[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Proposed Rules]
[Pages 57298-57395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17116]



[[Page 57297]]

Vol. 85

Tuesday,

No. 179

September 15, 2020

Part II





 Department of Defense





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 Department of the Army, Corps of Engineers





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33 CFR Chapter II





Proposal To Reissue and Modify Nationwide Permits; Proposed Rule

  Federal Register / Vol. 85 , No. 179 / Tuesday, September 15, 2020 / 
Proposed Rules  

[[Page 57298]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Chapter II

[Docket Number: COE-2020-0002]
RIN 0710-AA84


Proposal To Reissue and Modify Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Nationwide Permits (NWPs) authorize certain activities under 
Section 404 of the Clean Water Act and Section 10 of the Rivers and 
Harbors Act of 1899. The U.S. Army Corps of Engineers (Corps) is 
proposing to reissue its existing NWPs and associated general 
conditions and definitions, with some modifications. We are also 
proposing to issue five new NWPs. Two of those proposed new NWPs would 
authorize certain categories of mariculture activities (i.e., seaweed 
and finfish mariculture) that are not authorized by NWP 48. We are 
proposing to divide the current NWP that authorizes utility line 
activities (NWP 12) into three separate NWPs that address the 
differences in how different linear projects are constructed, the 
substances they convey, and the different standards and best management 
practices that help ensure those NWPs authorize only those activities 
that have no more than minimal adverse environmental effects. 
Specifically, we are proposing to modify the current utility line NWP 
12 to authorize only oil and natural gas pipeline activities. Two 
proposed new NWPs would authorize activities associated with the 
construction, maintenance, repair, and removal of electric utility 
lines/telecommunication lines and utility lines that convey water, 
sewage, and other substances. The fifth proposed new NWP would 
authorize discharges of dredged or fill material into jurisdictional 
waters for the construction, expansion, and maintenance of water reuse 
and reclamation facilities. We are proposing these modifications to 
simplify and clarify the NWPs, reduce burdens on the regulated public, 
and continue to comply with the statutory requirement that these NWPs 
authorize only activities with no more than minimal individual and 
cumulative adverse environmental effects. The Corps is requesting 
comment on all aspects of these proposed nationwide permits.

DATES: Submit comments on or before November 16, 2020.

ADDRESSES: You may submit comments, identified by docket number COE-
2020-0002 and/or RIN 0710-AA84, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected]. Include the docket 
number, COE-2020-0002, in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street 
NW, Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: If submitting comments through the Federal 
eRulemaking Portal, direct your comments to docket number COE-2020-
0002. All comments received will be included in the public docket 
without change and may be made available on-line at http://www.regulations.gov, including any personal information provided, 
unless the commenter indicates that the comment includes information 
claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI, or otherwise protected, 
through regulations.gov or email. The regulations.gov website is an 
anonymous access system, which means we will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an email directly to the Corps without going through 
regulations.gov your email address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the internet. If you submit an electronic comment we 
recommend that you include your name and other contact information in 
the body of your comment and with any compact disc you submit. If we 
cannot read your comment because of technical difficulties and cannot 
contact you for clarification we may not be able to consider your 
comment. Electronic comments should avoid the use of any special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to regulations.gov. All documents in the docket 
are listed. Although listed in the index, some information is not 
publicly available, such as CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or 
access the U.S. Army Corps of Engineers Regulatory Home Page at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. General
    B. Proposed Actions Under E.O. 13783, Promoting Energy 
Independence and Economic Growth
    C. Proposed Actions Under Executive Order 13777, Enforcing the 
Regulatory Reform Agenda
    D. Proposed Actions Under Executive Order 13921, Promoting 
American Seafood Competitiveness and Economic Growth
    E. The 2018 Legislative Outline for Rebuilding Infrastructure in 
America
    F. Process for Modifying and Reissuing the NWPs
    G. Status of Existing Permits
    H. Regional Conditioning of Nationwide Permits
II. Summary of Proposal
    A. Proposed Removal of the 300 Linear Foot Limit for Losses of 
Stream Bed
    B. Discussion of Additional Proposed Modifications to Existing 
Nationwide Permits
    C. Discussion of Proposed New Nationwide Permits
    D. Discussion of Proposed Modifications to Nationwide Permit 
General Conditions
    E. Discussion of Proposed Modifications to Section D, ``District 
Engineer's Decision''
    F. Discussion of Proposed Modifications to Section F, 
``Definitions''
III. Compliance With Relevant Statutes
    A. National Environmental Policy Act Compliance
    B. Compliance With Section 404(e) of the Clean Water Act
    C. 2020 Revisions to the Definition of ``Waters of the United 
States'' (i.e., the Navigable Waters Protection Rule)
    D. Compliance With the Endangered Species Act
    E. Compliance With the Essential Fish Habitat Provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act
    F. Compliance With Section 106 of the National Historic 
Preservation Act
    G. Compliance With Section 401 of the Clean Water Act
    H. Section 307 of the Coastal Zone Management Act (CZMA)
IV. Economic Impact
V. Administrative Requirements
VI. References
Authority

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Nationwide Permits, Conditions, Further Information, and Definitions

List of Acronyms

CEQ Council on Environmental Quality
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NPDES National Pollutant Discharge Elimination System
NWP Nationwide Permit
PCN Pre-construction Notification

List of Proposed Nationwide Permits and General Conditions

Nationwide Permits (NWPs)

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. Oil or Natural Gas Pipeline 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 Mariculture 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
    A. Seaweed Mariculture Activities
    B. Finfish Mariculture Activities
    C. Electric Utility Line and Telecommunications Activities
    D. Utility Line Activities for Water and Other Substances
    E. Water Reclamation and Reuse Facilities

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 Birds and Bald and Golden Eagles
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

I. Background

A. General

    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. Nationwide permits were first issued by the Corps in 1977 (42 
FR 37122) to authorize categories of activities that have minimal 
adverse effects on the aquatic environment, and streamline the 
authorization process for those minor activities. After 1977, NWPs have 
been issued or reissued in 1982 (47 FR 31794), 1984 (49 FR 39478), 1986 
(51 FR 41206), 1991 (56 FR 59110), 1995 (60 FR 38650), 1996 (61 FR 
65874), 2000 (65 FR 12818), 2002 (67 FR 2020), 2007 (72 FR 11092), 2012 
(77 FR 10184), and 2017 (82 FR 1860).
    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 for a period of no more than 
five years after the date of issuance (33 U.S.C. 1344(e)). The 
Secretary's authority to issue 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 federally jurisdictional waters and wetlands that 
have no more than minimal adverse environmental impacts (see 33 CFR 
330.1(b)). The categories of activities authorized by NWPs must be 
similar in nature, cause only minimal adverse environmental effects 
when performed separately, and have only minimal cumulative adverse 
effect on the environment (see 33 U.S.C. 1344(e)(1)). Nationwide 
permits can be issued for a period of no more than 5 years (33 U.S.C. 
1344(e)(2)), and the Corps has the authority to modify or revoke the 
NWPs before they expire. 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.
    There are currently 52 NWPs. These NWPs were published in the 
January 6, 2017, issue of the Federal Register (82 FR 1860) and are 
currently scheduled to expire on March 18, 2022. Under 33 CFR 330.5(b), 
anyone may, at any time, suggest to Corps Headquarters that they 
consider new NWPs or conditions for issuance, or changes to existing 
NWPs. Independent of receiving suggestions to issue new NWPs or modify 
existing NWPs, Corps Headquarters has the authority to periodically 
review the NWPs and their conditions and initiate

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the process for proposing to modify, reissue, or revoke the NWPs (see 
33 CFR 330.5(b) and 330.6(b)). While the Corps generally updates the 
nationwide permits every five years, there have been three times where 
the Corps issued or modified NWPs outside of the normal 5-year cycle. 
The first time occurred on October 5, 1984 (49 FR 39478) when the Corps 
modified four NWPs and issued one new NWP to comply with the 
requirements of a settlement agreement. The second time was on July 27, 
1995 (60 FR 38650) when the Corps issued a new NWP for single family 
housing (NWP 29). The third instance occurred on March 9, 2000, (65 FR 
12818) when the Corps issued five new NWPs and modified 6 existing NWPs 
to replace one of its existing NWPs (i.e., NWP 26, which authorized 
discharges into headwaters and isolated waters).
    On March 28, 2017, the President signed Executive Order (E.O.) 
13783, which directed heads of federal agencies to review existing 
regulations that potentially burden the development or use of 
domestically produced energy resources. On October 25, 2017, the 
Assistant Secretary of the Army (Civil Works) issued a report in 
response to E.O. 13783. That report identified nine NWPs that could be 
modified to reduce regulatory burdens on entities that develop or use 
domestically produced energy resources. A copy of the report is 
available in the docket for this proposed rule (docket number COE-2020-
0002). Today's proposal includes potential modifications intended to 
provide additional consistency and clarity in the NWPs, including the 
NWPs identified in the E.O. 13783 report, and reduce burdens on the 
regulated public. This notice of proposed rulemaking initiates the 
rulemaking process to determine whether to modify these nine NWPs in 
accordance with the report's recommendations, and to modify a number of 
other NWPs. More information on the actions being proposed pursuant, in 
part, to E.O. 13783 can be found in Section I.B below.
    In addition to revisions being considered in response to E.O. 
13783, the Corps is proposing to reissue the remaining NWPs, so that 
all of the NWPs remain on the same 5-year approval cycle. The Corps is 
also proposing to issue five new NWPs discussed below.
    In FY 2018, the average processing time for an NWP PCN was 45 days 
and the average processing time for a standard individual permit was 
264 days. This difference in burden can incentivize project proponents 
that would otherwise require an individual permit under Section 404 of 
the Clean Water Act and Section 10 of the Rivers and Harbors Act of 
1899 to reduce the adverse effects of those activities in order to 
qualify for NWP authorization. This reduction in adverse effects can 
reduce a project's impact on 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 
all the activities authorized by a particular NWP during the time 
period when the NWP is in effect (a period of no more than 5 years) in 
a specific geographic region. These concepts are defined in paragraph 2 
of section D, ``District Engineer's Decision.'' The appropriate 
geographic area for assessing cumulative effects is determined by the 
decision-making authority for the general permit (generally, the 
district engineer).
    Some NWPs include pre-construction notification (PCN) requirements. 
PCNs give the Corps the opportunity to evaluate certain proposed NWP 
activities on a case-by-case basis to ensure that they will cause no 
more than minimal adverse environmental effects, individually and 
cumulatively. Except activities conducted by non-Federal permittees 
that require PCNs under paragraph (c) of the ``Endangered Species'' and 
``Historic Properties'' general conditions (general conditions 18 and 
20, respectively), if the Corps district does not respond to the PCN 
within 45 days of a receipt of a complete PCN the activity is 
automatically authorized by the NWP (see 33 CFR 330.1(e)(1)).
    There are 38 Corps district offices and 8 Corps division offices. 
The district offices administer the NWP program on a day-to-day basis 
by reviewing PCNs for proposed NWP activities. The division offices 
oversee district offices and are managed by division engineers. 
Division engineers have the authority to modify, suspend, or revoke NWP 
authorizations on a regional basis to take into account regional 
differences among aquatic resources and ensure that the NWPs authorize 
only those activities that result in no more than minimal individual 
and cumulative adverse environmental effects in a region (see 33 CFR 
330.5(c)). 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, consistent with the criteria in paragraph 2 of 
section D, ``District Engineer's Decision.'' At this point, the 
district engineer may add conditions to the NWP authorization to ensure 
that the verified NWP activity results in no more than minimal 
individual and cumulative adverse environmental effects consistent with 
processes and requirements set out in 33 CFR 330.5(d). See Section I.H 
for more information on the regional conditioning process.
    For some NWPs, when submitting a PCN, an applicant may request a 
waiver for a particular limit specified in the NWP's terms and 
conditions. If the applicant requests a waiver of an NWP limit and the 
district engineer determines, after coordinating with the resource 
agencies under paragraph (d) of NWP general condition 32, that the 
proposed NWP activity will result in no more than minimal adverse 
environmental effects, the district engineer may grant such a waiver. 
Following the conclusion of the district engineer's review of a PCN, 
he/she prepares an official decision document. This document discusses 
the district engineer's findings as to whether a proposed NWP activity 
qualifies for NWP authorization, including compliance with all 
applicable terms and conditions, and the rationale for any waivers 
granted, and activity-specific conditions needed to ensure that the NWP 
activity will have only minimal individual and cumulative adverse 
environmental effects and will not be contrary to the public interest 
(see Sec.  330.6(a)(3)(i)).
    The case-by-case review of PCNs often results in district engineers 
adding activity-specific conditions to NWP authorizations to ensure 
that the adverse environmental effects are no more than minimal. These 
can include permit conditions such as time-of-year restrictions and use 
of best management practices or 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 required for NWP activities must comply with 
the Corps' compensatory mitigation regulations at 33 CFR part 332. 
Review of a PCN may also result in the district engineer asserting 
discretionary authority to require an individual permit from the Corps 
for the proposed activity, if he or she determines, based on the 
information provided in the PCN and other available information, that 
adverse environmental effects will be

