FEMA-approved 
floodplain management requirements can also protect other important 
resources, such as essential fish habitat.
    This general condition is adopted as proposed.
    GC 11. Equipment. We did not propose any changes to this general 
condition. Two commenters said they support the reissuance of this 
general condition as proposed. One commenter stated that this general 
condition should provide examples of other minimization measures that 
should be taken when equipment is used in streams, such as minimization 
of soil disturbance, proper installation of turbidity barriers, and the 
placement of oil booms downstream of equipment used in waters. This 
commenter also suggested that water quality sampling should be required 
to ensure water quality standards are met throughout the construction 
period. One commenter said that the use of heavy equipment in 
jurisdictional waters and wetlands has potential to leak or spill 
petroleum products into those waters and wetlands. This commenter 
recommended modifying this general condition to require equipment to be 
maintained in good working order to ensure that there will be no leaks 
of contaminants, and require spill kits for on-site emergency cleanups.
    Actions taken to minimize the impacts of equipment on streams are 
more appropriately identified on a case-by-case basis, after 
considering the type of work to be done in the stream, the flow regime, 
the geomorphology of the stream, and other factors. Ensuring that 
activities authorized by NWPs meet applicable water quality standards 
is achieved through the water quality certification process. If an 
individual water quality certification is required for an NWP activity, 
the certification may include activity-specific conditions that require 
actions, such as water quality sampling, to ensure the NWP activity 
complies with applicable water quality standards. We recognize that 
there is a potential for mechanical equipment to leak or spill 
petroleum products. Such discharges may also be addressed through the 
water quality certification process. Leaks and spills of fuel, 
hydraulic fluids, transmission fluids, and other fluids from equipment 
used to conduct NWP activities are not discharges of dredged or fill 
material that are regulated under section 404 of the Clean Water Act. 
Such spills or leaks may also require action under other federal, 
state, or local laws and regulations. The purpose of this general 
condition is to minimize adverse effects to jurisdictional waters and 
wetlands that are caused by equipment that disturbs soil. We do not 
have the authority to regulate the maintenance of equipment, or to 
mandate the use of spill kits for on-site emergency cleanups. Project 
proponents should comply with all other applicable federal, state, and 
local laws and regulations, which may address the operation and 
maintenance of construction equipment and responding to spills and 
leaks from that equipment during construction activities.
    This general condition is adopted as proposed.
    GC 12. Soil Erosion and Sediment Controls. To clarify the 
application of this general condition in tidal waters, we proposed to 
modify the last sentence to encourage permittees to conduct work during 
low tides to reduce soil erosion and sediment transport during 
construction activities in waters subject to the ebb and flow of the 
tide.
    Three commenters stated their support for the proposed modification 
of this general condition. One commenter objected to the proposed 
change, stating that it would be interpreted and applied by Corps 
districts as a requirement. One commenter said that this general 
condition should prohibit activities during low tides when migratory 
birds are using tidal flats. Two commenters stated that this general 
condition should be modified to require maintenance of downstream water 
quality, and to require NWP activities to be conducted during periods 
of low flow. Two commenters asked that the general condition define the 
term ``stabilized'' and include stabilization guidelines and a 
requirement for post-construction monitoring of stabilization 
activities.
    The last sentence of this general condition clearly states that 
permittees are encouraged to conduct NWP activities in waters of the 
United States during periods of no-flow or low-flow or during low 
tides. The general condition does not mandate that NWP activities be 
done during those no- or low-flow stages or during low tides. 
Nationwide permit activities can be conducted at other flow stages or 
tides and result in no more than minimal adverse environmental effects, 
so it is not necessary to require NWP activities to be conducted during 
no- or low-flow stages or during low tides.
    General condition 4 requires that NWP activities avoid breeding 
areas for migratory birds to the maximum extent practicable. General 
condition 19 also addresses the applicability of the Migratory Bird 
Treaty Act to the NWP program, and states that the permittee is 
responsible for contacting the local office of the U.S. Fish and 
Wildlife Service to determine if an ``incidental take'' permit is 
necessary and available under the Migratory Bird Treaty Act.
    The maintenance of downstream water quality will be addressed 
through the water quality certification issued by the state, tribe, or 
U.S. EPA. The appropriate stabilization measures will be determined on 
a case-by-case basis and are dependent on site conditions. The 
appropriate stabilization measures may also be dictated by state or 
local sediment and erosion control regulations. These state or local 
sediment and erosion control regulations may also require post-
construction monitoring.
    This general condition is adopted as proposed.
    GC 13. Removal of Temporary Fills. We did not propose any changes 
to this general condition. One commenter said that temporary fills 
should be limited to no more than 180 days. A few commenters stated 
that temporary mats should not be considered to be fill material and 
should not be counted towards NWP acreage limits. One commenter said 
that temporary mats are not necessary for activities authorized by NWPs 
3 and 12. One commenter stated that the sidecasting of material 
excavated from a ditch is not a discharge of dredged or fill material, 
and that the Corps lacks the authority to regulate excavation 
activities.
    What constitutes a temporary fill is at the discretion of the 
district engineer. Defining a temporary fill as a fill that is in place 
for no more than 180 days may discourage the removal of temporary fills 
within a shorter period of time. For some NWP activities, temporary 
fills should be removed immediately after construction to minimize 
temporary losses of aquatic resource functions and services. For some 
other NWP activities, temporary fills may need to be in place for 
longer periods of time to allow the impacted area to recover and 
stabilize so that it can withstand normal flows after the temporary 
fills are removed.

[[Page 1951]]

    Whether timber mats and other temporary mats constitute a discharge 
of dredged or fill material that requires Clean Water Act section 404 
authorization is at the district engineer's discretion after applying 
the definitions at 33 CFR 323.2. Waters of the United States that are 
temporarily filled and then restored to pre-construction contours and 
elevations are not included in the measurement of ``loss of waters of 
the United States'' (see the definition of ``loss of waters of the 
United States'' in Section F, Definitions). Activities authorized by 
NWPs 3 and 12 often use temporary mats to minimize adverse effects to 
waters of the United States. The text of those NWPs explicitly state 
that use of temporary mats is authorized for those activities.
    The sidecasting of excavated material during ditch maintenance may 
be exempt from Clean Water Act section 404 permit requirements (see 33 
CFR 323.4(a)(3)). If the ditch maintenance activity does not qualify 
for the Clean Water Act section 404(f)(1)(C) exemption, the deposition 
of excavated material into jurisdictional waters and wetlands may be 
considered a discharge of dredged material (see 33 CFR 323.2(d)). 
District engineers will determine on a case-by-case basis whether 
excavation activities require DA authorization under section 404 of the 
Clean Water Act by applying the current regulations, including the 
current definition of ``discharge of dredged material.''
    This general condition is adopted as proposed.
    GC 14. Proper Maintenance. We did not propose any changes to this 
general condition. One commenter stated support for this general 
condition. One commenter said this general condition should require 
precautions during maintenance activities to minimize impacts to 
jurisdictional waters and ensure that downstream water quality is 
maintained.
    Maintenance activities conducted under the NWP authorization are 
required to comply with all applicable general and regional conditions, 
which will minimize adverse effects to jurisdictional waters and 
wetlands and protect water quality. Proper maintenance requires 
promptly repairing damaged or deteriorating structures and fills so 
that they do not cause additional adverse effects to jurisdictional 
waters and wetlands.
    This general condition is adopted as proposed.
    GC 15. Single and Complete Project. We did not propose any changes 
to this general condition. Two commenters said that this general 
condition should state that an NWP activity cannot be expanded or 
modified at a later date to enlarge the permitted activity. One 
commenter stated that for the purposes of cumulative impacts analysis, 
the ``single and complete project'' definition should not be tied to 
the impacts of the NWP activity, but to the effects caused by that 
activity.
    If, for a single and complete non-linear project, the proposed 
expansion or modification of a previously authorized NWP activity does 
not have independent utility from the previously authorized NWP 
activity, and the loss of waters of the United States that would result 
from proposed expansion or modification plus the previously authorized 
loss of waters of United States falls under the limit(s) of applicable 
NWP(s), that expansion or modification can still be authorized by NWP. 
If the loss of waters of the United States that would result from 
proposed expansion or modification plus the previously authorized loss 
of waters of United States exceeds the limit(s) of applicable NWP(s), 
that expansion or modification would require an individual permit 
unless there is a regional general permit that can authorize the 
expansion or modification. If the proposed expansion or modification 
has independent utility from the previously authorized NWP activity, 
then the limit(s) would apply to the proposed expansion or 
modification. Consistent with the Council on Environmental Quality's 
NEPA regulations at 40 CFR 1508.8, we consider ``impacts'' and 
``effects'' to be synonymous. Therefore, we also consider the terms 
``cumulative impact analysis'' and ``cumulative effects analysis'' to 
be synonymous.
    One commenter said that this general condition should define 
``single and complete project'' in the same manner as the definition of 
``single and complete non-linear project'' in Section F of the NWPs. 
One commenter stated that the same definition of ``independent 
utility'' should be applied to both linear and non-linear projects, to 
avoid piecemealing. This commenter said that linear roadway crossings 
generally do not have independent utility, so the definition of linear 
transportation projects should conform with the definition of single 
and complete non-linear project. This commenter stated that this 
recommended change would result in a more accurate cumulative impact 
analysis. Another commenter said that linear and non-linear projects 
should not be treated differently for the purposes of applying the 
limits of the NWPs.
    The definitions of ``single and complete linear project'' and 
``single and complete non-linear project'' are addressed in the 
``Definitions'' section of this preamble and the NWPs. This general 
condition addresses the general concept of ``single and complete 
project'' regardless of whether the proposed NWP activity is a single 
and complete linear project or single and complete non-linear project. 
The concept of independent utility does not apply to individual 
crossings of waters of the United States for linear projects because 
each separate and distant crossing of waters of the United States is 
necessary to transport people, goods, or services from the point of 
origin to the terminal point. For both linear projects and non-linear 
projects, the cumulative impact analysis considers the use of the 
applicable NWP or NWPs within a geographic region, such as a watershed, 
ecoregion, state, or Corps district. The acreage limit for an NWP 
applies to the single and complete project; for linear projects each 
separate and distant crossing of waters of the United States is 
considered a single and complete project (see the definition of 
``single and complete linear project'' and 33 CFR 330.2(i)).
    Two commenters suggested changing this general condition to 
prohibit the use of the same NWP more than once for the same utility 
line project, rather than allowing the use of NWP 12 for each separate 
and distance crossing of waters of the United States along a linear 
project. One commenter stated that for activities that may be 
authorized using multiple NWPs because the activity components are 
single and complete, that only one PCN is required to apply for all 
applicable NWPs.
    As stated above, for linear projects such as utility lines 
authorized by NWP 12, each separate and distant crossing of waters of 
the United States is considered a single and complete project. For 
activities that have components that can be authorized by different 
NWPs, only one PCN needs to be submitted. The PCN should identify which 
NWP the project proponent wants to use to authorize a particular 
component, and the PCN should identify which components of the larger 
overall project have independent utility.
    This general condition is adopted as proposed.
    GC 16. Wild and Scenic Rivers. We proposed to modify this general 
condition to require pre-construction notification for any NWP activity 
that will occur in a component of the National Wild and Scenic River 
System,

[[Page 1952]]

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.
    A few commenters expressed support for the proposed PCN requirement 
and a few commenters opposed the PCN requirement. One commenter said 
that NWPs should not be used to authorize activities within Wild and 
Scenic Rivers. One commenter recommended basing the PCN requirement on 
the potential to adversely affect the river and not only on the 
location of the proposed NWP activity. This commenter also suggested 
that NWP activities conducted by federal agencies do their own 
compliance with the Wild and Scenic Rivers Act, similar to the proposed 
changes to paragraph (b) in general condition 18, endangered species, 
and general condition 20, historic properties.
    The Wild and Scenic Rivers Act does not prohibit activities in a 
Wild and Scenic River or a study river; it requires coordination with 
the federal agency with direct management responsibility for that river 
to ensure that the activity will not adversely affect the river's 
designation as a Wild and Scenic River or a study river. Therefore, 
NWPs are an appropriate mechanism for providing DA authorization for 
some activities in these rivers. The proposed modifications to this 
general condition were based on federal agency regulations and guidance 
for implementing the Wild and Scenic Rivers Act, and the text of 
section 7(a) of the Wild and Scenic Rivers Act. For the purposes of DA 
authorizations issued by the Corps section 7(a) of the Wild and Scenic 
Rivers Act limits the Corps' responsibilities to activities that might 
have a ``direct and adverse effect on the values'' for which the river 
was established. Therefore, the location of the proposed NWP activity 
is relevant to determining whether coordinating an NWP PCN with the 
federal agency with direct management responsibility for that river is 
required. Section 7(a) of the Wild and Scenic Rivers Act requires the 
federal agency authorizing the water resources project to do the 
coordination with the federal agency with direct management 
responsibility for that river.
    One commenter stated that the term ``component'' is too broad and 
said that specific river segments should be identified. One commenter 
requested a list of current ``study rivers'' for purpose of submitting 
PCNs. One commenter said that PCNs should not be required for NWP 3 
activities within Wild and Scenic Rivers or study rivers. This 
commenter also stated that PCNs should not be required for agencies 
that have direct management responsibilities for Wild and Scenic Rivers 
or study rivers. One commenter requested clarification of the review 
process for these PCNs and suggested that the NWP activity should not 
be prohibited if the federal agency with direct management 
responsibility for that river does not issue a written determination 
that the proposed NWP activity will not adversely affect the Wild and 
Scenic River designation or study status.
    The text of the general condition includes the internet address for 
obtaining information on Wild and Scenic Rivers and study rivers, to 
assist prospective permittees in complying with this general condition. 
A study river list is available at https://www.rivers.gov/study.php . 
Activities authorized by NWP 3 must comply with this general condition. 
If federal agencies with direct management responsibilities over these 
rivers want to use the NWPs to satisfy the permit requirements of 
section 404 of the Clean Water Act and/or section 10 of the Rivers and 
Harbors Act of 1899, they must comply with this general condition and 
provide documentation that demonstrates that their activities will not 
adversely affect the Wild and Scenic River designation or study status. 
When a Corps district receives a PCN from a non-federal permittee for a 
proposed NWP activity that will occur in a component of the National 
Wild and Scenic River System or in a study river, the district engineer 
will follow the coordination procedures described in the regulations 
and guidance for implementing the Wild and Scenic River Act. Until the 
federal agency with direct management responsibility for that river 
issues its written determination, the project proponent cannot proceed 
under the NWP authorization.
    This general condition is adopted with the modifications discussed 
above.
    GC 17. Tribal Rights. We did not propose any changes to this 
general condition. One commenter supported the proposed general 
condition. Several commenters stated that the federal government's 
tribal trust responsibilities requires federal agencies to protect 
tribal rights, resources, and cultures and this general condition does 
not adequately fulfill those responsibilities. Several commenters 
stated that NWPs should not authorize activities that affect tribal 
rights and that individual permits should be required to ensure that 
tribal treaty rights are addressed in the Corps' review process. One 
commenter said that NWPs should not authorize any activity that 
implicates tribal treaty rights. Several commenters noted that some NWP 
activities can occur without pre-construction notification and said 
that tribes should be involved in the review of NWP PCNs.
    As discussed below, we have modified this general condition to 
better fulfill the Corps' fiduciary responsibilities towards tribes. 
The revised general condition requires that NWP activities cannot cause 
more than minimal adverse effects on tribal rights (including treaty 
rights), protected tribal resources, or tribal lands. Proposed 
activities that require DA authorization that cannot comply with the 
revised general condition require individual permits, if there are no 
regional general permits available to authorize those activities. 
Division engineers can add regional conditions to one or more NWPs to 
require PCNs to provide district engineers the opportunity to review 
proposed activities to ensure that they do not cause more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands. District engineers can also develop 
coordination procedures with tribes to review PCNs to get the tribes' 
input on whether the proposed activities will cause more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands.
    Several commenters stated that the NWPs do not examine cumulative 
or indirect impacts on treaty rights. They said that NWP activities in 
the aggregate can have serious consequences to treaty-reserved 
resources. One commenter mentioned that resolution #SPO-16-002 was 
adopted in June 2016 by the National Congress of American Indians. That 
resolution urged the Department of Defense to reaffirm its commitment 
to consult with Tribal Nations when its activities impact tribal 
interests. That resolution represents 562 individually recognized 
Indian Tribes across the United States, and expresses their concern 
that the Department of Defense's tribal consultation principles and 
policies are not being followed and therefore the Department of Defense 
is not fulfilling its federal trust obligations and not protecting 
tribal interests.
    District engineers monitor the use of the NWPs in specific 
geographic regions, to ensure that the use of the NWPs does not result 
in more than minimal cumulative adverse environmental effects, which 
includes adverse effects to tribal rights (including treaty rights), 
protected tribal resources, and tribal lands. If a district engineer 
determines that more than minimal cumulative adverse effects are 
occurring, he or she should recommend

[[Page 1953]]

regional conditions, or the suspension or revocation of the applicable 
NWPs, to the division engineer. The division engineer will follow the 
procedures at 33 CFR 330.5(c) to modify, suspend, or revoke those 
NWP(s) in the appropriate geographic area. The Corps uses the 
Department of Defense American Indian and Alaska Native Policy to guide 
its interactions with tribes. The Corps also had developed additional 
policies, which are available at: http://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations/.
    One commenter said that this general condition should be invoked 
for NWPs 3, 13, and 48 because the activities authorized by these NWPs 
affect salmon or shellfish and the natural resources upon which they 
depend. One commenter requested establishment of a dispute resolution 
procedures for tribal consultation and clarification on how the NWP PCN 
will be handled when a tribe objects to the proposed activity.
    This general condition applies to NWPs 3, 13, and 48, as well as 
all of the other NWPs. If a tribe has concerns with how a Corps 
district is implementing these NWPs, the tribe should raise those 
concerns to the district. Disagreements concerning interpretation of 
treaties may need to be resolved by other parties.
    One commenter said that Corps divisions and districts should be 
provided support to promote tribal involvement and collaborative 
decision-making. One commenter stated that the proposed general 
condition is limited because it refers only to ``reserved treaty 
rights.'' This commenter remarked that the general condition should 
also include other treaty rights that are explicit retained. This 
commenter said that ``reserved treaty rights'' are those rights that 
the tribe did not specifically relinquish in the treaty, in other 
words, the treaty is silent on them. This commenter also said that, 
according to the Department of Defense American Indian and Alaska 
Native Policy, the Corps' fiduciary duties to tribes also apply to 
tribal lands and protected tribal resources. This commenter recommended 
revising this general condition to be consistent with the Department of 
Defense policy cited above and to require PCNs for proposed activities 
that might affect protected tribal resources, tribal rights (including 
treaty rights), and tribal lands.
    During the past three rulemakings for the NWPs (2007 and 2012 and 
this rulemaking for 2017), Corps Headquarters issued memoranda to its 
division and district offices that requested that Corps districts 
consult with tribes on the NWPs to develop regional conditions, 
coordination procedures, and other measures to ensure that the NWPs 
have no more than minimal adverse effects on tribal trust resources and 
tribal rights. For the 2017 NWPs, the memorandum was issued on March 
10, 2016. We have revised general condition 17 to read as follows: ``No 
activity may cause more than minimal adverse effects on tribal rights 
(including treaty rights), protected tribal resources, or tribal 
lands.'' We have removed the phrase ``or its operation'' because the 
Corps may not have the legal authority to regulate the operation of the 
facility or structure after the authorized activity is completed.
    The principles in the Department of Defense American Indian and 
Alaska Native Policy apply to Department of Defense actions, which 
includes actions undertaken by the Corps such as the issuance of NWPs 
and other types of DA permits to authorize activities it regulates. The 
Corps' responsibilities for protecting tribal rights (including treaty 
rights), protected tribal resources, and tribal lands applies only to 
the activities it has the authority to regulate. For the NWPs, those 
activities are discharges of dredged or fill material into waters of 
the United States that the Corps has the authority to regulate under 
section 404 of the Clean Water Act and structures and work in navigable 
waters of the United States that the Corps has the authority to 
regulate under section 10 of the Rivers and Harbors Act of 1899. The 
Corps does not have the legal authority to regulate or impose 
conditions on actions or activities outside of its jurisdiction, such 
as activities in upland areas or operation and maintenance activities 
that do not require DA authorization.
    The terms ``tribal rights,'' ``protected tribal resources,'' and 
``tribal lands'' are defined in the Department of Defense American 
Indian and Alaska Native Policy. Tribal rights are defined as: ``Those 
rights legally accruing to a tribe or tribes by virtue of inherent 
sovereign authority, unextinguished aboriginal title, treaty, statute, 
judicial decisions, executive order or agreement, and that give rise to 
legally enforceable remedies.'' Protected tribal resources are defined 
as: ``Those natural resources and properties of traditional or 
customary religious or cultural importance, either on or off Indian 
lands, retained by, or reserved by or for, Indian tribes through 
treaties, statutes, judicial decisions, or executive orders, including 
tribal trust resources.'' Tribal lands are defined as: ``Any lands 
title to which is either: (1) held in trust by the United States for 
the benefit of any Indian tribe or individual; or (2) held by any 
Indian tribe or individual subject to restrictions by the United States 
against alienation.'' To make these definitions readily accessible to 
users of the NWPs, we have added these definitions to the 
``Definitions'' section of the NWPs (Section F).
    There are presently 567 federally-recognized tribes, including 
Alaska Native tribes, and 370 ratified treaties.\3\ In addition, each 
tribe is a distinct and separate government, and consultations may vary 
among tribes. Consultation procedures with tribes will vary, because 
different tribes have different customs and organization. Also, 
consultation with tribes is the responsibility of the federal 
government, not prospective permittees. Given the number of federally-
recognized tribes, the number of ratified treaties, the fact that each 
tribe is a distinct and separate government, and that different 
consultation approaches are necessary for different tribes, we cannot 
expect most prospective permittees understand applicable treaties, what 
the protected tribal resources are, and other relevant factors to know 
when to submit PCNs for proposed NWP activities that might cause more 
than minimal adverse effects on tribal rights (including treaty 
rights), protected tribal resources, or tribal lands. A more effective 
approach for addressing tribal rights, protected tribal resources, and 
tribal lands is the regional conditioning process and the development 
of coordination procedures between Corps districts and tribes.
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    \3\ http://www.bia.gov/FAQs/index.htm, accessed October 18, 
2016.
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    Prior to the publication of the June 1, 2016, proposed rule in the 
Federal Register, Corps districts initiated government-to-government 
consultations for the 2017 NWPs, to identify regional conditions to 
protect tribal rights, protected tribal resources, or tribal lands. 
These consultations may also result in the development of coordination 
procedures between Corps districts and tribes to review PCNs to ensure 
that those NWP activities do not cause more than minimal adverse 
effects on tribal rights, protected tribal resources, or tribal lands. 
Division engineers can add regional conditions to one or more NWPs to 
require PCNs for proposed activities in a geographic region that have 
the potential to cause more than minimal adverse effects on tribal 
rights, protected tribal resources, or tribal lands.
    This general condition is adopted with the modifications discussed 
above.

[[Page 1954]]

    GC 18. Endangered Species. We proposed to modify paragraph (a) of 
this general condition to define the terms ``direct effects'' and 
``indirect effects.'' We also proposed to modify paragraph (b) to 
clarify that federal agencies only need to submit documentation of 
compliance with section 7 of the Endangered Species Act (ESA) when the 
terms and conditions of the NWP, or regional conditions imposed by the 
division engineer, require the submission of a PCN. In addition, we 
proposed to modify paragraph (d) to clarify that the district engineer 
may add activity-specific conditions to an NWP authorization after 
conducting formal or informal ESA Section 7 consultation.
    Many commenters stated their support for adding the definitions of 
direct effects and indirect effects to paragraph (a) of this general 
condition. One commenter asked how ``direct effects'' and ``indirect 
effects'' will be considered in this general condition. One commenter 
said that this general condition should be revised to eliminate the 
open-ended review process for the ESA. One commenter said that the 
Corps should only be required to address aquatic species under this 
general condition.
    The definitions of ``direct effects'' and ``indirect effects'' were 
added to paragraph (a) of this general condition to ensure that both 
direct and indirect effects to listed species and designated critical 
habitat are considered when making ``might affect'' and ``may affect'' 
determinations. Endangered Species Act section 7 consultations are not 
open-ended processes, although they take time to complete. Formal ESA 
section 7 consultations end with the issuance of biological opinions. 
Informal ESA section 7 consultations end when the U.S. FWS and/or NMFS 
issue their written concurrences, or when they state that they do not 
concur with the district engineer's ``may affect, not likely to 
adversely affect'' determination for a proposed NWP activity. If the 
U.S. FWS and/or NMFS do not provide written concurrence with the 
district engineer's ``may affect, not likely to adversely affect'' 
determination, then formal ESA section 7 consultation is required 
unless the applicant modifies the proposed activity to allow the 
district engineer to make a ``no effect'' determination. If the 
district engineer makes a ``no effect'' determination for a proposed 
NWP activity, then ESA section 7 consultation is not required. 
Activities authorized by NWPs and other forms of DA authorization can 
affect terrestrial endangered and threatened species, and district 
engineers are required to conduct ESA section 7 consultations for NWP 
activities that may affect those terrestrial listed species.
    Several commenters stated their support for the proposed changes to 
paragraph (b) regarding federal permittee requirements. One commenter 
objected to the proposed modification, stating that the Corps has an 
independent duty to ensure that NWP activities are in compliance with 
ESA section 7 for activities conducted by federal permittees. A few 
commenters requested clarification of the provision in paragraph (b) 
that states that the district engineer will verify that the appropriate 
documentation has been submitted, in terms of another federal agency's 
compliance with section 7 of the ESA. These commenters asked which 
actions will be verified, and what the appropriate documentation should 
be. Several commenters asked when state transportation agencies can be 
considered as federal permittees under 23 U.S.C. 139(c)(3). One 
commenter said that state departments of transportation with NEPA 
authority should be allowed to be treated as federal agencies with 
respect to NWP requirements, such as ESA compliance. One commenter 
asked whether the term ``non-federal permittee'' applies to state 
mining regulatory authorities acting under SMCRA.
    We have retained the proposed changes in paragraph (b) of this 
general condition. The appropriate documentation to provide to district 
engineers to demonstrate a federal permittee's compliance with ESA 
section 7 can be a biological opinion issued by the U.S. FWS and/or 
NMFS, a written concurrence from the U.S. FWS and/or NMFS for an 
informal ESA section 7 consultation, or a written ``no effect'' 
determination made by the federal permittee. Unless a state agency is a 
department of transportation which the Federal Highway Administration 
has assigned its responsibilities pursuant to 23 U.S.C. 327, it remains 
the Corps' responsibility to make ESA section 7 effect determinations 
for activities authorized by the NWPs that will be conducted by non-
federal permittees. The delegation of responsibilities to state 
departments of transportation through 23 U.S.C. 139(c)(3) only applies 
to NEPA responsibilities, not to ESA responsibilities. Responsible 
entities under the Department of Housing and Urban Development's 
Community Development Block Grant program can take responsibility for 
ESA section 7 compliance under the provisions of 24 CFR part 58. The 
project proponent that needs to obtain SMCRA authorization from the 
state mining regulatory authority is a non-federal permittee that must 
comply with paragraph (c) of this general condition.
    A few commenters expressed support for the requirement for non-
federal applicants to submit PCNs when listed species or their 
designated critical habitat ``might be affected or is in the vicinity 
of the project.'' A couple of commenters said that the Corps cannot 
rely solely on information provided by non-federal applicants regarding 
potential effects to listed species, stating that it is insufficient 
for meeting the requirements of the ESA. Several commenters asked for 
clarification of the difference between ``might affect'' and ``may 
affect.'' Several commenters said that the term ``in the vicinity'' 
should be clarified. One commenter requested definitions for 
``vicinity'' and ``affected.'' One commenter stated that by not 
defining ``in the vicinity'' there is potential for non-compliance with 
section 7 of the ESA. One commenter said that PCNs should only be 
required for proposed activities that could affect designated critical 
habitat. One commenting agency said that the proposed changes to this 
general condition will result in a requirement for that agency to 
submit a few hundred more PCNs each year. A few commenters stated that 
submittal of PCNs by non-federal applicants only when any listed 
species or designated critical habitat ``might be affected'' fails to 
include candidate species and is not in compliance with conferencing 
regulations under Section 7 of the ESA.
    The purpose of the PCN requirements in paragraph (c) of general 
condition 18 is to establish a low reporting threshold to ensure that 
PCNs are submitted for any proposed NWP that has the potential to 
affect listed species or designated critical habitat. When the district 
engineer receives the PCN, he or she will evaluate the information in 
the PCN, plus other available information, to determine whether the 
proposed activity may affect listed species or designated critical 
habitat and thus require ESA section 7 consultation. This paragraph of 
the general condition is written so that prospective permittees do not 
decide whether ESA section 7 consultation is required. If the project 
proponent conducts an activity that affects listed species or 
designated critical habitat, but did not submit the PCN required by 
paragraph (c), the activity is not authorized by NWP. That activity is 
an unauthorized activity and the Corps will take appropriate action to 
respond to the unauthorized activity.

[[Page 1955]]

    As explained in the preamble to the June 1, 2016, proposed rule, we 
established the ``might affect'' threshold in 33 CFR part 330.4(f)(2) 
and paragraph (c) of general condition 18 because it is more stringent 
than the ``may affect'' threshold for section 7 consultation in the 
U.S. FWS's and NMFS's ESA section 7 regulations at 50 CFR part 402. The 
word ``might'' is defined as having ``less probability or possibility'' 
than the word ``may'' (Merriam-Webster's Collegiate Dictionary, 10th 
edition). As we also discussed in the June 1, 2016, proposed rule, we 
cannot explicitly define the term ``in the vicinity'' for the purposes 
of general condition 18 because the ``vicinity'' is dependent on a 
variety of factors, such as species distribution, ecology, life 
history, mobility, and, if applicable, migratory patterns, as well as 
habitat characteristics and species sensitivity to various 
environmental components and potential stressors. The vicinity is also 
dependent on the NWP activity and the types of direct and indirect 
effects that might be caused by that NWP activity. If a non-federal 
project proponent conducts an activity and does not comply with general 
condition 18 or any other applicable general condition, then the 
activity is not authorized by NWP. The district engineer will take 
appropriate action for the unauthorized activity.
    Because of the requirements of ESA section 7 and the U.S. FWS's and 
NMFS's implementing regulations at 50 CFR part 402, we cannot limit 
PCNs to NWP activities that might affect designated critical habitat. 
We acknowledge that as more species are listed as endangered or 
threatened, and more critical habitat is designated, there will be 
increases in the number of PCNs submitted to Corps districts each year. 
For species proposed to be listed as endangered or threatened, or for 
proposed critical habitat, ESA section 7 conferences are not required 
except for proposed actions that are likely to jeopardize the continued 
existence of any proposed species or adversely modify or destroy 
proposed critical habitat. The district engineer has the discretion to 
confer with the U.S. FWS and/or NMFS if he or she determines that a 
proposed NWP activity is likely to jeopardize the continued existence 
of the proposed species or destroy or adversely modify the proposed 
critical habitat. Because the NWPs only authorize activities that 
result in no more than minimal adverse environmental effects, and the 
threshold for ESA section 7 conferences is high (i.e., likely to 
jeopardize proposed species or adversely modify or destroy proposed 
critical habitat), we believe that conferences will only be necessary 
in rare circumstances for proposed NWP activities and do not need to 
address conferences in this general condition. District engineers will 
conduct conferences for proposed NWP when necessary.
    One commenter said that a PCN should only be required if there are 
potential impacts to listed species and/or designated critical habitat, 
and a PCN should not be required for the potential presence of a listed 
species. One commenter stated that a PCN should only be required when 
ESA section 7 consultation is required. One commenter stated that a PCN 
not be required in Northern long-eared bat habitat when there is no 
effect to the species, specifically when no clearing is involved. This 
commenter said that based on the term ``in the vicinity'' in paragraph 
(c), non-federal applicants would be required to submit a PCN for every 
NWP activity within this species' broad range. One commenter said that 
the Corps should require PCNs for proposed NWP activities that would 
take place within 10 river miles of ESA-listed species. One commenter 
stated that non-federal applicants should be allowed to satisfy the PCN 
requirement by demonstrating that ESA section 7 consultation has 
already been satisfactorily completed.
    Under paragraph (c) of general condition 18, and 33 CFR 
330.4(f)(2), PCNs are required if any listed species or designated 
critical habitat might be affected by the proposed NWP activity or is 
in the vicinity of the proposed NWP activity, or if the proposed NWP 
activity is located in designated critical habitat. The district 
engineer reviews the PCN and determines whether ESA section 7 
consultation is required, because under section 7(a)(2) of the ESA, 
federal agencies are responsible for ensuring that actions they 
authorize are not likely to jeopardize the continued existence of 
listed species, or destroy or adversely modify designated critical 
habitat. The prospective permittee does not decide whether ESA section 
7 consultation is required for NWP activities; that is the Corps' 
responsibility. The prospective permittee's responsibility is to submit 
a PCN to the district engineer when there is a possibility that the 
proposed NWP activity might affect listed species or designated 
critical habitat. We acknowledge that the requirements of general 
condition 18 will result in more PCNs for listed species that have 
large ranges, but those requirements are necessary to comply with ESA 
section 7(a)(2). A PCN threshold of 10 river miles within the location 
of ESA-listed species would not be an effective PCN threshold, 
especially for mobile listed species. As discussed below, we have added 
a new paragraph (f) to general condition 18 to allow ESA compliance 
through a valid ESA section 10(a)(1)(B) incidental take permit. If the 
applicant does not have a valid ESA section 10(a)(1)(B) incidental take 
permit, and the proposed NWP activity may affect listed species or 
designated critical habitat, then the Corps is required to conduct ESA 
section 7 consultation.
    A few commenters recommended that an ESA section 7 consultation 
should be completed in 45 days or less after the date of receipt of a 
complete PCN. A few commenters stated that if the applicant cannot 
commence the NWP activity even if the 45-day review period has passed, 
unless the Corps makes a ``no effect'' determination or ESA section 7 
consultation is completed, this general condition places a burden on 
applicant. One of these commenters suggested that the Corps either 
adhere to the 45-day review period for complete PCNs or revise this 
general condition to state that these ESA section 7 consultations will 
take no more than 90 days. One commenter stated that for linear 
projects, the Corps should not issue NWP verifications for any 
crossings of waters of the United States until ESA section 7 
consultation is completed for those crossings that require section 7 
consultation. This commenter also said the general condition should 
prohibit the prospective permittee from beginning construction of the 
linear project until after those consultations are completed.
    If formal ESA section 7 consultation is required, there are 
timeframes that are mandated by section 7(b) of the ESA. The NWPs 
cannot change those timeframes. If informal ESA section 7 consultation 
is conducted, there are no timeframes for completion, but written 
concurrence from the U.S. FWS and/or NMFS is required before informal 
consultation is concluded. If the U.S. FWS or NMFS will not provide 
their written concurrence, or explicitly disagrees that the proposed 
activity ``may affect, is not likely to adversely affect'' listed 
species or critical habitat, then formal ESA section 7 consultation is 
necessary to fulfill the consultation requirements of ESA section 
7(a)(2). As stated in paragraph (c) of general condition 18, if the 
district engineer determines that the proposed NWP activity may affect 
listed species or designated critical habitat, the activity is not 
authorized by NWP until the district engineer completes ESA section 7 
consultation or determines that the

[[Page 1956]]

proposed NWP will have ``no effect'' on listed species or designated 
critical habitat.
    District engineers have discretion in timing the issuance of NWP 
verifications for NWP activities that require PCNs. Linear projects 
often have crossings that require PCNs and crossings that do not 
require PCNs. For those linear projects, the PCN must also identify the 
use of NWP(s), regional general permit(s), or individual permit(s) to 
authorize other separate and distant crossings that require DA 
authorization (see paragraph (b)(4) of general condition 32). If some 
or all of the other separate and distance crossings are authorized by 
NWP without a requirement to submit a PCN (and they do not trigger the 
PCN requirements in paragraph (c) of general conditions 18 or 20, or 
other general conditions), then those activities are authorized by NWP 
unless the district engineer exercises his or her authority at 33 CFR 
330.5(d) to suspend or revoke those NWP authorizations. There are also 
likely to be substantial segments of linear projects that are sited in 
uplands over which the Corps has no control and responsibility. The 
entity constructing the linear project can begin construction in the 
uplands prior to receiving the NWP verification or other DA 
authorizations.
    Several commenters said they support allowing district engineers to 
add species-specific conditions to NWP verifications. One commenter 
asked whether district engineers would add species-specific conditions 
to the NWP itself or to the NWP verification letters. One commenter 
stated that Corps districts should not be allowed to add activity-
specific conditions to NWPs when there are regional conditions related 
to the protection of listed species.
    District engineers have the authority to modify NWPs by adding 
conditions to the NWP authorization (see 33 CFR 330.5(d)). This 
includes conditions to protect listed species and designated critical 
habitat. The conditions are written in the NWP verification letter, but 
they apply to the NWP authorization. In their NWP verification letters, 
district engineers may reference regional conditions or add those 
regional conditions to the NWP authorization to ensure that the 
permittee is aware of those conditions and to make those conditions 
easier to enforce.
    One commenter said that the Corps is required to seek concurrence 
from the U.S. FWS and/or NMFS for any ``no effect'' determination. One 
commenter voiced support for using regional programmatic consultations 
to comply with section 7 of the ESA. A few commenters suggested that 
the Corps develop an informational guidance document and Web site 
dedicated to region-specific listed species under the jurisdiction of 
U.S. FWS, similar to what was developed by the NMFS.
    Federal agencies are not required to seek concurrence from the U.S. 
FWS or NMFS for their ESA section 7 ``no effect'' determinations (see 
page 3-12 of the 1998 Endangered Species Consultation Handbook issued 
by the U.S. FWS and NMFS). For the 2017 NWPs, we plan on developing a 
general information guidance document to assist NWP users in complying 
with general condition 18. This document will be posted on the Corps 
Headquarters regulatory program Web site at: http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/.
    One commenter recommended changing this general condition to 
require non-federal applicants to submit a list of endangered and 
threatened species and designated critical habitat locations for the 
subject county in which the proposed NWP activity will occur, 
especially for NWPs 3, 12, 13, 14, 21, 39, 44, and 48.
    Paragraph (c) of this general condition requires a non-federal 
permittee to submit a PCN if any listed species or designated critical 
habitat might be affected or is in the vicinity of the proposed NWP 
activity, or if the proposed NWP activity is located in designated 
critical habitat. Other activities authorized by other NWPs might 
trigger the PCN requirement in paragraph (c), so we will not modify 
this general condition to focus on the eight NWPs identified by the 
commenter.
    One commenter said that the Corps should include the entire linear 
project in its action area instead of limiting the action area to the 
crossings of waters of the United States. This commenter asserted that 
the Corps' approach for ESA compliance for linear projects does not 
comply with the ESA. One commenter stated that compensatory mitigation 
should be required for unavoidable adverse impacts to federally-listed 
species when NWP activities use treated wood below the water line. One 
commenter said that the Corps must conduct an activity-specific NEPA 
analysis when it implements an incidental take statement as a condition 
of the Corps' NWP verification and that the Corps' implementation of 
the incidental take statement should cover the entire linear project, 
not just crossings of waters of the United States.
    The U.S. FWS's and NMFS's ESA section 7 regulations at 50 CFR 
402.02 define the term ``action area'' as ``. . . all areas to be 
affected directly or indirectly by the Federal action and not merely 
the immediate area involved in the action.'' When the Corps initiates 
ESA section 7 consultation on proposed activity that it determines 
``may affect'' listed species or designated critical habitat, it 
consults on the direct and indirect effects caused by the proposed NWP 
activity. In paragraph (a) of this general condition, we define the 
terms ``direct effects'' and ``indirect effects.'' Indirect effects can 
be some distance from the direct effects of the proposed NWP activity. 
The Corps' approach to conducting ESA section 7 consultations for 
linear projects complies with the ESA. Section 7(a)(2) consultations 
for linear projects may include the effects of interdependent and 
interrelated activities. Interrelated and interdependent activities are 
not federal actions, because they are not authorized, funded, or 
carried out by the Corps or other federal agency. Including 
interrelated and interdependent activities in a formal ESA Section 7 
consultation and biological opinion does not grant the Corps any 
authority to regulate those activities and their effects on listed 
species and critical habitat. Therefore, the Corps does not have the 
legal authority to enforce conditions that the U.S. FWS and/or NMFS 
might impose on those interrelated and interdependent activities in an 
incidental take statement in a biological opinion. The FWS and NMFS 
would be responsible for enforcing those provisions of the incidental 
take statement that apply to the upland activities outside of the 
Corps' jurisdiction.
    District engineers will determine on a case-by-case basis whether 
compensatory mitigation is required for unavoidable adverse impacts to 
federally-listed species. The Corps only adopts and incorporates those 
provisions of an incidental take statement that apply to the actions 
authorized by the Corps. If the incidental take statement in a 
biological opinion has provisions that apply to activities in upland 
areas outside of the Corps' action areas for linear projects, where the 
Corps does not have the authority to control those upland activities, 
the Corps will not incorporate those provisions in its NWP 
authorization. The U.S. FWS and NMFS can use their authorities to 
enforce provisions of the incidental take statement that apply to 
upland linear project segments that are outside of the