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more than minimal, or otherwise determines that ``sufficient concerns 
for the environment or any other factor of the public interest so 
requires'' consistent with 33 CFR 330.4(e)(2)).
    During their reviews of PCNs, district engineers assess cumulative 
adverse environmental effects at an appropriate regional scale. The 
district engineer uses his or her discretion to determine the 
appropriate regional scale for evaluating cumulative effects. The 
appropriate regional scale for evaluating cumulative effects may be a 
waterbody, watershed, county, state, or a Corps district. The 
appropriate regional scale is dependent, in part, on where the NWP 
activities are occurring. For example, for NWPs that authorizes 
structures and/or work in navigable waters of the United States under 
Section 10 of the Rivers and Harbors Act of 1899, the appropriate 
geographic region for assessing cumulative effects may be a specific 
navigable waterbody. For NWPs that authorize discharges of dredged or 
fill material into non-tidal wetlands and streams, the appropriate 
geographic region for assessing cumulative effects may be a watershed, 
county, state, or Corps district. The direct individual adverse 
environmental effects caused by activities authorized by NWPs are 
evaluated within the project footprint, and the indirect individual 
adverse environmental effects caused by activities authorized by NWPs 
are evaluated within the geographic area to which those indirect 
effects extend. Cumulative effects are the result of the accumulation 
of direct and indirect effects caused by multiple activities that 
persist over time in a particular geographic area (MacDonald 2000), 
such as a watershed or ecoregion (Gosselink and Lee 1989). Therefore, 
the geographic and temporal scales for cumulative effects analysis are 
larger than the analysis of the direct and indirect adverse 
environmental effects caused by specific activities.
    When the district engineer reviews a PCN and determines that the 
proposed activity qualifies for NWP authorization, he or she will issue 
a written NWP verification to the permittee (see 33 CFR 330.6(a)(3)). 
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 the applicable NWP authorizations within the geographic area 
that she or he determines is appropriate for assessing cumulative 
effects caused by activities authorized by that NWP. As discussed 
above, the geographic area may be a waterbody, watershed, county, 
state, Corps district, or other geographic area. Since 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 of the NWPs, district engineers do not need to do 
comprehensive cumulative effects analyses for NWP verifications. For an 
NWP verification, the district engineer needs only to include a 
statement in the administrative record stating whether the proposed NWP 
activity, plus any required mitigation, will result in no more than 
minimal individual and cumulative adverse environmental effects. If the 
district engineer determines, after considering mitigation, that a 
proposed NWP activity will result in more than minimal cumulative 
adverse environmental effects, she or he will exercise discretionary 
authority and require an individual permit.
    There may be activities authorized by NWPs that cross more than one 
Corps district or a single state. On May 15, 2018, the Director of 
Civil Works at Corps Headquarters issued a Director's Policy Memorandum 
titled: ``Designation of a Lead USACE District for Permitting of Non-
USACE Projects Crossing Multiple Districts or States.'' \1\ This 
Director's Policy Memorandum identified lead districts for states that 
have more than one Corps district and established a policy for 
designating a lead district for activities that require Department of 
the Army permits that cross district or state boundaries. Under this 
policy, when the Corps receives an NWP PCN or individual permit 
application for such activities, a lead Corps district will be 
designated by the applicable Corps division office(s) using the 
criteria in the 2018 Director's Policy Memorandum, and that district 
will be responsible for serving as a single point of contact for each 
permit applicant, forming a Project Delivery Team comprising 
representatives of each of the affected districts, ensuring consistent 
reviews by the affected districts, and taking responsibility for 
identifying and resolving inconsistencies that may arise during the 
review. The list of lead districts for states is also used during the 
regional conditioning process for the NWPs. For that process the lead 
district is responsible for coordinating the development of the 
regional conditions and preparing the supplemental documents required 
by 33 CFR 330.5(c)(1)(iii). The Corps requests comments on whether 
there are efficiencies that can be adopted to improve the coordination 
and regional conditioning processes.
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    \1\ This document is available at: https://usace.contentdm.oclc.org/digital/collection/p16021coll11/id/2757/ 
(accessed 3/12/2020).
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B. Proposed Actions Under E.O. 13783, Promoting Energy Independence and 
Economic Growth

    Section 2(a) of E.O. 13783 requires federal agencies to review 
their existing regulations that potentially burden the development or 
use of domestically produced energy resources, with particular 
attention to oil, natural gas, coal, and nuclear resources. For the 
Corps, the NWPs authorize activities associated with the development or 
use of domestically produced energy resources. In response to E.O. 
13783, the Corps issued a report that reviewed 12 NWPs that authorize 
activities associated with the development or use of domestically 
produced energy resources. That report included recommendations for 
changes that could be made to nine NWPs to support the objectives of 
E.O. 13783.
    The Corps issued its report on October 25, 2017, and in the 
November 28, 2017, issue of the Federal Register (82 FR 56192) 
published a notice of availability for that report. Section 2(g) of 
E.O. 13783 states that agencies should, as soon as practicable and as 
appropriate and consistent with law, publish for notice and comment 
proposed rules that would implement the recommendations in their 
reports. Section 2(g) further states that agencies shall endeavor to 
coordinate the regulatory reforms identified in their reports with 
their activities undertaken in compliance with E.O. 13771, ``Reducing 
Regulation and Controlling Regulatory Costs.''
    The following is a summary of the recommendations provided in the 
report the Corps issued in response to E.O. 13783:
     Retain the \1/2\-acre limit for the NWPs identified in the 
report that currently have that limit (i.e., NWP 12 (utility line 
activities), NWP 21 (surface coal mining activities), NWP 39 
(commercial and institutional developments), NWP 50 (underground coal 
mining activities), NWP 51 (land-based renewable energy generation 
projects), and NWP 52 (water-based renewable energy generation pilot 
projects)).
     Remove the 300 linear foot limit for losses of stream bed 
and rely on the \1/2\-

[[Page 57302]]

acre limit and PCN requirements to ensure that activities authorized by 
these NWPs will result in no more than minimal adverse environmental 
effects. The 300 linear foot limit currently applies to the following 
NWPs identified in the report: NWP 21 (surface coal mining activities), 
NWP 39 (commercial and institutional developments), NWP 50 (underground 
coal mining activities), NWP 51 (land-based renewable energy projects), 
and NWP 52 (water-based renewable energy pilot projects).
     NWP 3--Maintenance. Modify this NWP to authorize small 
amounts of riprap to protect those structures and fills, without a PCN 
requirement.
     NWP 12--Utility Line Activities. Modify this NWP to 
simplify the pre-construction notification thresholds, by reducing the 
number of PCN thresholds from 7 to 2.
     NWP 17--Hydropower Projects. Modify this NWP to change the 
generating capacity threshold in paragraph (a) from 5,000 kW to 10,000 
kW to be consistent with the definition of ``small hydroelectric power 
project'' in 16 U.S.C. 2705(d).
     NWP 21--Surface Coal Mining Activities. Remove the 300 
linear foot limit for losses of stream bed. Remove the provision 
requiring the permittee to receive a written authorization from the 
Corps before commencing with the activity, to be consistent with the 
other NWPs requiring PCNs and allowing default authorizations to occur 
if the Corps district does not respond to the PCN within 45 days of 
receipt of a complete PCN.
     NWP 39--Commercial and Institutional Developments. Modify 
this NWP to remove the 300 linear foot limit for losses of stream bed.
     NWP 49--Coal Remining Activities. Remove the provision 
requiring the permittee to receive a written authorization from the 
Corps before commencing with the activity, to be consistent with the 
other NWPs requiring PCNs and allowing default authorizations to occur 
if the Corps district does not respond to the PCN within 45 days of 
receipt of a complete PCN.
     NWP 50--Underground Coal Mining Activities. Remove the 300 
linear foot limit for losses of stream bed. Remove the provision 
requiring the permittee to receive a written authorization from the 
Corps before commencing with the activity, to be consistent with the 
other NWPs requiring PCNs and allowing default authorizations to occur 
if the Corps district does not respond to the PCN within 45 days of 
receipt of a complete PCN.
     NWP 51--Land-Based Renewable Energy Generation Projects. 
Remove the 300 linear foot limit for losses of stream bed.
     NWP 52--Water-Based Renewable Energy Generation Pilot 
Projects. Remove the 300 linear foot limit for losses of stream bed.
    The Corps is proposing to implement all of the recommendations 
discussed above. These proposed changes are discussed in greater detail 
below.

C. Proposed Actions Under Executive Order 13777, Enforcing the 
Regulatory Reform Agenda

    On February 24, 2017, the President signed E.O. 13777, ``Enforcing 
the Regulatory Reform Agenda,'' which required agencies to evaluate 
existing regulations and make recommendations to the agency head 
regarding their repeal, replacement, or modification, consistent with 
applicable law. The E.O. specified that agencies must attempt to 
identify regulations that eliminate jobs or inhibit job creation; are 
outdated, unnecessary, or ineffective; impose costs that exceed 
benefits; create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies; or meet other criteria 
identified in that Executive Order. Pursuant to this E.O., in the July 
20, 2017, issue of the Federal Register (82 FR 33470) the Corps 
published a notice seeking public input from state, local, and tribal 
governments, small businesses, consumers, non-governmental 
organizations, and trade associations on its existing regulations that 
may be appropriate for repeal, replacement, or modification. Some of 
the changes to the NWPs in this proposal are intended to address some 
of the comments received in response to the July 20, 2017, Federal 
Register notice.

D. Proposed Actions Under Executive Order 13921, Promoting American 
Seafood Competitiveness and Economic Growth

    On May 7, 2020, the President signed Executive Order 13921 on 
Promoting American Seafood Competitiveness and Economic Growth. Section 
6(b) of the E.O., ``Removing Barriers to Aquaculture Permitting,'' 
requires the Secretary of the Army, acting through the Assistant 
Secretary of the Army for Civil Works, to ``develop and propose for 
public comment, as appropriate and consistent with applicable law,'' 
NWPs authorizing finfish aquaculture activities and seaweed aquaculture 
activities in marine and coastal waters, including ocean waters beyond 
the territorial sea within the exclusive economic zone of the United 
States. Section 6(b) of the E.O. also requires the Secretary of the 
Army, acting through the Assistant Secretary of the Army for Civil 
Works, to develop and propose for public comment, as appropriate and 
consistent with applicable law, a proposed NWP authorizing multi-
species aquaculture activities in marine and coastal waters, including 
ocean waters beyond the territorial sea within the exclusive economic 
zone of the United States. Instead of proposing a new, separate NWP for 
authorizing structures in coastal waters and federal waters on the 
outer continental shelf for multi-species aquaculture activities, the 
Corps is proposing to include provisions allowing additional species to 
be cultivated with seaweed mariculture activities authorized under 
proposed new NWP A and finfish mariculture activities authorized under 
proposed new NWP B. In addition, the Corps is soliciting public comment 
on whether a separate NWP should be issued to authorize structures or 
work regulated by the Corps for multi-species mariculture activities.
    In this proposed rule, the Corps is proposing to issue two new 
NWPs: NWP A to authorize seaweed mariculture activities in navigable 
waters of the United States, including federal waters on the outer 
continental shelf, and NWP B to authorize finfish mariculture 
activities in these waters. These proposed new NWPs would authorize 
structures and work in navigable waters of the United States under 
Section 10 of the Rivers and Harbors Act of 1899. These proposed new 
NWPs would also authorize seaweed and finfish mariculture structures 
attached to the seabed on the outer continental shelf. Section 4(f) of 
the Outer Continental Shelf Lands Act of 1953 as amended (43 U.S.C. 
1333(e)), extended the Corps' Rivers and Harbors Act of 1899 section 10 
permitting authority to artificial islands, installations, and other 
devices located on the seabed, to the seaward limit of the outer 
continental shelf (see 33 CFR 320.2(b)). On the outer continental 
shelf, the seaweed and finfish mariculture structures may be anchored 
to the seabed, and thus require section 10 authorization as devices 
located on the seabed. Each of these proposed NWPs includes a provision 
on multi-trophic species mariculture activities in marine and coastal 
waters, including federal waters on the outer continental shelf. This 
proposed provision for multi-trophic species mariculture gives 
flexibility to these

[[Page 57303]]

NWPs, to allow mariculture operators to propagate additional species, 
such as mussels, on their seaweed or finfish mariculture structures. 
Including this proposed provision in NWPs A and B is an alternative to 
developing a separate NWP for multi-trophic species mariculture 
activities, and it would provide NWP authorization that is responsive 
to the E.O. The Corps recognizes that some mariculture operators may 
choose to produce seaweeds or finfish exclusively.
    Section 6(b) of the E.O. also requires the Secretary of the Army, 
acting through the Assistant Secretary of the Army for Civil Works to 
``assess whether to develop'' NWPs for finfish aquaculture activities 
and seaweed aquaculture activities in other waters of the United 
States. Section 6(b) also requires the Secretary of the Army, acting 
through the Assistant Secretary of the Army for Civil Works, to assess 
whether to develop a United States Army Corps of Engineers NWP 
authorizing multi-species aquaculture activities in other waters of the 
United States.
    In this proposal to issue and reissue NWPs, the Corps is not 
proposing to issue new NWPs for finfish aquaculture activities, algal 
aquaculture activities, or multi-species aquaculture activities in 
other waters of the United States (i.e., waters of the United States 
that are not subject to the ebb and flow of the tide) Examples of these 
other waters of the United States include lakes and ponds. The Corps is 
considering whether to develop one or more NWPs in the future to 
authorize aquaculture activities in these waters. To assist in our 
assessment, the Corps invites interested parties to submit comments on 
whether the Corps should propose new NWPs for freshwater aquaculture 
activities, including aquaculture for finfish (e.g., catfish) or algae 
in future revisions to the NWPs. The Corps also invites comments on 
whether it should propose new NWPs for aquaculture for other freshwater 
species, such as crawfish. These comments should be submitted to the 
docket for this proposed rule at www.regulatons.gov (docket number COE-
2020-0002), or by email to [email protected].

E. The 2018 Legislative Outline for Rebuilding Infrastructure in 
America

    On February 12, 2018, the Administration issued its ``Legislative 
Outline for Rebuilding Infrastructure in America.'' In Part 3 
(Infrastructure Permitting Improvement), Principle I.C.1 recommends 
reforms for eliminating redundancy, duplication, and inconsistency in 
the application of clean water provisions. One of those reforms would 
be to make statutory changes to authorize Federal agencies to select 
and use NWPs without additional review by the Corps. Principle I.C.1 
recommends allowing Federal agencies to move forward on NWP projects 
without submitting PCNs to the Corps. That principle also states that 
removing PCN requirements for Federal agencies would allow the Corps to 
focus on projects that do not qualify for NWPs, such as activities that 
require individual permits that have greater environmental impacts.
    Consistent with the recommendation included in the Legislative 
Outline, the Corps is considering whether it can use its existing 
authority to create specific procedures or conditions by which Federal 
agencies that currently require a NWP would not need to submit a PCN, 
consistent with applicable law. Under such a mechanism, the Corps would 
retain under its authority for district engineers to modify, suspend, 
or revoke NWP authorizations (see 33 CFR 330.5(d)), the right to take 
action to address situations where the Federal agency incorrectly 
determined that the NWP terms and conditions were met.
    The Corps is considering exempting Federal agencies from PCN under 
the theory that Federal agencies may employ staff who are environmental 
experts and who already review these projects before submitting PCNs to 
the Corps to determine whether they meet the criteria for the 
applicable NWP. These environmental staff are responsible for ensuring 
that the agencies' proposed activities comply with applicable federal 
laws, regulations, and policies, as well as relevant Executive Orders. 
However, the Corps understands that non-Federal permittees that want to 
use the NWPs often hire consultants to help them secure NWP 
authorization in compliance with applicable federal laws, regulations, 
and policies and that these consultants may have similar expertise to 
staff at Federal agencies. These consultants may provide general 
services to assist in securing NWP authorizations on behalf of their 
clients, or they may specialize in complying with specific laws and 
regulations, such as Section 7 of the Endangered Species Act, Section 
106 of the National Historic Preservation Act, and the Essential Fish 
Habitat provisions of the Magnuson-Stevens Act. Non-federal permittees 
are not bound to comply with Executive Orders.
    Federal agency environmental staff come from a diverse range of 
education and professional training, as do environmental consultants 
that work for the various industries and individuals that hire them for 
their expertise in securing individual permits, NWP verifications, and 
regional general permit verifications. Some companies that need to 
secure DA permits for their projects may also have in-house 
environmental experts whose responsibilities include ensuring 
compliance with applicable environmental laws. Some permit applicants 
may attempt to obtain DA permits without hiring a consultant. The Corps 
is not aware of any studies that have examined whether there are any 
substantial differences in proficiency between federal agency 
environmental staff and environmental consultants in achieving 
environmental compliance and securing DA permits. Such studies would be 
helpful in deciding whether to modify the NWPs to implement Principle 
I.C.1. If any commenters are aware of such studies, the Corps would 
like to receive citations for those studies or copies of the studies 
themselves, to assist with decision-making for the final NWPs.
    Consistent with this legislative principle, we are seeking comment 
on whether to modify the NWPs that require pre-construction 
notification to limit the PCN requirement to non-federal permittees. We 
request that commenters provide their views on whether they support or 
oppose having different PCN requirements for Federal and non-Federal 
permittees, with supporting information to explain their views. The 
NWPs that require PCNs, in addition to the NWPs identified in the E.O. 
13783 report discussed above, are:
     NWP 7, Outfall Structures and Associated Intake 
Structures.
     NWP 8, Oil and Gas Structures on the Outer Continental 
Shelf.
     NWP 13, Bank Stabilization.
     NWP 18, Minor Discharges.
     NWP 31, Maintenance of Existing Flood Control Facilities.
     NWP 33, Temporary Construction, Access, and Dewatering.
     NWP 34, Cranberry Production Activities.
     NWP 36, Boat Ramps.
     NWP 37, Emergency Watershed Protection and Rehabilitation.
     NWP 38, Cleanup of Hazardous and Toxic Waste.
     NWP 45, Repair of Uplands Damaged by Discrete Events.
     NWP 46, Discharges in Ditches.
     NWP 53, Removal of Low-Head Dams.
     NWP 54, Living Shorelines.
    If, after evaluating the comments received in response to this 
proposed rule, we decide to remove the PCN

[[Page 57304]]

requirement for Federal permittees, it may be beneficial to add a 
definition of ``non-federal permittee'' to Section E, ``Definitions.'' 
The phrase ``non-federal permittee'' would be added to the 
``Notification'' provision of each NWP that requires pre-construction 
notification within the terms of the NWP. We are seeking comment on the 
following definition of ``non-federal permittee'':

    Non-federal permittee: Any person, organization (other than an 
agency or instrumentality of the United States federal government), 
or tribal, state, or local government agency that wants to use an 
NWP to conduct an activity that requires Department of the Army 
authorization under Section 404 of the Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899. State 
transportation agencies to which the Federal Highway Administration 
(FHWA), Federal Railway Administration (FRA), or Federal Transit 
Administration (FTA) has assigned its NEPA responsibilities pursuant 
to 23 U.S.C. 326 and 23 U.S.C. 327, or which are carrying out 
regulated activities for projects when FHWA, FRA, or FTA is the lead 
federal agency, are considered, for the purposes of the NWP Program, 
to be federal permittees with respect to those highway projects for 
which they have assigned NEPA responsibilities or for which FHWA is 
the lead federal agency.

    This definition of ``non-federal permittee'' would exclude state 
departments of transportation that have been assigned the 
responsibility for complying with NEPA under 23 U.S.C. 326 and 327 by 
the Federal Highways Administration (FHWA), Federal Railway 
Administration (FRA), or Federal Transit Administration (FTA) with 
respect to those projects for which they have assigned NEPA 
responsibilities only. This exclusion would have the effect of allowing 
those state agencies to be considered to be federal permittees for the 
purposes of the PCN requirements for the NWPs for specific projects. In 
some instances FHWA may assign NEPA responsibility to the state for all 
federal highway projects in the state. In other instances the FHWA may 
assign NEPA responsibility to the state only for specific federal 
highway projects. The exclusion of the state agency from the PCN 
requirements would only apply to federal highway projects in those 
states for which FHWA has assigned the state NEPA responsibility for 
all federal highway projects in the state. In addition, with respect to 
compliance with other non-NEPA environmental statutes (e.g., Section 7 
of the Endangered Species Act and Section 106 of the National Historic 
Preservation Act) the assignment of responsibility for compliance with 
those non-NEPA environmental statutes is at the discretion of FHWA. In 
other words, while a state Department of Transportation may have been 
assigned NEPA responsibility, the FHWA may not have assigned 
responsibility for ESA section 7 or NHPA section 106 compliance, and 
the prospective permittee (i.e., the state DOT) would therefore be 
considered a non-federal permittee with respect to paragraph (c) of 
general conditions 18 (endangered species) and 20 (historic 
properties).
    If the NWPs are modified so that PCNs are no longer required for 
federal permittees, district engineers would still retain the authority 
to review any activity authorized by an NWP to determine whether that 
activity complies with the terms and conditions of the NWP (see 33 CFR 
330.1(d)). In addition, under 33 CFR 326.4, district engineers may take 
reasonable measures to inspect permitted NWP activities to ensure that 
those activities comply with the terms and conditions of the NWPs. If 
federal permittees are no longer required to submit PCNs, district 
engineers would also still retain their authority to modify, suspend, 
or revoke NWP authorizations on a case-by-case basis by following the 
procedures in 33 CFR 330.5(d). District engineers would continue to 
exercise this discretionary authority to modify NWP authorizations when 
they find that proposed activities will have more than minimal 
individual and cumulative adverse environmental effects or otherwise 
may be contrary to the public interest (33 CFR 330.1(d)). Through their 
discretionary authority, district engineers may also instruct federal 
permittees to apply for individual permits if the NWP authorization 
cannot be modified to reduce or eliminate adverse environmental effects 
to qualify for NWP authorization.
    If the NWPs are modified so that PCNs are no longer required for 
federal permittees, for the purposes of determining compliance with the 
requirement that NWPs can only authorize activities that result in no 
more than minimal individual and cumulative adverse environmental 
effects, the Corps would take into account the NWP activities 
undertaken by federal permittees without PCNs in the same manner as it 
takes into account other activities authorized by NWPs that do not 
require PCNs. Under 40 CFR 230.7(b)(3) of the 404(b)(1) Guidelines, the 
Corps is required to predict cumulative effects. This prediction of 
cumulative effects includes the number of activities expected to be 
authorized by the NWP during the period it remains in effect. For NWP 
activities that do not require PCNs, this requires the Corps to 
estimate the number of times the NWP would be used during the period it 
remains in effect (usually 5 years). The Corps would also estimate the 
losses of waters of United States anticipated to occur during the 
period the NWP remains in effect. While some of the NWP activities 
conducted by federal permittees may include compensatory mitigation to 
offset losses of waters and wetlands, that compensatory mitigation 
would not be incorporated into the NWP authorization through legally-
binding permit conditions in accordance with 33 CFR 332.3(k) because 
the Corps would not be reviewing and approving the compensatory 
mitigation plan for these non-PCN activities. Therefore, the Corps 
would not be estimating the amount of compensatory mitigation required 
for these activities because the Corps would not be imposing those 
compensatory mitigation requirements. The estimates developed for these 
non-PCN activities would help inform the Corps during the next NWP 
reissuance process, and in any interim decisions to modify, suspend, or 
revoke a particular NWP.