[[Page 1957]]

Corps' control and responsibility. From the Corps' perspective, those 
upland linear project segments are not federal actions, and therefore 
the Corps is not responsible for preparing NEPA documents for those 
actions.
    Several commenters recommended using Habitat Conservation Plans to 
streamline compliance with this general condition if the prospective 
permittee has been issued an ESA section 10 permit that also authorizes 
incidental take that may result from the proposed NWP activity. Several 
commenters said that PCNs should not be required for non-federal 
permittees when their ``take'' of listed species is authorized by ESA 
section 10 permits and is addressed through HCPs with incidental take 
statements. A few commenters said that a non-federal permittee should 
be able to proceed with the proposed NWP activity 15 days after 
providing the district engineer with the ESA section 10(a)(1)(B) 
incidental take permit and HCP. One commenter said the PCN requirement 
of this general condition should be satisfied through a programmatic 
notification submitted to the district engineer, if more than one 
activity to be authorized by NWP has been the subject of a prior ESA 
section 7 consultation.
    We have added a new paragraph (f) to this general condition, to 
cover circumstances in which the non-federal permittee has a valid ESA 
section 10(a)(1)(B) incidental take permit and approved Habitat 
Conservation Plan for a project or group of projects that includes the 
proposed NWP activity. A group of projects may be covered by an ESA 
section 10(a)(1)(B) and large-scale (e.g., county) Habitat Conservation 
Plan. Whenever the U.S. Fish and Wildlife Service or the National 
Marine Fisheries Service issues an ESA section 10(a)(1)(B) incidental 
take permit, they conduct an intra-Service consultation under ESA 
section 7(a)(2). The intra-Service ESA section 7(a)(2) consultation 
conducted for the ESA section 10(a)(1)(B) permit and Habitat 
Conservation Plan will include their opinion whether the proposed 
project or group of projects 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. We 
believe that adding this paragraph to general condition 18 reduces 
duplication and also fulfills the Corps' obligations under ESA section 
7(a)(2). The district engineer will coordinate with the FWS and/or NMFS 
as appropriate to determine whether the agency that issued the ESA 
section 10(a)(1)(B) incidental take permit considered the proposed NWP 
activity and the associated incidental take in its internal ESA section 
7 consultation for that ESA section 10(a)(1)(B) permit.
    We cannot eliminate the PCN requirement for non-federal permittees 
that is established by 33 CFR 330.4(f)(2). The PCN requirement is 
necessary to allow the district engineer to determine, after 
coordinating with the agency that issued the ESA section 10(a)(1)(B) 
incidental take permit (i.e., the FWS and/or NMFS), whether the ESA 
section 10(a)(1)(B) incidental take permit and the internal ESA section 
7 consultation for that incidental take permit covers the proposed NWP 
activity and its anticipated incidental take. The district engineer 
should respond to the complete PCN to notify the non-federal applicant 
whether the ESA section 10(a)(1)(B) permit covers the proposed NWP 
activity or whether additional ESA section 7(a)(2) consultation is 
necessary, to ensure from the Corps' perspective, that the proposed NWP 
activity is not likely to jeopardize the continued existence of 
endangered or threatened species or result in the destruction or 
adversely modification of designated critical habitat. We also cannot 
state in the revised general condition that the prospective permittee 
can proceed with the NWP activity within 15 days of providing the 
district engineer with a copy of the ESA section 10(a)(1)(B) incidental 
take permit and Habitat Conservation Plan, because district engineers 
have 45-days to review complete PCNs and there are other exceptions to 
the 45-day review period. For example, if the proposed NWP activity is 
determined by the district engineer to have the potential to cause 
effects to historic properties, consultation will be required to 
fulfill the requirements of section 106 of the National Historic 
Preservation Act. Activities authorized by NWPs 21, 49, and 50 require 
written verifications before proceeding with the authorized work. We 
cannot replace the PCN requirement individual NWP activities with a 
programmatic notification, because each proposed NWP activity needs to 
be evaluated to determine if ESA section 7 consultation is required.
    One commenter expressed concern that the requirements of this 
general condition result in ESA section 7 consultations occurring in 
the absence of a real potential for listed species conflicts. One 
commenter said that ESA section 7 consultations should only occur if 
the site for the proposed activity has an occurrence of listed species 
or the site is located in designated critical habitat. One commenter 
stated that the requirements of general condition 18 should only apply 
to activities in jurisdictional areas that might affect endangered 
species.
    For a non-federal permittee, this general condition requires a PCN 
if any listed species or designated critical habitat might be affected 
or is in the vicinity of the proposed NWP activity, or if the proposed 
NWP activity is located in designated critical habitat. The district 
engineer will review the PCN to determine if the proposed NWP activity 
may affect listed species or designated critical habitat and thus 
require ESA section 7 consultation. If the district engineer determines 
the proposed NWP activity will have no effect on listed species or 
designated critical habitat, he or she will issue the NWP verification 
letter if the proposed activity complies with all other applicable 
terms and conditions of the NWP and will result in no more than minimal 
adverse environmental effects. When making an effect determination for 
the purposes of ESA section 7, the district engineer considers the 
direct and indirect effects caused by the proposed NWP activity. An NWP 
activity conducted in jurisdictional waters and wetlands can have 
indirect effects on listed species or designated critical habitat 
outside of those jurisdictional waters and wetlands, and thus require 
the district engineer to conduct ESA section 7 consultation.
    This general condition is adopted with the modifications discussed 
above.
    GC 19. Migratory Birds and Bald and Golden Eagles. We proposed to 
modify this general condition to state that the permittee is 
responsible for ensuring that his or her action complies with the 
Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act, 
instead of stating that the permittee is responsible for obtaining any 
``take'' permits from the U.S. Fish and Wildlife Service. There may be 
situations where such ``take'' permits are not required and compliance 
with these acts may be achieved through other means.
    Several commenters stated their support for the proposed 
modification. Two commenters said that the proposed modification will 
increase burdens on applicants and create delays in the NWP 
verification process. This general condition does not require any 
action by district engineers and will not delay their reviews of PCNs 
and voluntary requests for NWP verifications. Permittees are 
responsible for contacting the local office of the U.S. Fish and 
Wildlife Service to determine if they need to take action to reduce 
impacts to migratory birds or bald or golden eagles, or obtain 
incidental take permits under these two laws.

[[Page 1958]]

    This general condition is adopted as proposed.
    GC 20. Historic Properties. Parallel with the proposed 
modifications of paragraph (b) of general condition 18, we also 
proposed to modify paragraph (b) of general condition 20 to state that 
federal permittees only need to submit documentation of their 
compliance with section 106 of the National Historic Preservation Act 
(NHPA) if the proposed NWP activity requires pre-construction 
notification because of other terms and conditions, including regional 
conditions imposed by division engineers.
    One commenter asked how district engineers will determine if NWP 
activities will affect historic properties and who is expected to 
satisfy the requirements of section 106 of the NHPA. One commenter 
recommended revising paragraph (a) as follows: ``In cases where the 
district engineer is notified, or determines based on scoping performed 
in accordance with 36 CFR 800.4(a), that the activity may affect 
properties listed, or eligible for listing, in the National Register of 
Historic Places, the activity is not authorized until the district 
engineer finds that the requirements of Section 106 of the National 
Historic Preservation Act (NHPA) and its implementing regulations (36 
CFR part 800) have been satisfied.''
    District engineers will review PCNs and determine whether proposed 
NWP activities have the potential to affect historic properties. If the 
district engineer determines that the proposed NWP activity has no 
potential to cause effects on historic properties, section 106 
consultation is not required. If the district engineer determines that 
the proposed NWP activity will result in either ``no historic 
properties affected,'' ``no adverse effects,'' or ``adverse effects,'' 
he or she will conduct NHPA section 106 consultation with the 
appropriate consulting parties. The NWPs, via the requirements of 
general condition 20, provide general guidance on historic properties 
and compliance with NHPA section 106, but further details on the 
section 106 process are provided in other Corps regulations and 
guidance, and do not need to be included in the text of paragraph (a) 
of this general condition.
    Several commenters supported the proposed change to paragraph (b) 
regarding federal permittees' compliance with section 106 of the NHPA. 
One commenter suggested modifying paragraph (b) to state that if the 
district engineer identifies deficiencies in the federal permittee's 
section 106 compliance, then he or she will consult further with the 
federal agency and other parties to resolve those deficiencies. Several 
commenters stated that paragraph (b) exempts non-lead federal agencies 
from fulfilling their section 106 responsibilities. One commenter said 
that paragraph (b) results in the Corps designating another agency as 
the NHPA section 106 compliance lead without the agreement of the other 
agency. One commenter requested further clarification to address 
situations where no other federal lead agency has the responsibility.
    Federal permittees have an independent obligation to comply with 
section 106 of the NHPA. If an NWP activity that will be conducted by a 
federal permittee requires a PCN and the district engineer determines 
while reviewing the PCN that the federal permittee's section 106 
compliance documentation is insufficient, then he or she will notify 
the federal permittee that additional section 106 consultation may be 
necessary. Paragraph (b) of this general condition is not equivalent to 
a lead federal agency concept. The purpose of paragraph (b) is to avoid 
duplicative consultation efforts, because federal agencies have their 
own obligation to comply with NHPA section 106. When a federal 
permittee is conducting an NWP activity, it is either conducting the 
same undertaking as the Corps (i.e., the permitted activity), or a 
larger undertaking that involves other activities that the Corps does 
not have the authority to regulate. If there is no federal permittee, 
then paragraph (c) of this general condition would apply.
    One commenter recommended revising the fourth sentence of paragraph 
(b) as follows: ``If the appropriate documentation is not submitted, 
then additional consultation under section 106 may be necessary to 
fulfill the requirements of the NHPA and relevant regulations have been 
complied with.'' This commenter suggested adding the following sentence 
after the fourth sentence: ``If the district engineer identifies 
deficiencies, then the district engineer will consult further with the 
federal agency and other parties to resolve them.''
    The last sentence of paragraph (b) makes it clear that if there are 
deficiencies in the federal permittee's documentation of section 106 
compliance, it is the federal permittee's responsibility to address 
those deficiencies. The Corps is not required to conduct that 
additional consultation on behalf of the federal permittee.
    One commenter said that paragraph (c) should be modified to make it 
clear who is responsible for making an effect determination for the 
purposes of section 106 of the NHPA. Several comments stated that by 
referencing ``current procedures'' in paragraph (c) of this general 
condition, the Corps suggests to prospective permittees that compliance 
with the Corps' current regulations and guidance fulfills its section 
106 NHPA responsibilities. Several commenters recommended revising this 
general condition to require non-federal applicants to provide 
documentation in their PCNs from qualified professionals to state that 
standard procedures have been followed to identify historic properties. 
One commenter said that the third sentence in paragraph (c) should 
include ``designated tribal representative'' because not all federally 
recognized tribes have Tribal Historic Preservation Officers.
    We have modified paragraph (c) by adding two sentences to make it 
clear that it is the district engineer's responsibility to make section 
106 effects determinations: ``Section 106 consultation is required when 
the district engineer determines that the activity has the potential to 
cause effects on historic properties. The district engineer will 
conduct consultation with consulting parties identified under 36 CFR 
800.2(c) when he or she makes any of the following effect 
determinations for the purposes of section 106 of the NHPA: No historic 
properties affected, no adverse effect, and adverse effect.'' We are 
retaining the fourth sentence in paragraph (c) to refer to our current 
procedures for addressing the requirements of section 106 of the NHPA, 
which are Appendix C to 33 CFR part 325, the April 25, 2005, interim 
guidance in which we adapt the applicable provisions of 36 CFR part 800 
to augment Appendix C, and the January 31, 2007, interim guidance in 
which we provide further guidance on adapting the applicable provisions 
of 36 CFR part 800 to Appendix C.
    Modifying paragraph (c) to require non-federal applicants to 
provide documentation from qualified professionals goes beyond the 
``good faith effort'' required to identify historic properties for 
minor activities authorized by the NWPs. The magnitude and nature of 
the undertaking and the degree of federal involvement are 
considerations for determining what is required to identify historic 
properties (see 36 CFR 800.4(b)(1)), and for many NWP activities these 
are both minimal. For activities that have the potential to cause 
effects to historic properties, applicants often hire consultants to 
assist in the section 106 process. We have modified the third sentence 
of paragraph (c) to include ``designated

[[Page 1959]]

tribal representative'' as an option for assistance regarding 
information on the location of potential historic resources, consistent 
with 36 CFR 800.2(c)(2)(i)(B).
    Several commenters stated that this general condition does not 
provide sufficient guidance to non-federal applicants to ensure 
compliance with section 106 because the information requirements for 
PCNs are vague and set a low threshold. These commenters expressed 
concern that district engineers will not have sufficient information 
from applicants or may not receive PCNs at all. Several commenters 
stated that this general condition and its PCN requirements unlawfully 
delegates to non-federal entities the Corps' responsibility to comply 
with section 106 of the NHPA.
    We are not delegating responsibilities to comply with Section 106, 
but as a permitting agency we can require certain information from 
project proponents. This general condition requires prospective 
permittees to submit PCNs for proposed activities that might have the 
potential to cause effects to historic properties. In this general 
condition, we changed the word ``may'' to ``might'' to be consistent 
with the language in paragraph (c) of general condition 18, endangered 
species, because it serves a similar purpose. As with paragraph (c) of 
general condition 18, paragraph (c) of general condition 20 places the 
responsibility of determining whether NHPA section 106 is necessary. 
The district engineer will evaluate the PCN, and if he or she 
determines that the proposed NWP activity has the potential to cause 
effects to historic properties, he or she will initiate section 106 
consultation with the appropriate consulting parties. For the section 
106 consultation, the district engineer will make one of three effect 
determinations: ``no historic properties affected,'' ``no adverse 
effect,'' and ``adverse effect.''
    We have made changes to paragraphs (c) and (d) to more clearly 
articulate the district engineer's process for complying with NHPA 
section 106 for NWP activities undertaken by non-federal permittees. We 
have moved the second sentence from paragraph (d) to paragraph (c). We 
have also added two new sentences to paragraph (c). The first new 
sentence states that section 106 consultation is required when the 
district engineer determines the proposed activity has the potential to 
cause effects to historic properties. The second new sentence states 
that the district engineer will consult with consulting parties 
identified under 36 CFR 800.2(c) when he or she determines the proposed 
activity may result in ``no historic properties affected,'' ``no 
adverse effects'' on historic properties, or ``adverse effects'' on 
historic properties. We have also made some edits to the last sentence 
of paragraph (c) to provide additional clarity.
    At the beginning of the first sentence of paragraph (d), we added 
the phrase ``For non-federal permittees,'' to make it clear that 
paragraph (d) applies to non-federal permittees. In what is now the 
second sentence of paragraph (d), we deleted the phrase ``and will 
occur'' because if section 106 consultation is required, the district 
engineer will do that section 106 consultation.
    One commenter said that PCNs should be required for all NWP 
activities that involve ground disturbance. One commenter stated that 
this condition sets a lower threshold for requiring review than 
Appendix C to 33 CFR part 325 and should be revised. One commenter 
stated that general condition 20 and 32, and their reliance on 
compliance by permittees, often results in the Corps' failure to 
consult with federally recognized tribes in a government-to-government 
relationship.
    Requiring PCNs for all NWP activities that involve ground 
disturbance would result in many additional PCNs for activities that 
have no potential to cause effects to historic properties. The intent 
of paragraph (c) is to require non-federal permittees to submit PCNs 
for any proposed NWP activity that might have the potential to cause 
effects to historic properties. The PCN requirement gives district 
engineers the opportunity to make effect determinations for the 
purposes of complying with section 106 of the NHPA. General condition 
20 only addresses historic properties and the requirements of section 
106 of the NHPA. As discussed above, general condition 20 does not 
delegate the Corps' section 106 responsibilities to permittees. In 
addition, we have made substantial changes to general condition 17, 
tribal rights, to address the Corps' fiduciary responsibilities towards 
tribes, which extend beyond historic properties. General condition 17 
addresses tribal rights (including treaty rights), protected tribal 
resources, and tribal lands. District engineers will consult with 
tribes on NWP activities that have the potential to cause effects to 
historic properties of significance to those tribes.
    Two commenters said they support paragraph (e) and its 
implementation of section 110(k) for intentional adverse effects. One 
commenter noted that the NHPA was recodified and the citation to 
section 110(k) should be corrected to 54 U.S.C. 306113. We have revised 
the first sentence of paragraph (e) to refer to 54 U.S.C. 306113.
    Several commenters said that this general condition unlawfully 
limits the scope of the Corps' ``permit area.'' One commenter stated 
that 33 CFR part 325, Appendix C is not approved by the Advisory 
Council on Historic Preservation (ACHP) as a program alternative, as 
required by 36 CFR 800.14. This commenter said that Appendix C is an 
internal Corps process that does not fulfill the requirements of 
section 106 of NHPA. One commenter recommended that the Corps continue 
working with the ACHP in order to bring its regulations into compliance 
with the NHPA. One commenter stated that Appendix C violates tribal 
consultation requirements, and more importantly, meaningful 
consultation with tribes.
    General condition 20 does not use the term ``permit area.'' When 
evaluating PCNs, district engineers will determine the appropriate 
scope of analysis for the purposes of NHPA section 106 using its 
current procedures for addressing the requirements of that statute. The 
ACHP's regulations at 36 CFR 800.14(a) states that an ``agency official 
may develop procedures to implement section 106 and substitute them for 
all or part of subpart B of this part if they are consistent with the 
Council's regulations pursuant to section 110(a)(2)(E) of the act.'' 
Both 36 CFR 800.14(a) and NHPA section 110(a)(2)(E) state that a 
federal agency's program alternative has to be ``consistent'' with the 
ACHP's regulations. Neither of those provisions state that those 
program alternative have to be ``approved'' by the ACHP. The Corps 
complies with section 106 of the NHPA through Appendix C and the 
interim guidance documents April 25, 2005, and January 31, 2007. We 
continue to work with the ACHP on this matter. The 2005 and 2007 
interim guidance documents were issued to make the regulatory program's 
NHPA section 106 procedures consistent with the ACHP's regulations. The 
Corps complies with tribal consultation requirements and its fiduciary 
responsibilities to tribes through the Department of Defense American 
Indian and Alaska Native Policy and the Corps' November 1, 2012, Tribal 
Consultation Policy.
    Several commenters said that certain state departments of 
transportation have been assigned responsibilities by the Federal 
Highway Administration under the authority in 23 U.S.C. 327 to conduct 
compliance under section 7 of the Endangered Species Act. These 
commenters stated that this practice needs to be recognized in general 
condition 20 for historic properties, because these departments of

[[Page 1960]]

transportation are considered ``federal permittees'' and their own 
procedures apply for compliance with section 106. Several commenters 
indicated that some Corps districts re-coordinate with State Historic 
Preservation Officers that were already contacted by state 
transportation agencies during their review process.
    If a state agency is a department of transportation to which the 
Federal Highway Administration has assigned its responsibilities 
pursuant to 23 U.S.C. 327, then that state agency would be responsible 
for section 106 compliance under paragraph (b) of this general 
condition. We do not need to make any changes to the text of this 
general condition to recognize this assignment of authority. If a PCN 
is required, non-federal applicants, including state departments of 
transportation that have not been assigned authority under 23 U.S.C. 
327 are asked to provide any documentation which may expedite the 
review process for NHPA section 106. For NWP activities conducted by 
non-federal permittees, it is the Corps' responsibility to comply with 
the requirements of section 106.
    One commenter stated that reliance on general conditions 20 and 32, 
is not a substitute for activity-specific compliance with section 106 
of the NHPA. This commenter said that the Corps should conduct a 
section 106 review out prior to reissuing the NWPs. One commenter said 
that the general condition should state that the Corps is not obligated 
to delay issuance of an NWP verification until after an official 
agreement is obtained from a state.
    General condition 20 provides the means for activity-specific 
compliance with section 106 of the NHPA. General condition 32 describes 
the general PCN requirements for the NWPs. As discussed in another 
section of this final rule, we have determined that the issuance or 
reissuance of the NWPs by Corps Headquarters has no potential to cause 
effects to historic properties. The NWPs authorize activities over a 
five-year period, after they are issued and go into effect. When the 
Corps issues or reissues NWPs, there are no specific NWP activity sites 
identified; when the NWPs go into effect several weeks after they 
issued or reissued, they could potentially authorize activities in 
jurisdictional waters and wetlands anywhere in the United States. In 
other words, during the rulemaking process for the issuance or 
reissuance of the NWPs there are no specific historic properties on 
which to conduct NHPA section 106 consultation. General condition 20 
requires completion of NHPA section 106 consultations, and when section 
106 consultation is required, the Corps cannot issue an NWP 
verification letter until after the consultation has been completed.
    Several commenters requested clarification of how PCN requirements 
will be defined to promote a consistent and streamlined approach and a 
clearer understanding of general condition 20. Several commenters 
stated that the PCN review timeframe should be limited to 45 days, or a 
maximum of 90 days when it is necessary to complete section 106 
consultation. These commenters said that if the applicant has not 
gotten a response from the Corps within those timeframes, the applicant 
should be permitted to proceed with the NWP activity. One commenter 
said that the Corps should eliminate the open-ended review process for 
section 106 of the NHPA.
    For those NWP activities that require NHPA section 106 
consultation, we acknowledge that it will take longer for district 
engineers to issue NWP verifications because we have to provide 
sufficient time for consulting parties to provide comments on our ``no 
historic properties affected,'' ``no adverse effects,'' and ``adverse 
effect'' determinations. Compliance with section 106 of the NHPA is 
mandatory, not optional. General condition 20 states that if section 
106 consultation is required, the project proponent cannot conduct the 
NWP activity until section 106 consultation is completed. The review 
process for section 106 of the NHPA is not open-ended; it concludes 
after the applicable procedures are followed and the district engineer 
can make his or her decision on the NWP PCN.
    One commenter said that linear undertakings should not be segmented 
separately and reviewed as individual crossings. This commenter stated 
that, for linear projects, the Corps should include all areas where 
historic properties may be directly and indirectly affected by the 
undertaking, if any historic properties are present.
    For linear projects, where the crossings of waters of the United 
States involve discharges of dredged or fill material into waters of 
the United States and/or structures or work in a navigable waters of 
the United States, the undertakings for the purposes of section 106 of 
the NHPA are the crossings that require DA authorization. The Corps 
does not have the authority to regulate upland segments of linear 
projects, and therefore those upland segments are not undertakings for 
the purposes of section 106 of the NHPA. The ACHP's regulations at 36 
CFR 800.16(y) define ``undertaking'' as: ``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.'' By including ``activity'' in its definition of 
``undertaking,'' the ACHP's definition recognizes that federal agencies 
may not issue permits or licenses for entire projects, and those 
federal agencies might only issue permits or licenses for specific 
components of entire projects.
    For linear projects, from the Corps' perspective, the crossings of 
waters of the United States authorized by NWPs or other types of DA 
permits, are the undertakings. For those crossings that require DA 
authorization, district engineers consider the direct and indirect 
effects of those crossings on historic properties that are caused by 
the discharges of dredged or fill material into waters of the United 
States and/or structure or work in navigable waters of the United 
States. If the operation and maintenance of those linear projects do 
not involve activities that require DA authorization, then the Corps is 
not required to evaluate the effects of those operation and maintenance 
activities on historic properties. The Corps' scope of analysis for the 
purposes of section 106 of the NHPA is the same regardless of whether 
the activities regulated by the Corps are authorized by NWPs or other 
general permits, or by individual permits.
    This general condition is adopted with the modifications discussed 
above.
    GC 21. Discovery of Previously Unknown Remains and Artifacts. We 
did not proposed any changes to this general condition. One commenter 
expressed support for general condition 21, but requested that this 
condition require the permittee to cease work in the area of the 
discovery of the previously unknown historic, cultural, or 
archeological remains and artifacts. This commenter noted that the 
wording of this general condition only allows for recovery activities 
or eligibility determinations, while failing to address other types of 
measures that might be determined necessary to avoid, minimize, or 
mitigate adverse effects to historic properties. One commenter said 
that general condition 21 is not a substitute for compliance with 
section 106 of the NHPA in individual cases. This commenter asserted 
that in absence of a section 106 review process that is carried out 
prior to reissuance of the NWPs, the Corps fails to meet the 
requirements of 36 CFR part 800.
    General condition 21 requires permittees to avoid, to the maximum 
extent practicable, construction

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activities that may affect the remains and artifacts until coordinated 
has been completed. This condition permits construction activities to 
continue outside of the discovery, while protecting the area of the 
discovery until coordination is complete. If these remains and 
artifacts are determined, after NHPA section 106 consultation, to be 
historic properties, other types of measures to avoid, minimize, or 
mitigate adverse effects to those historic properties may be 
implemented on a case-by-case basis. The district engineer can ask the 
project proponent to stop work, but the Corps does not have the 
authority to require the project proponent to stop work in the event of 
the discovery of previously unknown historic, cultural, or 
archeological remains and artifacts.
    The purpose of this general condition is to address previously 
unknown remains and artifacts that are revealed during while the 
authorized NWP activity is being conducted. If the artifacts or remains 
were known at the time the district engineer reviewed the PCN or 
voluntary request for NWP verification, he or she would have made an 
eligibility determination, and if necessary, conducted NHPA section 106 
consultation. Section 106 consultation was either not done because the 
remains or artifacts were unknown at the time the NWP PCN or voluntary 
request for NWP verification was being evaluated by the district 
engineer, or section 106 consultation was done for known historic 
properties included in, or eligible for inclusion in, the National 
Register of Historic Places. When the discovery of the previously 
unknown remains and artifacts are reported to the district engineer, he 
or she will initiate federal, tribal, and state coordination to 
determine whether the artifacts or remains warrant a recovery effort or 
if the site is eligible for listing in the National Register of 
Historic Places. Section 106 consultation will be conducted when 
necessary for these discoveries. General condition 21 is not a 
substitute for section 106 consultation.
    This general condition is adopted as proposed.
    GC 22. Designated Critical Resource Waters. We did not propose any 
changes to this general condition, except to add proposed new NWP B to 
paragraph (b). We did not receive any comments on this general 
condition. Since we are issuing proposed new NWP B as NWP 54, we have 
added NWP 54 to paragraph (b).
    This general condition is adopted with the modification discussed 
above.
    GC 23. Mitigation. We proposed to modify the opening paragraph of 
this general condition and paragraph (b) to clarify that mitigation can 
be required by district engineers to ensure that activities authorized 
by NWPs will result in no more than minimal individual and cumulative 
adverse environmental effects. Also, we proposed to modify paragraph 
(d) to state that compensatory mitigation for stream losses should be 
provided through rehabilitation, enhancement, or preservation, to be 
consistent with 33 CFR 332.3(e)(3), which states that streams are 
difficult-to-replace resources. In paragraph (e), we proposed to modify 
the first sentence to state that compensatory mitigation provided 
through riparian areas can be accomplished by restoration, enhancement, 
or maintenance of those areas. In addition, we proposed to modify 
paragraph (f)(1) to state that if the district engineer determines 
compensatory mitigation is required for the proposed NWP activity, the 
preferred mechanism for providing compensatory mitigation is either 
mitigation bank credits or in-lieu credits. In the June 1, 2016, 
proposed rule we also requested comment on ways to improve how 
compensatory mitigation conducted under the NWP program is implemented 
to offset direct, indirect, and cumulative effects.
    Several commenters said that the Corps should only require 
compensatory mitigation for activities that require individual permits. 
Many commenters said that project proponents should not be allowed to 
use compensatory mitigation to reduce the impacts of their activities 
to qualify for NWP authorization. Several commenters expressed support 
for allowing applicants an option to prepare a mitigation plan to 
reduce adverse environmental effects to no more than minimal to qualify 
for NWP authorization. One commenter stated that district engineers 
should continue to be allowed flexibility in determining when 
compensatory mitigation is to be required for NWP activities, 
especially when many aquatic resources are already heavily degraded.
    The Corps' regulations at 33 CFR 330.1(e)(3) state that district 
engineers can require mitigation to ensure that activities authorized 
by NWPs result in no more than individual and cumulative adverse 
environmental effects. Under the procedure in 33 CFR 330.1(e)(3), 
district engineers offer prospective permittees the opportunity to 
submit mitigation proposals to reduce the adverse environmental effects 
caused by NWP activities. The mitigation required under the authority 
of 33 CFR 330.1(e)(3) can be compensatory mitigation, but it can also 
be additional on-site avoidance and minimization of adverse impacts to 
jurisdictional waters and wetlands. District engineers have the 
discretion to determine when compensatory mitigation is to be required 
for NWP activities, and consider the degree of functions being 
performed by the jurisdictional waters and wetlands that will be 
adversely affected by the NWP activities (see paragraph 2 of Section D, 
District Engineer's Decision).
    One commenter stated that compensatory mitigation should only be 
required for impacts to jurisdictional waters. One commenter suggested 
that compensatory mitigation should not be required for restoration 
activities. One commenter said that the reference to the aquatic 
environment in general condition 23 should be retained.
    It is implicit in general condition 23 that compensatory mitigation 
is only required for NWP activities that impact jurisdictional waters 
and wetlands. However, under general condition 32 a complete PCN 
requires a delineation of wetlands, other special aquatic sites, and 
other waters, and some of those wetlands, other special aquatic sites, 
and other waters might not be subject to Clean Water Act jurisdiction. 
Therefore, if compensatory mitigation is required for a proposed NWP 
activity, and there was no approved jurisdictional determination issued 
for the project site, there may be occasions where compensatory 
mitigation was required for impacts to waters and wetlands, where some 
of those waters and wetlands might not be subject to Clean Water Act 
jurisdiction. If a project proponent wants an approved jurisdictional 
determination for a parcel where he or she might be proposing an NWP 
activity, the project proponent should request and receive that 
approved jurisdictional determination prior to submitting a PCN for the 
proposed NWP activity.
    In general, compensatory mitigation is not required for restoration 
activities. In NWP 27, which authorizes aquatic habitat restoration, 
enhancement, and establishment activities, there is a provision that 
states that compensatory mitigation is not required for activities 
authorized by that NWP because they result in net increases in aquatic 
resource functions and services. We added a similar provision to new 
NWP 53, which authorizes the removal of low-head dams to restore rivers 
and streams and improve public safety. The NWP regulations, as well as 
section 404(e) of the Clean Water Act, refer to adverse environmental 
effects, so mitigation for NWP activities is

[[Page 1962]]

intended to help ensure that activities authorized by NWPs cause no 
more than minimal adverse environmental effects.
    One commenter stated that compensatory mitigation should be 
required for all unavoidable impacts to wetlands, special aquatic 
sites, and all stream types (ephemeral, intermittent and perennial). 
One commenter said that mitigation should only be completed on-site to 
better compensate for the loss at that location. A few commenters 
expressed their support for maintaining existing thresholds for 
compensatory mitigation requirements.
    Compensatory mitigation is only required when necessary to ensure 
that activities authorized by NWPs result in no more than minimal 
individual and cumulative adverse environmental effects. Avoidance and 
minimization are other forms of mitigation that may also result in NWP 
activities causing no more than minimal adverse environmental effects. 
Under the sequence articulated in 33 CFR 330.1(e)(3), the district 
engineer first evaluates the PCN and determines whether the proposed 
activity will cause no more than minimal adverse environmental effects. 
If the district engineer determines the proposed activity will result 
in more than minimal adverse environmental effects, he or she will 
offer the project proponent the opportunity to submit a mitigation 
proposal to reduce the adverse environmental effects so that they are 
no more than minimal, individually and cumulatively. If the district 
engineer determines the mitigation proposal will reduce the adverse 
environmental effects, so that the net adverse environmental effects 
are no more than minimal, he or she will add conditions to the NWP 
authorization to require the project proponent to implement the 
mitigation proposal. If the district engineer determines that the 
mitigation proposal will not reduce the adverse environmental effects 
so that they are no more than minimal, he or she will exercise 
discretionary authority and instruct the project proponent on how to 
apply for an individual permit. On-site compensatory mitigation is 
often not an ecologically effective means of providing compensatory 
mitigation for impacts to jurisdictional wetlands because hydrologic 
conditions on the project site are likely to have been altered as a 
result of the permitted activity (NRC 2001). In the 2008 mitigation 
rule (33 CFR part 332), there is a framework for evaluating 
compensatory mitigation options to reduce risk and uncertainty in 
compensatory mitigation decision-making (see 33 CFR 332.3(a) and (b)). 
In this general condition, we have not made any changes to the 
compensatory mitigation thresholds for the NWPs.
    One commenter said that the Corps should require all applicants to 
take all practicable steps to avoid and minimize adverse impacts. 
Paragraph (a) requires permittees to design their NWP activities to 
avoid and minimize adverse effects, including both temporary and 
permanent adverse effects, to the maximum extent practicable on the 
project site.
    One commenter said that mitigation measures should be required for 
losses of streams and open waters, including mitigation measures to 
improve floodplain connectivity and to provide flood storage. Another 
commenter stated that mitigation should be required for impacts to 
native aquatic vegetation such as eelgrass and kelp. A few commenters 
said that preservation of high quality aquatic resources should be a 
priority option for mitigation.
    District engineers have the authority to require mitigation for 
losses of streams and other open waters (see paragraphs (d) and (e) of 
this general condition). That mitigation may result in the restoration 
of floodplain connectivity and the provision of one or more floodplain 
functions. District engineers also have the discretion to require 
compensatory mitigation for impacts to vegetated estuarine and marine 
habitats that are caused by NWP activities. We agree that preservation 
can be used to provide compensatory mitigation, as long as the 
preservation proposal complies with 33 CFR 332.3(h).
    Many commenters said that the \1/10\-acre threshold for wetland 
mitigation should be retained. One commenter suggested increasing the 
threshold for requiring wetland compensatory mitigation to one acre. 
Many commenters said that wetland compensatory mitigation should not be 
required if wetland fills are unavoidable. One commenter stated that 
district engineers should not be allowed to waive the wetland 
compensatory mitigation requirement.
    We have retained the \1/10\-acre threshold for requiring wetland 
compensatory mitigation for wetland losses, with the district 
engineer's discretion to waive that compensatory mitigation requirement 
or require wetlands compensatory mitigation for wetland losses of less 
than \1/10\-acre. For many NWP activities, wetland losses authorized by 
NWP result in no more than minimal individual and cumulative adverse 
environmental effects without the need to require wetland compensatory 
mitigation. The NWPs authorize unavoidable impacts to wetlands, and 
wetland compensatory mitigation is sometimes necessary to ensure that 
NWP activities result in no more than minimal adverse environmental 
effects.
    One commenter stated that stream mitigation should only be required 
if it is practicable. One commenter recommended requiring compensatory 
mitigation for all losses of stream beds. One commenter said that 
compensatory mitigation should not be allowed to reduce adverse impacts 
of losses of stream bed. One commenter suggested establishing a 
threshold of 500 linear feet for requiring stream compensatory 
mitigation. One commenter suggested that paragraph (d) should state 
that the district engineer may require stream mitigation, instead of 
stating that the district engineer ``should'' require stream 
mitigation. A few commenters stated that the Corps should not require 
compensatory mitigation to offset all losses of stream bed. Several 
commenters said that compensatory mitigation should not be required for 
losses of intermittent or ephemeral streams. One commenter said that 
stream creation or establishment should be acceptable compensatory 
mitigation. One commenter asked which types of projects can be done to 
mitigate for the loss of stream length.
    Similar to wetland compensatory mitigation, compensatory mitigation 
for losses of stream bed is only required when district engineers 
determine such compensatory mitigation is necessary to ensure that 
activities authorized by NWPs result in no more than minimal individual 
and cumulative adverse environmental effects. Stream mitigation can 
reduce the adverse environmental effects of NWP activities so that they 
are no more than minimal. District engineers have the discretion to 
require compensatory mitigation for losses of perennial, intermittent, 
and ephemeral streams. In general, stream compensatory mitigation 
should be accomplished through rehabilitation, enhancement, and 
preservation because the Corps' regulations consider streams to be 
difficult-to-replace aquatic resources (see 33 CFR 332.3(e)(3)). We 
have added the phrase ``if practicable'' to the last sentence of 
paragraph (d) to state that stream rehabilitation, enhancement, or 
preservation activities should be practicable. Stream compensatory 
mitigation for NWP activities should not be provided through 
establishment/creation approaches because establishment/creation 
activities have not been