F. Process for Modifying and Reissuing the NWPs

    The NWPs that were reissued on December 21, 2016, went into effect 
on March 19, 2017. Those NWPs expire on March 18, 2022. The process for 
modifying and reissuing the NWPs for the next five-year cycle starts 
with today's publication of the proposed NWPs in the Federal Register 
for a 60-day comment period and may include a public hearing. Requests 
for a public hearing must be submitted in writing to the address in the 
ADDRESSES section of this notice. These requests must explain the 
reason or reasons why a public hearing should be held. If the Corps 
determines that a public hearing or hearings would assist in making a 
decision on the proposed NWPs, general conditions, and definitions, a 
30-day advance notice will be published in the Federal Register to 
advise interested parties of the date(s) and location(s) for the public 
hearing(s). Any announcement of public hearings would also be posted as 
a supporting document in docket number COE-2020-0002 at 
www.regulations.gov as well as the Corps Regulatory Program home page 
at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
    Shortly after the publication of this Federal Register notice, 
Corps district offices will issue public notices to solicit comments on 
proposed Corps regional conditions. In their district

[[Page 57305]]

public notices, consistent with 33 CFR 330.5(b)(2)(ii), district 
engineers may also propose to suspend or revoke some or all of these 
NWPs if they have issued, or are proposing to issue, regional general 
permits, programmatic general permits, or section 404 letters of 
permission for use instead of some or all of these NWPs. The comment 
period for these district public notices will be 45 days. See Regional 
Conditioning of Nationwide Permits below for more information on this 
process.
    After the publication of this Federal Register notice, Corps 
district offices will send letters to Clean Water Act Section 401 
certifying authorities (i.e., states authorized tribes, and where 
appropriate, EPA) to request water quality certification (WQC) for 
those NWPs that may result in a discharge from a point source into 
waters of the United States. The certifying agencies will have 60 days 
to act on the certification request, consistent with the ``reasonable 
period of time'' established in the Corps' regulations for the purposes 
of Clean Water Act Section 401(a)(1) (see 33 CFR 330.4(c)(6) and 
325.2(b)(1)(ii)).
    We believe that 60 days is sufficient for certifying agencies to 
complete their WQC decisions for the proposed NWPs. The Corps' 
regulations at 33 CFR 330.4(c)(1) states that issuance of water quality 
certification, or a waiver, is required prior to the issuance or 
reissuance of NWPs authorizing activities which may result in a 
discharge into waters of the United States. Corps districts provide a 
60-day period for certifying authorities to act on a certification 
request for NWPs (including reviewing any regional conditions being 
proposed by the districts). Under section 401(a)(2), a federal agency 
must notify the EPA Administrator after it receives a certification and 
application for a federal permit. The EPA Administrator then has 30 
days to determine, at his or her discretion, whether a discharge from a 
certified project may affect the waters quality of a neighboring 
jurisdiction.
    This process is consistent with current WQC procedures, where 
certifying authorities conduct their evaluations on a proposed federal 
permit, so that any necessary WQC conditions can be incorporated into 
the federal permit before it is issued. It is also consistent with the 
Clean Water Act Section 401 Certification Rule that was signed by EPA 
on June 1, 2020, and published in the Federal Register on July 13, 2020 
(85 FR 42210).
    After the publication of this Federal Register notice, Corps 
district offices will send letters with consistency determinations 
pursuant to the Coastal Zone Management Act to the state agencies 
responsible for coastal zone management. Each letter will request that 
the state agency review the Corps district's consistency determination 
and, if necessary, provide conditions based on specific enforceable 
coastal zone management policies that would allow the state agency to 
concur with the Corps district's consistency determination (see 15 CFR 
930.31(d)). The state agency will have at least 90 days to review the 
Corps district's consistency determination unless the state agency and 
Corps agree to an alternative notification schedule (see 15 CFR 
930.36(b)). This review period can be extended if the Corps and the 
state agency agree to an alternative notification schedule. If the 
state issues a consistency concurrence with conditions, the division 
engineer will make those conditions regional conditions for the NWP in 
that state, unless he or she determines that the conditions do not 
comply with the provisions of 33 CFR 325.4 (see 33 CFR 330.4(d)(2)). If 
the division engineer determines the conditions identified by the state 
do not comply with the provisions of 33 CFR 325.4, project proponents 
who want to use those NWPs will need to obtain individual CZMA 
consistency concurrences or presumptions of concurrence.
    During the period between the issuance of the final NWPs and their 
publication in the Federal Register, Corps districts will prepare 
supplemental documents and proposed regional conditions for approval by 
division engineers before the final NWPs go into effect. The 
supplemental documents address the environmental considerations related 
to the use of NWPs in a Corps district, state, or other geographic 
region. The supplemental documents will certify that the NWPs, with any 
regional conditions or geographic suspensions or revocations, will 
authorize only those activities that result in no more than minimal 
individual and cumulative adverse effects on the environment or any 
relevant public interest review factor. The Corps' public interest 
review factors are listed in 33 CFR 320.4(a)(1) and are discussed in 
more detail in subsequent paragraphs in Sec.  320.4.

G. Status of Existing Permits

    Activities authorized by the 2017 NWPs currently remain authorized 
by those NWPs until March 18, 2022. Under 33 CFR 330.6(a)(3)(ii), if 
the NWP is reissued without modification or the activity complies with 
any subsequent modification of the NWP authorization, the NWP 
verification letter (i.e., the written confirmation from the district 
engineer that the proposed activity is authorized by NWP) should 
include a statement that the verification will remain valid for a 
period of time specified in the verification letter. The specified 
period of time is usually the expiration date of the NWP. In other 
words, for the 2017 NWPs, if the previously verified activity continues 
to qualify for NWP authorization after the NWP is reissued or modified, 
that verification letter continues to be in effect until March 18, 
2022, unless the district engineer specified a different expiration 
date in the NWP verification letter. For most activities authorized by 
the 2017 NWPs, where the district engineer issued an NWP verification 
letter, the verification letter identified March 18, 2022, as the 
expiration date for those NWPs. As long as the verified NWP activities 
comply with the terms and conditions of the modified and reissued 2020 
NWPs, those activities continue to be authorized by the applicable 
NWP(s) until March 18, 2022, unless the district engineer modifies, 
suspends, or revokes a specific NWP authorization.
    Under 33 CFR 330.6(b), Corps Headquarters may modify, reissue, or 
revoke the NWPs at any time. Activities that were authorized by the 
previous set of NWPs which have commenced (i.e., are under 
construction) or are under contract to commence in reliance upon an NWP 
will remain authorized provided the activity is completed within twelve 
months of the date of an NWP's expiration, modification, or revocation, 
unless discretionary authority has been exercised by a division or 
district engineer on a case-by-case basis to modify, suspend, or revoke 
the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 
330.5(c) or (d). This provision applies to activities that were 
previously verified by the district engineer as qualifying for NWP 
authorization, but no longer qualify for NWP authorization under the 
modified or reissued NWP.
    To avoid having two sets of NWPs in effect at the same time and to 
comply with Sec.  330.6(b), we may change the expiration date of the 
2017 NWPs if we issue the final NWPs after we consider the comments 
received in response to this proposed reissuance and modification of 
NWPs. We may change the expiration date of the 2017 NWPs so that they 
expire the day before the 2020 NWPs go into effect. We are soliciting 
comment on whether to change the expiration date of the 2017 NWPs to 
the day before the 2020 NWPs go into effect. The actual date will be 
specified when

[[Page 57306]]

we issue the final NWPs because we are uncertain when the final NWPs 
will be issued and published in the Federal Register.
    An activity completed under the authorization provided by a 2017 
NWP continues to be authorized by that NWP (see 33 CFR 330.6(b)) 
regardless of whether the Corps finalizes the 2020 NWPs. If we change 
the expiration date for the 2017 NWPs, project proponents will have 
time to complete those activities under the terms and conditions of the 
2017 NWPs (see 33 CFR 330.6(b)). As discussed above, that amount of 
time is dependent on whether the activity qualifies for authorization 
under the reissued or modified NWP. If the activity qualifies for 
authorization under the reissued or modified NWP, the original NWP 
verification letter will continue to be valid under March 18, 2022, 
unless the district engineer identified a different expiration date in 
that verification letter. If the activity no longer qualifies for NWP 
authorization under the reissued or modified NWP, the project proponent 
would have 12 months to complete the authorized activity as long as 
that activity is under construction or under contract to commence 
construction before the reissued or modified NWP goes into effect. If 
the project proponent does not have the activity under construction or 
under contract to commence construction before the reissued or modified 
NWP goes into effect, he or she will need to seek another form of DA 
authorization. After that 12 month period, if those activities no 
longer qualify for NWP authorization because they do not meet the terms 
and conditions of the 2020 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.

H. 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. Since it can be difficult for the Corps to 
draft national NWPs in such a way that they account for regional 
differences, an important mechanism for ensuring compliance with these 
requirements is regional conditions imposed by division engineers to 
address local environmental concerns. Effective regional conditions 
help protect local aquatic ecosystems and other resources and help 
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 concurrence regional conditions. Corps regional 
conditions are added to the NWPs by division engineers in accordance 
with the procedures at 33 CFR 330.5(c). Water quality certification and 
Coastal Zone Management Act consistency concurrence regional conditions 
are also added to the NWPs if an appropriate certifying authority 
issues a water quality certification or CZMA consistency concurrence 
with special conditions prior to the effective date of the issued, 
reissued, or modified NWPs.
    Examples of Corps regional conditions include:
     Restricting the types of waters of the United States where 
the NWPs may be used (e.g., fens, bogs, bottomland hardwood forests, 
etc.) or prohibiting the use of some or all of the NWPs in those types 
of waters or in specific watersheds.
     Restricting or prohibiting the use of NWPs in an area 
covered by a Special Area Management Plan, where regional general 
permits are issued to authorize activities consistent with that plan 
that have only minimal adverse environmental effects.
     Revoking certain NWPs in a watershed or other type of 
geographic area (e.g., a state or county).
     Adding PCN requirements to NWPs to require notification 
for all activities or lowering PCN thresholds, in certain watersheds or 
other types of geographic areas, or in certain types of waters of the 
United States.
     Reducing NWP acreage limits in certain types of waters of 
the United States (e.g., streams) or specific waterbodies, or in 
specific watersheds or other types of geographic regions.
     Restricting activities authorized by NWPs to certain times 
of the year in a particular waterbody, to minimize the adverse effects 
of those activities on fish or shellfish spawning, wildlife nesting, or 
other ecologically cyclical events.
     Conditions necessary to facilitate compliance with the 
``Endangered Species'' general condition, to appropriately enhance 
protection of listed species or critical habitat under the Endangered 
Species Act.
     Conditions necessary to facilitate compliance with the 
``Tribal Rights'' general condition, to appropriately enhance 
protection of tribal trust resources, including natural and cultural 
resources and Indian lands.
     Conditions necessary for ensuring compliance with the 
``Historic Properties'' general condition, to appropriately protect 
historic properties.
     Conditions necessary to ensure that NWP activities have no 
more than minimal adverse effects to Essential Fish Habitat.
    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 lessen 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.
    The Corps' regulations for establishing WQC regional conditions for 
the NWPs are located at 33 CFR 330.4(c)(2). If, prior to the issuance 
or reissuance of NWPs, a state, authorized tribe, or EPA issues a Clean 
Water Act section 401 water quality certification with conditions, the 
division engineer will make those water quality certification 
conditions regional conditions for the applicable NWPs, unless he or 
she determines those conditions do not comply with 33 CFR 325.4 (see 33 
CFR 330.4(c)(2)). For more information on compliance with Section 401 
of the CWA, refer to Section II.G.
    If the division engineer determines those water quality 
certification conditions do not comply with 33 CFR 325.4, then the 
conditioned water quality certification will be considered denied, and 
the project proponent will need to request a water quality 
certification for the proposed discharge from the certifying authority. 
That certification request must satisfy the requirements of 40 CFR 
121.5(b). The certifying authority may issue or deny water quality 
certification for an individual license or permit for an activity that 
``may result in a specific discharge or set of discharges into waters 
of the United States'' (85 FR 42281). In its final rule, EPA does not 
define the term ``individual license or permit'' and because 40 CFR 
part 121 applies to all federal permits subject to Section 401 of the 
Clean Water Act the term ``individual license or permit'' it is

[[Page 57307]]

reasonable to infer that it refers to any type of federal permit that 
authorizes an activity that results in a discharge from a point source 
into waters of the United States. Therefore, applying the recently 
issued amendments to 40 CFR part 121 to the Corps Regulatory Program 
would mean that an individual permit or license in the section 401 
context refers to any DA individual permit or general permit (including 
an NWP) that authorizes an activity that results in specific discharge 
into waters of the United States for a specific project.
    A similar process applies to a CZMA consistency concurrence issued 
by a state for the issuance of an NWP (see 33 CFR 330.4(d)(2)). If the 
division engineer determines those CZMA concurrence conditions do not 
comply with 33 CFR 325.4, then the conditioned CZMA consistency 
certification will be considered an objection, and the project 
proponent will need to request an activity-specific CZMA consistency 
concurrence from the state (see 15 CFR 930.31(d)) under subpart D of 15 
CFR part 930.
    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. 
After Corps Headquarters publishes in the Federal Register the proposal 
to issue, reissue, or modify NWPs, district engineers issue local 
public notices to advertise the availability of the proposed rule for 
comment and to solicit public comment on proposed regional conditions 
and/or proposed revocations of NWP authorizations for specific 
geographic areas, classes of activities, or classes of waters (see 33 
CFR 330.5(b)(1)(ii)). Comments on proposed regional conditions should 
be sent to the Corps district that issued the public notice. The 
process for adding Corps regional conditions to the NWPs is described 
at 33 CFR 330.5(c). The regulations for the regional conditioning 
process were promulgated in 1991, with the proposed rule published in 
the Federal Register on April 10, 1991 (56 FR 14598) and the final rule 
published in the Federal Register on November 22, 1991 (56 FR 59110).
    As discussed above, regional conditions are an important tool for 
taking into account regional differences in aquatic resources and their 
local importance and for ensuring that the NWPs comply with the 
requirements of Section 404(e) of the Clean Water Act, especially the 
requirement that activities authorized by NWPs may only result in no 
more than minimal individual and cumulative adverse environmental 
effects. Regional conditions are modifications of the NWPs that are 
made by division engineers. Regional conditions can only further 
condition or restrict the applicability of an NWP (see 33 CFR 
330.1(d)). Under 33 CFR 330.5(c)(1)(i), the first step of the Corps' 
regional conditioning is for district engineers to issue public notices 
announcing proposed regional conditions, and solicit public comment on 
those proposed regional conditions, usually for a 45-day comment 
period. That public notice also solicits suggestions from interested 
agencies and the public on additional regional conditions that they 
believe are necessary to ensure that the NWPs authorize only those 
activities that have no more than minimal adverse environmental 
effects. The district public notices are issued shortly after Corps 
Headquarters publishes the proposed NWPs in the Federal Register for a 
60-day comment period.
    In response to the district's public notice, interested parties may 
suggest additional Corps regional conditions or changes to Corps 
regional conditions. Interested parties may also suggest suspension or 
revocation of NWPs in certain geographic areas, such as specific 
watersheds or waterbodies. Such comments should include data to support 
the need for the suggested modifications, suspensions, or revocations 
of NWPs.
    After the public comment period ends for the district public 
notices, the Corps district evaluates the comments and begins preparing 
the supplemental documents required by 33 CFR 330.5(c)(1)(iii). Each 
supplemental 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 regional conditions for that NWP. Each 
supplemental document will also include a statement by the division 
engineer that will certify that the NWP, with approved regional 
conditions, will authorize only those activities that will have no more 
than minimal individual and cumulative adverse environmental effects. 
The supplemental documents may cover a Corps district, especially in 
cases where the geographic area of responsibility for the Corps 
district covers an entire state. If more than one Corps district 
operates in a state, the lead district is responsible for preparing the 
supplemental documents and coordinating with the other Corps districts. 
The supplemental documents include an evaluation of public and agency 
comments, with responses to those comments, to show that the views of 
potentially affected parties were fully considered (33 CFR 
330.5(c)(1)(ii)). The supplemental document also includes a statement 
of findings demonstrating how substantive comments were considered. 
After the supplemental documents are drafted by the district, they are 
sent to the division engineer for review along with the district's 
recommendations for regional conditions. The division engineer may 
approve the supplemental documents or request changes to those 
supplemental documents, including changes to the regional conditions 
recommended by the district.
    After the division engineer approves the regional conditions and 
signs the supplemental documents, the district issues a public notice 
announcing the final Corps regional conditions and when those regional 
conditions go into effect (see 33 CFR 330.5(c)(1)(v)). The district's 
public notice is posted on its website. Copies of the district's public 
notice are also sent to interested parties that are on the district's 
public notice mailing list via email or the U.S. mail. The public 
notice will also describe, if appropriate, a grandfathering period as 
specified by 33 CFR 330.6(b) for those who have commenced work under 
the NWP or are under contract to commence work under the NWP (see 33 
CFR 330.5(c)(1)(iv)). A copy of all Corps regional conditions approved 
by the division engineers for the NWPs are forwarded to Corps 
Headquarters (see 33 CFR 330.5(c)(3)).
    Under the current regulations, Corps Headquarters does not have a 
role in the development and approval of Corps' regional conditions by 
division engineers. Corps Headquarters provides templates for the 
supplemental documents required by Sec.  330.5(c)(1)(iii), to promote 
consistency in those supplemental documents. If requested by district 
and division offices, Corps Headquarters also provides advice on 
appropriate Corps regional conditions for the NWPs. The Corps is a 
highly decentralized organization, with most of the authority for 
administering the regulatory program delegated to the 38 district 
engineers and 8 division engineers (see 33 CFR 320.1(a)(2)). District 
engineers are responsible for the day-to-day implementation of the 
Corps' Regulatory Program, including the evaluation of applications for 
individual permits, evaluating PCNs for proposed NWP activities, 
evaluating notifications for activities authorized by regional general 
permits, responding to requests for approved and preliminary 
jurisdictional determinations, conducting compliance and enforcement 
actions, and other tasks. Division engineers are responsible for

[[Page 57308]]

overseeing implementation of the Regulatory Program by their districts, 
and making permit decisions referred to them by district engineers 
under the circumstances identified in 33 CFR 325.9(c). Under that 
section of the Corps' regulations, a division engineer can refer 
certain permit applications to the Chief of Engineers for a decision. 
Other than making permit decisions under the circumstances listed in 
Sec.  325.9(c), Corps Headquarters is responsible for development of 
regulations, guidance, and policies.
    In response to our July 20, 2017, Federal Register notice (82 FR 
33470) issued for E.O. 13777, ``Enforcing the Regulatory Reform 
Agenda,'' we received numerous comments regarding regional conditioning 
of the NWPs. These comments are summarized below.
    Several commenters stated that there should be greater uniformity 
in regional conditions for the NWPs, to provide consistent availability 
of NWPs across Corps districts. Most of these commenters implied that 
the desired consistency should be achieved at a national level to 
provide the same level of NWP availability across all Corps districts. 
One commenter acknowledged the need for regional conditions to tailor 
the NWP program to address local resources, but said that some of the 
regional conditions are too broad and unnecessarily restrict use of the 
NWPs. Another commenter indicated that there needs to be more 
consistency in regional conditions, especially for regional conditions 
that change NWP PCN requirements.
    Since the purpose of regional conditions is to tailor the NWPs to 
account for regional differences in aquatic resource types, the 
functions they provide, and their value to the region so that the NWPs 
in a particular geographic area authorize only those activities that 
result in no more than minimal individual and cumulative adverse 
environmental effects, requiring consistency among regional conditions 
at a national level would be contrary to the purpose of regional 
conditions and would reduce the utility of the NWPs. In other words, 
the ability to add restrictions to one or more NWPs at a regional level 
to ensure that those activities result in no more than minimal 
individual and cumulative adverse environmental effects allows the 
national terms and conditions to be less restrictive, and thereby 
potentially appropriate, in other areas of the country. This ability to 
tailor the NWP program in specific areas of the country allows the NWPs 
to cover more activities than would be possible if the need for greater 
restrictions in one part of the country had to be applied to the nation 
as a whole. We agree that regional conditions should be written clearly 
and provide only the additional restrictions that are necessary to 
ensure that NWP activities in that region result only in minimal 
individual and cumulative adverse environmental effects, consistent 
with the requirements of Section 404(e) of the Clean Water Act.
    Under the Corps' current regulations at 33 CFR 330.5(c), the 
authority to approve Corps regional conditions is assigned to division 
engineers. A division engineer can take steps to provide consistency in 
Corps regional conditions for the districts within his or her division. 
However, it should also be noted that the eight Corps divisions 
encompass large geographic regions and there can be substantial 
differences in aquatic resource types, functions, and values within a 
Corps division. For example, the Corps' Northwestern Division extends 
from the northwest coast to the Midwest, with oceanic and estuarine 
waters along the coasts of Oregon and Washington, to inland wetlands 
and rivers in Missouri and Nebraska. As another example, the 
Mississippi Valley Division extends from Louisiana, with its extensive 
coastal wetlands and bottomland hardwood forests to Minnesota, which 
has many lakes, bogs, marshes, and swamps. In addition, there are 
usually also substantial differences in other resources that are 
subject to regional conditions, to facilitate compliance with other 
applicable federal laws, such as Section 7 of the Endangered Species 
Act, the Essential Fish Habitat provisions of the Magnuson-Stevens 
Fishery Conservation and Management Act, Section 106 of the National 
Historic Preservation Act, and the Wild and Scenic Rivers Act. The 
presence and ranges of endangered and threatened species, and the 
locations of designated critical habitat often vary substantially 
within a Corps division. Most coastal Corps districts have essential 
fish habitat in their geographic areas of responsibility, whereas 
inland districts do not. Therefore, because of the substantial 
variation of aquatic resources and other resources both nationally and 
within Corps divisions, consistency in regional conditions necessary to 
ensure that NWPs only authorize activities that have no more than 
minimal adverse environmental effects cannot be practicably achieved at 
a national or division level without reducing the availability of NWPs 
in other areas.
    Several commenters requested that the Corps establish a single, 
national website where all proposed and final regional conditions for 
the NWPs could be posted, to facilitate public review of the proposed 
regional conditions. This national website would help awareness of the 
final regional conditions and help project proponents plan their NWP 
activities. A few of these commenters also asked that this national 
website include proposed and final general WQC and general CZMA 
consistency concurrences for the NWPs.
    In response to these comments, we will be posting copies of the 
district public notices soliciting input for proposed regional 
conditions in the www.regulations.gov docket for this rulemaking action 
(docket number COE-2020-0002), under Supporting and Related Material. 
In addition, when these NWPs are finalized, we will post copies of all 
district public notices announcing the final regional conditions in the 
www.regulations.gov docket for this rulemaking action, so that copies 
of all these district public notices are available in a single 
location. This docket is intended to provide a central location for 
interested parties to obtain information on the Corps regional 
conditions being proposed by Corps districts, and for states where 
there is a lead Corps district to provide consistency in Corps regional 
conditions within a state. Comments on proposed Corps regional 
conditions will still have to be sent to the Corps district identified 
in the public notice, not to Corps Headquarters.
    At present, districts manage their own processes for soliciting 
public comment on their regional conditions. In general, they make 
solicitations of public comment available on their own website and do 
not always make the comments they receive publically available. To 
further improve the transparency on the regional conditioning process, 
the Corps is considering whether to require the districts to post and 
solicit public comment on notices proposing regional conditions in 
separate dockets at www.regulations.gov. We solicit public comment on 
whether to implement this or a similar requirement relating to the 
regional conditioning process and any factors we should consider.
    When a state, authorized tribe, or EPA issues a WQC for the 
issuance of an NWP and that WQC includes conditions, those conditions 
become WQC regional conditions if, after recommendation by the district 
engineer, the division engineer determines that those conditions are 
acceptable under 33 CFR 330.4(c)(2). When a state issues a general CZMA 
consistency concurrence with conditions for an NWP, those conditions 
become CZMA regional conditions if,