[[Page 1963]]

demonstrated to effectively provide stream ecological functions.
    Stream restoration and enhancement can be done using a variety of 
techniques, such as dam removal and modification, culvert replacement 
or modification, fish passage structures when connectivity cannot be 
restored or improved by dam removal or culvert replacement, levee 
removal or setbacks, reconnecting floodplains and other riparian 
habitats, road removal, road modifications, reducing sediment and 
pollution inputs to streams, replacing impervious surfaces with 
pervious surfaces, restoring adequate in-stream or base flows, 
restoring riparian areas, fencing streams and their riparian areas to 
exclude livestock, improving in-stream habitat, recreating meanders, 
and replacing hard bank stabilization structures with bioengineering 
bank stabilization measures (Roni et al. 2013). Stream restoration 
projects should focus on restoring ecological processes, through 
activities such as dam removal, watershed best management practices, 
improving the riparian zone, and reforestation, instead of focusing on 
the manipulation the structure of the stream channel (Palmer et al. 
2014).
    One commenter said that the Corps should require use of a science-
based assessment tool that is capable of measuring lost stream 
functions caused by impacts and stream functions gained from through 
restoration and/or enhancement activities. One commenter stated that 
paragraph (d) would allow for continued, unchecked and unmitigated 
losses of open waters or streams that support salmon or shellfish.
    We agree that science-based assessment tools should be used to 
assess losses of stream function or condition caused by NWP activities, 
and to assess increases in stream function or condition resulting from 
stream compensatory mitigation projects. Science-based stream 
assessment tools can also be used develop ecological performance 
standards for stream compensatory mitigation projects. However, we 
recognize that those tools are not available in many areas of the 
country. Activities authorized by NWPs will result in some losses of 
streams and other waters that support salmon or shellfish, and district 
engineers have the discretion to require compensatory mitigation to 
ensure that the adverse environmental effects resulting from those 
activities are no more than minimal.
    One commenter stated that riparian mitigation requirements should 
be consistent with the jurisdiction where the mitigation is occurring. 
Another commenter said that the restoration of riparian areas should 
not be allowed as a compensatory mitigation option. One commenter 
stated that buffers should be wider than 25 feet.
    Riparian mitigation requirements are determined by district 
engineers on a case-by-case basis. District engineers can develop local 
guidelines for riparian mitigation. The restoration of riparian areas 
is important for rivers, streams, and other open waters, because those 
riparian areas provide substantial contributions to the ecological 
functions and services performed by rivers, streams, and other open 
waters. Paragraph (e) of general condition 23 allows district engineers 
to require riparian areas a little wider than 25 feet if there are 
documented water quality or habitat concerns. There are limits to the 
widths of riparian areas required by district engineers, because 
compensatory mitigation requirements for NWPs and other DA 
authorizations must be roughly proportional to the permitted impacts 
(see 33 CFR 320.4(r)(2) and 33 CFR 332.3(f)(1)). We have modified 
paragraph (e) to state that compensatory mitigation provided through 
riparian areas can be accomplished by maintenance/protection of those 
riparian areas. A well-developed, functional riparian does not need to 
be restored if it provides ecological functions in its present state.
    Several commenters said that paragraph (f)(1) of general condition 
23 should be modified to make it clear that the use of mitigation banks 
or in-lieu fee programs is not mandatory if they are impractical when 
compared to other mitigation alternatives. One commenter objected to 
the change in paragraph (f)(1) to establish a preference for the use of 
mitigation bank or in-lieu fee program credits to provide compensatory 
mitigation for NWP activities. One commenter said that the proposed 
modification of paragraph (f)(1) places mitigation banks and in-lieu 
fee programs on the same level, contrary to the 2008 mitigation rule. 
This commenter also said that permittees should be allowed to do 
permittee-responsible mitigation when it is justified. One commenter 
said that permittee-responsible mitigation remain a viable option, as 
it may be more ecologically and financially appropriate for some 
projects. One commenter said that the applicant should be allowed to 
propose any mitigation option he or she thinks is appropriate, instead 
of following the hierarchy in 33 CFR 332.3(b). One commenter expressed 
support for the mitigation hierarchy in 33 CFR 332.3(b). A few 
commenters object to the hierarchy of mitigation banks being the first 
consideration. One commenter said that the Corps should select the most 
environmentally preferable method for wetland mitigation, rather than 
using the hierarchy listed in the 2008 rule.
    As stated in proposed paragraph (f)(1), the use of mitigation bank 
and in-lieu fee program credits to provide compensatory mitigation for 
NWP activities is preferred, not required. This preference is based on 
the hierarchical framework for considering compensatory mitigation 
options for NWPs and other DA permits that is provided in 33 CFR 
332.3(b). That framework was developed to manage risk and uncertainty 
in aquatic resource compensatory mitigation projects. The proposed 
paragraph (f)(1) was also made in recognition of the higher risk and 
uncertainty associated with permittee-responsible mitigation, 
especially on-site permittee-responsible mitigation where changes to 
hydrology and other site characteristics caused by the permitted 
activity make it more difficult to achieve the intended objectives of a 
compensatory mitigation project (NRC 2001). As stated in the 2001 NRC 
report, third-party mitigation approaches such as mitigation banks and 
in-lieu fee programs have some advantages over permittee-responsible 
mitigation. Paragraph (f)(1) does not supersede the framework 
established in 33 CFR 332.3(b); it merely reflects Conclusion 5 in the 
2001 NRC report. Paragraph (f)(1) does not preclude the use of 
permittee-responsible mitigation, if such compensatory mitigation is 
approved by the district engineer after contemplating the 
considerations discussed in 33 CFR 332.3(a) and (b).
    One commenter stated that the proposed change to general condition 
23 is unclear as to whether a mitigation plan is required or not. This 
commenter said that proposed paragraphs (f)(3) and (f)(5) conflict with 
each other. Another commenter stated that proposed paragraphs (f)(1) 
and (f)(2) conflict with each other. One commenter said that the public 
should be involved in the approval process for mitigation plans.
    General condition 23 does not require submission of a mitigation 
plan unless the district engineer determines compensatory mitigation is 
required to ensure that the proposed NWP activity will result in no 
more than minimal individual and cumulative adverse environmental 
effects. If the prospective permittee proposes to use mitigation bank 
or in-lieu fee program credits to provide compensatory mitigation for 
the proposed NWP activity the mitigation plan only needs to provide the 
baseline

[[Page 1964]]

information and a description of the number of credits to be provided 
(see 33 CFR 332.4(c)(1)(ii)). General condition 32 does not require a 
mitigation plan for a complete PCN.
    We added a new paragraph (f)(2) to state that the amount of 
compensatory mitigation required by the district engineer must be 
sufficient to ensure that the authorized activity results in no more 
than minimal individual and cumulative adverse environmental effects. 
Paragraphs (f)(4) and (f)(6) of general condition 23 (paragraphs (f)(3) 
and (f)(5) in the proposed rule) do not conflict with each other. They 
are consistent with 33 CFR 332.4(c)(2)(ii), which addresses the 
preparation and approval process for mitigation plans for general 
permit activities. Paragraph (f)(4) describes the requirements for 
mitigation plans for permittee-responsible mitigation required for NWP 
activities. Paragraph (f)(6) reflects the flexibility in 33 CFR 
332.4(c)(2)(ii) in allowing elements of a compensatory mitigation 
project to be addressed through permit conditions instead of being 
addressed in the mitigation plan. We have modified paragraph (f)(3) 
(proposed paragraph (f)(2)) to apply this paragraph to permittee-
responsible mitigation, because mitigation bank credits and in-lieu fee 
program credits may not be explicitly linked to restoration activities. 
In addition, the review and approval of mitigation banks and in-lieu 
fee programs, as well as credit releases from approved mitigation banks 
and approved in-lieu fee project sites, undergo a rigorous review by 
the Corps and the other agencies participating in the interagency 
review process associated with mitigation banks and in-lieu fee 
programs. There is no public review process for the review of 
mitigation plans. The district engineer will review the proposed 
mitigation plan and determine whether it is sufficient for ensuring the 
NWP activity will cause no more than minimal adverse environmental 
effects.
    One commenter said that when a permittee is a public agency (e.g., 
a flood control district or county) and it is required to do permittee-
responsible mitigation, when the district engineer requires site 
protection he or she should acknowledge that the public agency can 
fulfill this obligation with public ownership or in fee easement over 
the property. One commenter stated that when a public entity conducts 
mitigation on public property, the site protection requirement be 
relaxed. One commenter said that, for a compensatory mitigation site, 
county ownership or a park designation should fulfill the site 
protection requirement.
    The Corps' compensatory mitigation regulations address site 
protection at 33 CFR 332.7(a) and those regulations allow a range of 
site protection options, including alternatives to more commonly used 
site protection instruments such as conservation easements and deed 
restrictions/restrictive covenants. For a permittee-responsible 
mitigation project conducted by a public agency or by a state or local 
government agency, site protection can be provided by agency ownership 
of the mitigation site, as long as that agency commits to managing and 
protecting the mitigation site including the aquatic resources and 
other natural resources on the property. The public agency may also 
provide site protection by purchasing an easement for the property used 
for the permittee-responsible mitigation project as long as that 
easement protects the aquatic resources and other resources on the site 
over other uses of the land. Section 332.7(a) states that for 
government property, ``long-term protection may be provided through 
federal facility management plans or integrated natural resources 
management plans.'' Other types of land management plans may also be 
acceptable approaches to protecting permittee-responsible mitigation 
sites on publicly-owned lands, and the district engineer should 
evaluate the public agency's proposed plan for protecting and managing 
the mitigation site, to determine if that proposed plan satisfies the 
requirements of 33 CFR 332.7(a). However, if the public agency or state 
or local government agency decides, in the future, that it has to or 
wants to use the mitigation site for other purposes, because of changes 
in statutes, regulations, or agency needs or missions, then the agency 
will be required to provide alternative compensatory mitigation (see 33 
CFR 332.7(a)(4)). In addition, the party responsible for providing the 
compensatory mitigation must notify the district engineer 60 days prior 
to taking any action that would void or modify the site protection 
instrument or site management plan (see 33 CFR 332.7(a)(3)).
    Several commenters requested a more thorough explanation of 
compensatory mitigation monitoring requirements for NWP activities. One 
commenter asked for guidance on the monitoring requirements for aquatic 
habitat rehabilitation, enhancement or restoration activities. This 
commenter stated that monitoring requirements should be commensurate 
with impacts.
    Monitoring requirements for compensatory mitigation projects are 
determined by district engineers on a case-by-case basis. General 
requirements for monitoring are provided at 33 CFR 332.6. Monitoring is 
required to ensure that the compensatory mitigation project site is 
meeting its performance standards, and to determine if measures such as 
remediation or adaptive management are necessary to ensure that the 
compensatory mitigation project is accomplishing its objectives. 
Monitoring requirements will vary, depending on the specific 
characteristics of the compensatory mitigation project, such as the 
compensatory mitigation mechanism (e.g., restoration, enhancement, 
establishment, or preservation), the type of aquatic resource being 
provided as compensatory mitigation (e.g., forested wetlands, perennial 
stream), and the ecosystem development characteristics of the 
compensatory mitigation project. Either the approved mitigation plan or 
permit conditions will specify the monitoring requirements for a 
particular compensatory mitigation project. Monitoring requirements are 
commensurate with the characteristics of the compensatory mitigation 
project, not the impacts authorized by NWP or other types of DA 
permits.
    One commenter stated that mitigation should always be at a 2:1 
ratio to ensure that more aquatic habitat is replaced. One commenter 
said that a national mitigation ratio be used for the NWPs.
    The amount of compensatory mitigation to be provided for an NWP 
activity is determined by the district engineer. Factors used to 
determine the amount of compensatory required by the district engineer 
are provided at 33 CFR 332.3(f)(2). Those factors include: The method 
of compensatory mitigation (e.g., rehabilitation), the likelihood of 
ecological success, differences between the functions lost at the 
impact site and the functions expected to be produced by the 
compensatory mitigation project, temporal losses of aquatic resource 
functions, the difficulty of restoring or establishing the desired 
aquatic resource type and its functions, and/or the distance between 
the affected aquatic resource and the compensation site. The rationale 
for the required amount of compensatory mitigation must be documented 
in the administrative record for NWP verification. A national 
mitigation ratio cannot be established for the entire country, because 
those decisions require case-by-case analysis by district engineers. 
The amount of compensatory mitigation necessary to offset impacts to 
jurisdictional waters or wetlands authorized by an NWP or other type of 
DA permit must be roughly proportional to the permitted impacts.

[[Page 1965]]

    One commenter said that off-site mitigation should not be allowed 
and on-site avoidance and minimization should be required instead. A 
few commenters stated that mitigation banking is a way to avoid 
alternatives analysis procedures.
    Off-site compensatory mitigation is an appropriate option for 
providing compensatory mitigation for NWP activities, as long as the 
off-site compensatory mitigation project is approved by the district 
engineer. Off-site compensatory mitigation includes off-site permittee-
responsible mitigation, mitigation banks, and in-lieu fee programs. 
Paragraph (a) of general condition 23 requires on-site avoidance and 
minimization to the maximum extent practicable for both permanent and 
temporary adverse effects caused by NWP activities. Compensatory 
mitigation requirements, including the use of mitigation banks to 
provide any required compensatory mitigation, are determined after the 
prospective permittee has complied with the on-site avoidance and 
minimization requirements in paragraph (a) of this general condition. 
Alternatives analyses are not required for NWP activities.
    Several commenters expressed support for not requiring compensatory 
mitigation for non-jurisdictional activities, such as tree clearing for 
overhead power lines that do not involve discharges of dredged or fill 
material into waters of the United States. One commenter requested 
examples of activities that are beyond the scope of the district 
engineer's authority or discretion to require compensatory mitigation.
    We have retained the provisions in paragraph (i) as proposed. 
Because the purpose of mitigation, including compensatory mitigation, 
in the NWP program is to reduce the adverse environmental effects 
caused by an NWP activity to ensure that they are no more than minimal, 
individually and cumulatively, compensatory mitigation requirements 
established by the district engineer must relate to the direct and 
indirect effects caused by the NWP activity. That would be the 
discharges of dredged or fill material in waters of the United States 
and/or the structures of work in navigable waters of the United States.
    Several commenters stated that compensatory mitigation for NWP 
activities is not effective in offsetting adverse impacts. One 
commenter stated that post-permit compensatory mitigation cannot be 
used to make the no more than minimal adverse environmental effects 
determination, because it is legally impermissible and because the 
Corps lacks sufficient evidence to conclude that mitigation will render 
the impacts caused by NWP activities to be no more than minimal. One 
commenter said that mitigation under the NWPs does not compensate for 
losses of functions and services, and instead results in adverse 
impacts. One commenter stated the Corps should establish and manage a 
database to understand the impact of the NWP program, including the 
effectiveness of mitigation actions.
    The restoration, enhancement, preservation, and in some 
circumstances, the establishment of aquatic resources has been 
demonstrated to increase or maintain ecological functions and services, 
which offset losses of ecological functions and services caused by 
activities authorized by NWPs and other types of DA permits. For 
difficult-to-replace aquatic resources, such as streams, bogs, and 
springs, compensatory mitigation should be provided through in-kind 
rehabilitation, enhancement, or preservation (see 33 CFR 332.3(e)(3)) 
because these types of aquatic resources cannot be established by 
manipulating uplands. When a district engineer receives a permittee-
responsible mitigation proposal from the applicant, he or she carefully 
evaluates that proposal to determine whether it will be ecologically 
successful and fulfill its objectives in providing certain aquatic 
resource functions and services. If the permittee-responsible 
mitigation project is approved, the district engineer requires 
monitoring to ensure that it is meeting its ecological performance 
standards and is developing into the target aquatic resource. If the 
permittee-responsible mitigation project is not meeting its ecological 
performance standards, the district engineer will work with the 
permittee to identify actions, including adaptive management, to make 
adjustments to the mitigation project so that it meets its objectives. 
If the permittee-responsible mitigation project fails, the permittee 
may be required to provide alternative compensatory mitigation.
    If the required compensatory mitigation is to be provided through 
mitigation bank or in-lieu fee program credits, oversight by the 
district engineer, with input from federal and state resource agencies 
and other agencies, helps ensure that mitigation banks and in-lieu fee 
projects produce the required amount and type of restored, enhanced, 
established, and preserved aquatic resources and other natural 
resources. Mitigation banks and in-lieu fee projects are required to 
have credit release schedules, which are linked to ecological 
performance standards and other requirements, to ensure that the 
mitigation bank or in-lieu fee project is meeting its objectives in 
providing the desired aquatic resources and functions and services. 
Monitoring and adaptive management are also required for mitigation 
banks and in-lieu fee projects.
    For the issuance or reissuance of the NWPs, the decision documents 
for those NWPs describe, in general terms, the mitigation measures 
taken for NWP activities to ensure they result in no more than minimal 
individual and cumulative adverse effects. That is a general discussion 
because of the wide variation of aquatic resource types across the 
country, the functions and services they provide, and the methods for 
restoring, enhancing, and in certain circumstances, establishing those 
aquatic resource. The decision documents also provide a general 
discussion of studies on aquatic resource restoration and enhancement 
that demonstrate that these activities can provide increases of aquatic 
resource functions. To fulfill the requirements of NEPA, the decision 
document includes an environmental assessment, with a mitigated finding 
of no significant impact. Mitigated findings of no significant impact 
are appropriate for fulfilling NEPA requirements (see the Council on 
Environmental Quality's January 14, 2011, guidance entitled 
``Appropriate Use of Mitigation and Monitoring and Clarifying the 
Appropriate Use of Mitigated Findings of No Significant Impact'').
    The Corps tracks authorized impacts and permittee-responsible 
mitigation in its Regulatory program automated information, ORM. The 
Corps tracks credits produced by approved mitigation banks and in-lieu 
fee programs in the Regulatory In-Lieu Fee and Banking Information 
System (RIBITS), which is available at: https://ribits.usace.army.mil/ribits_apex/f?p=107:2:
    One commenter stated that upland buffers should be accepted as 
compensatory mitigation for NWP activities. One commenter asked how 
district engineers assess indirect impacts to wetlands authorized by 
NWPs. One commenter asked when compensatory mitigation is to be 
required for temporary impacts. One commenter said that district 
engineers should not require any more stringent methods of compensatory 
mitigation than what is provided in the 2008 mitigation rule.
    Upland buffers can be used to provide compensatory mitigation for 
NWPs (see

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33 CFR 332.3(i)). District engineers can use rapid ecological 
assessment tools to assess indirect effects to wetland caused by 
activities authorized by NWPs. If rapid ecological assessment tools or 
other tools are not available or practical to use, then district 
engineers will use their judgement in evaluating those indirect 
impacts. Compensatory mitigation is required for temporary impacts when 
the district engineer determines such compensatory mitigation is 
necessary to ensure the NWP activity results in no more than minimal 
adverse environmental effects. Paragraph (f) of this general condition 
states that compensatory mitigation projects must comply with the 
applicable provisions of 33 CFR part 332, so the compensatory 
mitigation requirements for the NWP program are the same as for other 
types of DA permits.
    One commenter stated that compensatory mitigation requirements 
should be determined by district engineers, because they are familiar 
with the regional conditions and the mitigation needs of their 
geographic areas of responsibility. Several commenters stated that 
compensatory mitigation should be required after the 404(b)(1) 
Guidelines had been followed. One commenter said that the Corps should 
focus on a consistent nationwide criteria for when compensatory 
mitigation is required. One commenter said that compensatory mitigation 
is unnecessary and impractical for the vast majority of NWP activities. 
One commenter said that compensatory mitigation should be required for 
all losses of waters of the United States.
    Compensatory mitigation requirements for NWP activities are 
determined by district engineers on a case-by-case basis. The Corps 
complied with the 404(b)(1) Guidelines when it issued or reissued the 
NWPs. For a specific activity authorized by an NWP, a separate 
404(b)(1) Guidelines analysis is not required. There is a national 
standard for when compensatory mitigation required, and that standard 
is found in 33 CFR 330.1(e)(3), which was established in 1991 (see the 
November 22, 1991, issue of the Federal Register at 56 FR 59110). 
Approximately 90 percent of the activities authorized by NWP through 
written verifications issued by district engineers do not require 
compensatory mitigation (see Table 5 in U.S. Army Corps of Engineers 
and U.S. EPA (2015)). Compensatory mitigation is only required when 
necessary to ensure that NWP activities result in no more than minimal 
adverse environmental effects (see 33 CFR 330.1(e)(3)). If the district 
engineer reviews the PCN and determines that the NWP activity will 
cause no more than minimal adverse environmental effects and complies 
with all applicable terms and conditions, he or she will issue the NWP 
verification without requiring compensatory mitigation.
    One commenter suggested that the entire project should be 
considered when determining compensatory mitigation requirements. A few 
commenters said there should not be a threshold for requiring 
compensatory mitigation, but compensatory mitigation should be required 
regardless of the impact amount. One commenter objected to increasing 
compensatory mitigation requirements for the NWPs. One commenter said 
that compensatory mitigation requirements should be based on impacts to 
functions, not on a limit threshold.
    Compensatory mitigation must be ``directly related to the impacts 
of the proposal, appropriate to the scope and degree of those impacts, 
and reasonably enforceable'' (33 CFR 320.4(r)(2)). The term 
``proposal'' refers to the activity that requires DA authorization. The 
Corps does not have the authority to enforce permit conditions, 
including compensatory mitigation requirements, for activities it does 
not regulate. For the NWP program, the threshold for requiring 
compensatory mitigation is in 33 CFR 330.1(e)(3), and under that 
regulation compensatory mitigation is only required when necessary to 
ensure the authorized activity will cause no more than minimal 
individual and cumulative adverse environmental effects. The June 1, 
2016, proposed rule did not propose to increase compensatory mitigation 
requirements for the NWPs, but we did seek comments on how to improve 
compensatory mitigation in the NWP program (see 81 FR 35211). 
Compensatory mitigation requirements are based on the functions lost as 
a result of the NWP activity. For wetland losses greater than \1/10\-
acre, district engineers have the discretion to not require 
compensatory mitigation, if those wetland losses will result in no more 
than minimal adverse environmental effects without compensatory 
mitigation. District engineers also have discretion to require 
compensatory mitigation for losses of less than \1/10\-acre, such as 
when the wetlands lost as a result of the NWP activity are highly 
functional.
    Several commenters said that if a district engineer issues a 
written waiver of a linear foot limit or other NWP limit, then 
compensatory mitigation should not be required for the waiver because 
the district engineer already determined that the authorized activity 
results in no more than minimal adverse environmental effects because 
of best management practices and other minimization techniques. Another 
commenter stated that mitigation should always be required for 
activities that are authorized by a waiver. One commenter said that 
compensatory mitigation should not be required to receive a waiver. One 
commenter stated that if compensatory mitigation is required for a 
district engineer's waiver of the 300 linear foot limit for losses of 
intermittent or ephemeral stream bed, compensatory mitigation should 
only be required for the linear feet of losses of stream bed that 
exceed the 300 linear foot limit.
    For a district engineer to issue a waiver, it may be necessary to 
require compensatory mitigation so that the adverse environmental 
effects caused by the activity are no more than minimal, individually 
and cumulatively. The district engineer evaluates the waiver request, 
and if agency coordination is required for the waiver request, the 
agency comments to make the determination whether the adverse 
environmental effects will be no more than minimal. If the district 
engineer decides the adverse environmental effects will be more than 
minimal, he or she will offer the project proponent the opportunity to 
submit a mitigation plan to reduce the adverse environmental effects so 
that they are no more than minimal. If the district engineer determines 
the mitigation proposal will reduce the adverse environmental effects 
so that NWP authorization is appropriate, and add conditions to the NWP 
authorization to require the permittee to implement the mitigation 
proposal. If the district engineer decides the mitigation proposal will 
not sufficiently reduce the adverse environmental effects so that they 
are no more than minimal, he or she will exercise discretionary 
authority and require an individual permit. Therefore, whether a waiver 
request requires compensatory mitigation is at the discretion of the 
district engineer. The district engineer will decide how much 
compensatory mitigation is necessary to ensure that the NWP activity 
with the written waiver of the applicable NWP limit will cause no more 
than minimal individual and cumulative adverse environmental effects.
    Several commenters stated that when district engineers make 
compensatory mitigation decisions for NWP activities, they should take 
into consideration whether the affected waters are man-made or natural. 
One commenter said that mitigation should not be required

[[Page 1967]]

for man-made storm water conveyance systems. This commenter stated that 
if wetlands develop in these features and mitigation is required, the 
permittee should not be required to prepare a mitigation plan that 
fulfills the requirements of 33 CFR 332.4(c). One commenter suggested 
that compensatory mitigation requirements should be reduced when the 
regulatory requirements of another agency cause a linear transportation 
project to impact aquatic resources.
    District engineers can take into account the type of aquatic 
resource, and whether it is natural or man-made, when deciding if 
compensatory mitigation should be required. If the man-made stormwater 
conveyance systems are not waters of the United States under the 
current regulations and guidance for identifying waters of the United 
States, then mitigation should not be required for activities in those 
systems, especially if the Corps does not regulate those activities. 
The Corps determines, on a case-by-case basis, when compensatory 
mitigation is to be required for NWP activities in a linear 
transportation project, regardless of whether another agency's 
requirements precluded alternatives for that linear transportation 
project that would have avoided or minimized impacts to jurisdictional 
waters or wetlands.
    This general condition is adopted with the modifications discussed 
above.
    GC 24. Safety of Impoundment Structures. We did not propose any 
changes to this general condition and no comments were received. This 
general condition is adopted as proposed.
    GC 25. Water Quality. We did not propose any changes to this 
general condition and no comments were received. This general condition 
is adopted as proposed.
    GC 26. Coastal Zone Management. We did not propose any changes to 
this general condition and no comments were received. This general 
condition is adopted as proposed.
    GC 27. Regional and Case-by-Case Conditions. We did not propose any 
changes to this general condition. We did not receive any comments on 
it. This general condition is adopted as proposed.
    GC 28. Use of Multiple Nationwide Permits. We did not propose any 
changes to this general condition. One commenter said that combining 
NWPs should be prohibited. One commenter suggested adding regional 
general permits to this general condition. Two commenters recommended 
prohibiting the use of multiple NWPs and other DA permits that 
authorize numerous encroachments in close proximity to navigable 
waters. One of these commenters stated that regardless of whether 
project components are independent of one another, they are likely to 
cause cumulative impacts within the navigable waterway, and those 
impacts need to be evaluated together.
    The purpose of this general condition is to ensure that acreage 
limits are not exceeded when two or more NWPs are combined to authorize 
a single and complete project. When an NWP is combined with a regional 
general permit to authorize a single and complete activity, it is the 
district engineer's determination whether the adverse environmental 
effects will be no more than minimal. Both NWPs and regional general 
permits must comply with the same standard established under section 
404(e) of the Clean Water Act. When district engineers evaluate 
proposed NWP activities, they consider the cumulative effects of the 
use of those NWPs on a regional basis. They also consider the 
cumulative effects of activities authorized by their regional general 
permits, and may modify, suspend, or revoke their regional general 
permits when they determine those general permits are resulting in 
activities that have more than minimal cumulative adverse environmental 
effects. During the evaluation of applications for individual permits, 
district engineers conduct cumulative impact analyses to comply with 
NEPA requirements, if they are preparing environmental assessments or 
environmental impact statements. If the proposed activity requires an 
individual permit and involves discharges of dredged or fill material 
into waters of the United States, the district engineer will also 
conduct a cumulative effects analysis under the 404(b)(1) Guidelines.
    This general condition is adopted as proposed.
    GC 29. Transfer of Nationwide Permit Verifications. We did not 
propose any changes to this general condition and no comments were 
received. This general condition is adopted as proposed.
    GC 30. Compliance Certification. We proposed to modify this general 
condition to add a timeframe for submitting the completed certification 
document. The proposed modification states that the completed 
certification should be sent to the district engineer within 30 days of 
completing the authorized activity or the completion of the 
implementation of any required compensatory mitigation.
    Several commenters said they supported the proposed modification, 
and some suggested an extension to the 30-day timeframe. Two commenters 
stated that the 30-day timeframe is not long enough and should be 
extended to 90 days because permittees have internal reviews and need 
more time to carefully certify the compliance certification document. 
One of these commenters asked what is considered ``implementation'' of 
the compensatory mitigation project. One commenter said the proposed 
modification would provide important information to the Corps to ensure 
that the program is causing no more than minimal adverse environmental 
impacts. One commenter recommended assigning a timeframe to ensure the 
receipt of a compliance certification. One commenter agreed with the 
30-day timeframe but expressed concerns regarding what would happen if 
the due date is missed.
    We believe that 30 days is sufficient time for permittees to submit 
their compliance certifications to district engineers. These 
certifications should be simple statements that do not require much 
work to prepare. If the proposed 30-day period would be increased to 90 
days, it is likely that it would result in more permittees forgetting 
to submit their certifications. For the purposes of this general 
condition, implementation of the required compensatory mitigation 
refers to the completion of construction of the permittee-responsible 
mitigation project. If the permittee-responsible mitigation project is 
solely preservation of aquatic resources, then it would be the 
execution of the site protection mechanism and other required measures 
for the preservation compensatory mitigation. If mitigation bank or in-
lieu fee program credits will be used to fulfill compensatory 
mitigation requirements, the implementation refers to securing those 
credits. If the permittee fails to submit the compliance certification 
on time, there would be non-compliance with this general condition. The 
district engineer may take appropriate action to address that non-
compliance.
    One commenter stated that this general condition should be modified 
to state that the completed certification should be submitted within 30 
days of completing the authorized activity or completing the 
implementation of the required compensatory mitigation. One commenter 
said the 2012 general condition should be retained and require 
submission of the certification within 30 days of project completion. 
This commenter remarked that there is frequently a time lapse between 
completing the compensatory mitigation requirement and completing the 
NWP activity.
    In general, the required compensatory mitigation should be 
implemented in

[[Page 1968]]

advance of, or concurrent with, the authorized activity (see 33 CFR 
332.3(m)). However, if the district engineer allows the required 
compensatory mitigation to be constructed or otherwise implemented 
after the authorized activity occurs, then the compliance certification 
would have to be sent to the district engineers within 30 days of 
completing the required compensatory mitigation. In 2012, general 
condition 30 did not have a timeframe for submitting the compliance 
certification. That is why we proposed to add a timeframe so that the 
compliance certification process would no longer be open-ended with no 
due date. We have modified this general condition to add the phase 
``whichever occurs later'' to the end of the last sentence, to make it 
clear that the compliance certification must be submitted within 30 
days of whatever action occurs last. For example, if the permittee 
implements the required compensatory mitigation before conducting the 
NWP activity, the compliance certification would be required to be 
submitted to the district engineer within 30 days of the NWP activity 
being constructed.
    This general condition is adopted with the modification discussed 
above.
    GC 31. Activities Affecting Structures or Works Built by the United 
States. We proposed this new general condition to address activities 
that are required under Section 14 of the Rivers and Harbors Act of 
1899 (33 U.S.C. 408) to secure permission from the Secretary of the 
Army for the alteration or occupation or use of structures or works 
built by the United States (i.e., U.S. Army Corps of Engineers 
federally authorized Civil Works projects). The authority to issue 
these section 408 permissions has been delegated to Corps Headquarters, 
Corps divisions, or Corps districts depending on the case-specific 
circumstances for a 408 permission request. Some of these activities 
also require authorization under Section 404 of the Clean Water Act 
and/or Section 10 of the Rivers and Harbors Act of 1899, and may be 
eligible for one or more NWPs.
    Several commenters said they support the proposed new general 
condition and several commenters said they opposed the new general 
condition. One commenter asked how long a typical section 408 
permission review takes and how it would affect the 45-day default 
authorization for the NWPs. One commenter requested clarification on 
when the 45-day clock starts for PCNs submitted under general condition 
31. Several commenters stated that the general condition should be 
modified so that it only applies to major section 408 reviews, not to 
minor section 408 reviews. A few commenters said that a PCN should not 
be required for an activity that requires section 408 permission, if 
the NWP activity does not otherwise require a PCN.
    We do not have any statistics on how long section 408 reviews 
typically take. As stated in the text of this general condition, the 
proposed NWP activity is not authorized by NWP until the appropriate 
Corps office issues the 408 permission. In other words, if the proposed 
NWP activity requires section 408 permission the 45-day default 
authorization does not apply. If a PCN is required under general 
condition 31, the activities cannot be authorized by NWP until the 
Corps issues the 408 permission, or determines that a 408 permission is 
not required. We have modified the last sentence of this general 
condition to change ``Corps district office'' to ``Corps office'' 
because some section 408 permissions are issued by Corps Headquarters. 
To ensure that NWP activities that will alter or temporarily or 
permanently occupy or use USACE projects obtain the required 408 
permissions before the project proponent conducts those NWP activities, 
the general condition must apply to both major and minor section 408 
reviews. The PCN requirement is necessary to give district engineers 
the opportunity to add conditions to the NWP authorization to protect 
the USACE project and to ensure that any needed internal coordination 
is done.
    One commenter said that Engineer Circular 1165-2-216 should not be 
treated as a binding rule in the final NWPs. One commenter stated that 
guidance should be issued to Corps districts on ways to streamline 408 
reviews so that they do not delay NWP verifications. One commenter 
asked whether section 408 and section 404 reviews could be concurrent 
with each other. One commenter said that section 408 and section 404 
reviews should be independent of each other.
    The NWP regulations already state that the ``NWPs do not authorize 
interference with any existing or proposed Federal project'' (see 33 
CFR 330.4(b)(5)). Engineer Circular 1165-2-216 provides the procedures 
to ensure that activities, including NWP activities, do not interfere 
with USACE projects. It has been extended for one year while the Corps 
considers updates and revisions to the Engineer Circular. General 
condition 31 adds further assurance that activities authorized by the 
NWPs will not interfere with existing or proposed USACE projects. The 
408 permission process must be completed before the NWP verification 
can be issued. The 408 permission process might require the project 
proponent to modify his or her proposed activity to avoid or reduce its 
impact on the USACE project. Where possible, the section 408 and the 
NWP PCN reviews are conducted concurrently. The section 408 and NWP PCN 
reviews are independent of each other and they often occur in different 
Corps offices.
    One commenter requested a list of rivers where section 408 
permissions are required. One commenter said that the Corps should 
establish a Web site with a list of federal projects so applicants can 
determine when section 408 permissions are required. Additional 
information on the section 408 permission process and the timing of the 
issuance of authorizations by Regulatory Program offices is provided in 
Engineer Circular 1165-2-216, which is available at: http://www.usace.army.mil/Missions/CivilWorks/Section408.aspx.
    The project proponent should contact the appropriate Corps district 
office if he or she is uncertain whether the proposed activity might 
alter or temporarily or permanently occupy or use a USACE project.
    This general condition is adopted with the modification discussed 
above.
    GC 32. Pre-Construction Notification. We proposed to modify 
paragraph (b) by adding a new paragraph (b)(3) to state that the PCN 
should identify the specific NWP(s) the project proponent wants to use 
to authorize the proposed activity. In addition, we proposed to modify 
paragraph (b)(4) to require a description of mitigation measures the 
applicant intends to use to reduce adverse environmental effects caused 
by the proposed activity. For linear projects, we proposed to change 
paragraph (b)(4) to make it clear that the PCN should identify all 
crossings of waters of the United States that require DA authorization. 
We also proposed to modify paragraph (b)(4) to require, for linear 
projects, that the PCN include the quantity of proposed losses of 
waters of the United States for each single and complete crossing of 
those waters. Please see the June 1, 2016, proposed rule for additional 
discussion on the proposed changes to this general condition.
    Several commenters said they supported the proposed changes to 
general condition 32 and several commenters said they objected to those 
proposed changes. One commenter stated that the Corps should avoid 
changes to the PCN requirements that would result in delays. A few

[[Page 1969]]

commenters stated that mitigation and single and complete project 
requirements should not be included in general condition 32. A couple 
of commenters stated that without detailed information provided in 
PCNs, district engineers will not be able to assess whether or not 
adverse impacts from proposed NWP activities are no more than minimal, 
and the public has no ability to assess the full extent of impacts 
resulting from the NWP program.
    Other than new general condition 31, we have not made any changes 
to the PCN requirements for the NWPs that would increase the time it 
takes for district engineers to make decisions on those PCNs. Some of 
the proposed changes, such as providing the opportunity for the project 
proponent to describe mitigation measures in the PCN that would help 
the district engineer reach a ``no more than minimal adverse 
environmental effects'' determination, will help reduce PCN processing 
times. The proposed changes to general condition 32 regarding linear 
projects are also intended to provide information that would facilitate 
the district engineer's review.
    One commenter said that PCNs should be required for all NWP 
activities to provide the public with the opportunity to comment on 
those activities, to provide information on other proposed activities 
that may contribute to cumulative impacts. One commenter stated that 
PCNs should be required for all activities in Clean Water Act section 
303(d) impaired waters, and each of those PCNs should include a 
statement explaining how the proposed activity avoids contributing to 
the existing water quality impairment. One commenter said that PCNs 
should be required for all proposed NWP activities located in 100-year 
floodplains.
    Activities authorized by NWPs and other general permits do not 
require a public notice and comment process; the public notice and 
comment process occurs during the development of the NWP, regional 
general permit, or programmatic general permit. Requiring the 
solicitation of public comment on case-specific NWP activities would be 
contrary to the streamlined process envisioned by section 404(e) of the 
Clean Water Act. The Corps tracks the use of the NWPs, especially the 
NWP PCNs and the activities voluntarily reported to Corps district 
offices that do not require PCNs, to assess the NWP program's 
incremental contribution to cumulative environmental effects. Division 
engineers can add regional conditions to one or more NWPs for 
activities in Clean Water Act section 303(d) waters, for those NWPs 
that might contribute further to the impairment of those waters. Fills 
in 100-year floodplains must comply with the requirements of general 
condition 10 and do not require additional PCNs.
    A few commenters stated that the PCN process should not be used to 
ensure that NWP activities will result in no more than minimal adverse 
environmental effects. One commenter said that there no evidence that 
PCNs will ensure that project impacts are no more than minimal. Two 
commenters stated that PCNs are an essential mechanism for ensuring NWP 
activities result in only minimal impacts.
    The PCN process has been used for many years to provide flexibility 
in the NWP program and to ensure that NWP activities have no more than 
minimal individual and cumulative adverse environmental effects. 
Nothing in the text of section 404(e) of the Clean Water Act indicates 
that the Corps cannot use a PCN process for general permits. The PCN 
process provides an opportunity for the district engineer to do a site- 
and activity-specific evaluation of a proposed NWP activity, and take 
into account the characteristics of the project site and proposed 
activity to determine whether the proposed NWP activity will cause no 
more than minimal individual and cumulative adverse environmental 
effects. The PCN process also gives the district engineer the 
opportunity to add activity-specific conditions to the NWP 
authorization to satisfy the ``no more than minimal adverse 
environmental effects'' requirement for the NWPs. If there was no PCN 
process available for the NWPs, then there would be no activity-
specific conditions added to the NWP authorization, including no 
compensatory mitigation or other mitigation requirements. In addition, 
there would be no opportunity to comply with section 7 of the 
Endangered Species Act or section 106 of the National Historic 
Preservation Act.
    One commenter asked whether the Corps would notify the applicant in 
circumstances when individual water quality certifications are required 
for NWP activities. One commenter stated that NWP activities that 
require PCNs and NWP activities that do not require PCNs are not 
``similar in nature'' and should not be authorized by the same NWP.
    If water quality certification has not been previously issued by 
the state, tribe, or U.S. EPA for the NWP, an individual water quality 
certification is required (see general condition 25). The district 
engineer may issue a provisional NWP verification, which explicitly 
states to the prospective permittee that the proposed activity is not 
authorized by NWP until he or she obtains an individual water quality 
certification or a waiver. An NWP authorizes a category of activities 
that is similar in nature, and whether a PCN is required or not does 
not alter that category. The PCN process is simply a process whereby 
district engineers review proposed activities that have the potential 
to result in more than minimal adverse environmental effects. In 
response to a PCN, the district engineer can conditions, including 
mitigation requirements, to ensure that authorized activities cause no 
more than minimal adverse environmental effects. The district engineer 
can also exercise discretionary authority and require an individual 
permit for the proposed activity.
    A few commenters said that the final NWPs should provide clear 
direction to Corps districts to not use additional information requests 
to delay reviews. A few commenters stated that the Corps should adhere 
to a 45-day review period for all PCNs that are not subject to 
activity-specific conditions requiring additional procedures. One 
commenter stated that PCN review periods should be expedited for time-
sensitive maintenance and inspection work for energy projects. Another 
commenter said that the Corps should allow emergency projects to 
proceed immediately and conduct after-the-fact review and approvals.
    Paragraph (a) is written to provide direction to district engineers 
to make only one additional information request. Except for certain 
NWPs (i.e., NWPs 21, 49, and 50) and for the requirements of certain 
general conditions (e.g., general conditions 18, 20, and 31), 
activities that require PCNs are authorized after 45 days have passed 
after district engineers receive complete PCNs unless the district 
engineer exercises his or her authority to modify, suspend, or revoke 
the NWP authorization (see 33 CFR 330.1(e)(1)). District engineers can 
place priority on processing NWP PCNs for time-sensitive maintenance 
and inspection activities associated with energy projects. There are 
other regulatory program procedures for emergency situations and those 
procedures are found 33 CFR 325.2(e)(4).
    One commenter said that Corps Headquarters should provide district 
offices with more guidance and direction on complying with the review 
timelines for NWP PCNs. A few commenters stated that Corps Headquarters 
should issue guidance to its districts to make it clear that requests 
for additional information are limited to