[[Page 57309]]

after recommendation by the district engineer, the division engineer 
determines those conditions are acceptable under 33 CFR 330.4(d)(2). 
The processes for states, approved tribes, and EPA to issue WQCs for 
the issuance of the NWPs, and for states to issue general CZMA 
consistency concurrences for the NWPs are separate from the Corps' 
regional conditioning process under 33 CFR 330.5(c), and are governed 
by state, tribal, EPA, or Department of Commerce regulations. 
Individuals who are interested in providing comments specific to WQCs 
and CZMA consistency determinations for the issuance of NWPs should 
submit their comments directly to the appropriate state, authorized 
tribe, or EPA regional office. Because these processes are separate 
from the Corps' regional conditioning process, the public notices 
issued by states, authorized tribes, and EPA regions during the WQC and 
CZMA consistency determination processes will not be included in the 
national website for proposed and final Corps regional conditions for 
the NWPs.
    When the final WQCs and CZMA consistency concurrences are issued 
and after the final NWPs are issued, division engineers will review 
those WQCs and CZMA consistency concurrences in accordance with 33 CFR 
330.4(c)(2) and (d)(2), respectively, and determine which conditions 
are WQC/CZMA regional conditions for the final NWPs. Division engineers 
will also finalize any Corps regional conditions. After division 
engineers finalize Corps regional conditions, Corps districts will 
issue public notices announcing the final regional conditions and the 
final WQCs and CZMA consistency concurrences for the issuance of the 
NWPs. We will post copies of the district public notices announcing the 
final Corps regional conditions and final WQC/CZMA regional conditions 
in the regulations.gov docket (docket number COE-2020-0002), under 
``Supporting and Related Material.'' after
    A number of commenters said that the only regional conditions that 
should be approved by division engineers are those permit conditions 
that are truly necessary to ensure compliance with the statutory 
requirement that the NWPs may only authorize activities that result in 
no more than minimal individual and cumulative adverse environmental 
effects. One commenter said that excessive and unnecessary regional 
conditions conflict with the goal of the NWP Program to provide timely 
authorizations while protecting the Nation's aquatic resources. One 
commenter asserted that Corps Headquarters should provide further 
guidance on what is appropriate for NWP regional conditions. A few 
commenters recommended that Corps Headquarters establish a process that 
requires division engineers to secure Corps Headquarters concurrence 
before approving NWP regional conditions, and another commenter said 
that the approving authority for regional conditions should be 
Headquarters, not the division engineer. A couple of commenters 
suggested reducing the ability of division and district engineers to 
exercise discretionary authority to modify, suspend, or revoke the 
NWPs.
    In response to the concerns about overly broad and numerous 
regional conditions being imposed on the NWPs, Corps Headquarters will 
encourage that division engineers approve only those Corps' regional 
conditions that are necessary to ensure that the NWPs authorize only 
those activities that have no more than minimal individual and 
cumulative adverse environmental effects. Regional conditions should 
not be an impediment to fulfilling the objective of the NWP Program, 
which is to ``regulate with little, if any, delay or paperwork certain 
activities having minimal impacts.'' (33 CFR 330.1(b).) Division 
engineers should carefully analyze all proposed Corps regional 
conditions, as well as additional Corps regional conditions suggested 
by other agencies and the public, and determine which of those Corps 
regional conditions are absolutely necessary to ensure that the NWPs in 
a particular region only authorize those activities that have no more 
than minimal individual and cumulative adverse environmental effects.
    If, during implementation of the NWPs, new information arises that 
warrants new or modified Corps regional conditions to comply with the 
no more than minimal adverse environmental effects requirement for 
NWPs, Corps division engineers may approve new or modified regional 
conditions after following the procedures in 33 CFR 330.5(c). This 
includes a public notice and comment process. Information on regional 
conditions and the suspension or revocation of one or more NWPs in a 
particular area can be obtained from the appropriate district engineer.
    Regarding suggestions that the Corps establish a process that 
requires division engineers to secure Corps Headquarters concurrence 
before approving NWP regional conditions, implementing such an approach 
would require conducting rulemaking to amend the NWP regulations at 33 
CFR part 330. Those regulations identify the division engineer as the 
approving authority for regional conditions. While revising those 
regulations is outside the scope of this action, the Corps is 
considering whether to update those regulations. Another commenter said 
that the approving authority for Corps regional conditions can seek the 
advice of Corps Headquarters on whether to approve Corps regional 
conditions, but securing concurrence from Corps Headquarters is not 
required by the current regulations.
    With respect to the WQC/CZMA regional conditions, the Corps has to 
accept the conditions added to a general WQC by the certifying 
authority (see 40 CFR 121.7(d)) or added to a general CZMA consistency 
concurrence by the state agency (see 15 CFR 930.31(d)), unless the 
division engineer determines that any of those conditions do not comply 
with the provisions of 33 CFR 325.4 (see 33 CFR 330.4(c)(2) and (d)(2), 
respectively). Section 325.4 addresses conditions for individual 
permits and general permits. The WQC and CZMA reviews are separate and 
independent administrative review processes for the NWPs. Public 
comments on state, tribal, or EPA WQC conditions that could become WQC 
regional conditions under 33 CFR 330.4(c)(2) should be sent directly to 
the appropriate certifying agency. Public comments on state CZMA 
consistency concurrence that could become CZMA regional conditions 
under 33 CFR 330.4(d)(2) should be sent directly to the state. The 
public should not send comments on proposed WQC/CZMA conditions to the 
Corps.
    If the state, approved tribe, or EPA region issues a conditioned 
general WQC for the NWPs, the division engineer will review those 
conditions and make them WQC regional conditions unless he or she 
determines that those conditions do not comply with the provisions of 
33 CFR 325.4 (see 33 CFR 330.4(c)(2)). If the division engineer 
determines that any of the WQC conditions do not comply with 33 CFR 
325.4, he or she will consider WQC to be denied and any project 
proponent that wants to use the affected NWPs will need to obtain a 
WQCs or waiver for an activity that may result in a specific discharge 
or set of discharges that requires NWP authorization. To request WQC, 
the project proponent will need to submit a certification request that 
satisfies the requirements of 40 CFR 121.5(b) to the appropriate 
certifying authority.
    If the state issues a conditioned CZMA consistency concurrence for 
the NWPs, the division engineer will review those conditions and make 
them CZMA regional conditions unless she or he

[[Page 57310]]

determines that those conditions do not comply with 33 CFR 325.4 (see 
33 CFR 330.4(d)(2)). If the division engineer determines that any of 
the CZMA general consistency concurrence conditions do not comply with 
33 CFR 325.4, he or she will consider CZMA consistency concurrence to 
be denied and project proponents that want to use the affected NWPs 
will need to obtain individual CZMA consistency concurrences or 
presumptions of concurrence in accordance with the applicable 
procedures in subpart D of 15 CFR part 930 (see 15 CFR 930.31(d)).
    After the division engineer reviews the final WQCs and general CZMA 
consistency concurrences issued by the appropriate authorities for the 
Corps' issuance of the NWPs, as well as compliance with Sec.  325.4 for 
any conditions added to those final determinations, each Corps district 
will issue a public notice that announces the availability of WQCs and, 
if applicable, general CZMA consistency concurrences for the issued 
NWPs. The public notice will also announce 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.
    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 applicable NWP(s) so that only the 
regional general permit is available for use to authorize those 
activities.
    Through this proposed rule, the Corps is soliciting comments on 
whether rulemaking should be done to amend 33 CFR 330.5(c) to clarify 
and improve the regional conditioning process and what specific 
revisions the Corps should consider making. For example, are there 
actions that the Corps should take to improve transparency, clarity, 
and efficiency of regional conditions and the process by which they are 
established? Also, should copies of the final WQCs issued by states, 
tribes and EPA for the issuance of the NWPs, and final general CZMA 
consistency concurrences issued by states for the issuance of the NWPs 
also be posted in the www.regulations.gov docket for the issuance or 
reissuance of NWPs, along with the final Corps regional conditions? Are 
there other process improvements that the Corps should consider in 
regards to the regional conditioning process?

II. Summary of Proposal

    In this proposed rule, the Corps proposes to reissue the 52 
existing NWPs with some modifications and to issue five new NWPs. The 
new NWPs, if issued, would authorize seaweed mariculture activities, 
finfish mariculture activities, and electric utility line/
telecommunications activities, utility line activities for water and 
other substances, and discharges associated with water reclamation and 
reuse facilities.
    The proposal to issue two new NWPs for mariculture activities would 
complement the existing NWP on shellfish mariculture and provide NWP 
authorization for all three major sectors of mariculture in coastal 
waters: Shellfish, seaweed, and finfish. The proposed NWP for finfish 
mariculture activities would apply only to offshore finfish mariculture 
operations in marine and estuarine waters. The proposed NWP for finfish 
mariculture activities would not authorize the construction of land-
based finfish mariculture facilities such as ponds to produce carp and 
other finfish.
    We are proposing to modify NWP 12, which has authorized various 
types of utility lines since 1977, to limit that NWP to oil and natural 
gas pipeline activities, and proposing to issue two new NWPs to 
authorize electric utility line and telecommunications activities and 
activities for other types of utility lines that are not covered by 
either the proposed modifications to NWP 12 or the proposed new NWP for 
electric utility line and telecommunications activities. For the 
proposed modification of NWP 12 and for the proposed two new NWPs for 
other types of utility lines, we are inviting comments on national best 
management practices that could be added as terms to any of these NWPs 
to help ensure that a particular type of utility line results in no 
more than minimal individual and cumulative adverse environmental 
effects. For example, there may be national best management practices 
used by the oil or natural gas pipeline industries that could be added 
to the proposed NWP 12 to address relevant environmental or logistical 
questions specific to oil or natural gas pipelines, where those 
pipelines cross waters of the United States. There may be other 
national best management practices that apply solely to electric 
utility lines/telecommunications lines that would ensure that electric 
utility line and telecommunication line crossings of waters of the 
United States and electric/telecommunication substations constructed in 
waters of the United States cause no more than minimal adverse 
environmental effects.
    We are proposing to authorize discharges of dredged or fill 
material into jurisdictional waters for the construction, expansion, 
and maintenance of water reuse and reclamation facilities. At present, 
many of these activities are already authorized by NWPs 29, 39, 40, and 
42. However, we are proposing the new NWP since having the requirements 
in a single place may add needed clarity and simplify the application 
process. We are inviting comment on whether to issue an NWP to 
authorize discharges of dredged or fill material into waters of the 
United States for the construction and expansion of water reclamation 
and reuse facilities. Alternatively, we are inviting comment on whether 
we should continue to authorize those activities as attendant features 
of activities authorized by NWPs 29, 39, 40, and 42.
    We are proposing to revise the text of some 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 while retaining terms and conditions that help 
protect the aquatic environment. Making the text of the NWPs clearer 
and easier to understand will also facilitate compliance with these 
permits, which will benefit the aquatic environment. The NWP program 
allows the Corps to authorize activities with only minimal adverse 
environmental impacts in a timely manner. Thus, the Corps is able to 
better protect the aquatic environment by focusing its limited 
resources on more extensive evaluations through the individual permit 
process, to provide more rigorous evaluation of activities that have 
the potential for causing more severe adverse environmental effects.
    Through the NWPs, the aquatic environment may also receive 
additional protection through regional conditions imposed by division 
engineers and activity-specific conditions added to NWPs by district 
engineers. These regional conditions and activity-specific conditions 
further minimize adverse environmental effects, because these 
conditions can only further restrict use of the NWPs. Nationwide 
permits also allow Corps district engineers to exercise, on a case-by-
case basis, discretionary authority to require individual permits for 
proposed activities that may result in more than minimal individual and 
cumulative adverse environmental effects. Nationwide permits help 
protect the aquatic environment because they

[[Page 57311]]

provide incentives to permit applicants to reduce impacts to 
jurisdictional waters and wetlands to meet the restrictive requirements 
of the NWPs and receive authorization more quickly than they would 
through the individual permit process. Regional general permits issued 
by district engineers provide similar environmental protections and 
incentives to project proponents.
    We are proposing to reissue the general conditions, with some 
modifications. We are soliciting comment on all changes to the 
nationwide permits, general conditions, and definitions discussed 
below. Minor grammatical changes, the removal of redundant language, 
and other small administrative changes are not discussed in the 
preamble below. Therefore, commenters should carefully read each 
proposed NWP, general condition, and definition in this notice.