[[Page 1970]]

one request, and limited to the information required by paragraph (b) 
of general condition 32. One commenter said that the final rule should 
state that district engineers are limited to a single information 
request. One commenter suggested adding a provision to general 
condition 32 to require PCN completeness determinations to be made 
within 15 days.
    We do not believe that any additional guidance is necessary. 
General condition 32 and Section D, District Engineer's decision, 
clearly articulate the process for reviewing PCNs. Paragraph (a) of 
general condition 32 describes the process for requesting additional 
information for PCNs to make them complete. Additional information may 
be required from the applicant to conduct other procedures associated 
with the PCN process, such as information necessary to conduct ESA 
section 7 consultation or information needed for NHPA section 106 
consultation. General condition 32 states that, as a general rule, the 
district engineer should make only one request for information to make 
the PCN complete. We recognize that there may be some situations where 
a piece of information needed to make the PCN complete was not 
identified, and the district engineer can request that information to 
proceed with the evaluation of the PCN. If that flexibility is not 
provided, the district engineer may be left with the option of 
suspending or revoking the NWP authorization because he or she was not 
allowed by the NWP rule to request that piece of additional 
information. We believe that 30 days is necessary to make completeness 
determinations for PCNs.
    One commenter said that applicants should not be allowed to proceed 
with NWP activities that require PCNs without receiving a written 
verification from the Corps. A few commenters said that the statement 
explaining that the 45-day PCN review period may be extended if general 
conditions 18, 20, and/or 31 apply to an NWP activity leaves the PCN 
review period open ended, and disagreed with that approach. One 
commenter stated that extending the PCN review period beyond 45 days 
does not follow the congressional mandate to provide a streamlined 
permitting process. This commenter stated that extensions to the PCN 
review period should require documentation and substantiation as to why 
an extension is necessary, and then only be granted for specific and 
predictable periods of time. This commenter suggested creating 
timelines for the consultations and coordination procedures that extend 
the PCN review period to ensure that they occur in a timely manner.
    The NWP regulations at 33 CFR part 330 provide a 45-day default 
authorization for most NWP activities. There are exceptions for certain 
NWPs, such as NWPs 21, 49, and 50, and for certain general conditions. 
If ESA section 7 consultation and/or NHPA section 106 consultation is 
required for a proposed NWP activity, the project proponent cannot 
proceed with the NWP activity until after those consultations have been 
completed and the district engineer notifies the project proponent. 
Activities authorized by the Corps are required to comply with ESA 
section 7 and NHPA section 106, and those consultations will be 
completed as soon as practicable. Section 404(e) of the Clean Water Act 
does not provide any exemptions from complying with ESA section 7 and/
or NHPA section 106. The Corps only conducts those consultations where 
it is required to do so, and the consultation documentation is included 
in the administrative record for those NWP PCNs. For ESA section 7 
consultations, the consultation process does not end until the U.S. 
Fish and Wildlife Service and/or National Marine Fisheries Service 
issues their biological opinion for a formal consultation or its 
written concurrence for a request for informal consultation. For NHPA 
section 7 consultations, the consultation process does not end until 
after the applicable steps in the consultation process identified in 36 
CFR part 800 have been completed.
    One commenter said that the 45-day review should include a pre-
application meeting to determine if NWP authorization is appropriate 
for a proposed activity. One commenter suggested that to avoid delays 
in PCN reviews, Corps districts should assign one project manager to an 
individual company to review all of that company's permit applications, 
and that the project manager would be funded by that company. One 
commenter recommended applying the 2001 memorandum entitled ``Fees in 
the Section 106 Process'' to the PCN coordination process, if the Corps 
intends to maintain the current coordination timelines.
    Pre-application meetings can provide information that will be 
helpful in processing the NWP PCN, when the PCN is submitted to the 
district engineer. However, pre-application meetings are optional. 
Under 33 U.S.C. 2352, the Corps may accept and expend funds contributed 
by a non-federal public entity or a public-utility company or natural 
gas company to expedite the evaluation of applications for Department 
of the Army permits for that entity or company. Guidance on that 
process is provided in guidance issued by the Corps on August 14, 2015, 
that is entitled: ``Implementation Guidance for Section 1006 of the 
Water Resources Reform and Development Act of 2014 and Guidance on the 
Use of Funding Agreements within the Regulatory Program.'' A copy of 
that guidance is available at: http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/WRDA_214_reg_guide_2015.pdf. As stated in 
the Advisory Council on Historic Preservation's June 6, 2001, 
memorandum, neither the National Historic Preservation Act nor the 
Advisory Council's regulations for implementing the act requires 
federal agencies to pay for any aspect of consultation, including 
consultation with tribes, for the purposes of the NHPA section 106 
process.
    One commenter said that the information requirements for PCNs make 
the NWPs more like individual permits in terms of the amount of 
information required. Several commenters recommended requiring more 
project-specific information requirements for PCNs. One commenter 
stated that PCNs should include a requirement for alternatives 
information. One commenter said that PCNs should include detailed 
mitigation plans. A couple of commenters stated that PCNs should 
include information about drinking water intakes in the vicinity of 
proposed NWP activities.
    While the NWPs may require a moderate amount of information for a 
complete PCN, that information is necessary for the district engineer 
to make his or her determination whether a proposed NWP activity will 
result in no more than minimal adverse environmental effects. Providing 
this information to the district engineer early in the NWP 
authorization process means that little or no information should be 
needed later in the process, in contrast to individual permits in which 
a minor amount of information is required to issue public notices, and 
additional information is provided during the individual permit 
evaluation process to assist the district engineer in making his or her 
decision. Pre-construction notifications do not require alternatives 
analyses because specific activities authorized by general permits do 
not require alternatives analyses under the 404(b)(1) guidelines (see 
40 CFR 230.7(b)(1)). In addition, NEPA documentation, including a NEPA 
alternatives analysis, is not required for

[[Page 1971]]

a specific general permit activity because NEPA compliance was 
completed by Corps Headquarters when it issued the general permit. 
Detailed mitigation plans are not required for NWP PCNs because the 
district engineer first reviews the PCN to determine whether the 
proposed activity is authorized by NWP, or whether compensatory 
mitigation or other mitigation is necessary to ensure that the proposed 
activity will result in no more than minimal adverse environmental 
effects. If the district engineer decides that compensatory mitigation 
is needed for the proposed activity to qualify for NWP authorization, 
then he or she will tell the project proponent that a mitigation plan 
that satisfies the requirements of 33 CFR 332.4 is required. When 
district engineers review PCNs, they ensure that the proposed 
activities comply with all applicable general conditions, including 
general condition 7, water supply intakes. Because of that review 
process, we do not believe it is necessary to require PCNs to identify 
water supply intakes in proximity of proposed NWP activities.
    Three commenters expressed support for having the applicant 
identify which NWP they are applying for. One of these commenters said 
that this will allow for streamlining the permitting process, and avoid 
delays in processing. One commenter said that the district engineer 
should be required to verify the particular NWP identified in the PCN, 
instead of saying that the district engineer should verify the activity 
under that NWP. One commenter suggested that applicant's choice of NWP 
that most readily authorizes the activity should be added to paragraph 
(b)(3). One commenter asked whether or not the Corps would notify the 
applicant that the district engineer is evaluating the proposed 
activity under a different NWP than what the applicant identified in 
the PCN. One commenter said that paragraph (b)(3) should state that the 
district engineer can or should advise the permittee of another NWP 
that could allow the proposed activity to be authorized more 
efficiently.
    We are retaining proposed paragraph (b)(3), to identify the 
specific NWP or NWPs that the project proponent wants to use. The 
district engineer is not required to verify the specific NWP(s) 
identified in the PCN if any of the specific NWP(s) are clearly not 
applicable. For example, if the prospective permittee request NWP 27 
authorization for a bank stabilization activity then the district 
engineer can issue an NWP 13 verification if the proposed activity 
complies with the terms and conditions of NWP 13. An applicant will 
normally specify the NWP or NWPs that will most readily authorize his 
or her proposed activity, unless there is reason for requesting 
verification under another NWP or NWPs. If the district engineer 
decides after reviewing the PCN that the proposed activity does not 
qualify for the NWP identified by the project proponent, he or she does 
not have to notify the applicant that the PCN is being evaluated under 
another NWP. If the district engineer decides that the proposed 
activity does not qualify for authorization under any NWP, he or she 
will notify the applicant and provide instructions on how to apply for 
authorization under an individual permit or a regional general permit.
    Two commenters stated that there is no benefit to having the 
applicant identify in their PCNs which NWP he or she is proposing to 
use. These commenters said that regardless of which NWP the applicant 
identifies, the Corps should authorize the activity under the NWP most 
appropriate to the project purpose. A couple of commenters said 
proposed paragraph (b)(3) is unclear whether the proposed activity will 
be verified under the NWP identified by the applicant because it has 
less stringent conditions, or whether it would be verified under the 
most appropriate NWP based on the purpose of the proposed activity and 
the most pertinent conditions. A few commenters said that the Corps 
should evaluate proposed activities under the most pertinent NWP(s), 
even if the applicant has specified a different NWP.
    There is some degree of redundancy in the NWPs, where a proposed 
activity is eligible for authorization more than one NWP. At the end of 
the day, the standard is the same for all NWPs: NWP activities must 
result in no more than minimal individual and cumulative adverse 
environmental effects. So if a proposed activity meets the terms of the 
requested NWP, and any applicable regional conditions, then the 
district engineer should issue the NWP verification under the NWP 
identified in the PCN. In the NWP regulations at 33 CFR 330.2(h), 
``terms'' are defined as: ``. . . the limitations and provisions 
included in the description of the NWP itself'' (see 33 CFR 330.2(h)). 
The NWP general conditions are the same for all of the NWPs. The 
category of activity authorized by the NWP is the relevant 
consideration, not the project purpose.
    One commenter said that PCNs for proposed NWP activities in FEMA-
mapped floodways should require a floodway analysis. Another commenter 
stated that PCNs for proposed NWP activities located within 100-year 
floodplains should include require information on floodplain values, 
hazards, and FEMA-approved maps, and any applicable FEMA-approved state 
or local floodplain management requirements. One commenter suggested 
that PCNs should require certification by individuals that meet the 
Secretary of the Interior's Professional Qualifications Standards to 
state whether the proposed activity has potential to cause effects to 
historic properties or whether consultation with tribes needs to be 
conducted.
    We do not believe that it is necessary for a PCN to include a 
floodway analysis if the proposed NWP activity is located in a FEMA-
mapped floodway. That information can be requested and analyzed by the 
appropriate federal, tribal, state, or local floodplain management 
authority. District engineers will review PCNs to determine whether 
they will have more than minimal adverse effects to floodplain values, 
or cause more than minimal increases in flood hazards. Such information 
does not need to be provided in the PCN. In accordance with general 
condition 20, non-federal permittees are required to submit PCNs if the 
proposed NWP activity might have the potential to cause effects to 
historic properties. Because the requirement to comply with the 
consultation requirements of section 106 of the NHPA fall on the Corps 
for its undertakings, and to consult with tribes when necessary to 
fulfill its trust obligations to tribes, the PCN does not need to 
include the certification suggested by the commenter.
    A few commenters objected to including proposed mitigation measures 
in PCNs. Three commenters said that requiring the PCN to include 
mitigation measures is unnecessary, burdensome, and duplicative. Two 
commenters requested removal of the proposed requirement, because this 
information is applicable to proposed activities reviewed under 
individual permit procedures, instead of NWP activities. One commenter 
requested flexibility in the amount of detail required for describing 
mitigation measures in the PCN. One commenter said paragraph (b)(4) 
should refer to on-site mitigation measures and define those measures 
as avoidance, minimization, repair, restoration, or reduction of 
impacts over time to avoid confusion with compensatory mitigation. Two 
commenters stated that for restoration projects that qualify for NWP 
authorization, compensatory mitigation should not be required.

[[Page 1972]]

    The mitigation measures in paragraph (b)(4) may include describing 
avoidance and minimization of impacts to jurisdictional waters and 
wetlands on the project site. The prospective permittee is not required 
to propose any mitigation measures in his or her PCN. The prospective 
permittee can choose not to propose any mitigation measures. A 
description of mitigation measures is optional, and the project 
proponent is encouraged to describe, in the PCN, mitigation measures 
that will assist the district engineer in reaching a decision, earlier 
in the process, that the proposed activity will result in no more than 
minimal adverse environmental effects. The level of detail for the 
proposed mitigation measures described in the PCN is up to the project 
proponent. Otherwise, the district engineer may review the PCN and 
determine that mitigation is necessary to ensure that the proposed 
activity will cause no more than minimal adverse environmental effects 
and notify the prospective permittee that a mitigation plan is 
required. That will add more time to the district engineer's review 
process. It is the prospective permittee's decision whether to suggest 
mitigation measures up front in the PCN or wait for the district 
engineer's request for a mitigation proposal.
    The term ``mitigation measures'' in paragraph (b)(4) refer to all 
five forms of mitigation identified in paragraph (b) of general 
condition 23, mitigation. The prospective permittee also has the option 
of proposing to do compensatory mitigation, especially if he or she 
believes that the district engineer will require compensatory 
mitigation for the proposed NWP activity. As stated in NWPs 27 and 54, 
compensatory mitigation is not required for the restoration activities 
authorized by those NWPs.
    A few commenters objected to a requirement to state the proposed 
quantity of losses of waters of the United States for each single and 
complete crossing of waters of the United States for linear projects. 
One commenter said that for linear projects that have multiple 
crossings of waterbodies, and only some of those crossings require 
PCNs, the applicant must discuss the impacts of all crossings, not just 
those that require PCNs. This commenter also stated that the applicant 
should not be allowed to construct crossings that do not require PCNs 
until the Corps district issues its verification for the crossings that 
require PCNs.
    In paragraph (b)(4), we have changed the phrase ``waters of the 
United States'' to ``wetlands, other special aquatic sites, and other 
waters'' to be consistent with paragraph (b)(5) of this general 
condition. As discussed below, neither approved jurisdictional 
determinations or preliminary jurisdictional determinations are not 
required for NWP PCNs, and if the project proponent wants an approved 
or preliminary jurisdictional determination for the project site, he or 
she should request and receive that approved or preliminary 
jurisdictional determination prior to submitting an NWP PCN.
    Two commenters said there is inconsistent language in the PCN 
requirements for linear projects. They said the paragraph (b)(4) first 
states that the PCN must include ``the anticipated amount of loss of 
water of the United States expected to result from the NWP activity'' 
and later states that for single and complete linear projects, the PCN 
``must include the quantity of proposed losses of waters of the United 
States for each single and complete crossing of waters of the United 
States.'' In the third sentence of paragraph (b)(4), we have changed 
the word ``proposed'' to ``anticipated'' to be consistent with the 
first sentence of this paragraph.
    One commenter stated that an approved jurisdictional determination 
should not be required for an NWP PCN, and that the final NWPs should 
clarify how approved and preliminary jurisdictional determinations 
relate to the NWP PCN process. One commenter said that the Corps' 
jurisdictional determination process under Regulatory Guidance Letter 
08-02 should not require a jurisdictional determination to be performed 
prior to starting the NWP PCN review process. One commenter stated that 
the requirement for a full delineation of waters of the United States 
is a significant cause of delay and cost in light of the uncertainties 
regarding the 2015 final rule defining waters of the United States. 
This commenter also said that because delineations are only required to 
be included with a PCN when proposed impacts are 1/10-acre or greater, 
all of the wetland impacts cannot be evaluated. One commenter said the 
Corps should field verify every delineation it receives with a PCN. 
This commenter also stated that if the Corps cannot verify every 
delineation, we should randomly select delineations to verify.
    An approved or preliminary jurisdictional determination is not 
required for a complete PCN, or for the district engineer to issue an 
NWP verification. For a complete PCN, the prospective permittee must 
submit a delineation of wetlands, other special aquatic sites, and 
other waters on the project site. The project site is not necessarily 
the entire parcel of land; it may be a portion of that land if the 
proposed NWP activity is limited to that portion of the parcel. The 
delineation of wetlands, other special aquatic sites, and other waters 
on the project site is necessary for the Corps' evaluation of the NWP 
PCN and its determination on whether the proposed activity will result 
in no more than minimal adverse environmental effects. The need for the 
delineation is independent of whatever regulation defining ``waters of 
the United States'' is in place at the time the PCN is submitted. As 
stated above, neither an approved jurisdictional determination nor a 
preliminary jurisdictional determination is required to process the 
PCN, and requests for approved and preliminary jurisdictional 
determinations will be processed by Corps districts as separate 
actions. Since 1991, the NWPs have had a requirement for submission of 
a delineation of affected special aquatic sites, including wetlands 
(see 56 FR 59145). All NWP PCNs require a delineation of wetlands, 
other special aquatic sites, and other waters. There is not a 1/10-acre 
threshold for requiring a delineation with the PCN. District engineers 
have the option of verifying the accuracy of the delineation, or making 
the decision on the NWP verification without doing a verification of 
the delineation.
    Paragraph (b)(5) only requires a delineation of wetlands, other 
special aquatic sites, and other waters to provide information to the 
district engineer to make his or her determination whether the proposed 
activity qualifies for NWP authorization. In the third sentence of this 
paragraph, we have replaced the phrase ``waters of the United States'' 
with ``wetlands, other special aquatic sites, and other waters'' to 
make it clear that the delineation submitted with the PCN does not 
require a jurisdictional determination. The delineation only needs to 
identify wetlands, other special aquatic sites, and other waters on the 
site and their approximate boundaries, so that the district engineer 
can evaluate the proposed activity's impacts to those wetlands, other 
special aquatic sites, and other waters. For a complete PCN, that 
delineation does not have to be verified by the Corps district. If the 
district engineer finds errors in the delineation, he or she may make 
corrections to the delineation or require the applicant to make those 
corrections, but those corrections should not delay the decision on the 
NWP verification or the decision to exercise discretionary authority.

[[Page 1973]]

    If the project proponent wants an approved jurisdictional 
determination to help him or her determine whether the proposed 
activity might qualify for NWP authorization, to identify 
jurisdictional waters and wetlands to provide in support of his or her 
PCN, or to avoid having to do compensatory mitigation for losses of 
wetlands, other special aquatic sites, or other waters that are not 
subject to Clean Water Act jurisdiction, the project proponent must 
submit a separate request for an approved jurisdictional determination. 
An NWP PCN and a request for an approved jurisdictional determination 
are separate actions, and if a project proponent submits a request for 
an approved jurisdictional determination with his or her NWP PCN, the 
district engineer will process those requests separately. General 
condition 32 does not require an approved jurisdictional determination 
for NWP PCNs; only a delineation of wetlands, other special aquatic 
sites, and other waters is required to make the PCN. With certain 
exceptions identified in the NWPs (e.g., NWPs 21, 49, and 50) and some 
general conditions (e.g., general conditions 18 and 20), the decision 
on an NWP PCN must be made within 45 days of receipt of a complete PCN. 
There is no required timeframe for responding to requests for approved 
jurisdictional determinations, although the Corps strives to respond to 
those requests within 60 days.
    One commenter said that paragraph (b)(5) should be modified to 
state that National Wetland Inventory mapping is not appropriate for 
determining wetland boundaries, every wetland delineation submitted 
with a PCN must be based on an actual field investigation, and streams 
identified on a U.S. Geological Survey (USGS) map are not adequate 
documentation for a delineation. One commenter suggested adding text to 
paragraph (b)(5) to state that a USGS topographic quadrangle shall be 
sufficient to delineate intermittent and ephemeral streams on the 
project site, and that failure to list or map any stream bed that is 
not shown on a USGS topographic quadrangle as an intermittent or 
ephemeral stream shall not be a reason for the district engineer 
determining the delineation is not complete. This commenter asserted 
that if a stream is not mapped on a USGS topographic quadrangle map, it 
should not be considered jurisdictional under the Clean Water Act.
    We understand that various published maps, especially published 
maps generated by remote sensing, do not show all wetlands or 
accurately depict wetland boundaries, or show all streams. The remote 
sensing approaches used by the U.S. FWS for its National Wetland 
Inventory maps result in errors of omission that exclude wetlands that 
are difficult to identify through photointerpretation (Tiner 1997). 
These errors of omission are due to wetland type and the size of target 
mapping units (Tiner 1997). Likewise, many small streams, especially 
headwater streams, are not mapped on 1:24,000 scale U.S. Geological 
Survey (USGS) topographic maps (Leopold 1994) or included in other 
inventories (Meyer and Wallace 2001), including the National 
Hydrography Dataset (Elmore et al. 2013). Many small streams and rivers 
are not identified through maps produced by aerial photography or 
satellite imagery because of inadequate image resolution or trees or 
other vegetation obscuring the visibility of those streams from above 
(Benstead and Leigh 2012). However, we do not believe it is necessary 
to explicitly state in the text of paragraph (b)(5) that National 
Wetland Inventory maps or USGS topographic maps may, or may not, be 
adequate for preparing the delineation of wetlands, other special 
aquatic sites, or other waters for the PCN. A stream may be a 
jurisdictional water of the United States even if it is not shown on a 
USGS topographic map.
    One commenter suggested adding the term ``natural'' before ``lakes 
and ponds'' in paragraph (b)(5), stating that there is no need to 
delineate artificial waterbodies or any area that is wet due to 
irrigation, whether or not they are prior converted cropland. One 
commenter suggested adding text to this paragraph to state that a 
jurisdictional determination is not required to make a PCN complete, 
because a jurisdictional determination is not necessary for the Corps 
to issue an NWP verification.
    Some artificial waterbodies may be waters of the United States. For 
example, a lake that was created by impounding a jurisdictional river 
would likely be subject to Clean Water Act jurisdiction. If an area is 
not a wetland, another type of special aquatic site, or other water, 
then it does not need to be included in the delineation for the PCN. If 
the project proponent is uncertain whether a particular artificial 
waterbody or area of irrigated land is subject to Clean Water Act 
jurisdiction, and wants a definitive determination from the Corps, then 
he or she can request an approved jurisdictional determination. Areas 
of prior converted cropland will be identified on a case-by-case basis. 
As explained above, we modified paragraph (b)(5) to remove the term 
``waters of the United States'' so that there is no implication that a 
jurisdictional determination is necessary before the Corps issues an 
NWP verification.
    One commenter expressed support for requiring PCNs to include a 
mitigation statement. One commenter stated that the mitigation 
information for a PCN should state that mitigation includes on-site 
avoidance and minimization measures.
    We have not made any changes to paragraph (b)(6). The delineation 
required by paragraph (b)(5) will document the on-site avoidance and 
minimization measures on the project site.
    One commenter stated that proposed paragraph (b)(8) does not 
address undiscovered historic properties. Undiscovered historic 
properties are addressed by general condition 21. If the historic 
properties are unknown at the time the PCN is submitted, then the 
prospective permittee cannot be expected to include that information in 
the PCN. If the non-federal project proponent thinks there might be 
historic properties that could potentially be affected by the NWP 
activity, then he or she should submit a PCN and the district engineer 
will determine whether NHPA section 106 consultation is necessary. We 
have modified paragraph (b)(10) by changing ``Corps district'' to 
``Corps office'' because a 408 permission might be issued by Corps 
Headquarters.
    Several commenters encouraged the Corps to develop and use an 
online PCN application tool for electronic submission of PCNs and 
supporting documents. A few commenters recommended that the Corps 
develop an on-line PCN submittal tool and that the tool be made 
available to states agencies such as water quality certification 
agencies. One commenter stated that the Corps should continue to allow 
paper PCNs to be submitted to Corps districts.
    At this time, we are not prepared to develop and deploy a national 
on-line PCN application. Some Corps districts have developed local 
tools that allow electronic submission of NWP PCNs and supporting 
documentation. We have modified the last sentence of paragraph (c) as 
follows: ``Applicants may provide electronic files of PCNs and 
supporting materials if the district engineer has established tools and 
procedures for electronic submittals.'' The general condition still 
allows for paper PCNs to be submitted to Corps districts.
    A few commenters stated that agency coordination should be 
completed within 30 or 60 days. One commenter suggested increasing the 
agency coordination period to 30 days, and to require an individual 
permit for any proposed NWP activity that requires a waiver and any 
agency objects to the

[[Page 1974]]

district engineer issuing that waiver. One commenter said that local 
government agencies should be included in the agency coordination 
procedures in paragraph (d). Another commenter recommended including 
tribes in agency coordination procedures.
    The purpose of the agency coordination process in paragraph (d) is 
seek input from other federal and state agencies for certain proposed 
NWP activities to determine whether those activities will result in no 
more than minimal individual and cumulative adverse environmental 
effects. We believe that the current timeframe (up to 25 days) is 
sufficient for federal and state agencies to provide their views for 
the ``no more than minimal adverse environmental effects'' 
determination. The final decision whether a proposed NWP activity will 
result in no more than minimal individual and cumulative adverse 
environmental effects lies solely with the district engineer. District 
engineers can include local government agencies in agency coordination 
for proposed NWP activities. As a result of the consultations Corps 
districts are conducting with tribes on the 2017 NWPs, Corps districts 
can include interested tribes in agency coordination on proposed NWP 
activities.
    Two commenters stated that under paragraph (d)(3) of general 
condition 32, the Corps cannot unilaterally impose timelines on State 
Historic Preservation Officers (SHPOs) or Tribal Historic Preservation 
Offices (THPOs), because section 106 consultation is not limited to 15 
days. A couple of commenters said that 10 calendar days for the SHPO or 
THPO to submit comments back to the Corps is not reasonable, and that 
timeframe is in compliance with 36 CFR part 800, which provides 30 days 
for SHPOs and THPOs to provide their comments. One commenter stated 
that the Corps does not have the authority to impose a 10-day review 
period on THPOs, and cannot assume that a tribe has no comments or 
objections based on a lack of response within that 10-day period. One 
commenter stated that paragraph (d)(3) should read, ``State Historic 
Preservation Officer, Tribal Historic Preservation Officer, or 
designated tribal representative.''
    If NHPA section 106 consultation is required, that consultation 
will be conducted under the requirements in general condition 20, 
historic properties. For NHPA section 106 consultations conducted to 
comply with general condition 20, the Corps will comply with the 
timeframes in 36 CFR part 800, consistent with the Corps' 2005 and 2007 
interim guidance. Because paragraph (d) is limited to minimal adverse 
environmental effects determinations, we are removing coordination with 
SHPOs and THPOs from this paragraph. As discussed above, district 
engineers can adopt and implement coordination procedures with tribes 
to seek their views on proposed NWP activities that require PCNs.
    One commenter stated that agency coordination should be required 
for bank stabilization projects over 200 linear feet. One commenter 
stated that agency coordination should continue to be required for NWP 
48 activities that require PCNs.
    We are retaining the agency coordination threshold of 500 linear 
feet for NWP 13 activities, because that is consistent with the 
applicable waiver provision in paragraph (b) of NWP 13. We have removed 
the agency coordination requirement for NWP 48 activities, as we 
proposed to do in the June 1, 2016, proposed rule.
    One commenter noted that paragraph (d) uses the term ``activity'' 
instead of ``single and complete project'' and said that the district 
engineer would be required to do agency coordination when verifying a 
linear project with an overall loss greater than 1/2-acre.
    Each separate and distant crossing that qualifies for NWP 
authorization is considered to be a separate NWP authorization. 
Therefore, the aggregate total of losses of waters of the United States 
is not used to determine whether agency coordination is required under 
paragraph (d) of general condition 32. Since each single and complete 
project authorized by NWPs 12 or 14 has a \1/2\-acre limit (or a 1/3-
acre limit for losses of tidal waters authorized by NWP 14), then NWP 
12 or 14 activities will not require agency coordination.
    A few commenters expressed their support for the proposed PCN form. 
Several commenters said that the Corps should have included the 
proposed PCN form with the proposed rule to issue and reissue the NWPs, 
so that the public can provide comments on the proposed form. One 
commenter stated that the comment period for the proposed PCN form 
should be extended by 60 days following the availability of the 
proposed form.
    The proposed PCN form is a separate action from this rulemaking to 
issue and reissue NWPs. In the June 1, 2016, the public was provided 
the opportunity to submit comments on the proposed PCN form and we 
received several comments. The comment period for the proposed PCN form 
was 30 days while the comment period on the proposed NWPs was 60 days.
    One commenter noted that some districts have joint application 
forms with state agencies, and this commenter said that these districts 
should find a way to integrate the information required for NWP PCNs on 
the NWP PCN form with their current joint application forms.
    If the NWP PCN form is approved, districts that have joint 
application forms with state agencies can continue to provide 
applicants the option to use those joint application forms. Those joint 
application forms can also be modified to incorporate features of the 
approved NWP PCN form.
    This general condition is adopted with the modifications discussed 
above.
District Engineer's Decision
Discussion of Proposed Modifications to Section D, ``District 
Engineer's Decision''
    We proposed to modify paragraph 1 to state that if an applicant 
requests authorization under one or more specific NWPs, the district 
engineer should issue the verification letter for those NWPs, if the 
proposed activity meets the terms and conditions of those NWP(s), 
unless he or she exercises discretionary authority to require an 
individual permit. We proposed to modify paragraph 2 to clarify that a 
condition assessment can also be used to help determine whether a 
proposed activity will result in no more than minimal adverse 
environmental effects. In the second sentence of paragraph 3, we 
proposed to change the text to state that applicants may also propose 
compensatory mitigation to offset impacts to other types of waters, 
such as streams. We also proposed to clarify that mitigation measures 
other than compensatory mitigation may also be used to ensure that a 
proposed NWP activity results in no more than minimal adverse 
environmental effects.
    A number of commenters objected to the proposed change, stating 
that the district engineer should be able to determine which NWP should 
be used to authorize the proposed activity. One commenter said it was 
unclear what a condition assessment involves and whether the Corps or 
the applicant would prepare the condition assessment. One commenter 
said that there should be additional time to comply with general 
conditions 18 and 20. One commenter stated that paragraph 2 of Section 
D should include cumulative effects as one of the factors that the 
district engineer considers when making an adverse environmental

[[Page 1975]]

effects determination. The current wording implies that only direct and 
indirect effects are to be considered. One commenter said that district 
engineers should be required to evaluate entire pipelines and conduct 
an analysis of cumulative effects that is posted for public comment.
    The modification of paragraph 1 of this section states that the 
district engineer should issue the NWP verification under the NWP 
requested by the applicant, if the proposed activity meets the terms 
and conditions of that NWP. If the proposed activity does not meet the 
terms and conditions of the NWP identified in the PCN, and another NWP 
would authorize the proposed activity, then the district engineer can 
authorize the proposed activity under the NWP that he or she 
identified. However, if the proposed activity meets the terms and 
conditions of two different NWPs, and the applicant submitted a PCN 
that identified one of those NWPs, then the district engineer should 
issue the NWP verification under the NWP the applicant identified in 
his or her PCN. We have modified paragraph 1 to add a reminder that for 
those NWPs that have a 1/2-acre limit with a waivable 300 linear foot 
limit for losses of intermittent or ephemeral stream bed, then the loss 
of stream bed plus any other losses of jurisdictional waters and 
wetlands cannot exceed 1/2-acre.
    A condition assessment is a type of rapid ecological assessment 
that examines the relative ability of an aquatic resource to support 
and maintain a community of organisms having a species composition, 
diversity, and functional organization comparable to reference aquatic 
resources in the region (see 33 CFR 332.2). In most circumstances, the 
prospective permittee would conduct the condition assessment and 
provide the results to the district engineer. In some cases, the 
district engineer may conduct the condition assessment. The extended 
time frames for complying with general conditions 18 and 20 are already 
addressed by paragraph 4.
    We have modified paragraphs 1 and 2 of this section to state that 
the district engineer will consider, in addition to the direct and 
indirect effects, the cumulative effects of the NWP activities. The 
district engineer may require mitigation, including compensatory 
mitigation, to ensure that the cumulative adverse effects of the NWP 
activity or activities or no more than minimal. The district engineer's 
cumulative effects analysis does not have to be an exhaustive analysis, 
because the required NEPA cumulative effects analysis was done by Corps 
Headquarters in the decision document supporting the issuance or 
reissuance of the applicable NWP(s). If the applicable NWP(s) authorize 
discharges of dredged or fill material into waters of the United 
States, in the national decision document issued by Corps Headquarters 
there is a cumulative effects analyses to satisfy the requirements of 
the 404(b)(1) Guidelines. For pipelines and other linear projects, the 
cumulative effects of the activities authorized by NWPs for the overall 
project, within an appropriate geographic region, will be evaluated by 
district engineers. Unless the pipeline is constructed entirely in 
waters of the United States and involves activities that require DA 
authorization, the Corps is not required to evaluate the entire 
pipeline, or linear project. If the Corps is only authorizing the 
segments of the linear project, such as a pipeline, that cross 
jurisdictional waters and wetlands and involve discharges of dredged or 
fill material into waters of the United States and/or structures or 
work in navigable waters of the United States, then its analysis will 
focus on the regulated crossings of waters of the United States.
Further Information
    In item 5, we proposed to add a cross-reference to proposed new 
general condition 31. If the Corps issues a section 408 permission, 
then the NWP activity would not be considered as interfering with the 
federal project. We received no comments on the proposed change, and we 
have adopted that change.
Definitions
    In the June 1, 2016, proposed rule, we proposed changes to some of 
the NWP definitions. One commenter recommended removing the definitions 
from the NWPs and adding them to the Code of Federal Regulations so 
that they would apply to the entire regulatory program. One commenter 
stated that the definition of ``independent utility'' should be added 
to NWP 12 because this commenter said there is no rational basis for 
treating linear and non-linear projects differently.
    The definitions in Section F were developed for use with the NWPs 
that are issued or reissued for the 5-year period those NWPs will be in 
effect. Incorporating those definitions into the Code of Federal 
Regulations so that they would apply to individual permits, regional 
general permits, and programmatic general permits would reduce 
flexibility in the regulatory program. Regional general permits and 
programmatic general permits may take different approaches to 
administering general permit programs, especially general permits 
intended to reduce duplication with other federal, tribal, state, or 
local agency regulatory programs.
    There is a rational basis for distinguishing between linear 
projects and non-linear projects. For linear projects, impacts to 
jurisdictional waters and wetlands caused by activities authorized by 
NWPs are scattered throughout a large landscape that encompasses the 
point of origin and terminal point of the linear projects, and all of 
the crossings of jurisdictional waters and wetlands in between the 
origin and terminus. Under most circumstances, those crossings impact 
distinctly different waterbodies, although there may be cases where 
there are multiple crossings of the same waterbody at separate and 
distant locations. For a long linear project, a large number different 
waterbodies may be impacted by crossings that are a substantial 
distance from each other. In contrast, for a non-linear project, the 
impacts to jurisdictional waters and wetlands are concentrated within a 
much smaller landscape unit (usually a single parcel of land) that is 
defined by the boundaries of the non-linear project (e.g., the 
boundaries of the residential or commercial development). For a non-
linear project, the impacts of activities authorized by NWPs or other 
DA permits usually occur to a single waterbody and its tributaries and 
adjacent wetlands. As a general concept, cumulative impacts accrue to a 
single waterbody as a result of multiple impacts occurring over time, 
which include direct impacts to the waterbody and the indirect effects 
of activities occurring in the watershed of that waterbody. For a 
linear project, the incremental contribution of a linear project 
crossing of a waterbody to the cumulative impacts for that particular 
waterbody is small. For a linear project, the sum of the authorized 
impacts occur to the various waterbodies crossed by that linear 
project. A non-linear project may have a larger incremental 
contribution to the cumulative impacts for a particular waterbody, 
because all of the authorized impacts will occur in or near that 
waterbody.
    We received a few comments suggesting that we provide a definition 
of ``temporary.'' We believe that district engineers should have the 
discretion to determine on a case-by-case basis what constitutes a 
temporary impact versus a permanent impact. A district engineer can 
issue guidelines for his or her district on what constitutes a 
temporary fill or a temporary structure or work.

[[Page 1976]]

The length of time to consider an impact to be ``temporary'' depends on 
a variety of factors, including how soon the temporary structures and 
fills need to be removed after construction has been completed. In some 
cases they might need to be removed shortly after construction is 
completed. In other cases more time might be necessary to allow the 
completed structures and fills to stabilize prior to removing any 
temporary structures or fills. The appropriate length of time would 
depend on various factors, such as resource type, hydrodynamics, soils, 
geology, plant communities, and season. Providing a national definition 
of ``temporary'' would be less protective of the environment because it 
would constrain local decision making. For example, if the authorized 
structure or fill is not allowed sufficient time to stabilize, it may 
collapse or be washed away after the temporary structures or fills are 
removed.
    A couple of commenters asked for definitions of ``repair,'' 
``replacement,'' and ``previously authorized.'' One of these commenters 
also requested definitions of ``modification'' and ``riprap.'' One 
commenter requested a definition of ``minimal adverse effect.''
    We do not see a need to define the terms ``repair,'' 
``replacement,'' ``previously authorized,'' ``modification,'' and 
``riprap.'' The commonly understood definitions of these terms apply to 
the NWPs, and they do not warrant the development of new definitions. 
The term ``minimal adverse effect'' cannot be defined because it is a 
subjective term, with ``minimal'' and ``adverse effect'' dependent on 
the perspective of the person conducting the evaluation or assessment. 
In paragraph 2 of Section D, District Engineer's Decision, we have 
provided a list of factors district engineers should consider when 
making their ``no more than minimal adverse environmental effects'' 
determinations for proposed NWP activities.
    Best management practices (BMPs). We did not propose any changes to 
this definition. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Compensatory mitigation. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Currently serviceable. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Direct effects. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Discharge. We proposed to modify this definition to make it clear 
that the use of the term ``discharge'' in the NWPs refers to 
``discharges of dredged or fill material'' and not to discharges of 
other types of pollutants. Point source discharges of other types of 
pollutants are regulated under Section 402 of the Clean Water Act.
    Several commenters said they support the proposed change. One 
commenter stated that the Corps regulates under section 404 of the 
Clean Water Act, some but not all excavation activities. One commenter 
said that the 2015 final rule defining ``waters of the United States'' 
should not be referenced in this definition.
    Under the definition of ``discharge of dredged material'' at 33 CFR 
323.2(d), we regulate certain excavation activities in waters of the 
United States. The NWP definition of ``discharge'' refers to regulated 
discharges of dredged or fill material into waters of the United 
States. The definition of ``discharge'' does not refer to the 2015 
final rule.
    Ecological reference. To help implement the new provision of NWP 27 
that requires aquatic habitat restoration, enhancement, and 
establishment activities to result in aquatic habitat that resembles an 
ecological reference, we are adding a definition of ``ecological 
reference'' using the concepts discussed in the preamble discussion of 
NWP 27.
    Enhancement. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Ephemeral stream. We did not propose any changes to this 
definition. One commenter requested clarification on how ephemeral 
streams are to be identified and the mitigation requirements for 
impacts to ephemeral streams.
    Ephemeral streams are distinguished from perennial and intermittent 
streams by their flow regimes, which are explained in the definition 
(i.e., they have flowing water only during, and for a short duration 
after, precipitation events in a typical year). Compensatory mitigation 
requirements for losses of ephemeral streams authorized by NWPs are 
determined on a case-by-case basis by district engineers. This 
definition is adopted as proposed.
    Establishment (creation). We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    High Tide Line. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Historic property. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Independent utility. We did not propose any changes to this 
definition. A few commenters requested clarification that the concepts 
of independent utility and ``single and complete'' applies to both 
linear and non-linear projects. One commenter recommended including 
linear projects in this definition. One commenter said that the test to 
determine a ``single and complete non-linear project'' in this 
definition conflicts with proposed Note 2 in NWP 12 and proposed Note 1 
in NWP 14.
    The concept of independent utility does not apply to the definition 
of ``single and complete linear project'' because the crossings of 
waters of the United States between the point of origin of a linear 
project and its terminal point are necessary for the linear project to 
fulfill its purpose of transporting goods, services, and/or people from 
the point of origin to the terminal point. In other words, each of 
those crossings of waters of the United States for the single and 
complete linear project does not have independent utility. Therefore, 
It would not be appropriate to include linear projects in this 
definition, for the reasons explained above. This definition does not 
conflict with Note 2 of NWP 12 or Note 1 of NWP 14. The term 
``independent utility'' was removed from both of those Notes.
    This definition is adopted as proposed.
    Indirect effects. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Intermittent stream. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Loss of waters of the United States. We proposed to modify this 
definition to clarify that loss of stream bed can be measured by area 
(e.g., acres, square feet) or by linear feet. For the NWPs that 
authorize discharges of dredged or fill material into waters of the 
United States that result in the loss of stream bed through filling or 
excavation, specified NWP limits may be expressed in acres, linear 
feet, or both.
    One commenter supported the proposed changes to this definition. A 
few commenters said they support the proposed modification on 
quantification of losses of stream bed in acres. A few commenters 
objected to that proposed modification. A few commenters expressed 
disagreement that excavation in stream beds results in a loss of waters 
of the United States. One commenter said that this definition should 
not

[[Page 1977]]

include stream modification and bank stabilization. One commenter asked 
whether the use of timber mats in waters of the United States counts 
towards the limits of the NWPs.
    We have retained acres as an option for quantifying loss of stream 
bed. The physical, chemical, and biological processes that occur in 
aquatic ecosystems and other types of aquatic resources take place over 
the area of stream bed. For example, gross primary production and 
ecosystem respiration in rivers and streams is represented in grams per 
square meter per day, secondary production in rivers and streams is 
quantified in grams per square meter per year, and river nitrogen and 
phosphorous yields are expressed in kilograms per hectare per year. 
(Allan and Castillo 2007). For streams, quantifying impacts and 
compensatory mitigation as linear feet does not take into account the 
width of the stream, which is important to indicate the area of stream 
that performs ecological functions and services (e.g., Bronner et al. 
2013). The definition of ``loss of waters of the United States'' is 
intended to assist in the determination whether a proposed NWP activity 
will result in more than minimal adverse environmental effects, so it 
examines activities that cause adverse effects to jurisdictional waters 
and wetlands, even if those activities do not convert those waters or 
wetlands to uplands so that those wetlands area lost. Excavation of 
stream bed changes the stream bed and the functions it provides. Stream 
modification and bank stabilization activities can cause losses of 
stream bed, such as the filling of stream bed to construct the bank 
stabilization activity. Temporary use of timber mats in waters of the 
United States as a best management practice to minimize the adverse 
effects of activities authorized by NWPs does not count towards the NWP 
limits because that use of timber mats does not result in a loss of 
waters of the United States.
    One commenter said that the word ``excavation'' should be deleted 
from this definition. One commenter asked for clarification whether 
excavation activities that remove material from waters of the United 
States, but do not restore the impact area to pre-construction contours 
and elevations, cause a loss of waters of the United States. One 
commenter asked how excavation activities are considered in the first 
sentence of this definition, which refers to waters of the United 
States that are temporarily filled, flooded, excavated, or drained, but 
restored to pre-construction contours and elevations. A few commenters 
asserted that the proposed definition is arbitrary and capricious, 
particularly if it is applied to NWP 12 activities.
    Excavation activities in jurisdictional waters and wetlands may 
require DA authorization, if they result in regulable discharges of 
dredged or fill material. District engineers apply the definitions at 
33 CFR 323.2(c)-(f) to determine whether an excavation activity results 
in a discharge of dredged or fill material that requires DA 
authorization. For the purposes of this definition, regulated 
excavation activities in rivers and streams cause a loss of waters of 
the United States. The fifth sentence of this definition states that 
waters of the United States that are temporarily filled, flooded, 
excavated, or drained, but restored to pre-construction contours and 
elevations after construction, are not considered to result in a loss 
of waters of the United States. Nationwide permit 12, as well as the 
other NWPs issued under section 404 of the Clean Water Act, authorizes 
discharges of dredged or fill material into waters of the United States 
that can result in permanently or temporarily filling, flooding, 
excavation, or draining waters of the United States. In other words, 
NWP 12 is treated no differently than other section 404 NWPs when it 
comes to applying the definition of ``loss of waters of the United 
States.''
    A few commenters agreed with the proposed clarification that states 
that non-regulated activities are not to be included when calculating 
losses of waters of the United States. Several commenters said this 
definition should include the conversion of forested wetlands. One 
commenter stated that the definition should be modified to state that 
vegetation cutting does not cause a loss of waters of the United 
States. One commenter stated that this definition should include 
permanent losses of wetlands from conversion activities as losses of 
waters of the United States.
    The conversion of forested wetlands to emergent wetlands, other 
types of wetlands, or to open waters may be a loss of waters of the 
United States if that conversion involves activities that require DA 
authorization. For example, mechanized landclearing in a forested 
wetland that results in a regulated discharge of dredged material and 
converts the forested wetland to an emergent wetland requires DA 
authorization. In contrast, if a forested wetland is altered by cutting 
the trees above their crowns without removing the tree trunks and roots 
and causing a regulated discharge of dredged material, then that 
activity would not be considered a ``loss of waters of the United 
States'' under this definition.
    This definition is adopted as proposed.
    Navigable waters. We are adding this definition to clarify that if 
the term ``navigable waters'' is used in the text of an NWP, then the 
NWP authorizes activities in navigable waters of the United States 
subject to section 10 of the Rivers and Harbors Act of 1899. Navigable 
waters of the United States are defined at 33 CFR part 329.
    Non-tidal wetland. We proposed to modify this definition to refer 
to 33 CFR 328.3(c)(4). One commenter said that the 2015 final rule 
defining ``waters of the United States'' should not be referenced in 
this definition.
    We have removed the second sentence of this definition, which cited 
the definition of ``wetland'' promulgated in the 2015 final rule 
defining ``waters of the United States.'' This definition is adopted 
with the modification discussed above.
    Open water. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Ordinary high water mark. We proposed to change the regulation 
citation in this definition to 33 CFR part 328.3(c)(6), which was based 
on the 2015 final rule defining ``waters of the United States.'' One 
commenter supported the proposed change, and one commenter did not 
agree with the proposed change. One commenter said that the 2015 final 
rule defining ``waters of the United States'' should not be referenced 
in this definition.
    We have removed the reference to 33 CFR 328.3(c)(6) from this 
definition. This definition is adopted with the modification discussed 
above.
    Perennial stream. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Practicable. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Pre-construction notification. We did not receive any comments on 
the proposed definition. The definition is adopted as proposed.
    Preservation. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Protected tribal resources. We have added this definition to assist 
with compliance with general condition 17, tribal rights. This 
definition was taken from the 1998 Department of Defense American 
Indian and Alaska Native Policy.
    Re-establishment. We did not receive any comments on the proposed

[[Page 1978]]

definition. The definition is adopted as proposed.
    Rehabilitation. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Restoration. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Riffle and pool complex. We did not propose any changes to this 
definition. One commenter stated that a more specific definition should 
be provided for the NWPs because this definition should not apply to a 
single pool in the vicinity of a bridge, with some cobbles near the 
pool.
    This definition was taken from the 404(b)(1) Guidelines (40 CFR 
230..45). This definition refers to ``riffle and pool complexes.'' A 
single pool with some cobbles is not a riffle and pool complex. This 
definition is adopted as proposed.
    Riparian areas. We proposed to change the word ``adjacent'' to 
``next'' in the first sentence of this definition because riparian 
areas border rivers, streams, and other bodies of water.
    One commenter supported the proposed modification and one commenter 
opposed the proposed modification. One commenter asked for further 
explanation why we proposed to change ``adjacent'' to ``next'' and ask 
whether this modification would change the meaning of ``riparian 
area.'' This commenter said she was uncertain whether the proposed 
change would result in more or fewer riparian areas requiring 
mitigation or alter the type of mitigation required.
    The proposed modification is intended to make this definition 
clearer, because riparian areas abut streams, lakes, and estuarine-
marine shorelines. The Corps regulatory program has long defined 
adjacent wetlands as wetlands that are bordering, contiguous, or 
neighboring. Riparian areas are bordering or contiguous to streams, 
lakes, and estuarine-marine shorelines. Because ``neighboring'' 
ecosystems or habitats features may be adjacent to, but separated from, 
streams, lakes, and estuarine-marine shorelines by roads, levees, or 
other man-made features we believe the work ``next'' is a more precise 
term than ``adjacent.'' This change will not alter the mitigation 
requirements for the NWPs, or change the implementation of paragraph 
(e) of general condition 23, mitigation. That paragraph addresses the 
restoration, enhancement, and protection/maintenance of riparian areas 
as compensatory mitigation for NWP activities.
    This definition is adopted as proposed.
    Shellfish seeding. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Single and complete linear project. We did not propose any changes 
to this definition. One commenter recommended changing this definition 
so that it is the same as the definition of ``single and complete non-
linear project.'' One commenter stated that use of the term ``single 
and complete'' indicates that if one crossing depends on another 
crossing being constructed, then those crossings will be considered 
together. One commenter said that the term ``separate and distinct'' 
should be used instead of ``separate and distant.''
    The Corps' regulations at 33 CFR 330.2(i) provide different 
approaches to applying the concept of ``single and complete project'' 
to linear projects versus non-linear projects. These differences are 
explained in the definitions of ``single and complete linear project'' 
and ``single and complete non-linear project'' in Section F of the 
NWPs. For linear projects, the concept of ``single and complete 
project'' means that each separate and distant crossing may be 
authorized by an NWP. When the district engineer evaluates the PCN for 
a linear project, he or she considers the cumulative effects of those 
crossings that require DA authorization (see paragraph 1 of Section D, 
``District Engineer's Decision''). The correct terminology is 
``separate and distant,'' ``not separate and distinct'' (see 33 CFR 
330.2(i)).
    Several commenters said that the definition of ``distant'' is 
ambiguous and should be further defined. Several commenters requested 
that the Corps define ``separate and distant,'' and requested that the 
Corps provide thresholds for determining when crossings are separate 
and distant. One commenter asked how the term ``separate and distant'' 
would be applied to determine if the linear project requires an 
individual permit. One commenter stated that allowing authorization of 
``separate and distant crossings'' under one NWP or separate NWPs is 
dependent on how the prospective permittee determines the end points of 
each waterbody crossing.
    District engineers will use their discretion to determine what 
constitutes ``distant'' for the purposes of determining that separate 
and distant crossings of waters of the United States qualify for 
separate NWP authorization. We cannot establish thresholds at a 
national level because ``separate and distant'' depends on a variety of 
factors and is best determined on a case-by-case basis. Factors 
considered by district engineers may include topography, local 
hydrology, the distribution of waters and wetlands in the landscape, 
geology, soils, and other appropriate factors. District engineers will 
determine when proposed crossings of waters of the United States are 
not separate and distance and require individual permits because they 
exceed the acreage or other limits for an NWP. The district engineer's 
determination that crossings of waters of the United States are 
separate and distant is dependent on landscape factors, including the 
distribution of jurisdictional waters and wetlands in the landscape, 
and not on the prospective permittee's identification of end points for 
each waterbody crossing.
    One commenter stated that the ability to use multiple NWPs to 
authorize individual segments of linear projects should be eliminated, 
including pipelines and bank stabilization activities, because that 
practice violates numerous laws. One commenter stated that the Corps 
violates the Clean Water Act by treating each crossing of waters of the 
United States as a single and complete project. That commenter said 
that a small segment of a pipeline or transmission line crossing a 
water of the United States would have no independent utility. One 
commenter said that the definition of ``single and complete linear 
project'' should be amended to prohibit piecemealing of activities to 
meet NWP limits. Two commenters asserted that authorizing each single 
and complete crossing with an NWP fails to account for cumulative 
impacts of the linear project.
    The Corps' practices for authorizing linear projects by NWP does 
not violate any laws. The NWP regulations for the Corps' practices were 
promulgated in 1991 and are still in effect. The definitions in the 
NWPs are consistent with the NWP regulations issued in 1991. Section 
404(e) of the Clean Water Act does not provide any direction on general 
permit authorization for regulated activities for crossings of waters 
of the United States for linear projects. As explained elsewhere in 
this preamble, for a single and complete linear project the separate 
and distant crossings of waters of the United States do not have 
independent utility because they are necessary for transporting the 
goods or services from the point of origin to the terminal point. The 
definition of ``single and complete linear project'' does not allow 
piecemealing. Under paragraph (b)(4) of general condition 32, PCNs for 
linear projects are required to include those crossings of waters of 
the United States that require NWP PCNs as well as those

[[Page 1979]]

crossings that will utilize the NWPs and do not require PCNs. When the 
district engineer reviews the PCN, he or she considers the cumulative 
effects of both the NWP activities that require PCNs and the NWP 
activities that do not require PCNs.
    One commenter stated that there should be no changes to the way 
``single and complete'' and ``separate and distant'' are applied to the 
NWPs, because any change may result in more individual permits being 
required for linear projects that have previously been authorized by a 
NWP.
    We have not made any changes to the proposed definition. This 
definition is adopted as proposed.
    Single and complete non-linear project. We did not receive any 
comments on the proposed definition. The definition is adopted as 
proposed.
    Stormwater management. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Stormwater management facilities. We did not receive any comments 
on the proposed definition. The definition is adopted as proposed.
    Stream bed. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Stream channelization. We did not receive any comments on the 
proposed definition. The definition is adopted as proposed.
    Structure. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Tidal wetland. We proposed to change the regulation citations to 
refer to the provisions in the 2015 final rule defining ``waters of the 
United States.'' One commenter supported the proposed change and one 
commenter opposed the proposed change. One commenter said this 
definition should not reference the 2015 final rule.
    We have modified this definition by removing the second sentence 
from the proposed definition. We also deleted the phrase ``, which is 
defined at 33 CFR 328.3(c)(7)'' from the end of the last sentence. 
These two changes remove the regulation references that were in the 
2015 final rule. We also modified the first sentence of this definition 
by adding the word ``jurisdictional'' before the second use of the word 
``wetland'' and deleting the parenthetical (i.e., water of the United 
States). This definition is adopted with these modifications.
    Tribal land. We have added this definition to assist with 
compliance with general condition 17, tribal rights. This definition 
was taken from the 1998 Department of Defense American Indian and 
Alaska Native Policy.
    Tribal rights. We have added this definition to assist with 
compliance with general condition 17, tribal rights. This definition 
was taken from the 1998 Department of Defense American Indian and 
Alaska Native Policy, but uses the term tribal lands instead of Indian 
lands.
    Vegetated shallows. We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Waterbody. We proposed to modify this definition by revising the 
second sentence as follows to reference the 2015 final rule defining 
``waters of the United States'': ``If a wetland is adjacent to a 
waterbody determined to be a water of the United States under 33 CFR 
part 328.3(a)(1)-(5), that waterbody and any adjacent wetlands are 
considered together as a single aquatic unit (see 33 CFR part 
328.4(c)(2)).''
    Several commenters said that if the Corps intends to use the term 
``waterbody'' interchangeably with ``water of the United States'' in 
the NWP program, then we should delete the definition of ``waterbody'' 
from the NWPs and use the term ``waters of the United States'' instead. 
In the alternative, these commenters stated that this definition could 
be modified to avoid using concepts from the 2015 final rule defining 
``waters of the United States'' and removing those regulation 
references. Several commenters said that this definition should not 
utilize the 2015 final rule's definitions of ``adjacent'' and 
``neighboring.'' One commenter asserted that the term ``waterbody'' 
should be removed from the NWPs.
    We have modified this definition by removing the phrase ``under 33 
CFR 328.3(a)(1)-(5)'' from the second sentence. We have retained the 
reference to 33 CFR 328.4(c)(2) because that provision of the Corps' 
regulations was not addressed by the 2015 final rule. The definition of 
``waterbody'' needs to be retained because either the terms 
``waterbody'' or ``waterbodies'' are used 18 times in the text of the 
NWPs and general conditions. A waterbody is a single aquatic unit and 
for a river or stream it includes wetlands adjacent to the river or 
stream.
    This definition is adopted with the modification discussed above.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    The paperwork burden associated with the NWP relates exclusively to 
the preparation of the PCN. The Corps estimates that applicants will 
submit 31,448 PCNs per year. Paragraph (b) of general condition 32 
identifies the information that should be submitted with a PCN, and 
some NWPs identify additional information to be included in the PCN. 
While different NWPs require different information be included in a 
PCN, the Corps estimates that a PCN takes, on average, 11 hours to 
complete. That results in an average, annual paperwork burden of 
345,928 hours.
    The NWPs would increase the total paperwork burden associated with 
this program but decrease the net burden on the public. This is due to 
the fact that there is new paperwork burden associated with the 
inclusion of two new NWP (both of which have PCN requirements). Since, 
however, this time would otherwise be spent on completing an individual 
permit application, which we estimate also takes, on average, 11 hours 
to complete, the net effect on the public is zero.
    The only real change to the public's paperwork burden from this 
final rule is a decrease due primarily to a modification to the PCN 
requirements for NWPs 33 and 48, the modification to paragraph (b) of 
NWP 3, and, to a lesser extent, a minor increase associated with the 
minor changes we made to the content required for a complete PCN (see 
paragraph (b) of general condition 32).
    Specifically, we anticipate a reduction in paperwork burden from 
the final rule to require PCNs only for NWP 33 activities in section 10 
waters. There will also be a paperwork reduction because of the change 
to the PCN thresholds for NWP 48, by eliminating the requirement to 
submit a PCN for dredged harvesting, tilling, or harrowing in areas 
inhabited by submerged aquatic vegetation. We estimate that the changes 
to NWP 33 would result in 210 fewer PCNs, with an estimated reduction 
of paperwork burden of 2,310 hours. The changes to the PCN thresholds 
for NWP 48 are expected to result in a reduction of 50 PCNs per year in 
waters where there are no listed species or critical habitat that would 
otherwise trigger the requirement to submit PCNs because of general 
condition 18. We estimate that 50 fewer PCNs will be required for NWP

[[Page 1980]]

48 activities, with a reduction of paperwork burden of 550 hours. We 
estimate that 50 fewer PCNs will be required for NWP 3(b) activities 
because the placement of riprap to protect the structure or fill will 
be authorized by NWP 13 and will not likely require a PCN. Therefore, 
the estimated net change in paperwork burden for this rule is an 
increase of 792 hours per year. Prospective permittees who are required 
to submit a PCN for a particular NWP, or who are requesting 
verification that a particular activity qualifies for NWP 
authorization, may use the current standard Department of the Army 
permit application form.
    The following table summarizes the projected changes in paperwork 
burden for two alternatives relative to the paperwork burden under the 
2012 NWPs. The first alternative is to reissue 50 NWPs and issue two 
new NWPs. The second alternative would result if these NWPs are not 
issued and reissued and regulated entities would have to obtain 
standard individual permits to comply with the permit requirements of 
section 404 of the Clean Water Act and section 10 of the Rivers and 
Harbors Act of 1899. The 302 standard individual permits included in 
the row for the 2012 NWPs represent the standard individual permits 
that would be required for activities that would be authorized by the 
changes to NWPs 3, 43, 45, and 52 and the two new NWPs (NWPs 53 and 
54). The estimated 15 activities that would require authorization by 
standard individual permit under the 2017 NWPs represent surface coal 
mining activities that were authorized by paragraph (a) of the 2012 NWP 
21 that will not be completed before the 2012 NWP expires and would 
thus require standard individual permits to complete the surface coal 
mining activity. We estimate that imposing a cap of 1,000 linear feet 
on bulkheads in NWP 13 will result in 10 bulkheads requiring individual 
permits each year. The modification of NWP 13 to make it clear that it 
authorizes stream barbs will reduce the number of individual permits by 
an estimated 10 per year. Those two changes to NWP 13 will result in no 
net changes in number of the number of individual permits required for 
bank stabilization activities each year.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                             Estimated
                                                                           Number of NWP                                    changes in       Estimated
                                                           Number of NWP  activities not  Number of SIPs     Estimated     number of NWP    changes in
                                                           PCNs per year  requiring PCNs     per year     changes in NWP  activities not  number of SIPs
                                                                             per year                      PCNs per year  requiring PCNs     per year
                                                                                                                             per year
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 NWPs...............................................          31,555          31,415             302  ..............  ..............  ..............
2017 NWPs...............................................          31,448          31,979              15             -82            +492            -292
SIPs required if NWPs not reissued......................               0               0          49,838  ..............  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------

    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number.

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to review by OMB and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
under item (4) that this rule is a ``significant regulatory action'' 
and the draft final rule was submitted to OMB for review.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The issuance and modification of NWPs does not have 
federalism implications. We do not believe that the final NWPs will 
have substantial direct effects on the States, on the relationship 
between the federal government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
These NWPs will not impose any additional substantive obligations on 
State or local governments. Therefore, Executive Order 13132 does not 
apply to this rule.
    One commenter stated that completing PCNs puts an administrative 
and financial burden on local governments, and requested that the Corps 
evaluate this impact in accordance with the National Environmental 
Policy Act, or revise the PCN requirements.
    Local governments that want to do activities that require DA 
authorization under section 404 of the Clean Water Act and/or section 
10 of the Rivers and Harbors Act of 1899 must apply for permits from 
the Corps unless the proposed activity qualifies for authorization 
under a general permit that does not require notification to the Corps. 
If the proposed activity does not qualify for general permit 
authorization, the local government must submit an individual permit 
application. If the proposed activity potentially qualifies for NWP 
authorization, but requires submission of a PCN to the district 
engineer, then the local government must submit a PCN. As stating in 
our Regulatory Impact Analysis, the direct costs to permit applicants 
for obtaining NWP authorization are less than the direct costs of 
obtaining individual permit authorization.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment

[[Page 1981]]

rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of the issuance and 
modification of NWPs on small entities, a small entity is defined as: 
(1) A small business based on Small Business Administration size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise which is independently owned and operated and 
is not dominant in its field.
    The statutes under which the Corps issues, reissues, or modifies 
nationwide permits are section 404(e) of the Clean Water Act (33 U.S.C. 
1344(e)) and section 10 of the Rivers and Harbors Act of 1899 (33 
U.S.C. 403). Under section 404 of the Clean Water Act, Department of 
the Army (DA) permits are required for discharges of dredged or fill 
material into waters of the United States. Under section 10 of the 
Rivers and Harbors Act of 1899, DA permits are required for any 
structures or other work that affect the course, location, or condition 
of navigable waters of the United States. Small entities proposing to 
discharge dredged or fill material into waters of the United States 
and/or construct structures or conduct work in navigable waters of the 
United States must obtain DA permits to conduct those activities, 
unless a particular activity is exempt from those permit requirements. 
Individual permits and general permits can be issued by the Corps to 
satisfy the permit requirements of these two statutes. Nationwide 
permits are a form of general permit issued by the Chief of Engineers.
    Nationwide permits automatically expire and become null and void if 
they are not modified or reissued within five years of their effective 
date (see 33 CFR 330.6(b)). Furthermore, section 404(e) of the Clean 
Water Act states that general permits, including NWPs, can be issued 
for no more than five years. If the current NWPs are not reissued, they 
will expire on March 18, 2017, and small entities and other project 
proponents would be required to obtain alternative forms of DA permits 
(i.e., standard individual permits, letters of permission, or regional 
general permits) for activities involving discharges of dredged or fill 
material into waters of the United States or structures or work in 
navigable waters of the United States. Regional general permits that 
authorize similar activities as the NWPs may be available in some 
geographic areas, but small entities conducting regulated activities 
outside those geographic areas would have to obtain individual permits 
for activities that require DA permits.
    When compared to the compliance costs for individual permits, most 
of the terms and conditions of the NWPs are expected to result in 
decreases in the costs of complying with the permit requirements of 
section 10 of the Rivers and Harbors Act of 1899 and section 404 of the 
Clean Water Act. The anticipated decrease in compliance cost results 
from the lower cost of obtaining NWP authorization instead of standard 
individual permits. Unlike standard individual permits, NWPs authorize 
activities without a requirement for public notice and comment on each 
proposed activity.
    Another requirement of Section 404(e) of the Clean Water Act is 
that general permits, including nationwide permits, authorize only 
those activities that result in no more than minimal adverse 
environmental effects, individually and cumulatively. The terms and 
conditions of the NWPs, such as acreage or linear foot limits, are 
imposed to ensure that the NWPs authorize only those activities that 
result in no more than minimal adverse effects on the aquatic 
environment and other public interest review factors.
    After considering the economic impacts of the NWPs on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. Small entities may obtain 
required DA authorizations through the NWPs, in cases where there are 
applicable NWPs authorizing those activities and proposed activities 
will result in only minimal individual and cumulative adverse 
environmental effects. The terms and conditions of these NWPs will not 
impose substantially higher costs on small entities than those of the 
2012 NWPs. If an NWP is not available to authorize a particular 
activity, then another form of DA authorization, such as an individual 
permit or a regional general permit, must be secured. However, as noted 
above, we expect a slight to moderate increase in the number of 
activities than can be authorized through NWPs, because we are issuing 
two new NWPs. Because those activities required authorization through 
other forms of DA authorization (e.g., individual permits or regional 
general permits) we expect a concurrent decrease in the numbers of 
individual permit and regional general permit authorizations required 
for these activities.
    In the June 1, 2016, proposed rule we requested comments on the 
potential impacts of the NWPs on small entities. One commenter said 
that the proposed NWPs do not comply with the Regulatory Flexibility 
Act because the Corps failed to conduct the required analysis to 
certify will not have a significant impact on small businesses. We 
believe our Regulatory Flexibility Act analysis satisfies the 
requirements of that Act.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal 
mandates'' that may result in expenditures to State, local, and Tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including Tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    We have determined that the NWPs do not contain a federal mandate 
that may result in expenditures of $100 million or more for State, 
local, and

[[Page 1982]]

Tribal governments, in the aggregate, or the private sector in any one 
year. These NWPs are generally consistent with current agency practice, 
do not impose new substantive requirements and therefore do not contain 
a federal mandate that may result in expenditures of $100 million or 
more for State, local, and Tribal governments, in the aggregate, or the 
private sector in any one year. Therefore, this final rule is not 
subject to the requirements of Sections 202 and 205 of the UMRA. For 
the same reasons, we have determined that the NWPs contain no 
regulatory requirements that might significantly or uniquely affect 
small governments. Therefore, the issuance and modification of the NWPs 
is not subject to the requirements of Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The NWPs are not subject to this Executive Order because they are 
not economically significant as defined in Executive Order 12866. In 
addition, the NWPs do not concern an environmental health or safety 
risk that we have reason to believe may have a disproportionate effect 
on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Tribes, on the relationship between the federal government 
and the Tribes, or on the distribution of power and responsibilities 
between the federal government and Tribes.''
    The issuance of these NWPs is generally consistent with current 
agency practice and will not have substantial direct effects on tribal 
governments, on the relationship between the federal government and the 
Tribes, or on the distribution of power and responsibilities between 
the federal government and Tribes. Therefore, Executive Order 13175 
does not apply to this final rule. However, in the spirit of Executive 
Order 13175, we specifically requested comments from Tribal officials 
on the proposed rule. Their comments were fully considered during the 
preparation of this final rule. We have modified general condition 17 
to more fully address tribal rights. Each Corps district conducted 
government-to-government consultation with Tribes, to identify regional 
conditions or other local NWP modifications to protect aquatic 
resources of interest to Tribes, as part of the Corps' responsibility 
to protect tribal trust resources and ensure that activities authorized 
by NWPs do not cause more than minimal adverse effects on tribal rights 
(including treaty rights), protected tribal resources, and tribal 
lands.
    One commenter stated that they disagreed with our determination 
that the proposal to reissue and issue the NWPs is not subject to E.O. 
13175 because the NWPs are regulations under that Executive Order.
    While the NWPs are regulations, we believe the final NWPs will not 
have substantial direct effects on tribal governments, on the 
relationship between the federal government and the tribes, or on the 
distribution of power and responsibilities between the federal 
government and tribes. We have taken, and will continue to take, 
measures (such as Corps districts consulting with tribes on specific 
NWP activities that may have adverse effects on tribal rights) to 
ensure that the NWPs will not have substantial direct effects on tribal 
governments, on the relationship between the federal government and the 
tribes, or on the distribution of power and responsibilities between 
the federal government and tribes. General condition 17 has been 
modified to state that no NWP activity may cause more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands. Tribes use NWPs for activities they 
conduct that require DA authorization under section 404 of the Clean 
Water Act and/or section 10 of the Rivers and Harbors Act of 1899. For 
example, tribes that conduct commercial shellfish aquaculture 
activities have used NWP 48, and tribes that conduct aquatic habitat 
restoration activities have used NWP 27.
    For the 2017 NWPs, Corps districts conducted consultations with 
tribes to identify regional conditions to ensure that NWP activities 
comply with general conditions 17 and 20. Through those consultations, 
district engineers can also develop coordination procedures with tribes 
to provide opportunities to review proposed NWP activities and provide 
their views on whether those activities will cause more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands. When a Corps district receives a 
pre-construction notification that triggers a need to consult with one 
or more tribes, that consultation will be completed before the district 
engineer makes his or her decision on whether to issue the NWP 
verification. If, after considering mitigation, the district engineer 
determines the proposed NWP activity will have more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands, he or she will exercise 
discretionary authority and require an individual permit. Division 
engineers can modify, suspend, or revoke one or more NWPs in a region 
to protect tribal rights. A district engineer can modify, suspend, or 
revoke an NWP to protect tribal rights, protected tribal resources, and 
tribal lands.

Environmental Documentation

    A decision document, which includes an environmental assessment and 
Finding of No Significant Impact (FONSI) has been prepared for each 
NWP. The final decision documents for these NWPs are available at: 
www.regulations.gov (docket ID number COE-2015-0017). They are also 
available by contacting Headquarters, U.S. Army Corps of Engineers, 
Operations and Regulatory Community of Practice, 441 G Street NW., 
Washington, DC 20314-1000.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing the final NWPs and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days

[[Page 1983]]

after it is published in the Federal Register. The NWPs are not a 
``major rule'' as defined by 5 U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    The NWPs are not expected to negatively impact any community, and 
therefore are not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities.

Executive Order 13211

    These NWPs are not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because they are not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

Authority

    We are issuing new NWPs, modifying existing NWPs, and reissuing 
NWPs without change under the authority of Section 404 of the Clean 
Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act 
of 1899 (33 U.S.C. 401 et seq.).

    Date: December 21, 2016.
Donald E. Jackson,
Major General, U.S. Army, Deputy Commanding General for Civil and 
Emergency Operations.

Nationwide Permits, Conditions, Further Information, and Definitions

A. Index of Nationwide Permits, Conditions, District Engineer's 
Decision, Further Information, and Definitions

Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
53. Removal of Low-Head Dams
54. Living Shorelines
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Bird and Bald and Golden Eagle Permits
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United States
32. Pre-Construction Notification
District Engineer's Decision
Further Information
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Ecological reference
Enhancement
Ephemeral stream
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Intermittent stream
Loss of waters of the United States
Navigable waters
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation

[[Page 1984]]

Protected tribal resources
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Tribal lands
Tribal rights
Vegetated shallows
Waterbody

B. Nationwide Permits

    1. Aids to Navigation. The placement of aids to navigation and 
regulatory markers that are approved by and installed in accordance 
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I, 
subchapter C, part 66).

(Authority: Section 10 of the Rivers and Harbors Act of 1899 
(Section 10))

    2. Structures in Artificial Canals. Structures constructed in 
artificial canals within principally residential developments where the 
connection of the canal to a navigable water of the United States has 
been previously authorized (see 33 CFR 322.5(g)).

(Authority: Section 10)

    3. Maintenance. (a) The repair, rehabilitation, or replacement of 
any previously authorized, currently serviceable structure or fill, or 
of any currently serviceable structure or fill authorized by 33 CFR 
330.3, provided that the structure or fill is not to be put to uses 
differing from those uses specified or contemplated for it in the 
original permit or the most recently authorized modification. Minor 
deviations in the structure's configuration or filled area, including 
those due to changes in materials, construction techniques, 
requirements of other regulatory agencies, or current construction 
codes or safety standards that are necessary to make the repair, 
rehabilitation, or replacement are authorized. This NWP also authorizes 
the removal of previously authorized structures or fills. Any stream 
channel modification is limited to the minimum necessary for the 
repair, rehabilitation, or replacement of the structure or fill; such 
modifications, including the removal of material from the stream 
channel, must be immediately adjacent to the project. This NWP also 
authorizes the removal of accumulated sediment and debris within, and 
in the immediate vicinity of, the structure or fill. This NWP also 
authorizes the repair, rehabilitation, or replacement of those 
structures or fills destroyed or damaged by storms, floods, fire or 
other discrete events, provided the repair, rehabilitation, or 
replacement is commenced, or is under contract to commence, within two 
years of the date of their destruction or damage. In cases of 
catastrophic events, such as hurricanes or tornadoes, this two-year 
limit may be waived by the district engineer, provided the permittee 
can demonstrate funding, contract, or other similar delays.
    (b) This NWP also authorizes the removal of accumulated sediments 
and debris outside the immediate vicinity of existing structures (e.g., 
bridges, culverted road crossings, water intake structures, etc.). The 
removal of sediment is limited to the minimum necessary to restore the 
waterway in the vicinity of the structure to the approximate dimensions 
that existed when the structure was built, but cannot extend farther 
than 200 feet in any direction from the structure. This 200 foot limit 
does not apply to maintenance dredging to remove accumulated sediments 
blocking or restricting outfall and intake structures or to maintenance 
dredging to remove accumulated sediments from canals associated with 
outfall and intake structures. All dredged or excavated materials must 
be deposited and retained in an area that has no waters of the United 
States unless otherwise specifically approved by the district engineer 
under separate authorization.
    (c) This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to conduct the 
maintenance activity. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges, including 
cofferdams, are necessary for construction activities, access fills, or 
dewatering of construction sites. Temporary fills must consist of 
materials, and be placed in a manner, that will not be eroded by 
expected high flows. After conducting the maintenance activity, 
temporary fills must be removed in their entirety and the affected 
areas returned to pre-construction elevations. The areas affected by 
temporary fills must be revegetated, as appropriate.
    (d) This NWP does not authorize maintenance dredging for the 
primary purpose of navigation. This NWP does not authorize beach 
restoration. This NWP does not authorize new stream channelization or 
stream relocation projects.
    Notification: For activities authorized by paragraph (b) of this 
NWP, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 32). The pre-construction notification must include 
information regarding the original design capacities and configurations 
of the outfalls, intakes, small impoundments, and canals.

(Authorities: Section 10 of the Rivers and Harbors Act of 1899 and 
section 404 of the Clean Water Act (Sections 10 and 404))


    Note:  This NWP authorizes the repair, rehabilitation, or 
replacement of any previously authorized structure or fill that does 
not qualify for the Clean Water Act section 404(f) exemption for 
maintenance.

    4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. Fish and wildlife harvesting devices and 
activities such as pound nets, crab traps, crab dredging, eel pots, 
lobster traps, duck blinds, and clam and oyster digging, fish 
aggregating devices, and small fish attraction devices such as open 
water fish concentrators (sea kites, etc.). This NWP does not authorize 
artificial reefs or impoundments and semi-impoundments of waters of the 
United States for the culture or holding of motile species such as 
lobster, or the use of covered oyster trays or clam racks.

(Authorities: Sections 10 and 404)

    5. Scientific Measurement Devices. Devices, whose purpose is to 
measure and record scientific data, such as staff gages, tide and 
current gages, meteorological stations, water recording and biological 
observation devices, water quality testing and improvement devices, and 
similar structures. Small weirs and flumes constructed primarily to 
record water quantity and velocity are also authorized provided the 
discharge is limited to 25 cubic yards. Upon completion of the use of 
the device to measure and record scientific data, the measuring device 
and any other structures or fills associated with that device (e.g., 
foundations, anchors, buoys, lines, etc.) must be removed to the 
maximum extent practicable and the site restored to pre-construction 
elevations.

(Authorities: Sections 10 and 404)

    6. Survey Activities. Survey activities, such as core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other

[[Page 1985]]

exploratory-type bore holes, exploratory trenching, soil surveys, 
sampling, sample plots or transects for wetland delineations, and 
historic resources surveys. For the purposes of this NWP, the term 
``exploratory trenching'' means mechanical land clearing of the upper 
soil profile to expose bedrock or substrate, for the purpose of mapping 
or sampling the exposed material. The area in which the exploratory 
trench is dug must be restored to its pre-construction elevation upon 
completion of the work and must not drain a water of the United States. 
In wetlands, the top 6 to 12 inches of the trench should normally be 
backfilled with topsoil from the trench. This NWP authorizes the 
construction of temporary pads, provided the discharge does not exceed 
1/10-acre in waters of the U.S. Discharges and structures associated 
with the recovery of historic resources are not authorized by this NWP. 
Drilling and the discharge of excavated material from test wells for 
oil and gas exploration are not authorized by this NWP; the plugging of 
such wells is authorized. Fill placed for roads and other similar 
activities is not authorized by this NWP. The NWP does not authorize 
any permanent structures. The discharge of drilling mud and cuttings 
may require a permit under section 402 of the Clean Water Act.

(Authorities: Sections 10 and 404)

    7. Outfall Structures and Associated Intake Structures. Activities 
related to the construction or modification of outfall structures and 
associated intake structures, where the effluent from the outfall is 
authorized, conditionally authorized, or specifically exempted by, or 
otherwise in compliance with regulations issued under the National 
Pollutant Discharge Elimination System Program (section 402 of the 
Clean Water Act). The construction of intake structures is not 
authorized by this NWP, unless they are directly associated with an 
authorized outfall structure.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    8. Oil and Gas Structures on the Outer Continental Shelf. 
Structures for the exploration, production, and transportation of oil, 
gas, and minerals on the outer continental shelf within areas leased 
for such purposes by the Department of the Interior, Bureau of Ocean 
Energy Management. Such structures shall not be placed within the 
limits of any designated shipping safety fairway or traffic separation 
scheme, except temporary anchors that comply with the fairway 
regulations in 33 CFR 322.5(l). The district engineer will review such 
proposals to ensure compliance with the provisions of the fairway 
regulations in 33 CFR 322.5(l). Any Corps review under this NWP will be 
limited to the effects on navigation and national security in 
accordance with 33 CFR 322.5(f), as well as 33 CFR 322.5(l) and 33 CFR 
part 334. Such structures will not be placed in established danger 
zones or restricted areas as designated in 33 CFR part 334, nor will 
such structures be permitted in EPA or Corps-designated dredged 
material disposal areas.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authority: Section 10)

    9. Structures in Fleeting and Anchorage Areas. Structures, buoys, 
floats, and other devices placed within anchorage or fleeting areas to 
facilitate moorage of vessels where such areas have been established 
for that purpose.

(Authority: Section 10)

    10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.

(Authority: Section 10)

    11. Temporary Recreational Structures. Temporary buoys, markers, 
small floating docks, and similar structures placed for recreational 
use during specific events such as water skiing competitions and boat 
races or seasonal use, provided that such structures are removed within 
30 days after use has been discontinued. At Corps of Engineers 
reservoirs, the reservoir managers must approve each buoy or marker 
individually.

(Authority: Section 10)

    12. Utility Line Activities. Activities required for the 
construction, maintenance, repair, and removal of utility lines and 
associated facilities in waters of the United States, provided the 
activity does not result in the loss of greater than 1/2-acre of waters 
of the United States for each single and complete project.
    Utility lines: This NWP authorizes discharges of dredged or fill 
material into waters of the United States and structures or work in 
navigable waters for crossings of those waters associated with the 
construction, maintenance, or repair of utility lines, including 
outfall and intake structures. There must be no change in pre-
construction contours of waters of the United States. A ``utility 
line'' is defined as any pipe or pipeline for the transportation of any 
gaseous, liquid, liquescent, or slurry substance, for any purpose, and 
any cable, line, or wire for the transmission for any purpose of 
electrical energy, telephone, and telegraph messages, and internet, 
radio, and television communication. The term ``utility line'' does not 
include activities that drain a water of the United States, such as 
drainage tile or french drains, but it does apply to pipes conveying 
drainage from another area.
    Material resulting from trench excavation may be temporarily 
sidecast into waters of the United States for no more than three 
months, provided the material is not placed in such a manner that it is 
dispersed by currents or other forces. The district engineer may extend 
the period of temporary side casting for no more than a total of 180 
days, where appropriate. In wetlands, the top 6 to 12 inches of the 
trench should normally be backfilled with topsoil from the trench. The 
trench cannot be constructed or backfilled in such a manner as to drain 
waters of the United States (e.g., backfilling with extensive gravel 
layers, creating a french drain effect). Any exposed slopes and stream 
banks must be stabilized immediately upon completion of the utility 
line crossing of each waterbody.
    Utility line substations: This NWP authorizes the construction, 
maintenance, or expansion of substation facilities associated with a 
power line or utility line in non-tidal waters of the United States, 
provided the activity, in combination with all other activities 
included in one single and complete project, does not result in the 
loss of greater than 1/2-acre of waters of the United States. This NWP 
does not authorize discharges into non-tidal wetlands adjacent to tidal 
waters of the United States to construct, maintain, or expand 
substation facilities.
    Foundations for overhead utility line towers, poles, and anchors: 
This NWP authorizes the construction or maintenance of foundations for 
overhead utility line towers, poles, and anchors in all waters of the 
United States, provided the foundations are the minimum size necessary 
and separate footings for each tower leg (rather than a larger single 
pad) are used where feasible.
    Access roads: This NWP authorizes the construction of access roads 
for the construction and maintenance of utility lines, including 
overhead power lines and utility line substations, in non-tidal waters 
of the United States, provided the activity, in combination with all 
other activities included in one single and complete project, does not 
cause the

[[Page 1986]]

loss of greater than 1/2-acre of non-tidal waters of the United States. 
This NWP does not authorize discharges into non-tidal wetlands adjacent 
to tidal waters for access roads. Access roads must be the minimum 
width necessary (see Note 2, below). Access roads must be constructed 
so that the length of the road minimizes any adverse effects on waters 
of the United States and must be as near as possible to pre-
construction contours and elevations (e.g., at grade corduroy roads or 
geotextile/gravel roads). Access roads constructed above pre-
construction contours and elevations in waters of the United States 
must be properly bridged or culverted to maintain surface flows.
    This NWP may authorize utility lines in or affecting navigable 
waters of the United States even if there is no associated discharge of 
dredged or fill material (See 33 CFR part 322). Overhead utility lines 
constructed over section 10 waters and utility lines that are routed in 
or under section 10 waters without a discharge of dredged or fill 
material require a section 10 permit.
    This NWP authorizes, to the extent that Department of the Army 
authorization is required, temporary structures, fills, and work 
necessary for the remediation of inadvertent returns of drilling fluids 
to waters of the United States through sub-soil fissures or fractures 
that might occur during horizontal directional drilling activities 
conducted for the purpose of installing or replacing utility lines. 
These remediation activities must be done as soon as practicable, to 
restore the affected waterbody. District engineers may add special 
conditions to this NWP to require a remediation plan for addressing 
inadvertent returns of drilling fluids to waters of the United States 
during horizontal directional drilling activities conducted for the 
purpose of installing or replacing utility lines.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to conduct the utility 
line activity. Appropriate measures must be taken to maintain normal 
downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges, including 
cofferdams, are necessary for construction activities, access fills, or 
dewatering of construction sites. Temporary fills must consist of 
materials, and be placed in a manner, that will not be eroded by 
expected high flows. After construction, temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if any of the following criteria are met: (1) The activity involves 
mechanized land clearing in a forested wetland for the utility line 
right-of-way; (2) a section 10 permit is required; (3) the utility line 
in waters of the United States, excluding overhead lines, exceeds 500 
feet; (4) the utility line is placed within a jurisdictional area 
(i.e., water of the United States), and it runs parallel to or along a 
stream bed that is within that jurisdictional area; (5) discharges that 
result in the loss of greater than 1/10-acre of waters of the United 
States; (6) permanent access roads are constructed above grade in 
waters of the United States for a distance of more than 500 feet; or 
(7) permanent access roads are constructed in waters of the United 
States with impervious materials. (See general condition 32.)