A. Proposed Removal of the 300 Linear Foot Limit for Losses of Stream 
Bed

    In accordance with the recommendations in the report we issued in 
response to E.O. 13783 on ways to streamline the NWPs, we are proposing 
to remove the 300 linear foot limit for losses of stream bed from the 
NWPs 21 (Surface Coal Mining Activities), 39 (Commercial and 
Institutional Developments), 50 (Underground Coal Mining Activities), 
51 (Land-Based Renewable Energy Generation Facilities), and 52 (Water-
Based Renewable Energy Generation Pilot Projects) and to instead rely 
on the \1/2\-acre limit and PCN requirements to ensure that activities 
authorized by these NWPs result in no more than minimal adverse 
environmental effects. To provide consistency in the NWP Program, we 
are also proposing to remove the 300 linear foot limit for losses of 
stream bed from NWPs not mentioned in the report that also have that 
limit (i.e., NWPs 29 (Residential Developments), 40 (Agricultural 
Activities), 42 (Recreational Facilities), 43 (Stormwater Management 
Facilities), and 44 (Mining Activities)) and to similarly rely on the 
\1/2\-acre limit and PCN requirements. The text of the proposed NWPs 
21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 are provided near the end of 
this proposed rule document, and the 300 linear foot limit has been 
removed from the text of these proposed NWPs.
    In conjunction with the proposal to remove the 300 linear foot 
limit for losses of stream bed, we are also proposing to remove the 
provisions in these NWPs regarding the ability of district engineers to 
waive the 300 linear foot limit for losses of intermittent and 
ephemeral stream bed when the applicant submits a PCN and requests a 
waiver of that 300 linear foot limit. On April 21, 2020, EPA and the 
Department of the Army published a final rule to define ``waters of the 
United States'' entitled the Navigable Waters Protection Rule (85 FR 
22250). On June 22, 2020, the Navigable Waters Protection Rule became 
effective in all states and jurisdictions except for the State of 
Colorado due to a court-issued stay in that state. The rule revised the 
definition of ``waters of the United States'' at 33 CFR 328.3 such that 
ephemeral streams are categorically excluded from jurisdiction under 
the Clean Water Act. Therefore, there would be no need to request 
waivers for losses of ephemeral stream bed (regardless of length) since 
NWP authorization (or any other form of DA authorization) will not be 
needed to authorize discharges of dredge or fill material into 
ephemeral streams. See Section II.C, for more discussion on the 
potential impact of the Navigable Water Protection Rule on the NWPs.
    In addition, we are proposing to remove the agency coordination 
process for seeking input from federal and state agencies on whether 
the district engineer should grant the waiver of the 300 linear foot 
limit requested by an applicant for an NWP verification. Removing the 
waiver provision may reduce costs to permittees by reducing the amount 
of time the district engineer needs to make her or his decision. For 
example, the district engineer would not have to wait up to 25 days 
(see paragraph (d)(3) of the ``pre-construction notification'' general 
condition (GC 32) to make the decision on whether to issue the NWP 
verification. Removal of the agency coordination for these activities 
is also likely to reduce administrative costs to the Corps, by reducing 
the amount of staff time to send copies of PCNs to the agencies and 
summarizing and responding to agency comments. Removal of the waiver 
provision and associated agency coordination would also free up 
additional time for Corps staff to review other PCNs, other permit 
applications, and other regulatory actions such as jurisdictional 
determinations and compliance activities. As mentioned above, under the 
Navigable Waters Protection Rule, ephemeral streams are not ``waters of 
the United States.'' Therefore, it should be noted that this would 
likely reduce the current number of waivers and required interagency 
coordination process from state and federal agencies, since the current 
waivers apply only to certain intermittent streams.
    Under the current NWPs, the Corps uses a variety of approaches to 
quantify losses of stream beds and assessing impacts to those stream 
beds. Losses of stream bed can be quantified in acres or linear feet, 
and for some NWPs, discharges of dredged or fill material into stream 
beds may be quantified in cubic yards. For NWPs 21, 29, 39, 40, 42, 43, 
44, 50, 51, and 52, the loss of stream bed, plus any other losses of 
waters of the United States, cannot exceed \1/2\-acre. Nationwide 
permits 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 also currently have 
300 linear foot limits for losses of stream bed, and the district 
engineer has the authority to waive the 300 linear foot limit for 
losses of intermittent stream bed, when, after reviewing the PCN and 
conducting agency coordination under paragraph (d) of general condition 
32, he or she issues a written determination that the NWP activity 
would result in no more than minimal individual and cumulative adverse 
environmental effects. The district engineer cannot issue a waiver 
authorizing the loss of greater than \1/2\-acre of stream bed or other 
waters of the United States. Therefore, when determining whether to 
issue a waiver of the 300 linear foot limit for losses of intermittent 
stream bed, the district engineer must also calculate the acreage of 
stream bed that would be lost as a result of the proposed NWP activity, 
to ensure that the loss of stream bed, plus any other losses of waters 
of the United States, does not exceed \1/2\-acre.
    Many of the NWPs have quantitative limits to constrain the quantity 
of waters of the United States that may be lost as a result of an NWP 
activity to help ensure that the authorized NWP activity results in no 
more than minimal individual and cumulative adverse environmental 
effects. Numeric limits provide predictability and transparency to the 
regulated public through clear limits for NWP activities. Proposed 
activities that exceed those limits require authorization by individual 
permits. The quantitative limits help prospective permittees plan and 
design regulated activities to qualify for NWP authorization. The 
numeric limits of NWPs are established at a national level to authorize 
most activities that are expected to result in adverse environmental 
effects that are no more than minimal, individually and cumulatively. 
Division engineers may add regional conditions to an NWP to reduce the 
quantitative limit or limits to ensure that use of that NWP in a 
particular geographic region results in

[[Page 57312]]

activities that have no more than minimal individual and cumulative 
adverse environmental effects.
    The numeric limits of NWPs may be quantified as acres, linear feet, 
or cubic yards. The appropriate unit of measure for a quantitative 
limit for an NWP is dependent on the type of activity being authorized 
by the NWP and the potential types of direct impacts authorized 
activities may have on jurisdictional waters and wetlands. For example, 
some NWP activities have quantitative limits based on acres, because 
the discharge of dredged or fill material into jurisdictional waters or 
wetlands is placed in those waters generally converts an aquatic area 
to dry land (e.g., for constructing a building pad or road, or growing 
crops). An area-based numeric limit may also be appropriate for NWP 
activities that raise the bottom elevation of the waterbody (e.g., to 
construct a boat ramp to safely launch boats). Some NWPs have cubic 
yard limits, such as NWP 19 for minor dredging activities, because the 
authorized activity removes a volume of sediment from a waterbody, and 
the area directly affected by the removal of a volume of material may 
vary depending on how that activity is conducted. Some NWPs have linear 
foot limits to constrain the length of the authorized activity along a 
shoreline or river bank (e.g., the 500 linear foot limit for bank 
stabilization activities authorized by NWP 13) or the encroachment of 
structures or fills into navigable waters (e.g., the 30 foot limit from 
the mean low water line in tidal waters for the construction of living 
shorelines authorized by NWP 54).
    The severity of impacts to stream beds caused by discharges of 
dredged or fill material authorized by NWPs can be evaluated through 
the use of rapid assessment tools, such as functional or condition 
assessments. The Corps' regulations at 33 CFR 332.2 define 
``functions'' as ``the physical, chemical, and biological processes 
that occur in ecosystems.'' A functional assessment evaluates the 
relative degree to which a stream or other aquatic resource performs 
various physical, chemical, and biological processes. A condition 
assessment evaluates the relative ability of a stream or other type of 
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 the 
definition of ``condition'' at 33 CFR 332.2). Functional or condition 
assessments generally use indicators that can be observed through site 
visits or remote sensing (Stein et al. 2009). Indicators are observable 
characteristics that correspond to identifiable variable conditions in 
a wetland, stream, or other aquatic resource type, or the surrounding 
landscape (Smith et al. 1995). Indicators have to be sensitive to 
changes in function or condition to provide meaningful results that can 
be used for management decisions, such as evaluating the severity of 
impacts to aquatic resources or determining improvements in aquatic 
resource function or condition for compensatory mitigation credits 
produced by mitigation banks, in-lieu fee projects, or permittee-
responsible mitigation.
    For functional assessments, indicators are used to estimate the 
degree to which a particular function is performed by an aquatic 
resource relative to reference aquatic resources in the region. 
Indicators are also used to evaluate aquatic resource condition, which 
is also assessed relative to reference aquatic resources in the region. 
The indicators used for functional or condition assessments are 
generally not dependent on a particular quantitative metric, such as 
acres or linear feet, since most indicators are physical attributes 
that can be readily identified through either field visits or remote 
sensing. These indicators are usually evaluated qualitatively when the 
rapid assessment tool is being used by Corps district staff or a 
consultant. Functional or condition assessments can be used by district 
engineers to assist in determining whether a proposed NWP activity will 
result in no more than minimal individual and cumulative adverse 
environmental effects (see paragraph 2 of Section D, District 
Engineer's Decision).
    Compensatory mitigation may be required to offset losses of waters 
of the United States authorized by DA permits, including the NWPs. The 
Corps' regulations at 33 CFR part 332 address compensatory mitigation 
requirements for DA permits, and how compensatory mitigation credits 
can be quantified. Section 332.3(f) addresses the amount of 
compensatory mitigation to be required for DA permits. Section 
332.3(f)(1) states that the amount of required compensatory mitigation 
must be, to the extent practicable, sufficient to replace lost aquatic 
resource functions. Paragraph (f)(1) of that section also says that 
when appropriate functional or condition assessment methods or other 
suitable metrics are available, these methods should be used where 
practicable to determine how much compensatory mitigation should be 
required for the individual permit or general permit. If a functional 
or condition assessment or other suitable metric is not used, Sec.  
332.3(f)(1) states that a minimum one-to-one acreage or linear foot 
compensation ratio must be used. Section 332.3(f) does not require any 
particular metric to be used for quantifying impacts to stream bed or 
quantifying compensatory mitigation credits produced by stream 
compensatory mitigation projects, if a functional or condition 
assessment is not used to quantify authorized impacts or required 
compensatory mitigation. In other words, the current rule text provides 
flexibility to district engineers to determine appropriate metrics for 
quantifying permitted impacts and compensatory mitigation requirements.
    Sections 332.8(o)(1) and (2) of the Corps' compensatory mitigation 
regulations address units of measure and the use of assessment methods, 
respectively, for mitigation bank credits and in-lieu fee program 
credits, and the debits (impacts) those credits are intended to offset. 
The term ``credit'' is defined at 33 CFR 332.2 as ``a unit of measure 
(e.g., a functional or areal measure or other suitable metric) 
representing the accrual or attainment of aquatic functions at a 
compensatory mitigation site.'' The term ``debit'' is defined at 33 CFR 
332.2 as ``a unit of measure (e.g., a functional or areal measure or 
other suitable metric) representing the loss of aquatic functions at an 
impact or project site.'' The definition of ``credit'' also states that 
the ``measure of aquatic functions is based on the resources impacted 
by the authorized activity.''
    Furthermore, Sec.  332.8(o)(1) states that the principal units for 
credits and debits are acres, linear feet, functional assessment units, 
or other suitable metrics of particular resource types, and that 
functional assessment units or other suitable metrics may be linked to 
acres or linear feet. This section does not require the use of a 
particular metric or unit of measure for wetland or stream credits or 
debits. For streams, the preamble to the 2008 mitigation rule states 
that compensatory mitigation credits can be quantified using linear 
feet, area, or other appropriate units of measure (73 FR 19633) when 
functional or condition assessments are not available or are not 
practicable to use. Regarding the use of assessment tools to calculate 
credits and debits, section 332.8(o)(2) states that where practicable, 
an appropriate assessment method or other suitable metric must be used 
to assess and describe the aquatic resource types that will be 
restored, established, enhanced and/or preserved by the mitigation bank 
or in-lieu fee project. Section 332.8(o)(2) does not require the use of 
a particular assessment method or