(Authorities: Sections 10 and 404)

    Note 1:  Where the utility line is constructed or installed in 
navigable waters of the United States (i.e., section 10 waters) 
within the coastal United States, the Great Lakes, and United States 
territories, a copy of the NWP verification will be sent by the 
Corps to the National Oceanic and Atmospheric Administration (NOAA), 
National Ocean Service (NOS), for charting the utility line to 
protect navigation.


    Note 2:  For utility line activities crossing a single waterbody 
more than one time at separate and distant locations, or multiple 
waterbodies at separate and distant locations, each crossing is 
considered a single and complete project for purposes of NWP 
authorization. Utility line activities must comply with 33 CFR 
330.6(d).


    Note 3:  Utility lines consisting of aerial electric power 
transmission lines crossing navigable waters of the United States 
(which are defined at 33 CFR part 329) must comply with the 
applicable minimum clearances specified in 33 CFR 322.5(i).


    Note 4:  Access roads used for both construction and maintenance 
may be authorized, provided they meet the terms and conditions of 
this NWP. Access roads used solely for construction of the utility 
line must be removed upon completion of the work, in accordance with 
the requirements for temporary fills.


    Note 5:  Pipes or pipelines used to transport gaseous, liquid, 
liquescent, or slurry substances over navigable waters of the United 
States are considered to be bridges, not utility lines, and may 
require a permit from the U.S. Coast Guard pursuant to section 9 of 
the Rivers and Harbors Act of 1899. However, any discharges of 
dredged or fill material into waters of the United States associated 
with such pipelines will require a section 404 permit (see NWP 15).


    Note 6:  This NWP authorizes utility line maintenance and repair 
activities that do not qualify for the Clean Water Act section 
404(f) exemption for maintenance of currently serviceable fills or 
fill structures.


    Note 7:  For overhead utility lines authorized by this NWP, a 
copy of the PCN and NWP verification will be provided to the 
Department of Defense Siting Clearinghouse, which will evaluate 
potential effects on military activities.


    Note 8:  For NWP 12 activities that require pre-construction 
notification, the PCN must include any other NWP(s), regional 
general permit(s), or individual permit(s) used or intended to be 
used to authorize any part of the proposed project or any related 
activity, including other separate and distant crossings that 
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b) of general condition 
32). The district engineer will evaluate the PCN in accordance with 
Section D, ``District Engineer's Decision.'' The district engineer 
may require mitigation to ensure that the authorized activity 
results in no more than minimal individual and cumulative adverse 
environmental effects (see general condition 23).

    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion control or prevention, such as vegetative stabilization, 
bioengineering, sills, rip rap, revetment, gabion baskets, stream 
barbs, and bulkheads, or combinations of bank stabilization techniques, 
provided the activity meets all of the following criteria:
    (a) No material is placed in excess of the minimum needed for 
erosion protection;
    (b) The activity is no more than 500 feet in length along the bank, 
unless the district engineer waives this criterion by making a written 
determination concluding that the discharge will result in no more than 
minimal adverse environmental effects (an exception is for bulkheads--
the district engineer cannot issue a waiver for a bulkhead that is 
greater than 1,000 feet in length along the bank);
    (c) The activity will not exceed an average of one cubic yard per 
running foot, as measured along the length of the treated bank, below 
the plane of the ordinary high water mark or the high tide line, unless 
the district engineer waives this criterion by making a written 
determination concluding that the discharge will result in no more than 
minimal adverse environmental effects;
    (d) The activity does not involve discharges of dredged or fill 
material into special aquatic sites, unless the district engineer 
waives this criterion by

[[Page 1987]]

making a written determination concluding that the discharge will 
result in no more than minimal adverse environmental effects;
    (e) No material is of a type, or is placed in any location, or in 
any manner, that will impair surface water flow into or out of any 
waters of the United States;
    (f) No material is placed in a manner that will be eroded by normal 
or expected high flows (properly anchored native trees and treetops may 
be used in low energy areas);
    (g) Native plants appropriate for current site conditions, 
including salinity, must be used for bioengineering or vegetative bank 
stabilization;
    (h) The activity is not a stream channelization activity; and
    (i) The activity must be properly maintained, which may require 
repairing it after severe storms or erosion events. This NWP authorizes 
those maintenance and repair activities if they require authorization.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to construct the bank 
stabilization activity. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges, including 
cofferdams, are necessary for construction activities, access fills, or 
dewatering of construction sites. Temporary fills must consist of 
materials, and be placed in a manner, that will not be eroded by 
expected high flows. After construction, temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the bank stabilization activity: (1) Involves discharges into 
special aquatic sites; or (2) is in excess of 500 feet in length; or 
(3) will involve the discharge of greater than an average of one cubic 
yard per running foot as measured along the length of the treated bank, 
below the plane of the ordinary high water mark or the high tide line. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    14. Linear Transportation Projects. Activities required for 
crossings of waters of the United States associated with the 
construction, expansion, modification, or improvement of linear 
transportation projects (e.g., roads, highways, railways, trails, 
airport runways, and taxiways) in waters of the United States. For 
linear transportation projects in non-tidal waters, the discharge 
cannot cause the loss of greater than 1/2-acre of waters of the United 
States. For linear transportation projects in tidal waters, the 
discharge cannot cause the loss of greater than 1/3-acre of waters of 
the United States. Any stream channel modification, including bank 
stabilization, is limited to the minimum necessary to construct or 
protect the linear transportation project; such modifications must be 
in the immediate vicinity of the project.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to construct the linear 
transportation project. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges, including 
cofferdams, are necessary for construction activities, access fills, or 
dewatering of construction sites. Temporary fills must consist of 
materials, and be placed in a manner, that will not be eroded by 
expected high flows. Temporary fills must be removed in their entirety 
and the affected areas returned to pre-construction elevations. The 
areas affected by temporary fills must be revegetated, as appropriate.
    This NWP cannot be used to authorize non-linear features commonly 
associated with transportation projects, such as vehicle maintenance or 
storage buildings, parking lots, train stations, or aircraft hangars.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The loss of waters of the United States exceeds 1/10-acre; or 
(2) there is a discharge in a special aquatic site, including wetlands. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    Note 1:  For linear transportation projects crossing a single 
waterbody more than one time at separate and distant locations, or 
multiple waterbodies at separate and distant locations, each 
crossing is considered a single and complete project for purposes of 
NWP authorization. Linear transportation projects must comply with 
33 CFR 330.6(d).


    Note 2:  Some discharges for the construction of farm roads or 
forest roads, or temporary roads for moving mining equipment, may 
qualify for an exemption under section 404(f) of the Clean Water Act 
(see 33 CFR 323.4).


    Note 3:  For NWP 14 activities that require pre-construction 
notification, the PCN must include any other NWP(s), regional 
general permit(s), or individual permit(s) used or intended to be 
used to authorize any part of the proposed project or any related 
activity, including other separate and distant crossings that 
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b) of general condition 
32). The district engineer will evaluate the PCN in accordance with 
Section D, ``District Engineer's Decision.'' The district engineer 
may require mitigation to ensure that the authorized activity 
results in no more than minimal individual and cumulative adverse 
environmental effects (see general condition 23).

    15. U.S. Coast Guard Approved Bridges. Discharges of dredged or 
fill material incidental to the construction of a bridge across 
navigable waters of the United States, including cofferdams, abutments, 
foundation seals, piers, and temporary construction and access fills, 
provided the construction of the bridge structure has been authorized 
by the U.S. Coast Guard under section 9 of the Rivers and Harbors Act 
of 1899 or other applicable laws. Causeways and approach fills are not 
included in this NWP and will require a separate section 404 permit.

(Authority: Section 404 of the Clean Water Act (Section 404))

    16. Return Water From Upland Contained Disposal Areas. Return water 
from an upland contained dredged material disposal area. The return 
water from a contained disposal area is administratively defined as a 
discharge of dredged material by 33 CFR 323.2(d), even though the 
disposal itself occurs in an area that has no waters of the United 
States and does not require a section 404 permit. This NWP satisfies 
the technical requirement for a section 404 permit for the return water 
where the quality of the return water is controlled by the state 
through the section 401 certification procedures. The dredging activity 
may require a section 404 permit (33 CFR 323.2(d)), and will require a 
section 10 permit if located in navigable waters of the United States.

(Authority: Section 404)

    17. Hydropower Projects. Discharges of dredged or fill material 
associated with hydropower projects having: (a) Less than 5000 kW of 
total generating capacity at existing reservoirs, where the project, 
including the fill, is licensed by the Federal Energy Regulatory 
Commission (FERC) under the Federal Power Act of 1920, as amended; or 
(b) a licensing exemption granted by the FERC pursuant to section 408 
of the Energy Security Act of 1980 (16 U.S.C.

[[Page 1988]]

2705 and 2708) and section 30 of the Federal Power Act, as amended.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authority: Section 404)

    18. Minor Discharges. Minor discharges of dredged or fill material 
into all waters of the United States, provided the activity meets all 
of the following criteria:
    (a) The quantity of discharged material and the volume of area 
excavated do not exceed 25 cubic yards below the plane of the ordinary 
high water mark or the high tide line;
    (b) The discharge will not cause the loss of more than \1/10\-acre 
of waters of the United States; and
    (c) The discharge is not placed for the purpose of a stream 
diversion.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge or the volume of area excavated exceeds 10 cubic 
yards below the plane of the ordinary high water mark or the high tide 
line, or (2) the discharge is in a special aquatic site, including 
wetlands. (See general condition 32.)

(Authorities: Sections 10 and 404)

    19. Minor Dredging. Dredging of no more than 25 cubic yards below 
the plane of the ordinary high water mark or the mean high water mark 
from navigable waters of the United States (i.e., section 10 waters). 
This NWP does not authorize the dredging or degradation through 
siltation of coral reefs, sites that support submerged aquatic 
vegetation (including sites where submerged aquatic vegetation is 
documented to exist but may not be present in a given year), anadromous 
fish spawning areas, or wetlands, or the connection of canals or other 
artificial waterways to navigable waters of the United States (see 33 
CFR 322.5(g)). All dredged material must be deposited and retained in 
an area that has no waters of the United States unless otherwise 
specifically approved by the district engineer under separate 
authorization.

(Authorities: Sections 10 and 404)

    20. Response Operations for Oil or Hazardous Substances. Activities 
conducted in response to a discharge or release of oil or hazardous 
substances that are subject to the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300) including 
containment, cleanup, and mitigation efforts, provided that the 
activities are done under either: (1) The Spill Control and 
Countermeasure Plan required by 40 CFR 112.3; (2) the direction or 
oversight of the federal on-scene coordinator designated by 40 CFR part 
300; or (3) any approved existing state, regional or local contingency 
plan provided that the Regional Response Team (if one exists in the 
area) concurs with the proposed response efforts. This NWP also 
authorizes activities required for the cleanup of oil releases in 
waters of the United States from electrical equipment that are governed 
by EPA's polychlorinated biphenyl spill response regulations at 40 CFR 
part 761. This NWP also authorizes the use of temporary structures and 
fills in waters of the U.S. for spill response training exercises.

(Authorities: Sections 10 and 404)

    21. Surface Coal Mining Activities. Discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining and reclamation operations, provided the following criteria are 
met:
    (a) The activities are already authorized, or are currently being 
processed by states with approved programs under Title V of the Surface 
Mining Control and Reclamation Act of 1977 or as part of an integrated 
permit processing procedure by the Department of the Interior, Office 
of Surface Mining Reclamation and Enforcement;
    (b) The discharge must not cause the loss of greater than \1/2\-
acre of non-tidal waters of the United States. The discharge must not 
cause the loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal individual and 
cumulative adverse environmental effects. The loss of stream bed plus 
any other losses of jurisdictional wetlands and waters caused by the 
NWP activity cannot exceed \1/2\-acre. This NWP does not authorize 
discharges into tidal waters or non-tidal wetlands adjacent to tidal 
waters; and
    (c) The discharge is not associated with the construction of valley 
fills. A ``valley fill'' is a fill structure that is typically 
constructed within valleys associated with steep, mountainous terrain, 
associated with surface coal mining activities.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 32.)

(Authorities: Sections 10 and 404)

    22. Removal of Vessels. Temporary structures or minor discharges of 
dredged or fill material required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-made obstructions 
to navigation. This NWP does not authorize maintenance dredging, shoal 
removal, or riverbank snagging.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The vessel is listed or eligible for listing in the National 
Register of Historic Places; or (2) the activity is conducted in a 
special aquatic site, including coral reefs and wetlands. (See general 
condition 32.) If condition 1 above is triggered, the permittee cannot 
commence the activity until informed by the district engineer that 
compliance with the ``Historic Properties'' general condition is 
completed.

(Authorities: Sections 10 and 404)

    Note 1:  If a removed vessel is disposed of in waters of the 
United States, a permit from the U.S. EPA may be required (see 40 
CFR 229.3). If a Department of the Army permit is required for 
vessel disposal in waters of the United States, separate 
authorization will be required.


    Note 2:  Compliance with general condition 18, Endangered 
Species, and general condition 20, Historic Properties, is required 
for all NWPs. The concern with historic properties is emphasized in 
the notification requirements for this NWP because of the 
possibility that shipwrecks may be historic properties.

    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where:
    (a) That agency or department has determined, pursuant to the 
Council on Environmental Quality's implementing regulations for the 
National Environmental Policy Act (40 CFR part 1500 et seq.), that the 
activity is categorically excluded from the requirement to prepare an 
environmental impact statement or environmental assessment analysis, 
because it is included within a category of actions which neither 
individually nor cumulatively have a significant effect on the human 
environment; and
    (b) The Office of the Chief of Engineers (Attn: CECW-CO) has 
concurred with that agency's or department's determination that the 
activity is categorically excluded and approved the activity for 
authorization under NWP 23.
    The Office of the Chief of Engineers may require additional 
conditions,

[[Page 1989]]

including pre-construction notification, for authorization of an 
agency's categorical exclusions under this NWP.
    Notification: Certain categorical exclusions approved for 
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing 
the activity (see general condition 32). The activities that require 
pre-construction notification are listed in the appropriate Regulatory 
Guidance Letters.

(Authorities: Sections 10 and 404)

    Note:  The agency or department may submit an application for an 
activity believed to be categorically excluded to the Office of the 
Chief of Engineers (Attn: CECW-CO). Prior to approval for 
authorization under this NWP of any agency's activity, the Office of 
the Chief of Engineers will solicit public comment. As of the date 
of issuance of this NWP, agencies with approved categorical 
exclusions are: the Bureau of Reclamation, Federal Highway 
Administration, and U.S. Coast Guard. Activities approved for 
authorization under this NWP as of the date of this notice are found 
in Corps Regulatory Guidance Letter 05-07, which is available at: 
http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl05-07.pdf. Any future approved categorical exclusions will be announced 
in Regulatory Guidance Letters and posted on this same Web site.

    24. Indian Tribe or State Administered Section 404 Programs. Any 
activity permitted by a state or Indian Tribe administering its own 
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is 
permitted pursuant to section 10 of the Rivers and Harbors Act of 1899.

(Authority: Section 10)

    Note 1:  As of the date of the promulgation of this NWP, only 
New Jersey and Michigan administer their own section 404 permit 
programs.


    Note 2:  Those activities that do not involve an Indian Tribe or 
State section 404 permit are not included in this NWP, but certain 
structures will be exempted by Section 154 of Public Law 94-587, 90 
Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).

    25. Structural Discharges. Discharges of material such as concrete, 
sand, rock, etc., into tightly sealed forms or cells where the material 
will be used as a structural member for standard pile supported 
structures, such as bridges, transmission line footings, and walkways, 
or for general navigation, such as mooring cells, including the 
excavation of bottom material from within the form prior to the 
discharge of concrete, sand, rock, etc. This NWP does not authorize 
filled structural members that would support buildings, building pads, 
homes, house pads, parking areas, storage areas and other such 
structures. The structure itself may require a separate section 10 
permit if located in navigable waters of the United States.

(Authority: Section 404)

    26. [Reserved]
    27. Aquatic Habitat Restoration, Enhancement, and Establishment 
Activities. Activities in waters of the United States associated with 
the restoration, enhancement, and establishment of tidal and non-tidal 
wetlands and riparian areas, the restoration and enhancement of non-
tidal streams and other non-tidal open waters, and the rehabilitation 
or enhancement of tidal streams, tidal wetlands, and tidal open waters, 
provided those activities result in net increases in aquatic resource 
functions and services.
    To be authorized by this NWP, the aquatic habitat restoration, 
enhancement, or establishment activity must be planned, designed, and 
implemented so that it results in aquatic habitat that resembles an 
ecological reference. An ecological reference may be based on the 
characteristics of an intact aquatic habitat or riparian area of the 
same type that exists in the region. An ecological reference may be 
based on a conceptual model developed from regional ecological 
knowledge of the target aquatic habitat type or riparian area.
    To the extent that a Corps permit is required, activities 
authorized by this NWP include, but are not limited to: The removal of 
accumulated sediments; the installation, removal, and maintenance of 
small water control structures, dikes, and berms, as well as discharges 
of dredged or fill material to restore appropriate stream channel 
configurations after small water control structures, dikes, and berms, 
are removed; the installation of current deflectors; the enhancement, 
rehabilitation, or re-establishment of riffle and pool stream 
structure; the placement of in-stream habitat structures; modifications 
of the stream bed and/or banks to enhance, rehabilitate, or re-
establish stream meanders; the removal of stream barriers, such as 
undersized culverts, fords, and grade control structures; the 
backfilling of artificial channels; the removal of existing drainage 
structures, such as drain tiles, and the filling, blocking, or 
reshaping of drainage ditches to restore wetland hydrology; the 
installation of structures or fills necessary to restore or enhance 
wetland or stream hydrology; the construction of small nesting islands; 
the construction of open water areas; the construction of oyster 
habitat over unvegetated bottom in tidal waters; shellfish seeding; 
activities needed to reestablish vegetation, including plowing or 
discing for seed bed preparation and the planting of appropriate 
wetland species; re-establishment of submerged aquatic vegetation in 
areas where those plant communities previously existed; re-
establishment of tidal wetlands in tidal waters where those wetlands 
previously existed; mechanized land clearing to remove non-native 
invasive, exotic, or nuisance vegetation; and other related activities. 
Only native plant species should be planted at the site.
    This NWP authorizes the relocation of non-tidal waters, including 
non-tidal wetlands and streams, on the project site provided there are 
net increases in aquatic resource functions and services.
    Except for the relocation of non-tidal waters on the project site, 
this NWP does not authorize the conversion of a stream or natural 
wetlands to another aquatic habitat type (e.g., the conversion of a 
stream to wetland or vice versa) or uplands. Changes in wetland plant 
communities that occur when wetland hydrology is more fully restored 
during wetland rehabilitation activities are not considered a 
conversion to another aquatic habitat type. This NWP does not authorize 
stream channelization. This NWP does not authorize the relocation of 
tidal waters or the conversion of tidal waters, including tidal 
wetlands, to other aquatic uses, such as the conversion of tidal 
wetlands into open water impoundments.
    Compensatory mitigation is not required for activities authorized 
by this NWP since these activities must result in net increases in 
aquatic resource functions and services.
    Reversion. For enhancement, restoration, and establishment 
activities conducted: (1) In accordance with the terms and conditions 
of a binding stream or wetland enhancement or restoration agreement, or 
a wetland establishment agreement, between the landowner and the U.S. 
Fish and Wildlife Service (FWS), the Natural Resources Conservation 
Service (NRCS), the Farm Service Agency (FSA), the National Marine 
Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest 
Service (USFS), or their designated state cooperating agencies; (2) as 
voluntary wetland restoration, enhancement, and establishment actions 
documented by the NRCS or USDA Technical Service Provider pursuant to 
NRCS Field Office Technical Guide standards; or (3) on reclaimed 
surface coal mine lands, in accordance with a Surface Mining Control 
and Reclamation Act permit

[[Page 1990]]

issued by the Office of Surface Mining Reclamation and Enforcement 
(OSMRE) or the applicable state agency, this NWP also authorizes any 
future discharge of dredged or fill material associated with the 
reversion of the area to its documented prior condition and use (i.e., 
prior to the restoration, enhancement, or establishment activities). 
The reversion must occur within five years after expiration of a 
limited term wetland restoration or establishment agreement or permit, 
and is authorized in these circumstances even if the discharge occurs 
after this NWP expires. The five-year reversion limit does not apply to 
agreements without time limits reached between the landowner and the 
FWS, NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating 
agency. This NWP also authorizes discharges of dredged or fill material 
in waters of the United States for the reversion of wetlands that were 
restored, enhanced, or established on prior-converted cropland or on 
uplands, in accordance with a binding agreement between the landowner 
and NRCS, FSA, FWS, or their designated state cooperating agencies 
(even though the restoration, enhancement, or establishment activity 
did not require a section 404 permit). The prior condition will be 
documented in the original agreement or permit, and the determination 
of return to prior conditions will be made by the Federal agency or 
appropriate state agency executing the agreement or permit. Before 
conducting any reversion activity the permittee or the appropriate 
Federal or state agency must notify the district engineer and include 
the documentation of the prior condition. Once an area has reverted to 
its prior physical condition, it will be subject to whatever the Corps 
Regulatory requirements are applicable to that type of land at the 
time. The requirement that the activity results in a net increase in 
aquatic resource functions and services does not apply to reversion 
activities meeting the above conditions. Except for the activities 
described above, this NWP does not authorize any future discharge of 
dredged or fill material associated with the reversion of the area to 
its prior condition. In such cases a separate permit would be required 
for any reversion.
    Reporting. For those activities that do not require pre-
construction notification, the permittee must submit to the district 
engineer a copy of: (1) The binding stream enhancement or restoration 
agreement or wetland enhancement, restoration, or establishment 
agreement, or a project description, including project plans and 
location map; (2) the NRCS or USDA Technical Service Provider 
documentation for the voluntary stream enhancement or restoration 
action or wetland restoration, enhancement, or establishment action; or 
(3) the SMCRA permit issued by OSMRE or the applicable state agency. 
The report must also include information on baseline ecological 
conditions on the project site, such as a delineation of wetlands, 
streams, and/or other aquatic habitats. These documents must be 
submitted to the district engineer at least 30 days prior to commencing 
activities in waters of the United States authorized by this NWP.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing any activity 
(see general condition 32), except for the following activities:
    (1) Activities conducted on non-Federal public lands and private 
lands, in accordance with the terms and conditions of a binding stream 
enhancement or restoration agreement or wetland enhancement, 
restoration, or establishment agreement between the landowner and the 
FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating 
agencies;
    (2) Voluntary stream or wetland restoration or enhancement action, 
or wetland establishment action, documented by the NRCS or USDA 
Technical Service Provider pursuant to NRCS Field Office Technical 
Guide standards; or
    (3) The reclamation of surface coal mine lands, in accordance with 
an SMCRA permit issued by the OSMRE or the applicable state agency.
    However, the permittee must submit a copy of the appropriate 
documentation to the district engineer to fulfill the reporting 
requirement.

(Authorities: Sections 10 and 404)

    Note:  This NWP can be used to authorize compensatory mitigation 
projects, including mitigation banks and in-lieu fee projects. 
However, this NWP does not authorize the reversion of an area used 
for a compensatory mitigation project to its prior condition, since 
compensatory mitigation is generally intended to be permanent.

    28. Modifications of Existing Marinas. Reconfiguration of existing 
docking facilities within an authorized marina area. No dredging, 
additional slips, dock spaces, or expansion of any kind within waters 
of the United States is authorized by this NWP.

(Authority: Section 10)

    29. Residential Developments. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction or expansion of a single residence, a multiple unit 
residential development, or a residential subdivision. This NWP 
authorizes the construction of building foundations and building pads 
and attendant features that are necessary for the use of the residence 
or residential development. Attendant features may include but are not 
limited to roads, parking lots, garages, yards, utility lines, storm 
water management facilities, septic fields, and recreation facilities 
such as playgrounds, playing fields, and golf courses (provided the 
golf course is an integral part of the residential development).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters. The loss of stream bed plus any other losses 
of jurisdictional wetlands and waters caused by the NWP activity cannot 
exceed \1/2\-acre.
    Subdivisions: For residential subdivisions, the aggregate total 
loss of waters of United States authorized by this NWP cannot exceed 
\1/2\-acre. This includes any loss of waters of the United States 
associated with development of individual subdivision lots.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material into non-tidal waters of the United States and 
maintenance activities that are associated with moist soil management 
for wildlife for the purpose of continuing ongoing, site-specific, 
wildlife management activities where soil manipulation is used to 
manage habitat and feeding areas for wildlife. Such activities include, 
but are not limited to, plowing or discing to impede succession, 
preparing seed beds, or establishing fire breaks. Sufficient riparian 
areas must be maintained adjacent to all open water bodies, including 
streams, to preclude water quality degradation due to erosion and

[[Page 1991]]

sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, or similar features associated 
with the management areas. The activity must not result in a net loss 
of aquatic resource functions and services. This NWP does not authorize 
the conversion of wetlands to uplands, impoundments, or other open 
water bodies.

(Authority: Section 404)

    Note:  The repair, maintenance, or replacement of existing water 
control structures or the repair or maintenance of dikes may be 
authorized by NWP 3. Some such activities may qualify for an 
exemption under section 404(f) of the Clean Water Act (see 33 CFR 
323.4).

    31. Maintenance of Existing Flood Control Facilities. Discharges of 
dredged or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, levees, and channels that: (i) Were 
previously authorized by the Corps by individual permit, general 
permit, or 33 CFR 330.3, or did not require a permit at the time they 
were constructed, or (ii) were constructed by the Corps and transferred 
to a non-Federal sponsor for operation and maintenance. Activities 
authorized by this NWP are limited to those resulting from maintenance 
activities that are conducted within the ``maintenance baseline,'' as 
described in the definition below. Discharges of dredged or fill 
materials associated with maintenance activities in flood control 
facilities in any watercourse that have previously been determined to 
be within the maintenance baseline are authorized under this NWP. To 
the extent that a Corps permit is required, this NWP authorizes the 
removal of vegetation from levees associated with the flood control 
project. This NWP does not authorize the removal of sediment and 
associated vegetation from natural water courses except when these 
activities have been included in the maintenance baseline. All dredged 
and excavated material must be deposited and retained in an area that 
has no waters of the United States unless otherwise specifically 
approved by the district engineer under separate authorization. Proper 
sediment controls must be used.
    Maintenance Baseline: The maintenance baseline is a description of 
the physical characteristics (e.g., depth, width, length, location, 
configuration, or design flood capacity, etc.) of a flood control 
project within which maintenance activities are normally authorized by 
NWP 31, subject to any case-specific conditions required by the 
district engineer. The district engineer will approve the maintenance 
baseline based on the approved or constructed capacity of the flood 
control facility, whichever is smaller, including any areas where there 
are no constructed channels but which are part of the facility. The 
prospective permittee will provide documentation of the physical 
characteristics of the flood control facility (which will normally 
consist of as-built or approved drawings) and documentation of the 
approved and constructed design capacities of the flood control 
facility. If no evidence of the constructed capacity exists, the 
approved capacity will be used. The documentation will also include 
best management practices to ensure that the adverse environmental 
impacts caused by the maintenance activities are no more than minimal, 
especially in maintenance areas where there are no constructed 
channels. (The Corps may request maintenance records in areas where 
there has not been recent maintenance.) Revocation or modification of 
the final determination of the maintenance baseline can only be done in 
accordance with 33 CFR 330.5. Except in emergencies as described below, 
this NWP cannot be used until the district engineer approves the 
maintenance baseline and determines the need for mitigation and any 
regional or activity-specific conditions. Once determined, the 
maintenance baseline will remain valid for any subsequent reissuance of 
this NWP. This NWP does not authorize maintenance of a flood control 
facility that has been abandoned. A flood control facility will be 
considered abandoned if it has operated at a significantly reduced 
capacity without needed maintenance being accomplished in a timely 
manner. A flood control facility will not be considered abandoned if 
the prospective permittee is in the process of obtaining other 
authorizations or approvals required for maintenance activities and is 
experiencing delays in obtaining those authorizations or approvals.
    Mitigation: The district engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse 
environmental effects are no more than minimal, both individually and 
cumulatively. Such mitigation will only be required once for any 
specific reach of a flood control project. However, if one-time 
mitigation is required for impacts associated with maintenance 
activities, the district engineer will not delay needed maintenance, 
provided the district engineer and the permittee establish a schedule 
for identification, approval, development, construction and completion 
of any such required mitigation. Once the one-time mitigation described 
above has been completed, or a determination made that mitigation is 
not required, no further mitigation will be required for maintenance 
activities within the maintenance baseline (see Note, below). In 
determining appropriate mitigation, the district engineer will give 
special consideration to natural water courses that have been included 
in the maintenance baseline and require mitigation and/or best 
management practices as appropriate.
    Emergency Situations: In emergency situations, this NWP may be used 
to authorize maintenance activities in flood control facilities for 
which no maintenance baseline has been approved. Emergency situations 
are those which would result in an unacceptable hazard to life, a 
significant loss of property, or an immediate, unforeseen, and 
significant economic hardship if action is not taken before a 
maintenance baseline can be approved. In such situations, the 
determination of mitigation requirements, if any, may be deferred until 
the emergency has been resolved. Once the emergency has ended, a 
maintenance baseline must be established expeditiously, and mitigation, 
including mitigation for maintenance conducted during the emergency, 
must be required as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer before any maintenance work is 
conducted (see general condition 32). The pre-construction notification 
may be for activity-specific maintenance or for maintenance of the 
entire flood control facility by submitting a five-year (or less) 
maintenance plan. The pre-construction notification must include a 
description of the maintenance baseline and the disposal site for 
dredged or excavated material.

(Authorities: Sections 10 and 404)

    Note:  If the maintenance baseline was approved by the district 
engineer under a prior version of NWP 31, and the district engineer 
imposed the one-time compensatory mitigation requirement on 
maintenance for a specific reach of a flood control project 
authorized by that prior version of NWP 31, during the period this 
version of NWP 31 is in effect (March 19, 2017, to March 18, 2022) 
the district engineer will not require additional compensatory 
mitigation for maintenance activities authorized by this

[[Page 1992]]

NWP in that specific reach of the flood control project.

    32. Completed Enforcement Actions. Any structure, work, or 
discharge of dredged or fill material remaining in place or undertaken 
for mitigation, restoration, or environmental benefit in compliance 
with either:
    (i) The terms of a final written Corps non-judicial settlement 
agreement resolving a violation of Section 404 of the Clean Water Act 
and/or section 10 of the Rivers and Harbors Act of 1899; or the terms 
of an EPA 309(a) order on consent resolving a violation of section 404 
of the Clean Water Act, provided that:
    (a) The activities authorized by this NWP cannot adversely affect 
more than 5 acres of non-tidal waters or 1 acre of tidal waters;
    (b) The settlement agreement provides for environmental benefits, 
to an equal or greater degree, than the environmental detriments caused 
by the unauthorized activity that is authorized by this NWP; and
    (c) The district engineer issues a verification letter authorizing 
the activity subject to the terms and conditions of this NWP and the 
settlement agreement, including a specified completion date; or
    (ii) The terms of a final Federal court decision, consent decree, 
or settlement agreement resulting from an enforcement action brought by 
the United States under section 404 of the Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899; or
    (iii) The terms of a final court decision, consent decree, 
settlement agreement, or non-judicial settlement agreement resulting 
from a natural resource damage claim brought by a trustee or trustees 
for natural resources (as defined by the National Contingency Plan at 
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 
of the Comprehensive Environmental Response, Compensation and Liability 
Act, Section 312 of the National Marine Sanctuaries Act, section 1002 
of the Oil Pollution Act of 1990, or the Park System Resource 
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is 
required.
    Compliance is a condition of the NWP itself; non-compliance of the 
terms and conditions of an NWP 32 authorization may result in an 
additional enforcement action (e.g., a Class I civil administrative 
penalty). Any authorization under this NWP is automatically revoked if 
the permittee does not comply with the terms of this NWP or the terms 
of the court decision, consent decree, or judicial/non-judicial 
settlement agreement. This NWP does not apply to any activities 
occurring after the date of the decision, decree, or agreement that are 
not for the purpose of mitigation, restoration, or environmental 
benefit. Before reaching any settlement agreement, the Corps will 
ensure compliance with the provisions of 33 CFR part 326 and 33 CFR 
330.6(d)(2) and (e).

(Authorities: Sections 10 and 404)

    33. Temporary Construction, Access, and Dewatering. Temporary 
structures, work, and discharges, including cofferdams, necessary for 
construction activities or access fills or dewatering of construction 
sites, provided that the associated primary activity is authorized by 
the Corps of Engineers or the U.S. Coast Guard. This NWP also 
authorizes temporary structures, work, and discharges, including 
cofferdams, necessary for construction activities not otherwise subject 
to the Corps or U.S. Coast Guard permit requirements. Appropriate 
measures must be taken to maintain near normal downstream flows and to 
minimize flooding. Fill must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. The use of 
dredged material may be allowed if the district engineer determines 
that it will not cause more than minimal adverse environmental effects. 
Following completion of construction, temporary fill must be entirely 
removed to an area that has no waters of the United States, dredged 
material must be returned to its original location, and the affected 
areas must be restored to pre-construction elevations. The affected 
areas must also be revegetated, as appropriate. This permit does not 
authorize the use of cofferdams to dewater wetlands or other aquatic 
areas to change their use. Structures left in place after construction 
is completed require a separate section 10 permit if located in 
navigable waters of the United States. (See 33 CFR part 322.)
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the activity is conducted in navigable waters of the United States 
(i.e., section 10 waters) (see general condition 32). The pre-
construction notification must include a restoration plan showing how 
all temporary fills and structures will be removed and the area 
restored to pre-project conditions.

(Authorities: Sections 10 and 404)

    34. Cranberry Production Activities. Discharges of dredged or fill 
material for dikes, berms, pumps, water control structures or leveling 
of cranberry beds associated with expansion, enhancement, or 
modification activities at existing cranberry production operations. 
The cumulative total acreage of disturbance per cranberry production 
operation, including but not limited to, filling, flooding, ditching, 
or clearing, must not exceed 10 acres of waters of the United States, 
including wetlands. The activity must not result in a net loss of 
wetland acreage. This NWP does not authorize any discharge of dredged 
or fill material related to other cranberry production activities such 
as warehouses, processing facilities, or parking areas. For the 
purposes of this NWP, the cumulative total of 10 acres will be measured 
over the period that this NWP is valid.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer once during the period that this 
NWP is valid, and the NWP will then authorize discharges of dredge or 
fill material at an existing operation for the permit term, provided 
the 10-acre limit is not exceeded. (See general condition 32.)

(Authority: Section 404)

    35. Maintenance Dredging of Existing Basins. The removal of 
accumulated sediment for maintenance of existing marina basins, access 
channels to marinas or boat slips, and boat slips to previously 
authorized depths or controlling depths for ingress/egress, whichever 
is less. All dredged material must be deposited and retained in an area 
that has no waters of the United States unless otherwise specifically 
approved by the district engineer under separate authorization. Proper 
sediment controls must be used for the disposal site.

(Authority: Section 10)

    36. Boat Ramps. Activities required for the construction of boat 
ramps, provided the activity meets all of the following criteria:
    (a) The discharge into waters of the United States does not exceed 
50 cubic yards of concrete, rock, crushed stone or gravel into forms, 
or in the form of pre-cast concrete planks or slabs, unless the 
district engineer waives the 50 cubic yard limit by making a written 
determination concluding that the discharge will result in no more than 
minimal adverse environmental effects;
    (b) The boat ramp does not exceed 20 feet in width, unless the 
district engineer waives this criterion by making a written 
determination concluding that the discharge will result in no more than 
minimal adverse environmental effects;

[[Page 1993]]

    (c) The base material is crushed stone, gravel or other suitable 
material;
    (d) The excavation is limited to the area necessary for site 
preparation and all excavated material is removed to an area that has 
no waters of the United States; and,
    (e) No material is placed in special aquatic sites, including 
wetlands.
    The use of unsuitable material that is structurally unstable is not 
authorized. If dredging in navigable waters of the United States is 
necessary to provide access to the boat ramp, the dredging must be 
authorized by another NWP, a regional general permit, or an individual 
permit.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge into waters of the United States exceeds 50 cubic 
yards, or (2) the boat ramp exceeds 20 feet in width. (See general 
condition 32.)

(Authorities: Sections 10 and 404)

    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    (a) The Natural Resources Conservation Service for a situation 
requiring immediate action under its emergency Watershed Protection 
Program (7 CFR part 624);
    (b) The U.S. Forest Service under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 2509.13);
    (c) The Department of the Interior for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual part 
620, Ch. 3);
    (d) The Office of Surface Mining, or states with approved programs, 
for abandoned mine land reclamation activities under Title IV of the 
Surface Mining Control and Reclamation Act (30 CFR subchapter R), where 
the activity does not involve coal extraction; or
    (e) The Farm Service Agency under its Emergency Conservation 
Program (7 CFR part 701).
    In general, the prospective permittee should wait until the 
district engineer issues an NWP verification or 45 calendar days have 
passed before proceeding with the watershed protection and 
rehabilitation activity. However, in cases where there is an 
unacceptable hazard to life or a significant loss of property or 
economic hardship will occur, the emergency watershed protection and 
rehabilitation activity may proceed immediately and the district 
engineer will consider the information in the pre-construction 
notification and any comments received as a result of agency 
coordination to decide whether the NWP 37 authorization should be 
modified, suspended, or revoked in accordance with the procedures at 33 
CFR 330.5.
    Notification: Except in cases where there is an unacceptable hazard 
to life or a significant loss of property or economic hardship will 
occur, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 32).

(Authorities: Sections 10 and 404)

    38. Cleanup of Hazardous and Toxic Waste. Specific activities 
required to effect the containment, stabilization, or removal of 
hazardous or toxic waste materials that are performed, ordered, or 
sponsored by a government agency with established legal or regulatory 
authority. Court ordered remedial action plans or related settlements 
are also authorized by this NWP. This NWP does not authorize the 
establishment of new disposal sites or the expansion of existing sites 
used for the disposal of hazardous or toxic waste.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    Note:
     Activities undertaken entirely on a Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) site by authority 
of CERCLA as approved or required by EPA, are not required to obtain 
permits under Section 404 of the Clean Water Act or Section 10 of 
the Rivers and Harbors Act.

    39. Commercial and Institutional Developments. Discharges of 
dredged or fill material into non-tidal waters of the United States for 
the construction or expansion of commercial and institutional building 
foundations and building pads and attendant features that are necessary 
for the use and maintenance of the structures. Attendant features may 
include, but are not limited to, roads, parking lots, garages, yards, 
utility lines, storm water management facilities, wastewater treatment 
facilities, and recreation facilities such as playgrounds and playing 
fields. Examples of commercial developments include retail stores, 
industrial facilities, restaurants, business parks, and shopping 
centers. Examples of institutional developments include schools, fire 
stations, government office buildings, judicial buildings, public works 
buildings, libraries, hospitals, and places of worship. The 
construction of new golf courses and new ski areas is not authorized by 
this NWP.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. The loss of stream bed plus any other losses of jurisdictional 
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    Note:
     For any activity that involves the construction of a wind 
energy generating structure, solar tower, or overhead transmission 
line, a copy of the PCN and NWP verification will be provided to the 
Department of Defense Siting Clearinghouse, which will evaluate 
potential effects on military activities.

    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States for agricultural activities, 
including the construction of building pads for farm buildings. 
Authorized activities include the installation, placement, or 
construction of drainage tiles, ditches, or levees; mechanized land 
clearing; land leveling; the relocation of existing serviceable 
drainage ditches constructed in waters of the United States; and 
similar activities.
    This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams, 
provided the farm pond is used solely for agricultural purposes. This 
NWP does not authorize the construction of aquaculture ponds.
    This NWP also authorizes discharges of dredged or fill material 
into non-tidal waters of the United States to relocate existing 
serviceable drainage ditches constructed in non-tidal streams.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. The loss of stream bed plus any

[[Page 1994]]

other losses of jurisdictional wetlands and waters caused by the NWP 
activity cannot exceed \1/2\-acre. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Section 404)

    Note: Some discharges for agricultural activities may qualify 
for an exemption under Section 404(f) of the Clean Water Act (see 33 
CFR 323.4). This NWP authorizes the construction of farm ponds that 
do not qualify for the Clean Water Act section 404(f)(1)(C) 
exemption because of the recapture provision at section 404(f)(2).

    41. Reshaping Existing Drainage Ditches. Discharges of dredged or 
fill material into non-tidal waters of the United States, excluding 
non-tidal wetlands adjacent to tidal waters, to modify the cross-
sectional configuration of currently serviceable drainage ditches 
constructed in waters of the United States, for the purpose of 
improving water quality by regrading the drainage ditch with gentler 
slopes, which can reduce erosion, increase growth of vegetation, and 
increase uptake of nutrients and other substances by vegetation. The 
reshaping of the ditch cannot increase drainage capacity beyond the 
original as-built capacity nor can it expand the area drained by the 
ditch as originally constructed (i.e., the capacity of the ditch must 
be the same as originally constructed and it cannot drain additional 
wetlands or other waters of the United States). Compensatory mitigation 
is not required because the work is designed to improve water quality.
    This NWP does not authorize the relocation of drainage ditches 
constructed in waters of the United States; the location of the 
centerline of the reshaped drainage ditch must be approximately the 
same as the location of the centerline of the original drainage ditch. 
This NWP does not authorize stream channelization or stream relocation 
projects.

(Authority: Section 404)
    42. Recreational Facilities. Discharges of dredged or fill material 
into non-tidal waters of the United States for the construction or 
expansion of recreational facilities. Examples of recreational 
facilities that may be authorized by this NWP include playing fields 
(e.g., football fields, baseball fields), basketball courts, tennis 
courts, hiking trails, bike paths, golf courses, ski areas, horse 
paths, nature centers, and campgrounds (excluding recreational vehicle 
parks). This NWP also authorizes the construction or expansion of small 
support facilities, such as maintenance and storage buildings and 
stables that are directly related to the recreational activity, but it 
does not authorize the construction of hotels, restaurants, racetracks, 
stadiums, arenas, or similar facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. The loss of stream bed plus any other losses of jurisdictional 
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authority: Section 404)

    43. Stormwater Management Facilities. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction of stormwater management facilities, including stormwater 
detention basins and retention basins and other stormwater management 
facilities; the construction of water control structures, outfall 
structures and emergency spillways; the construction of low impact 
development integrated management features such as bioretention 
facilities (e.g., rain gardens), vegetated filter strips, grassed 
swales, and infiltration trenches; and the construction of pollutant 
reduction green infrastructure features designed to reduce inputs of 
sediments, nutrients, and other pollutants into waters to meet 
reduction targets established under Total Daily Maximum Loads set under 
the Clean Water Act.
    This NWP authorizes, to the extent that a section 404 permit is 
required, discharges of dredged or fill material into non-tidal waters 
of the United States for the maintenance of stormwater management 
facilities, low impact development integrated management features, and 
pollutant reduction green infrastructure features. The maintenance of 
stormwater management facilities, low impact development integrated 
management features, and pollutant reduction green infrastructure 
features that are not waters of the United States does not require a 
section 404 permit.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters. The loss of stream bed plus any other losses 
of jurisdictional wetlands and waters caused by the NWP activity cannot 
exceed \1/2\-acre. This NWP does not authorize discharges of dredged or 
fill material for the construction of new stormwater management 
facilities in perennial streams.
    Notification: For discharges into non-tidal waters of the United 
States for the construction of new stormwater management facilities or 
pollutant reduction green infrastructure features, or the expansion of 
existing stormwater management facilities or pollutant reduction green 
infrastructure features, the permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) Maintenance activities do not require pre-
construction notification if they are limited to restoring the original 
design capacities of the stormwater management facility or pollutant 
reduction green infrastructure feature.

(Authority: Section 404)

    44. Mining Activities. Discharges of dredged or fill material into 
non-tidal waters of the United States for mining activities, except for 
coal mining activities, provided the activity meets all of the 
following criteria:
    (a) For mining activities involving discharges of dredged or fill 
material into non-tidal wetlands, the discharge must not cause the loss 
of greater than \1/2\-acre of non-tidal wetlands;
    (b) For mining activities involving discharges of dredged or fill 
material in non-tidal open waters (e.g., rivers, streams, lakes, and 
ponds) the mined area, including permanent and temporary impacts due to 
discharges of dredged or fill material into jurisdictional waters, must 
not exceed \1/2\-acre; and
    (c) The acreage loss under paragraph (a) plus the acreage impact 
under paragraph (b) does not exceed \1/2\-acre.

[[Page 1995]]

    The discharge must not cause the loss of more than 300 linear feet 
of stream bed, unless for intermittent and ephemeral stream beds the 
district engineer waives the 300 linear foot limit by making a written 
determination concluding that the discharge will result in no more than 
minimal adverse environmental effects.
    The loss of stream bed plus any other losses of jurisdictional 
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre.
    This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction-
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) If reclamation is required by other 
statutes, then a copy of the final reclamation plan must be submitted 
with the pre-construction notification.

(Authorities: Sections 10 and 404)

    45. Repair of Uplands Damaged by Discrete Events. This NWP 
authorizes discharges of dredged or fill material, including dredging 
or excavation, into all waters of the United States for activities 
associated with the restoration of upland areas damaged by storms, 
floods, or other discrete events. This NWP authorizes bank 
stabilization to protect the restored uplands. The restoration of the 
damaged areas, including any bank stabilization, must not exceed the 
contours, or ordinary high water mark, that existed before the damage 
occurred. The district engineer retains the right to determine the 
extent of the pre-existing conditions and the extent of any restoration 
work authorized by this NWP. The work must commence, or be under 
contract to commence, within two years of the date of damage, unless 
this condition is waived in writing by the district engineer. This NWP 
cannot be used to reclaim lands lost to normal erosion processes over 
an extended period.
    This NWP does not authorize beach restoration or nourishment.
    Minor dredging is limited to the amount necessary to restore the 
damaged upland area and should not significantly alter the pre-existing 
bottom contours of the waterbody.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer (see general condition 32) within 
12 months of the date of the damage; for major storms, floods, or other 
discrete events, the district engineer may waive the 12-month limit for 
submitting a pre-construction notification if the permittee can 
demonstrate funding, contract, or other similar delays. The pre-
construction notification must include documentation, such as a recent 
topographic survey or photographs, to justify the extent of the 
proposed restoration.

(Authority: Sections 10 and 404)


    Note: The uplands themselves that are lost as a result of a 
storm, flood, or other discrete event can be replaced without a 
section 404 permit, if the uplands are restored to the ordinary high 
water mark (in non-tidal waters) or high tide line (in tidal 
waters). (See also 33 CFR 328.5.) This NWP authorizes discharges of 
dredged or fill material into waters of the United States associated 
with the restoration of uplands.

    46. Discharges in Ditches. Discharges of dredged or fill material 
into non-tidal ditches that are: (1) Constructed in uplands, (2) 
receive water from an area determined to be a water of the United 
States prior to the construction of the ditch, (3) divert water to an 
area determined to be a water of the United States prior to the 
construction of the ditch, and (4) determined to be waters of the 
United States. The discharge must not cause the loss of greater than 
one acre of waters of the United States.
    This NWP does not authorize discharges of dredged or fill material 
into ditches constructed in streams or other waters of the United 
States, or in streams that have been relocated in uplands. This NWP 
does not authorize discharges of dredged or fill material that increase 
the capacity of the ditch and drain those areas determined to be waters 
of the United States prior to construction of the ditch.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authority: Section 404)

    47. [Reserved]
    48. Commercial Shellfish Aquaculture Activities. Discharges of 
dredged or fill material into waters of the United States or structures 
or work in navigable waters of the United States necessary for new and 
continuing commercial shellfish aquaculture operations in authorized 
project areas. For the purposes of this NWP, the project area is the 
area in which the operator is authorized to conduct commercial 
shellfish aquaculture activities, as identified through a lease or 
permit issued by an appropriate state or local government agency, a 
treaty, or any easement, lease, deed, contract, or other legally 
binding agreement that establishes an enforceable property interest for 
the operator. A ``new commercial shellfish aquaculture operation'' is 
an operation in a project area where commercial shellfish aquaculture 
activities have not been conducted during the past 100 years.
    This NWP authorizes the installation of buoys, floats, racks, 
trays, nets, lines, tubes, containers, and other structures into 
navigable waters of the United States. This NWP also authorizes 
discharges of dredged or fill material into waters of the United States 
necessary for shellfish seeding, rearing, cultivating, transplanting, 
and harvesting activities. Rafts and other floating structures must be 
securely anchored and clearly marked.
    This NWP does not authorize:
    (a) The cultivation of a nonindigenous species unless that species 
has been previously cultivated in the waterbody;
    (b) The cultivation of an aquatic nuisance species as defined in 
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990;
    (c) Attendant features such as docks, piers, boat ramps, 
stockpiles, or staging areas, or the deposition of shell material back 
into waters of the United States as waste; or
    (d) Activities that directly affect more than \1/2\-acre of 
submerged aquatic vegetation beds in project areas that have not been 
used for commercial shellfish aquaculture activities during the past 
100 years.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer if: (1) The activity will include 
a species that has never been cultivated in the waterbody; or (2) the 
activity occurs in a project area that has not been used for commercial 
shellfish aquaculture activities during the past 100 years. If the 
operator will be conducting commercial shellfish aquaculture activities 
in multiple contiguous project areas, he or she can either submit one 
PCN for those contiguous project areas or submit a separate PCN for 
each project area. (See general condition 32.)
    In addition to the information required by paragraph (b) of general 
condition 32, the pre-construction notification must also include the 
following information: (1) A map showing the boundaries of the project 
area(s), with latitude and longitude coordinates for each corner of 
each project area; (2) the name(s) of the species that will be 
cultivated during the period this NWP is in effect; (3) whether canopy 
predator nets will be used; (4) whether suspended cultivation 
techniques will be used; and (5) general water depths in the project 
area(s) (a detailed survey is not required). No

[[Page 1996]]

more than one pre-construction notification per project area or group 
of contiguous project areas should be submitted for the commercial 
shellfish operation during the effective period of this NWP. The pre-
construction notification should describe all species and culture 
activities the operator expects to undertake in the project area or 
group of contiguous project areas during the effective period of this 
NWP. If an operator intends to undertake unanticipated changes to the 
commercial shellfish aquaculture operation during the effective period 
of this NWP, and those changes require Department of the Army 
authorization, the operator must contact the district engineer to 
request a modification of the NWP verification; a new pre-construction 
notification does not need to be submitted.

(Authorities: Sections 10 and 404)


    Note 1: The permittee should notify the applicable U.S. Coast 
Guard office regarding the project.


    Note 2: To prevent introduction of aquatic nuisance species, no 
material that has been taken from a different waterbody may be 
reused in the current project area, unless it has been treated in 
accordance with the applicable regional aquatic nuisance species 
management plan.


    Note 3: The Nonindigenous Aquatic Nuisance Prevention and 
Control Act of 1990 defines ``aquatic nuisance species'' as ``a 
nonindigenous species that threatens the diversity or abundance of 
native species or the ecological stability of infested waters, or 
commercial, agricultural, aquacultural, or recreational activities 
dependent on such waters.''

    49. Coal Remining Activities. Discharges of dredged or fill 
material into non-tidal waters of the United States associated with the 
remining and reclamation of lands that were previously mined for coal. 
The activities must already be authorized, or they must currently be in 
process as part of an integrated permit processing procedure, by the 
Department of the Interior Office of Surface Mining Reclamation and 
Enforcement, or by states with approved programs under Title IV or 
Title V of the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Areas previously mined include reclaimed mine sites, abandoned 
mine land areas, or lands under bond forfeiture contracts.
    As part of the project, the permittee may conduct new coal mining 
activities in conjunction with the remining activities when he or she 
clearly demonstrates to the district engineer that the overall mining 
plan will result in a net increase in aquatic resource functions. The 
Corps will consider the SMCRA agency's decision regarding the amount of 
currently undisturbed adjacent lands needed to facilitate the remining 
and reclamation of the previously mined area. The total area disturbed 
by new mining must not exceed 40 percent of the total acreage covered 
by both the remined area and the additional area necessary to carry out 
the reclamation of the previously mined area.
    Notification: The permittee must submit a pre-construction 
notification and a document describing how the overall mining plan will 
result in a net increase in aquatic resource functions to the district 
engineer and receive written authorization prior to commencing the 
activity. (See general condition 32.)

(Authorities: Sections 10 and 404)

    50. Underground Coal Mining Activities. Discharges of dredged or 
fill material into non-tidal waters of the United States associated 
with underground coal mining and reclamation operations provided the 
activities are authorized, or are currently being processed as part of 
an integrated permit processing procedure, by the Department of the 
Interior, Office of Surface Mining Reclamation and Enforcement, or by 
states with approved programs under Title V of the Surface Mining 
Control and Reclamation Act of 1977.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. The loss of stream bed plus any other losses of jurisdictional 
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters. This NWP does not authorize coal preparation 
and processing activities outside of the mine site.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 32.) If 
reclamation is required by other statutes, then a copy of the 
reclamation plan must be submitted with the pre-construction 
notification.

(Authorities: Sections 10 and 404)

    Note: Coal preparation and processing activities outside of the 
mine site may be authorized by NWP 21.

    51. Land-Based Renewable Energy Generation Facilities. Discharges 
of dredged or fill material into non-tidal waters of the United States 
for the construction, expansion, or modification of land-based 
renewable energy production facilities, including attendant features. 
Such facilities include infrastructure to collect solar (concentrating 
solar power and photovoltaic), wind, biomass, or geothermal energy. 
Attendant features may include, but are not limited to roads, parking 
lots, and stormwater management facilities within the land-based 
renewable energy generation facility.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. The discharge must not cause the 
loss of more than 300 linear feet of stream bed, unless for 
intermittent and ephemeral stream beds the district engineer waives the 
300 linear foot limit by making a written determination concluding that 
the discharge will result in no more than minimal adverse environmental 
effects. The loss of stream bed plus any other losses of jurisdictional 
wetlands and waters caused by the NWP activity cannot exceed \1/2\-
acre. This NWP does not authorize discharges into non-tidal wetlands 
adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the discharge results in the loss of greater than 1/10-acre of 
waters of the United States. (See general condition 32.)

(Authorities: Sections 10 and 404)

    Note 1: Utility lines constructed to transfer the energy from 
the land-based renewable energy generation facility to a 
distribution system, regional grid, or other facility are generally 
considered to be linear projects and each separate and distant 
crossing of a waterbody is eligible for treatment as a separate 
single and complete linear project. Those utility lines may be 
authorized by NWP 12 or another Department of the Army 
authorization.



    Note 2: If the only activities associated with the construction, 
expansion, or modification of a land-based renewable energy 
generation facility that require Department of the Army 
authorization are discharges of dredged or fill material into waters 
of the United States to construct, maintain, repair, and/or remove 
utility lines and/or road crossings, then NWP 12 and/or NWP 14 shall 
be used if those activities meet the terms and conditions of NWPs 12 
and 14, including any applicable regional conditions and any case-
specific conditions imposed by the district engineer.




[[Page 1997]]


    Note 3: For any activity that involves the construction of a 
wind energy generating structure, solar tower, or overhead 
transmission line, a copy of the PCN and NWP verification will be 
provided to the Department of Defense Siting Clearinghouse, which 
will evaluate potential effects on military activities.


    52. Water-Based Renewable Energy Generation Pilot Projects. 
Structures and work in navigable waters of the United States and 
discharges of dredged or fill material into waters of the United States 
for the construction, expansion, modification, or removal of water-
based wind, water-based solar, wave energy, or hydrokinetic renewable 
energy generation pilot projects and their attendant features. 
Attendant features may include, but are not limited to, land-based 
collection and distribution facilities, control facilities, roads, 
parking lots, and stormwater management facilities.
    For the purposes of this NWP, the term ``pilot project'' means an 
experimental project where the water-based renewable energy generation 
units will be monitored to collect information on their performance and 
environmental effects at the project site.
    The discharge must not cause the loss of greater than \1/2\-acre of 
waters of the United States, including the loss of more than 300 linear 
feet of stream bed, unless for intermittent and ephemeral stream beds 
the district engineer waives the 300 linear foot limit by making a 
written determination concluding that the discharge will result in no 
more than minimal adverse environmental effects. The loss of stream bed 
plus any other losses of jurisdictional wetlands and waters caused by 
the NWP activity cannot exceed \1/2\-acre.
    The placement of a transmission line on the bed of a navigable 
water of the United States from the renewable energy generation unit(s) 
to a land-based collection and distribution facility is considered a 
structure under Section 10 of the Rivers and Harbors Act of 1899 (see 
33 CFR 322.2(b)), and the placement of the transmission line on the bed 
of a navigable water of the United States is not a loss of waters of 
the United States for the purposes of applying the \1/2\-acre or 300 
linear foot limits.
    For each single and complete project, no more than 10 generation 
units (e.g., wind turbines, wave energy devices, or hydrokinetic 
devices) are authorized. For floating solar panels in navigable waters 
of the United States, each single and complete project cannot exceed 
\1/2\-acre in water surface area covered by the floating solar panels.
    This NWP does not authorize activities in coral reefs. Structures 
in an anchorage area established by the U.S. Coast Guard must comply 
with the requirements in 33 CFR 322.5(l)(2). Structures may not be 
placed in established danger zones or restricted areas designated in 33 
CFR part 334, Federal navigation channels, shipping safety fairways or 
traffic separation schemes established by the U.S. Coast Guard (see 33 
CFR 322.5(l)(1)), or EPA or Corps designated open water dredged 
material disposal areas.
    Upon completion of the pilot project, the generation units, 
transmission lines, and other structures or fills associated with the 
pilot project must be removed to the maximum extent practicable unless 
they are authorized by a separate Department of the Army authorization, 
such as another NWP, an individual permit, or a regional general 
permit. Completion of the pilot project will be identified as the date 
of expiration of the Federal Energy Regulatory Commission (FERC) 
license, or the expiration date of the NWP authorization if no FERC 
license is required.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    Note 1: Utility lines constructed to transfer the energy from 
the land-based collection facility to a distribution system, 
regional grid, or other facility are generally considered to be 
linear projects and each separate and distant crossing of a 
waterbody is eligible for treatment as a separate single and 
complete linear project. Those utility lines may be authorized by 
NWP 12 or another Department of the Army authorization.


    Note 2: An activity that is located on an existing locally or 
federally maintained U.S. Army Corps of Engineers project requires 
separate approval from the Chief of Engineers or District Engineer 
under 33 U.S.C. 408.



    Note 3: If the pilot project generation units, including any 
transmission lines, are placed in navigable waters of the United 
States (i.e., section 10 waters) within the coastal United States, 
the Great Lakes, and United States territories, copies of the NWP 
verification will be sent by the Corps to the National Oceanic and 
Atmospheric Administration, National Ocean Service, for charting the 
generation units and associated transmission line(s) to protect 
navigation.



    Note 4: Hydrokinetic renewable energy generation projects that 
require authorization by the Federal Energy Regulatory Commission 
under the Federal Power Act of 1920 do not require separate 
authorization from the Corps under section 10 of the Rivers and 
Harbors Act of 1899.


    Note 5: For any activity that involves the construction of a 
wind energy generating structure, solar tower, or overhead 
transmission line, a copy of the PCN and NWP verification will be 
provided to the Department of Defense Siting Clearinghouse, which 
will evaluate potential effects on military activities.

    53. Removal of Low-Head Dams. Structures and work in navigable 
waters of the United States and discharges of dredged or fill material 
into waters of the United States associated with the removal of low-
head dams.
    For the purposes of this NWP, the term ``low-head dam'' is defined 
as a dam built across a stream to pass flows from upstream over all, or 
nearly all, of the width of the dam crest on a continual and 
uncontrolled basis. (During a drought, there might not be water flowing 
over the dam crest.) In general, a low-head dam does not have a 
separate spillway or spillway gates but it may have an uncontrolled 
spillway. The dam crest is the top of the dam from left abutment to 
right abutment, and if present, an uncontrolled spillway. A low-head 
dam provides little storage function.
    The removed low-head dam structure must be deposited and retained 
in an area that has no waters of the United States unless otherwise 
specifically approved by the district engineer under separate 
authorization.
    Because the removal of the low-head dam will result in a net 
increase in ecological functions and services provided by the stream, 
as a general rule compensatory mitigation is not required for 
activities authorized by this NWP. However, the district engineer may 
determine for a particular low-head dam removal activity that 
compensatory mitigation is necessary to ensure the authorized activity 
results in no more than minimal adverse environmental effects.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.)

(Authorities: Sections 10 and 404)

    Note: This NWP does not authorize discharges of dredged or fill 
material into waters of the United States or structures or work in 
navigable waters to restore the stream in the vicinity of the low-
head dam, including the former impoundment area. Nationwide permit 
27 or other Department of the Army permits may authorize such 
activities. This NWP does not authorize discharges of dredged or 
fill material into waters of the United States or structures or work 
in navigable waters to stabilize stream banks. Bank stabilization 
activities may be authorized by NWP 13 or other Department of the 
Army permits.



[[Page 1998]]


    54. Living Shorelines. Structures and work in navigable waters of 
the United States and discharges of dredged or fill material into 
waters of the United States for the construction and maintenance of 
living shorelines to stabilize banks and shores in coastal waters, 
which includes the Great Lakes, along shores with small fetch and 
gentle slopes that are subject to low- to mid-energy waves. A living 
shoreline has a footprint that is made up mostly of native material. It 
incorporates vegetation or other living, natural ``soft'' elements 
alone or in combination with some type of harder shoreline structure 
(e.g., oyster or mussel reefs or rock sills) for added protection and 
stability. Living shorelines should maintain the natural continuity of 
the land-water interface, and retain or enhance shoreline ecological 
processes. Living shorelines must have a substantial biological 
component, either tidal or lacustrine fringe wetlands or oyster or 
mussel reef structures. The following conditions must be met:
    (a) The structures and fill area, including sand fills, sills, 
breakwaters, or reefs, cannot extend into the waterbody more than 30 
feet from the mean low water line in tidal waters or the ordinary high 
water mark in the Great Lakes, unless the district engineer waives this 
criterion by making a written determination concluding that the 
activity will result in no more than minimal adverse environmental 
effects;
    (b) The activity is no more than 500 feet in length along the bank, 
unless the district engineer waives this criterion by making a written 
determination concluding that the activity will result in no more than 
minimal adverse environmental effects;
    (c) Coir logs, coir mats, stone, native oyster shell, native wood 
debris, and other structural materials must be adequately anchored, of 
sufficient weight, or installed in a manner that prevents relocation in 
most wave action or water flow conditions, except for extremely severe 
storms;
    (d) For living shorelines consisting of tidal or lacustrine fringe 
wetlands, native plants appropriate for current site conditions, 
including salinity, must be used if the site is planted by the 
permittee;
    (e) Discharges of dredged or fill material into waters of the 
United States, and oyster or mussel reef structures in navigable 
waters, must be the minimum necessary for the establishment and 
maintenance of the living shoreline;
    (f) If sills, breakwaters, or other structures must be constructed 
to protect fringe wetlands for the living shoreline, those structures 
must be the minimum size necessary to protect those fringe wetlands;
    (g) The activity must be designed, constructed, and maintained so 
that it has no more than minimal adverse effects on water movement 
between the waterbody and the shore and the movement of aquatic 
organisms between the waterbody and the shore; and
    (h) The living shoreline must be properly maintained, which may 
require periodic repair of sills, breakwaters, or reefs, or replacing 
sand fills after severe storms or erosion events. Vegetation may be 
replanted to maintain the living shoreline. This NWP authorizes those 
maintenance and repair activities, including any minor deviations 
necessary to address changing environmental conditions.
    This NWP does not authorize beach nourishment or land reclamation 
activities.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the 
construction of the living shoreline. (See general condition 32.) The 
pre-construction notification must include a delineation of special 
aquatic sites (see paragraph (b)(4) of general condition 32). Pre-
construction notification is not required for maintenance and repair 
activities for living shorelines unless required by applicable NWP 
general conditions or regional conditions.

(Authorities: Sections 10 and 404)

    Note: In waters outside of coastal waters, nature-based bank 
stabilization techniques, such as bioengineering and vegetative 
stabilization, may be authorized by NWP 13.

C. Nationwide Permit General Conditions

    Note: To qualify for NWP authorization, the prospective 
permittee must comply with the following general conditions, as 
applicable, in addition to any regional or case-specific conditions 
imposed by the division engineer or district engineer. Prospective 
permittees should contact the appropriate Corps district office to 
determine if regional conditions have been imposed on an NWP. 
Prospective permittees should also contact the appropriate Corps 
district office to determine the status of Clean Water Act Section 
401 water quality certification and/or Coastal Zone Management Act 
consistency for an NWP. Every person who may wish to obtain permit 
authorization under one or more NWPs, or who is currently relying on 
an existing or prior permit authorization under one or more NWPs, 
has been and is on notice that all of the provisions of 33 CFR 330.1 
through 330.6 apply to every NWP authorization. Note especially 33 
CFR 330.5 relating to the modification, suspension, or revocation of 
any NWP authorization.

    1. Navigation. (a) No activity may cause more than a minimal 
adverse effect on navigation.
    (b) Any safety lights and signals prescribed by the U.S. Coast 
Guard, through regulations or otherwise, must be installed and 
maintained at the permittee's expense on authorized facilities in 
navigable waters of the United States.
    (c) The permittee understands and agrees that, if future operations 
by the United States require the removal, relocation, or other 
alteration, of the structure or work herein authorized, or if, in the 
opinion of the Secretary of the Army or his authorized representative, 
said structure or work shall cause unreasonable obstruction to the free 
navigation of the navigable waters, the permittee will be required, 
upon due notice from the Corps of Engineers, to remove, relocate, or 
alter the structural work or obstructions caused thereby, without 
expense to the United States. No claim shall be made against the United 
States on account of any such removal or alteration.
    2. Aquatic Life Movements. No activity may substantially disrupt 
the necessary life cycle movements of those species of aquatic life 
indigenous to the waterbody, including those species that normally 
migrate through the area, unless the activity's primary purpose is to 
impound water. All permanent and temporary crossings of waterbodies 
shall be suitably culverted, bridged, or otherwise designed and 
constructed to maintain low flows to sustain the movement of those 
aquatic species. If a bottomless culvert cannot be used, then the 
crossing should be designed and constructed to minimize adverse effects 
to aquatic life movements.
    3. Spawning Areas. Activities in spawning areas during spawning 
seasons must be avoided to the maximum extent practicable. Activities 
that result in the physical destruction (e.g., through excavation, 
fill, or downstream smothering by substantial turbidity) of an 
important spawning area are not authorized.
    4. Migratory Bird Breeding Areas. Activities in waters of the 
United States that serve as breeding areas for migratory birds must be 
avoided to the maximum extent practicable.
    5. Shellfish Beds. No activity may occur in areas of concentrated 
shellfish populations, unless the activity is directly related to a 
shellfish harvesting activity authorized by NWPs 4 and 48, or is a 
shellfish seeding or habitat restoration activity authorized by NWP 27.
    6. Suitable Material. No activity may use unsuitable material 
(e.g., trash,

[[Page 1999]]

debris, car bodies, asphalt, etc.). Material used for construction or 
discharged must be free from toxic pollutants in toxic amounts (see 
section 307 of the Clean Water Act).
    7. Water Supply Intakes. No activity may occur in the proximity of 
a public water supply intake, except where the activity is for the 
repair or improvement of public water supply intake structures or 
adjacent bank stabilization.
    8. Adverse Effects From Impoundments. If the activity creates an 
impoundment of water, adverse effects to the aquatic system due to 
accelerating the passage of water, and/or restricting its flow must be 
minimized to the maximum extent practicable.
    9. Management of Water Flows. To the maximum extent practicable, 
the pre-construction course, condition, capacity, and location of open 
waters must be maintained for each activity, including stream 
channelization, storm water management activities, and temporary and 
permanent road crossings, except as provided below. The activity must 
be constructed to withstand expected high flows. The activity must not 
restrict or impede the passage of normal or high flows, unless the 
primary purpose of the activity is to impound water or manage high 
flows. The activity may alter the pre-construction course, condition, 
capacity, and location of open waters if it benefits the aquatic 
environment (e.g., stream restoration or relocation activities).
    10. Fills Within 100-Year Floodplains. The activity must comply 
with applicable FEMA-approved state or local floodplain management 
requirements.
    11. Equipment. Heavy equipment working in wetlands or mudflats must 
be placed on mats, or other measures must be taken to minimize soil 
disturbance.
    12. Soil Erosion and Sediment Controls. Appropriate soil erosion 
and sediment controls must be used and maintained in effective 
operating condition during construction, and all exposed soil and other 
fills, as well as any work below the ordinary high water mark or high 
tide line, must be permanently stabilized at the earliest practicable 
date. Permittees are encouraged to perform work within waters of the 
United States during periods of low-flow or no-flow, or during low 
tides.
    13. Removal of Temporary Fills. Temporary fills must be removed in 
their entirety and the affected areas returned to pre-construction 
elevations. The affected areas must be revegetated, as appropriate.
    14. Proper Maintenance. Any authorized structure or fill shall be 
properly maintained, including maintenance to ensure public safety and 
compliance with applicable NWP general conditions, as well as any 
activity-specific conditions added by the district engineer to an NWP 
authorization.
    15. Single and Complete Project. The activity must be a single and 
complete project. The same NWP cannot be used more than once for the 
same single and complete project.
    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.
    (b) If a proposed NWP activity will 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, 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. 
The permittee 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.
    (c) Information on Wild and Scenic Rivers may be obtained from the 
appropriate Federal land management agency responsible for the 
designated Wild and Scenic River or study river (e.g., National Park 
Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and 
Wildlife Service). Information on these rivers is also available at: 
http://www.rivers.gov/.
    17. Tribal Rights. No NWP activity may cause more than minimal 
adverse effects on tribal rights (including treaty rights), protected 
tribal resources, or tribal lands.
    18. Endangered Species. (a) No activity is authorized under any NWP 
which is likely to directly or indirectly jeopardize the continued 
existence of a threatened or endangered species or a species proposed 
for such designation, as identified under the Federal Endangered 
Species Act (ESA), or which will directly or indirectly destroy or 
adversely modify the critical habitat of such species. No activity is 
authorized under any NWP which ``may affect'' a listed species or 
critical habitat, unless ESA section 7 consultation addressing the 
effects of the proposed activity has been completed. Direct effects are 
the immediate effects on listed species and critical habitat caused by 
the NWP activity. Indirect effects are those effects on listed species 
and critical habitat that are caused by the NWP activity and are later 
in time, but still are reasonably certain to occur.
    (b) Federal agencies should follow their own procedures for 
complying with the requirements of the ESA. If pre-construction 
notification is required for the proposed activity, the Federal 
permittee must provide the district engineer with the appropriate 
documentation to demonstrate compliance with those requirements. The 
district engineer will verify that the appropriate documentation has 
been submitted. If the appropriate documentation has not been 
submitted, additional ESA section 7 consultation may be necessary for 
the activity and the respective federal agency would be responsible for 
fulfilling its obligation under section 7 of the ESA.
    (c) Non-federal permittees must submit a pre-construction 
notification to the district engineer if any listed species or 
designated critical habitat might be affected or is in the vicinity of 
the activity, or if the activity is located in designated critical 
habitat, and shall not begin work on the activity until notified by the 
district engineer that the requirements of the ESA have been satisfied 
and that the activity is authorized. For activities that might affect 
Federally-listed endangered or threatened species or designated 
critical habitat, the pre-construction notification must include the 
name(s) of the endangered or threatened species that might be affected 
by the proposed activity or that utilize the designated critical 
habitat that might be affected by the proposed activity. The district 
engineer will determine whether the proposed activity ``may affect'' or 
will have ``no effect'' to listed species and designated critical 
habitat and will notify the non-Federal applicant of the Corps' 
determination within 45 days of receipt of a complete pre-construction 
notification. In cases where the non-Federal applicant has identified 
listed species or critical habitat that might be affected or is in the 
vicinity of the activity, and has so notified the Corps,

[[Page 2000]]

the applicant shall not begin work until the Corps has provided 
notification that the proposed activity will have ``no effect'' on 
listed species or critical habitat, or until ESA section 7 consultation 
has been completed. If the non-Federal applicant has not heard back 
from the Corps within 45 days, the applicant must still wait for 
notification from the Corps.
    (d) As a result of formal or informal consultation with the FWS or 
NMFS the district engineer may add species-specific permit conditions 
to the NWPs.
    (e) Authorization of an activity by an NWP does not authorize the 
``take'' of a threatened or endangered species as defined under the 
ESA. 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 subject to the jurisdiction of the United States to take a 
listed species, where ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct. The word ``harm'' in the definition of ``take'' 
means an act which actually kills or injures wildlife. Such an act may 
include significant habitat modification or degradation where it 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding or sheltering.
    (f) If the non-federal permittee has a valid ESA section 
10(a)(1)(B) incidental take permit with an approved Habitat 
Conservation Plan for a project or a group of projects that includes 
the proposed NWP activity, the non-federal applicant should provide a 
copy of that ESA section 10(a)(1)(B) permit with the PCN required by 
paragraph (c) of this general condition. The district engineer will 
coordinate with the agency that issued the ESA section 10(a)(1)(B) 
permit to determine whether the proposed NWP activity and the 
associated incidental take were considered in the internal ESA section 
7 consultation conducted for the ESA section 10(a)(1)(B) permit. If 
that coordination results in concurrence from the agency that the 
proposed NWP activity and the associated incidental take were 
considered in the internal ESA section 7 consultation for the ESA 
section 10(a)(1)(B) permit, the district engineer does not need to 
conduct a separate ESA section 7 consultation for the proposed NWP 
activity. The district engineer will notify the non-federal applicant 
within 45 days of receipt of a complete pre-construction notification 
whether the ESA section 10(a)(1)(B) permit covers the proposed NWP 
activity or whether additional ESA section 7 consultation is required.
    (g) Information on the location of threatened and endangered 
species and their critical habitat can be obtained directly from the 
offices of the FWS and NMFS or their world wide Web pages at http://www.fws.gov/ or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/ respectively.
    19. Migratory Birds and Bald and Golden Eagles. The permittee is 
responsible for ensuring their action complies with the Migratory Bird 
Treaty Act and the Bald and Golden Eagle Protection Act. The permittee 
is responsible for contacting appropriate local office of the U.S. Fish 
and Wildlife Service to determine applicable measures to reduce impacts 
to migratory birds or eagles, including whether ``incidental take'' 
permits are necessary and available under the Migratory Bird Treaty Act 
or Bald and Golden Eagle Protection Act for a particular activity.
    20. Historic Properties. (a) In cases where the district engineer 
determines that the activity may have the potential to cause effects to 
properties listed, or eligible for listing, in the National Register of 
Historic Places, the activity is not authorized, until the requirements 
of Section 106 of the National Historic Preservation Act (NHPA) have 
been satisfied.
    (b) Federal permittees should follow their own procedures for 
complying with the requirements of section 106 of the National Historic 
Preservation Act. If pre-construction notification is required for the 
proposed NWP activity, the Federal permittee must provide the district 
engineer with the appropriate documentation to demonstrate compliance 
with those requirements. The district engineer will verify that the 
appropriate documentation has been submitted. If the appropriate 
documentation is not submitted, then additional consultation under 
section 106 may be necessary. The respective federal agency is 
responsible for fulfilling its obligation to comply with section 106.
    (c) Non-federal permittees must submit a pre-construction 
notification to the district engineer if the NWP activity might have 
the potential to cause effects to 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. For such activities, the pre-
construction notification must state which historic properties might 
have the potential to be affected by the proposed NWP activity or 
include a vicinity map indicating the location of the historic 
properties or the potential for the presence of historic properties. 
Assistance regarding information on the location of, or potential for, 
the presence of historic properties can be sought from the State 
Historic Preservation Officer, Tribal Historic Preservation Officer, or 
designated tribal representative, as appropriate, and the National 
Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-
construction notifications, district engineers will comply with the 
current procedures for addressing the requirements of section 106 of 
the National Historic Preservation Act. The district engineer 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. Based on the information submitted in the PCN and these 
identification efforts, the district engineer shall determine whether 
the proposed NWP activity has the potential to cause effects on the 
historic properties. 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 (see 36 CFR 
800.3(a)). Section 106 consultation is required when the district 
engineer determines that the activity has the potential to cause 
effects on historic properties. The district engineer will conduct 
consultation with consulting parties identified under 36 CFR 800.2(c) 
when he or she makes any of the following effect determinations for the 
purposes of section 106 of the NHPA: no historic properties affected, 
no adverse effect, or adverse effect. Where the non-Federal applicant 
has identified historic properties on which the activity might have the 
potential to cause effects and so notified the Corps, the non-Federal 
applicant shall not begin the activity until notified by the district 
engineer either that the activity has no potential to cause effects to 
historic properties or that NHPA section 106 consultation has been 
completed.
    (d) For non-federal permittees, 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 NHPA section 106 consultation is required, the district 
engineer will notify the non-Federal applicant that he or she cannot 
begin the activity until section 106 consultation is completed. If the 
non-

[[Page 2001]]

Federal applicant has not heard back from the Corps within 45 days, the 
applicant must still wait for notification from the Corps.
    (e) 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 despite 
the adverse effect created or permitted by the applicant. If 
circumstances justify granting the assistance, the Corps is required to 
notify the ACHP and provide documentation specifying the circumstances, 
the degree of damage to the integrity of any historic properties 
affected, and proposed mitigation. This documentation must include any 
views obtained from the applicant, SHPO/THPO, appropriate Indian tribes 
if the undertaking occurs on or affects historic properties on tribal 
lands or affects properties of interest to those tribes, and other 
parties known to have a legitimate interest in the impacts to the 
permitted activity on historic properties.
    21. Discovery of Previously Unknown Remains and Artifacts. If you 
discover any previously unknown historic, cultural or archeological 
remains and artifacts while accomplishing the activity authorized by 
this permit, you must immediately notify the district engineer of what 
you have found, 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 of Historic 
Places.
    22. Designated Critical Resource Waters. Critical resource waters 
include, NOAA-managed marine sanctuaries and marine monuments, and 
National Estuarine Research Reserves. The district engineer may 
designate, after notice and opportunity for public comment, additional 
waters officially designated by a state as having particular 
environmental or ecological significance, such as outstanding national 
resource waters or state natural heritage sites. The district engineer 
may also designate additional critical resource waters after notice and 
opportunity for public comment.
    (a) Discharges of dredged or fill material into waters of the 
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 
35, 39, 40, 42, 43, 44, 49, 50, 51, and 52 for any activity within, or 
directly affecting, critical resource waters, including wetlands 
adjacent to such waters.
    (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 
34, 36, 37, 38, and 54, notification is required in accordance with 
general condition 32, for any activity proposed in the designated 
critical resource waters including wetlands adjacent to those waters. 
The district engineer may authorize activities under these NWPs only 
after it is determined that the impacts to the critical resource waters 
will be no more than minimal.
    23. Mitigation. The district engineer will consider the following 
factors when determining appropriate and practicable mitigation 
necessary to ensure that the individual and cumulative adverse 
environmental effects are no more than minimal:
    (a) The activity must be designed and constructed to avoid and 
minimize adverse effects, both temporary and permanent, to waters of 
the United States to the maximum extent practicable at the project site 
(i.e., on site).
    (b) Mitigation in all its forms (avoiding, minimizing, rectifying, 
reducing, or compensating for resource losses) will be required to the 
extent necessary to ensure that the individual and cumulative adverse 
environmental effects are no more than minimal.
    (c) Compensatory mitigation at a minimum one-for-one ratio will be 
required for all wetland losses that exceed \1/10\-acre and require 
pre-construction notification, unless the district engineer determines 
in writing that either some other form of mitigation would be more 
environmentally appropriate or the adverse environmental effects of the 
proposed activity are no more than minimal, and provides an activity-
specific waiver of this requirement. For wetland losses of \1/10\-acre 
or less that require pre-construction notification, the district 
engineer may determine on a case-by-case basis that compensatory 
mitigation is required to ensure that the activity results in only 
minimal adverse environmental effects.
    (d) For losses of streams or other open waters that require pre-
construction notification, the district engineer may require 
compensatory mitigation to ensure that the activity results in no more 
than minimal adverse environmental effects. Compensatory mitigation for 
losses of streams should be provided, if practicable, through stream 
rehabilitation, enhancement, or preservation, since streams are 
difficult-to-replace resources (see 33 CFR 332.3(e)(3)).
    (e) Compensatory mitigation plans for NWP activities in or near 
streams or other open waters will normally include a requirement for 
the restoration or enhancement, maintenance, and legal protection 
(e.g., conservation easements) of riparian areas next to open waters. 
In some cases, the restoration or maintenance/protection of riparian 
areas may be the only compensatory mitigation required. Restored 
riparian areas should consist of native species. The width of the 
required riparian area will address documented water quality or aquatic 
habitat loss concerns. Normally, the riparian area will be 25 to 50 
feet wide on each side of the stream, but the district engineer may 
require slightly wider riparian areas to address documented water 
quality or habitat loss concerns. If it is not possible to restore or 
maintain/protect a riparian area on both sides of a stream, or if the 
waterbody is a lake or coastal waters, then restoring or maintaining/
protecting a riparian area along a single bank or shoreline may be 
sufficient. Where both wetlands and open waters exist on the project 
site, the district engineer will determine the appropriate compensatory 
mitigation (e.g., riparian areas and/or wetlands compensation) based on 
what is best for the aquatic environment on a watershed basis. In cases 
where riparian areas are determined to be the most appropriate form of 
minimization or compensatory mitigation, the district engineer may 
waive or reduce the requirement to provide wetland compensatory 
mitigation for wetland losses.
    (f) Compensatory mitigation projects provided to offset losses of 
aquatic resources must comply with the applicable provisions of 33 CFR 
part 332.
    (1) The prospective permittee is responsible for proposing an 
appropriate compensatory mitigation option if compensatory mitigation 
is necessary to ensure that the activity results in no more than 
minimal adverse environmental effects. For the NWPs, the preferred 
mechanism for providing compensatory mitigation is mitigation bank 
credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and 
(3)). However, if an appropriate number and type of mitigation bank or 
in-lieu credits are not available at the time the PCN is submitted to 
the district engineer, the

[[Page 2002]]

district engineer may approve the use of permittee-responsible 
mitigation.
    (2) The amount of compensatory mitigation required by the district 
engineer must be sufficient to ensure that the authorized activity 
results in no more than minimal individual and cumulative adverse 
environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR 
332.3(f)).
    (3) Since the likelihood of success is greater and the impacts to 
potentially valuable uplands are reduced, aquatic resource restoration 
should be the first compensatory mitigation option considered for 
permittee-responsible mitigation.
    (4) If permittee-responsible mitigation is the proposed option, the 
prospective permittee is responsible for submitting a mitigation plan. 
A conceptual or detailed mitigation plan may be used by the district 
engineer to make the decision on the NWP verification request, but a 
final mitigation plan that addresses the applicable requirements of 33 
CFR 332.4(c)(2) through (14) must be approved by the district engineer 
before the permittee begins work in waters of the United States, unless 
the district engineer determines that prior approval of the final 
mitigation plan is not practicable or not necessary to ensure timely 
completion of the required compensatory mitigation (see 33 CFR 
332.3(k)(3)).
    (5) If mitigation bank or in-lieu fee program credits are the 
proposed option, the mitigation plan only needs to address the baseline 
conditions at the impact site and the number of credits to be provided.
    (6) Compensatory mitigation requirements (e.g., resource type and 
amount to be provided as compensatory mitigation, site protection, 
ecological performance standards, monitoring requirements) may be 
addressed through conditions added to the NWP authorization, instead of 
components of a compensatory mitigation plan (see 33 CFR 
332.4(c)(1)(ii)).
    (g) Compensatory mitigation will not be used to increase the 
acreage losses allowed by the acreage limits of the NWPs. For example, 
if an NWP has an acreage limit of \1/2\-acre, it cannot be used to 
authorize any NWP activity resulting in the loss of greater than \1/2\-
acre of waters of the United States, even if compensatory mitigation is 
provided that replaces or restores some of the lost waters. However, 
compensatory mitigation can and should be used, as necessary, to ensure 
that an NWP activity already meeting the established acreage limits 
also satisfies the no more than minimal impact requirement for the 
NWPs.
    (h) Permittees may propose the use of mitigation banks, in-lieu fee 
programs, or permittee-responsible mitigation. When developing a 
compensatory mitigation proposal, the permittee must consider 
appropriate and practicable options consistent with the framework at 33 
CFR 332.3(b). For activities resulting in the loss of marine or 
estuarine resources, permittee-responsible mitigation may be 
environmentally preferable if there are no mitigation banks or in-lieu 
fee programs in the area that have marine or estuarine credits 
available for sale or transfer to the permittee. For permittee-
responsible mitigation, the special conditions of the NWP verification 
must clearly indicate the party or parties responsible for the 
implementation and performance of the compensatory mitigation project, 
and, if required, its long-term management.
    (i) Where certain functions and services of waters of the United 
States are permanently adversely affected by a regulated activity, such 
as discharges of dredged or fill material into waters of the United 
States that will convert a forested or scrub-shrub wetland to a 
herbaceous wetland in a permanently maintained utility line right-of-
way, mitigation may be required to reduce the adverse environmental 
effects of the activity to the no more than minimal level.
    24. Safety of Impoundment Structures. To ensure that all 
impoundment structures are safely designed, the district engineer may 
require non-Federal applicants to demonstrate that the structures 
comply with established state dam safety criteria or have been designed 
by qualified persons. The district engineer may also require 
documentation that the design has been independently reviewed by 
similarly qualified persons, and appropriate modifications made to 
ensure safety.
    25. Water Quality. Where States and authorized Tribes, or EPA where 
applicable, have not previously certified compliance of an NWP with CWA 
section 401, individual 401 Water Quality Certification must be 
obtained or waived (see 33 CFR 330.4(c)). The district engineer or 
State or Tribe may require additional water quality management measures 
to ensure that the authorized activity does not result in more than 
minimal degradation of water quality.
    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)). The district engineer or a State may 
require additional measures to ensure that the authorized activity is 
consistent with state coastal zone management requirements.
    27. Regional and Case-By-Case Conditions. The activity must comply 
with any regional conditions that may have been added by the Division 
Engineer (see 33 CFR 330.4(e)) and with any case specific conditions 
added by the Corps or by the state, Indian Tribe, or U.S. EPA in its 
section 401 Water Quality Certification, or by the state in its Coastal 
Zone Management Act consistency determination.
    28. Use of Multiple Nationwide Permits. The use of more than one 
NWP for a single and complete project is prohibited, except when the 
acreage loss of waters of the United States authorized by the NWPs does 
not exceed the acreage limit of the NWP with the highest specified 
acreage limit. For example, if a road crossing over tidal waters is 
constructed under NWP 14, with associated bank stabilization authorized 
by NWP 13, the maximum acreage loss of waters of the United States for 
the total project cannot exceed \1/3\-acre.
    29. Transfer of Nationwide Permit Verifications. If the permittee 
sells the property associated with a nationwide permit verification, 
the permittee may transfer the nationwide permit verification to the 
new owner by submitting a letter to the appropriate Corps district 
office to validate the transfer. A copy of the nationwide permit 
verification must be attached to the letter, and the letter must 
contain the following statement and signature:

    When the structures or work authorized by this nationwide permit 
are still in existence at the time the property is transferred, the 
terms and conditions of this nationwide permit, including any 
special conditions, will continue to be binding on the new owner(s) 
of the property. To validate the transfer of this nationwide permit 
and the associated liabilities associated with compliance with its 
terms and conditions, have the transferee sign and date below.

-----------------------------------------------------------------------
(Transferee)
-----------------------------------------------------------------------
(Date)

    30. Compliance Certification. Each permittee who receives an NWP 
verification letter from the Corps must provide a signed certification 
documenting completion of the authorized activity and implementation of 
any required compensatory mitigation. The success of any required 
permittee-responsible mitigation,

[[Page 2003]]

including the achievement of ecological performance standards, will be 
addressed separately by the district engineer. The Corps will provide 
the permittee the certification document with the NWP verification 
letter. The certification document will include:
    (a) A statement that the authorized activity was done in accordance 
with the NWP authorization, including any general, regional, or 
activity-specific conditions;
    (b) A statement that the implementation of any required 
compensatory mitigation was completed in accordance with the permit 
conditions. If credits from a mitigation bank or in-lieu fee program 
are used to satisfy the compensatory mitigation requirements, the 
certification must include the documentation required by 33 CFR 
332.3(l)(3) to confirm that the permittee secured the appropriate 
number and resource type of credits; and
    (c) The signature of the permittee certifying the completion of the 
activity and mitigation.
    The completed certification document must be submitted to the 
district engineer within 30 days of completion of the authorized 
activity or the implementation of any required compensatory mitigation, 
whichever occurs later.
    31. Activities Affecting Structures or Works Built by the United 
States. If an NWP activity also requires permission from the Corps 
pursuant to 33 U.S.C. 408 because it will alter or temporarily or 
permanently occupy or use a U.S. Army Corps of Engineers (USACE) 
federally authorized Civil Works project (a ``USACE project''), the 
prospective permittee must submit a pre-construction notification. See 
paragraph (b)(10) of general condition 32. An activity that requires 
section 408 permission is not authorized by NWP until the appropriate 
Corps office issues the section 408 permission to alter, occupy, or use 
the USACE project, and the district engineer issues a written NWP 
verification.
    32. Pre-Construction Notification. (a) Timing. Where required by 
the terms of the NWP, the prospective permittee must notify the 
district engineer by submitting a pre-construction notification (PCN) 
as early as possible. The district engineer must determine if the PCN 
is complete within 30 calendar days of the date of receipt and, if the 
PCN is determined to be incomplete, notify the prospective permittee 
within that 30 day period to request the additional information 
necessary to make the PCN complete. The request must specify the 
information needed to make the PCN complete. As a general rule, 
district engineers will request additional information necessary to 
make the PCN complete only once. However, if the prospective permittee 
does not provide all of the requested information, then the district 
engineer will notify the prospective permittee that the PCN is still 
incomplete and the PCN review process will not commence until all of 
the requested information has been received by the district engineer. 
The prospective permittee shall not begin the activity until either:
    (1) He or she is notified in writing by the district engineer that 
the activity may proceed under the NWP with any special conditions 
imposed by the district or division engineer; or
    (2) 45 calendar days have passed from the district engineer's 
receipt of the complete PCN and the prospective permittee has not 
received written notice from the district or division engineer. 
However, if the permittee was required to notify the Corps pursuant to 
general condition 18 that listed species or critical habitat might be 
affected or are in the vicinity of the activity, or to notify the Corps 
pursuant to general condition 20 that the activity might have the 
potential to cause effects to historic properties, the permittee cannot 
begin the activity until receiving written notification from the Corps 
that there is ``no effect'' on listed species or ``no potential to 
cause effects'' on historic properties, or that any consultation 
required under Section 7 of the Endangered Species Act (see 33 CFR 
330.4(f)) and/or section 106 of the National Historic Preservation Act 
(see 33 CFR 330.4(g)) has been completed. Also, work cannot begin under 
NWPs 21, 49, or 50 until the permittee has received written approval 
from the Corps. If the proposed activity requires a written waiver to 
exceed specified limits of an NWP, the permittee may not begin the 
activity until the district engineer issues the waiver. If the district 
or division engineer notifies the permittee in writing that an 
individual permit is required within 45 calendar days of receipt of a 
complete PCN, the permittee cannot begin the activity until an 
individual permit has been obtained. Subsequently, the permittee's 
right to proceed under the NWP may be modified, suspended, or revoked 
only in accordance with the procedure set forth in 33 CFR 330.5(d)(2).
    (b) Contents of Pre-Construction Notification: The PCN must be in 
writing and include the following information:
    (1) Name, address and telephone numbers of the prospective 
permittee;
    (2) Location of the proposed activity;
    (3) Identify the specific NWP or NWP(s) the prospective permittee 
wants to use to authorize the proposed activity;
    (4) A description of the proposed activity; the activity's purpose; 
direct and indirect adverse environmental effects the activity would 
cause, including the anticipated amount of loss of wetlands, other 
special aquatic sites, and other waters expected to result from the NWP 
activity, in acres, linear feet, or other appropriate unit of measure; 
a description of any proposed mitigation measures intended to reduce 
the adverse environmental effects caused by the proposed activity; and 
any other NWP(s), regional general permit(s), or individual permit(s) 
used or intended to be used to authorize any part of the proposed 
project or any related activity, including other separate and distant 
crossings for linear projects that require Department of the Army 
authorization but do not require pre-construction notification. The 
description of the proposed activity and any proposed mitigation 
measures should be sufficiently detailed to allow the district engineer 
to determine that the adverse environmental effects of the activity 
will be no more than minimal and to determine the need for compensatory 
mitigation or other mitigation measures. For single and complete linear 
projects, the PCN must include the quantity of anticipated losses of 
wetlands, other special aquatic sites, and other waters for each single 
and complete crossing of those wetlands, other special aquatic sites, 
and other waters. Sketches should be provided when necessary to show 
that the activity complies with the terms of the NWP. (Sketches usually 
clarify the activity and when provided results in a quicker decision. 
Sketches should contain sufficient detail to provide an illustrative 
description of the proposed activity (e.g., a conceptual plan), but do 
not need to be detailed engineering plans);
    (5) The PCN must include a delineation of wetlands, other special 
aquatic sites, and other waters, such as lakes and ponds, and 
perennial, intermittent, and ephemeral streams, on the project site. 
Wetland delineations must be prepared in accordance with the current 
method required by the Corps. The permittee may ask the Corps to 
delineate the special aquatic sites and other waters on the project 
site, but there may be a delay if the Corps does the delineation, 
especially if the project site is large or contains many wetlands, 
other special aquatic sites, and other waters. Furthermore, the 45 day 
period will not start until the delineation has

[[Page 2004]]

been submitted to or completed by the Corps, as appropriate;
    (6) If the proposed activity will result in the loss of greater 
than \1/10\-acre of wetlands and a PCN is required, the prospective 
permittee must submit a statement describing how the mitigation 
requirement will be satisfied, or explaining why the adverse 
environmental effects are no more than minimal and why compensatory 
mitigation should not be required. As an alternative, the prospective 
permittee may submit a conceptual or detailed mitigation plan.
    (7) For non-Federal permittees, if any listed species or designated 
critical habitat might be affected or is in the vicinity of the 
activity, or if the activity is located in designated critical habitat, 
the PCN must include the name(s) of those endangered or threatened 
species that might be affected by the proposed activity or utilize the 
designated critical habitat that might be affected by the proposed 
activity. For NWP activities that require pre-construction 
notification, Federal permittees must provide documentation 
demonstrating compliance with the Endangered Species Act;
    (8) For non-Federal permittees, if the NWP activity might have the 
potential to cause effects to a historic property listed on, determined 
to be eligible for listing on, or potentially eligible for listing on, 
the National Register of Historic Places, the PCN must state which 
historic property might have the potential to be affected by the 
proposed activity or include a vicinity map indicating the location of 
the historic property. For NWP activities that require pre-construction 
notification, Federal permittees must provide documentation 
demonstrating compliance with section 106 of the National Historic 
Preservation Act;
    (9) For an activity that will 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, the PCN must identify 
the Wild and Scenic River or the ``study river'' (see general condition 
16); and
    (10) For an activity that requires permission from the Corps 
pursuant to 33 U.S.C. 408 because it will alter or temporarily or 
permanently occupy or use a U.S. Army Corps of Engineers federally 
authorized civil works project, the pre-construction notification must 
include a statement confirming that the project proponent has submitted 
a written request for section 408 permission from the Corps office 
having jurisdiction over that USACE project.
    (c) Form of Pre-Construction Notification: The standard individual 
permit application form (Form ENG 4345) may be used, but the completed 
application form must clearly indicate that it is an NWP PCN and must 
include all of the applicable information required in paragraphs (b)(1) 
through (10) of this general condition. A letter containing the 
required information may also be used. Applicants may provide 
electronic files of PCNs and supporting materials if the district 
engineer has established tools and procedures for electronic 
submittals.
    (d) Agency Coordination: (1) The district engineer will consider 
any comments from Federal and state agencies concerning the proposed 
activity's compliance with the terms and conditions of the NWPs and the 
need for mitigation to reduce the activity's adverse environmental 
effects so that they are no more than minimal.
    (2) Agency coordination is required for: (i) All NWP activities 
that require pre-construction notification and result in the loss of 
greater than \1/2\-acre of waters of the United States; (ii) NWP 21, 
29, 39, 40, 42, 43, 44, 50, 51, and 52 activities that require pre-
construction notification and will result in the loss of greater than 
300 linear feet of stream bed; (iii) NWP 13 activities in excess of 500 
linear feet, fills greater than one cubic yard per running foot, or 
involve discharges of dredged or fill material into special aquatic 
sites; and (iv) NWP 54 activities in excess of 500 linear feet, or that 
extend into the waterbody more than 30 feet from the mean low water 
line in tidal waters or the ordinary high water mark in the Great 
Lakes.
    (3) When agency coordination is required, the district engineer 
will immediately provide (e.g., via email, facsimile transmission, 
overnight mail, or other expeditious manner) a copy of the complete PCN 
to the appropriate Federal or state offices (FWS, state natural 
resource or water quality agency, EPA, and, if appropriate, the NMFS). 
With the exception of NWP 37, these agencies will have 10 calendar days 
from the date the material is transmitted to notify the district 
engineer via telephone, facsimile transmission, or email that they 
intend to provide substantive, site-specific comments. The comments 
must explain why the agency believes the adverse environmental effects 
will be more than minimal. If so contacted by an agency, the district 
engineer will wait an additional 15 calendar days before making a 
decision on the pre-construction notification. The district engineer 
will fully consider agency comments received within the specified time 
frame concerning the proposed activity's compliance with the terms and 
conditions of the NWPs, including the need for mitigation to ensure the 
net adverse environmental effects of the proposed activity are no more 
than minimal. The district engineer will provide no response to the 
resource agency, except as provided below. The district engineer will 
indicate in the administrative record associated with each pre-
construction notification that the resource agencies' concerns were 
considered. For NWP 37, the emergency watershed protection and 
rehabilitation activity may proceed immediately in cases where there is 
an unacceptable hazard to life or a significant loss of property or 
economic hardship will occur. The district engineer will consider any 
comments received to decide whether the NWP 37 authorization should be 
modified, suspended, or revoked in accordance with the procedures at 33 
CFR 330.5.
    (4) In cases of where the prospective permittee is not a Federal 
agency, the district engineer will provide a response to NMFS within 30 
calendar days of receipt of any Essential Fish Habitat conservation 
recommendations, as required by section 305(b)(4)(B) of the Magnuson-
Stevens Fishery Conservation and Management Act.
    (5) Applicants are encouraged to provide the Corps with either 
electronic files or multiple copies of pre-construction notifications 
to expedite agency coordination.

D. District Engineer's Decision

    1. In reviewing the PCN for the proposed activity, the district 
engineer will determine whether the activity authorized by the NWP will 
result in more than minimal individual or cumulative adverse 
environmental effects or may be contrary to the public interest. If a 
project proponent requests authorization by a specific NWP, the 
district engineer should issue the NWP verification for that activity 
if it meets the terms and conditions of that NWP, unless he or she 
determines, after considering mitigation, that the proposed activity 
will result in more than minimal individual and cumulative adverse 
effects on the aquatic environment and other aspects of the public 
interest and exercises discretionary authority to require an individual 
permit for the proposed activity. For a linear project, this 
determination will include an evaluation of the individual crossings of 
waters of the United States to determine whether they individually 
satisfy the

[[Page 2005]]

terms and conditions of the NWP(s), as well as the cumulative effects 
caused by all of the crossings authorized by NWP. If an applicant 
requests a waiver of the 300 linear foot limit on impacts to streams or 
of an otherwise applicable limit, as provided for in NWPs 13, 21, 29, 
36, 39, 40, 42, 43, 44, 50, 51, 52, or 54, the district engineer will 
only grant the waiver upon a written determination that the NWP 
activity will result in only minimal individual and cumulative adverse 
environmental effects. For those NWPs that have a waivable 300 linear 
foot limit for losses of intermittent and ephemeral stream bed and a 
\1/2\-acre limit (i.e., NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 
52), the loss of intermittent and ephemeral stream bed, plus any other 
losses of jurisdictional waters and wetlands, cannot exceed \1/2\-acre.
    2. When making minimal adverse environmental effects determinations 
the district engineer will consider the direct and indirect effects 
caused by the NWP activity. He or she will also consider the cumulative 
adverse environmental effects caused by activities authorized by NWP 
and whether those cumulative adverse environmental effects are no more 
than minimal. The district engineer will also consider site specific 
factors, such as the environmental setting in the vicinity of the NWP 
activity, the type of resource that will be affected by the NWP 
activity, the functions provided by the aquatic resources that will be 
affected by the NWP activity, the degree or magnitude to which the 
aquatic resources perform those functions, the extent that aquatic 
resource functions will be lost as a result of the NWP activity (e.g., 
partial or complete loss), the duration of the adverse effects 
(temporary or permanent), the importance of the aquatic resource 
functions to the region (e.g., watershed or ecoregion), and mitigation 
required by the district engineer. If an appropriate functional or 
condition assessment method is available and practicable to use, that 
assessment method may be used by the district engineer to assist in the 
minimal adverse environmental effects determination. The district 
engineer may add case-specific special conditions to the NWP 
authorization to address site-specific environmental concerns.
    3. If the proposed activity requires a PCN and will result in a 
loss of greater than \1/10\-acre of wetlands, the prospective permittee 
should submit a mitigation proposal with the PCN. Applicants may also 
propose compensatory mitigation for NWP activities with smaller 
impacts, or for impacts to other types of waters (e.g., streams). The 
district engineer will consider any proposed compensatory mitigation or 
other mitigation measures the applicant has included in the proposal in 
determining whether the net adverse environmental effects of the 
proposed activity are no more than minimal. The compensatory mitigation 
proposal may be either conceptual or detailed. If the district engineer 
determines that the activity complies with the terms and conditions of 
the NWP and that the adverse environmental effects are no more than 
minimal, after considering mitigation, the district engineer will 
notify the permittee and include any activity-specific conditions in 
the NWP verification the district engineer deems necessary. Conditions 
for compensatory mitigation requirements must comply with the 
appropriate provisions at 33 CFR 332.3(k). The district engineer must 
approve the final mitigation plan before the permittee commences work 
in waters of the United States, unless the district engineer determines 
that prior approval of the final mitigation plan is not practicable or 
not necessary to ensure timely completion of the required compensatory 
mitigation. If the prospective permittee elects to submit a 
compensatory mitigation plan with the PCN, the district engineer will 
expeditiously review the proposed compensatory mitigation plan. The 
district engineer must review the proposed compensatory mitigation plan 
within 45 calendar days of receiving a complete PCN and determine 
whether the proposed mitigation would ensure the NWP activity results 
in no more than minimal adverse environmental effects. If the net 
adverse environmental effects of the NWP activity (after consideration 
of the mitigation proposal) are determined by the district engineer to 
be no more than minimal, the district engineer will provide a timely 
written response to the applicant. The response will state that the NWP 
activity can proceed under the terms and conditions of the NWP, 
including any activity-specific conditions added to the NWP 
authorization by the district engineer.
    4. If the district engineer determines that the adverse 
environmental effects of the proposed activity are more than minimal, 
then the district engineer will notify the applicant either: (a) That 
the activity does not qualify for authorization under the NWP and 
instruct the applicant on the procedures to seek authorization under an 
individual permit; (b) that the activity is authorized under the NWP 
subject to the applicant's submission of a mitigation plan that would 
reduce the adverse environmental effects so that they are no more than 
minimal; or (c) that the activity is authorized under the NWP with 
specific modifications or conditions. Where the district engineer 
determines that mitigation is required to ensure no more than minimal 
adverse environmental effects, the activity will be authorized within 
the 45-day PCN period (unless additional time is required to comply 
with general conditions 18, 20, and/or 31, or to evaluate PCNs for 
activities authorized by NWPs 21, 49, and 50), with activity-specific 
conditions that state the mitigation requirements. The authorization 
will include the necessary conceptual or detailed mitigation plan or a 
requirement that the applicant submit a mitigation plan that would 
reduce the adverse environmental effects so that they are no more than 
minimal. When compensatory mitigation is required, no work in waters of 
the United States may occur until the district engineer has approved a 
specific mitigation plan or has determined that prior approval of a 
final mitigation plan is not practicable or not necessary to ensure 
timely completion of the required compensatory mitigation.

E. Further Information

    1. District Engineers have authority to determine if an activity 
complies with the terms and conditions of an NWP.
    2. NWPs do not obviate the need to obtain other federal, state, or 
local permits, approvals, or authorizations required by law.
    3. NWPs do not grant any property rights or exclusive privileges.
    4. NWPs do not authorize any injury to the property or rights of 
others.
    5. NWPs do not authorize interference with any existing or proposed 
Federal project (see general condition 31).

F. Definitions

    Best management practices (BMPs): Policies, practices, procedures, 
or structures implemented to mitigate the adverse environmental effects 
on surface water quality resulting from development. BMPs are 
categorized as structural or non-structural.
    Compensatory mitigation: The restoration (re-establishment or 
rehabilitation), establishment (creation), enhancement, and/or in 
certain circumstances preservation of aquatic resources for the 
purposes of offsetting unavoidable adverse impacts which remain after 
all appropriate and

[[Page 2006]]

practicable avoidance and minimization has been achieved.
    Currently serviceable: Useable as is or with some maintenance, but 
not so degraded as to essentially require reconstruction.
    Direct effects: Effects that are caused by the activity and occur 
at the same time and place.
    Discharge: The term ``discharge'' means any discharge of dredged or 
fill material into waters of the United States.
    Ecological reference: A model used to plan and design an aquatic 
habitat and riparian area restoration, enhancement, or establishment 
activity under NWP 27. An ecological reference may be based on the 
structure, functions, and dynamics of an aquatic habitat type or a 
riparian area type that currently exists in the region where the 
proposed NWP 27 activity is located. Alternatively, an ecological 
reference may be based on a conceptual model for the aquatic habitat 
type or riparian area type to be restored, enhanced, or established as 
a result of the proposed NWP 27 activity. An ecological reference takes 
into account the range of variation of the aquatic habitat type or 
riparian area type in the region.
    Enhancement: The manipulation of the physical, chemical, or 
biological characteristics of an aquatic resource to heighten, 
intensify, or improve a specific aquatic resource function(s). 
Enhancement results in the gain of selected aquatic resource 
function(s), but may also lead to a decline in other aquatic resource 
function(s). Enhancement does not result in a gain in aquatic resource 
area.
    Ephemeral stream: An ephemeral stream has flowing water only 
during, and for a short duration after, precipitation events in a 
typical year. Ephemeral stream beds are located above the water table 
year-round. Groundwater is not a source of water for the stream. Runoff 
from rainfall is the primary source of water for stream flow.
    Establishment (creation): The manipulation of the physical, 
chemical, or biological characteristics present to develop an aquatic 
resource that did not previously exist at an upland site. Establishment 
results in a gain in aquatic resource area.
    High Tide Line: The line of intersection of the land with the 
water's surface at the maximum height reached by a rising tide. The 
high tide line may be determined, in the absence of actual data, by a 
line of oil or scum along shore objects, a more or less continuous 
deposit of fine shell or debris on the foreshore or berm, other 
physical markings or characteristics, vegetation lines, tidal gages, or 
other suitable means that delineate the general height reached by a 
rising tide. The line encompasses spring high tides and other high 
tides that occur with periodic frequency but does not include storm 
surges in which there is a departure from the normal or predicted reach 
of the tide due to the piling up of water against a coast by strong 
winds such as those accompanying a hurricane or other intense storm.
    Historic Property: Any prehistoric or historic district, site 
(including archaeological site), building, structure, or other object 
included in, or eligible for inclusion in, the National Register of 
Historic Places maintained by the Secretary of the Interior. This term 
includes artifacts, records, and remains that are related to and 
located within such properties. The term includes properties of 
traditional religious and cultural importance to an Indian tribe or 
Native Hawaiian organization and that meet the National Register 
criteria (36 CFR part 60).
    Independent utility: A test to determine what constitutes a single 
and complete non-linear project in the Corps Regulatory Program. A 
project is considered to have independent utility if it would be 
constructed absent the construction of other projects in the project 
area. Portions of a multi-phase project that depend upon other phases 
of the project do not have independent utility. Phases of a project 
that would be constructed even if the other phases were not built can 
be considered as separate single and complete projects with independent 
utility.
    Indirect effects: Effects that are caused by the activity and are 
later in time or farther removed in distance, but are still reasonably 
foreseeable.
    Intermittent stream: An intermittent stream has flowing water 
during certain times of the year, when groundwater provides water for 
stream flow. During dry periods, intermittent streams may not have 
flowing water. Runoff from rainfall is a supplemental source of water 
for stream flow.
    Loss of waters of the United States: Waters of the United States 
that are permanently adversely affected by filling, flooding, 
excavation, or drainage because of the regulated activity. Permanent 
adverse effects include permanent discharges of dredged or fill 
material that change an aquatic area to dry land, increase the bottom 
elevation of a waterbody, or change the use of a waterbody. The acreage 
of loss of waters of the United States is a threshold measurement of 
the impact to jurisdictional waters for determining whether a project 
may qualify for an NWP; it is not a net threshold that is calculated 
after considering compensatory mitigation that may be used to offset 
losses of aquatic functions and services. The loss of stream bed 
includes the acres or linear feet of stream bed that are filled or 
excavated as a result of the regulated activity. Waters of the United 
States temporarily filled, flooded, excavated, or drained, but restored 
to pre-construction contours and elevations after construction, are not 
included in the measurement of loss of waters of the United States. 
Impacts resulting from activities that do not require Department of the 
Army authorization, such as activities eligible for exemptions under 
section 404(f) of the Clean Water Act, are not considered when 
calculating the loss of waters of the United States.
    Navigable waters: Waters subject to section 10 of the Rivers and 
Harbors Act of 1899. These waters are defined at 33 CFR part 329.
    Non-tidal wetland: A non-tidal wetland is a wetland that is not 
subject to the ebb and flow of tidal waters. Non-tidal wetlands 
contiguous to tidal waters are located landward of the high tide line 
(i.e., spring high tide line).
    Open water: For purposes of the NWPs, an open water is any area 
that in a year with normal patterns of precipitation has water flowing 
or standing above ground to the extent that an ordinary high water mark 
can be determined. Aquatic vegetation within the area of flowing or 
standing water is either non-emergent, sparse, or absent. Vegetated 
shallows are considered to be open waters. Examples of ``open waters'' 
include rivers, streams, lakes, and ponds.
    Ordinary High Water Mark: An ordinary high water mark is a line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics, or by other appropriate means that consider 
the characteristics of the surrounding areas.
    Perennial stream: A perennial stream has flowing water year-round 
during a typical year. The water table is located above the stream bed 
for most of the year. Groundwater is the primary source of water for 
stream flow. Runoff from rainfall is a supplemental source of water for 
stream flow.
    Practicable: Available and capable of being done after taking into 
consideration cost, existing technology, and logistics in light of 
overall project purposes.
    Pre-construction notification: A request submitted by the project 
proponent to the Corps for confirmation that a particular activity is 
authorized by nationwide permit. The request may

[[Page 2007]]

be a permit application, letter, or similar document that includes 
information about the proposed work and its anticipated environmental 
effects. Pre-construction notification may be required by the terms and 
conditions of a nationwide permit, or by regional conditions. A pre-
construction notification may be voluntarily submitted in cases where 
pre-construction notification is not required and the project proponent 
wants confirmation that the activity is authorized by nationwide 
permit.
    Preservation: The removal of a threat to, or preventing the decline 
of, aquatic resources by an action in or near those aquatic resources. 
This term includes activities commonly associated with the protection 
and maintenance of aquatic resources through the implementation of 
appropriate legal and physical mechanisms. Preservation does not result 
in a gain of aquatic resource area or functions.
    Protected tribal resources: Those natural resources and properties 
of traditional or customary religious or cultural importance, either on 
or off Indian lands, retained by, or reserved by or for, Indian tribes 
through treaties, statutes, judicial decisions, or executive orders, 
including tribal trust resources.
    Re-establishment: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area and functions.
    Rehabilitation: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing 
natural/historic functions to a degraded aquatic resource. 
Rehabilitation results in a gain in aquatic resource function, but does 
not result in a gain in aquatic resource area.
    Restoration: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former or degraded aquatic resource. 
For the purpose of tracking net gains in aquatic resource area, 
restoration is divided into two categories: Re-establishment and 
rehabilitation.
    Riffle and pool complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes 
sometimes characterize steep gradient sections of streams. Such stream 
sections are recognizable by their hydraulic characteristics. The rapid 
movement of water over a course substrate in riffles results in a rough 
flow, a turbulent surface, and high dissolved oxygen levels in the 
water. Pools are deeper areas associated with riffles. A slower stream 
velocity, a streaming flow, a smooth surface, and a finer substrate 
characterize pools.
    Riparian areas: Riparian areas are lands next to streams, lakes, 
and estuarine-marine shorelines. Riparian areas are transitional 
between terrestrial and aquatic ecosystems, through which surface and 
subsurface hydrology connects riverine, lacustrine, estuarine, and 
marine waters with their adjacent wetlands, non-wetland waters, or 
uplands. Riparian areas provide a variety of ecological functions and 
services and help improve or maintain local water quality. (See general 
condition 23.)
    Shellfish seeding: The placement of shellfish seed and/or suitable 
substrate to increase shellfish production. Shellfish seed consists of 
immature individual shellfish or individual shellfish attached to 
shells or shell fragments (i.e., spat on shell). Suitable substrate may 
consist of shellfish shells, shell fragments, or other appropriate 
materials placed into waters for shellfish habitat.
    Single and complete linear project: A linear project is a project 
constructed for the purpose of getting people, goods, or services from 
a point of origin to a terminal point, which often involves multiple 
crossings of one or more waterbodies at separate and distant locations. 
The term ``single and complete project'' is defined as that portion of 
the total linear project proposed or accomplished by one owner/
developer or partnership or other association of owners/developers that 
includes all crossings of a single water of the United States (i.e., a 
single waterbody) at a specific location. For linear projects crossing 
a single or multiple waterbodies several times at separate and distant 
locations, each crossing is considered a single and complete project 
for purposes of NWP authorization. However, individual channels in a 
braided stream or river, or individual arms of a large, irregularly 
shaped wetland or lake, etc., are not separate waterbodies, and 
crossings of such features cannot be considered separately.
    Single and complete non-linear project: For non-linear projects, 
the term ``single and complete project'' is defined at 33 CFR 330.2(i) 
as the total project proposed or accomplished by one owner/developer or 
partnership or other association of owners/developers. A single and 
complete non-linear project must have independent utility (see 
definition of ``independent utility''). Single and complete non-linear 
projects may not be ``piecemealed'' to avoid the limits in an NWP 
authorization.
    Stormwater management: Stormwater management is the mechanism for 
controlling stormwater runoff for the purposes of reducing downstream 
erosion, water quality degradation, and flooding and mitigating the 
adverse effects of changes in land use on the aquatic environment.
    Stormwater management facilities: Stormwater management facilities 
are those facilities, including but not limited to, stormwater 
retention and detention ponds and best management practices, which 
retain water for a period of time to control runoff and/or improve the 
quality (i.e., by reducing the concentration of nutrients, sediments, 
hazardous substances and other pollutants) of stormwater runoff.
    Stream bed: The substrate of the stream channel between the 
ordinary high water marks. The substrate may be bedrock or inorganic 
particles that range in size from clay to boulders. Wetlands contiguous 
to the stream bed, but outside of the ordinary high water marks, are 
not considered part of the stream bed.
    Stream channelization: The manipulation of a stream's course, 
condition, capacity, or location that causes more than minimal 
interruption of normal stream processes. A channelized stream remains a 
water of the United States.
    Structure: An object that is arranged in a definite pattern of 
organization. Examples of structures include, without limitation, any 
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, 
bulkhead, revetment, riprap, jetty, artificial island, artificial reef, 
permanent mooring structure, power transmission line, permanently 
moored floating vessel, piling, aid to navigation, or any other manmade 
obstacle or obstruction.
    Tidal wetland: A tidal wetland is a jurisdictional wetland that is 
inundated by tidal waters. Tidal waters rise and fall in a predictable 
and measurable rhythm or cycle due to the gravitational pulls of the 
moon and sun. Tidal waters end where the rise and fall of the water 
surface can no longer be practically measured in a predictable rhythm 
due to masking by other waters, wind, or other effects. Tidal wetlands 
are located channelward of the high tide line.
    Tribal lands: Any lands title to which is either: (1) Held in trust 
by the United States for the benefit of any Indian tribe or individual; 
or (2) held by any Indian tribe or individual subject to restrictions 
by the United States against alienation.

[[Page 2008]]

    Tribal rights: Those rights legally accruing to a tribe or tribes 
by virtue of inherent sovereign authority, unextinguished aboriginal 
title, treaty, statute, judicial decisions, executive order or 
agreement, and that give rise to legally enforceable remedies.
    Vegetated shallows: Vegetated shallows are special aquatic sites 
under the 404(b)(1) Guidelines. They are areas that are permanently 
inundated and under normal circumstances have rooted aquatic 
vegetation, such as seagrasses in marine and estuarine systems and a 
variety of vascular rooted plants in freshwater systems.
    Waterbody: For purposes of the NWPs, a waterbody is a 
jurisdictional water of the United States. If a wetland is adjacent to 
a waterbody determined to be a water of the United States, that 
waterbody and any adjacent wetlands are considered together as a single 
aquatic unit (see 33 CFR 328.4(c)(2)). Examples of ``waterbodies'' 
include streams, rivers, lakes, ponds, and wetlands.

[FR Doc. 2016-31355 Filed 1-5-17; 8:45 am]
 BILLING CODE 3720-58-P