[[Page 57313]]

metric for wetlands, streams, or any other category of waters.
    The quantitative limits for the NWPs and the methods and metrics 
used to quantify credits and debits for the purposes of compensatory 
mitigation serve different purposes. The quantitative limits for the 
NWPs provide a clear ceiling on the impacts authorized by an NWP; 
impacts that exceed the quantitative limits of the NWPs usually require 
individual permits. Quantitative limits for the NWPs also provide 
predictability and transparency to the regulated public, are often used 
by project proponents to design their activities to quality for NWP 
authorization. The metrics used to quantify the values of compensatory 
mitigation credits and debits are used to ensure that the amount of 
compensatory mitigation credits required by the district engineer are 
sufficient to replace lost aquatic resource functions (33 CFR 
332.3(f)(1)). In circumstances where an appropriate and practicable 
functional or condition assessment method cannot be used, or is 
unavailable for use, acres, linear feet, or other suitable metrics may 
be used to quantify compensatory mitigation credits, as a surrogate 
representing the accrual of aquatic resource functions at a 
compensatory mitigation project. The Corps' regulations at 33 CFR part 
332 do not identify specific credit or debit metrics that must be used 
for specific categories of aquatic resources, such as wetlands, 
streams, or submerged aquatic vegetation beds. There is substantial 
flexibility in the regulations in determining appropriate metrics for 
credits or debits for specific categories of aquatic resources.
    Functional or condition assessments may be used by district 
engineers to help determine whether proposed NWP activities will result 
in no more than minimal individual and cumulative adverse environmental 
effects (see paragraph 2 of Section D, District Engineer's Decision). 
However, there are no national assessment tools available that can be 
used in place of acreage or other quantitative limits for the NWPs. 
Assessment tools have to be developed on a regional basis because these 
tools need to be developed for a geographic area that is relatively 
homogenous in terms of geomorphology, soils, climate, geology, 
physiography, and other factors that can influence how wetlands, 
streams, or other categories of waters function (Smith et al. 2013), so 
that differences in aquatic functions or condition due to human 
activities rather than regional influences can be ascertained. There 
are insufficient numbers of regional functional or condition 
assessments to assist district engineers in determining whether 
proposed NWP activities will result in no more than minimal individual 
and cumulative adverse environmental effects. Therefore, the use of 
functional and condition assessments to help inform the district 
engineer's decision is on a limited case-by-case basis. For a national 
level program such as the Corps' NWP Program, quantitative limits such 
as the \1/2\-acre limit are the only practicable, national-scale option 
for drawing a clear line between the activities that potentially 
qualify for NWP authorization and the activities that will require 
individual permits.
    In this section, we present a number of reasons for these proposed 
changes to NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. Our 
rationale comprises six categories of considerations: (1) The Corps 
employs a number of tools in the NWP Program to ensure that NWP 
activities result only in no more than minimal individual and 
cumulative adverse environmental effects; (2) using acres or square 
feet instead of linear feet is a more accurate approach to quantifying 
losses of stream bed and also serves as a better surrogate for losses 
of stream functions when a functional assessment method is not 
available or practical to use; (3) removing the 300 linear foot limit 
would provide consistency across the numeric limits used by the NWP 
Program for all categories of non-tidal waters of the United States 
(i.e., wetlands, streams, ponds, and other non-tidal waters), and (4) 
it would further the objective of the NWP Program stated in 33 CFR 
330.1(b) (i.e., to authorize with little, if any, delay or paperwork 
certain activities having minimal impacts), by providing equivalent 
quantitative limits for wetlands, streams, and other types of non-tidal 
waters, and NWP authorization for losses of stream bed that have no 
more than minimal individual and cumulative adverse environmental 
effects. These reasons are discussed in further detail below.
    (1) Several tools are used to comply with the requirements of 
section 404(e) of the Clean Water Act. The first reason for our 
proposed changes is that the Corps employs several tools in the NWP 
Program to ensure that NWP activities result only in no more than 
minimal individual and cumulative adverse environmental effects. When 
Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) 
was amended in 1977 to add section 404(e), the statutory text did not 
provide any direction on how general permits, including NWPs, are to 
achieve compliance with the requirement that general permits will cause 
only minimal adverse environmental effects when performed separately, 
and will have only minimal cumulative adverse effect on the 
environment. Therefore, section 404(e) gives the Corps substantial 
discretion in developing and implementing the NWPs and other general 
permits to comply with the requirements in that provision of the Clean 
Water Act. This discretion extends to the tools the Corps uses to 
ensure that the NWPs authorize only those activities that have no more 
than minimal individual and cumulative adverse environmental effects.
    The first NWPs were issued on July 19, 1977 (42 FR 37122), before 
the Clean Water Act was amended on December 27, 1977, to add section 
404(e). During subsequent reissuances of the NWPs, the Corps developed 
a variety of tools to comply with the statutory requirement that NWPs 
may authorize only categories of activities that have no more than 
minimal individual and cumulative adverse environmental effects. Those 
tools included acreage and other numeric limits on the losses of waters 
of the United States that could be authorized by NWP, qualitative terms 
of the NWPs that limit the types of activities authorized by NWP or 
limit the types of waters in which the NWP could be used to authorize 
regulated activities, the pre-construction notification process, the 
requirements of the ``Mitigation'' general condition for the NWPs, the 
ability of division engineers to modify, suspend, or revoke NWPs on a 
regional basis (33 CFR 330.5(c)), and the ability of district engineers 
to modify, suspend, or revoke NWP authorizations for specific 
activities (33 CFR 330.5(d)).
    An example of the numeric limits on losses of waters of the United 
States authorized by NWPs include the \1/2\-acre limit in NWPs 21, 29, 
39, 40, 42, 43, 44, 50, 51, and 52. We are proposing to retain this 
limit for these NWPs. Another example of a numeric limit is the volume 
of dredged or fill material that can be discharged into waters of the 
United States, such as the 25 cubic yard limit in NWP 18. An example of 
qualitative terms of the NWPs that limit the types of activities 
authorized by NWP is the term for NWP 10, which authorizes the 
installation of non-commercial, single-boat mooring buoys. An example 
of a qualitative term that limits the types of waters in which an NWP 
may be used to authorize regulated activities is the term in NWP 29 
that prohibits the use of that NWP to authorize discharges of dredged 
or fill

[[Page 57314]]

material into non-tidal wetlands adjacent to tidal waters.
    The PCN process is a critical tool, because it provides flexibility 
for district engineers to take into account the activity-specific 
impacts of the proposed activity and the effects those activities will 
have on the specific waters and wetlands affected by the NWP activity. 
It also allows the district engineer to take into account to what 
degree the waters and wetlands perform functions, such as hydrologic, 
biogeochemical cycling, and habitat functions, and to what degree those 
functions will be lost as a result of the regulated activity. If the 
district engineer reviews the proposed activity, and after considering 
mitigation proposed by the applicant determines that the proposed 
activity will have more than minimal adverse environmental effects, he 
or she will exercise discretionary authority and require an individual 
permit for that activity unless it can be authorized by a regional 
general permit. Except for NWP 51, all of the NWPs with the 300 linear 
foot limit for losses of stream bed require pre-construction 
notification for all authorized activities. Nationwide permit 51 
requires pre-construction notification for losses of greater than \1/
10\-acre of waters of the United States.
    The PCN process was first adopted in the NWP Program in 1982. A 
form of pre-construction notification was required for NWP 21, which 
authorized discharges of dredged or fill material into waters of the 
United States associated with surface coal mining activities (see 47 FR 
31833). The project proponent could not proceed with the proposed 
discharges into waters of the United States until she or he obtained 
confirmation from the district engineer that the activity was 
authorized by NWP 21. The 1982 NWP 21 required the prospective 
permittee to obtain, before commencing the proposed activity, a 
determination from the district engineer that the proposed activity 
would have ``minimal individual and cumulative adverse effects on the 
environment.'' This advance review would ``afford the district engineer 
the opportunity to insure that the activity needing a Corps permit 
would have minimal impacts and thus qualify for the nationwide 
permit.'' (See 47 FR 31799.) None of the other NWPs issued in 1982 had 
PCN requirements.
    With subsequent reissuances of the NWPs, more NWPs required PCNs 
for some or all proposed activities. The first regulations for 
notification procedures for the NWP program were added to the Corps' 
regulations in 1984 (see 49 FR 39484), when the Corps added 33 CFR 
330.7 to provide regulatory text for the pre-discharge notification 
procedures for NWP 7 (outfall structures and associated intake 
structures), NWP 17 (small hydropower projects), NWP 21 (surface coal 
mining activities), and NWP 26. (In the 1996 NWPs (see 61 FR 65909), 
the Corps changed the term ``pre-discharge notification'' to ``pre-
construction notification'' because some NWPs require pre-construction 
notification for structures or work in navigable waters of the United 
States that require authorization under Section 10 of the Rivers and 
Harbors Act of 1899.) Nationwide permit 26 was issued in that final 
rule to authorize discharges of dredged or fill material into: (a) Non-
tidal rivers, streams, and their lakes and impoundments, including 
adjacent wetlands, located above the headwaters, and (b) non-tidal 
waters and adjacent wetlands that are not part of a tributary system to 
interstate waters or navigable waters. The notification procedures 
established in 1982 required the project proponent to wait 20 days for 
a response from the district or division engineer before proceeding 
with the proposed activity. The district engineer was required to 
review all pre-construction notifications, and could refer certain pre-
construction notifications to the division engineer for review. The 
division engineer had the authority to exercise discretionary authority 
and require an individual permit for a proposed activity.
    In the 1986 NWPs, the pre-construction notification requirement 
continued to apply to NWPs 7, 17, 21, and 26 (see 51 FR 41258). In the 
1991 NWPs (56 FR 59110), the Corps amended its NWP regulations at 33 
CFR part 330, including the procedures that applied to pre-construction 
notifications. The Corps also changed its regulations regarding 
discretionary authority, that is the division and district engineer's 
authorities to modify, suspend, or revoke NWP authorizations on a 
regional or activity-specific basis (see 33 CFR 330.1(d), 330.4(e), and 
330.5(c) and (d)). The Corps retained the PCN requirements for NWPs 7, 
17, 21, and 26. The Corps also added PCN requirements to the following 
existing and new NWPs: NWP 13 (bank stabilization), NWP 14 (road 
crossing), NWP 18 (minor discharges), NWP 22 (removal of vessels), NWP 
33 (temporary construction, access, and dewatering), NWP 34 (cranberry 
production activities), NWP 37 (emergency watershed protection and 
rehabilitation), and NWP 38 (cleanup of hazardous and toxic waste). In 
the NWP regulations issued in 1991, the PCN review period was increased 
from 20 days to 30 days (33 CFR 330.1(e)(1), as published in the 
Federal Register on November 22, 1991 (56 FR 59135)).
    In the 1996 NWPs, the PCN review period for NWP 26 was increased to 
45-days (see paragraph (a)(3) of the 1996 ``Notification'' general 
condition (61 FR 65920)). The other NWPs that required PCNs for some or 
all proposed activities retained a 30-day review period for the 
district engineer's review of PCNs. For the 1996 NWPs, PCNs were 
required for the following new and existing NWPs: NWP 5 (scientific 
measuring devices), NWP 7 (outfall structures), NWP 8 (oil and gas 
structures), NWP 12 (utility line discharges), NWP 13 (bank 
stabilization), NWP 14 (road crossings), NWP 17 (hydropower projects), 
NWP 18 (minor discharges), NWP 21 (surface coal mining activities), NWP 
22 (removal of vessels), NWP 26 (headwaters and isolated waters 
discharges), NWP 27 (wetland and riparian restoration and creation 
activities), NWP 29 (single family housing), NWP 31 (maintenance of 
existing flood control facilities), NWP 33 (temporary construction, 
access, and dewatering), NWP 34 (cranberry production activities), NWP 
37 (emergency watershed protection and rehabilitation), NWP 38 (cleanup 
of hazardous and toxic waste), and NWP 40 (farm buildings).
    In the 2000 NWPs, the PCN review period in the ``Notification'' 
general condition was increased to 45-days for all NWPs that required 
PCNs (see 65 FR 12894). In a final rule published in the Federal 
Register on January 29, 2013 (78 FR 5733), 33 CFR part 330, including 
Sec.  330.1(e)(1), was amended to change the 30-day PCN review period 
to 45 days, consistent with the current NWPs and general condition 32 
(pre-construction notification).
    The 2002 NWPs (67 FR 2020), 2007 NWPs (72 FR 11092), 2012 NWPs (77 
FR 10184), and 2017 NWPs (82 FR 1860) retained the 45-day PCN review 
period. Since the PCN process was added to the NWP program in 1982 and 
expanded to other new and existing NWPs during subsequent reissuances 
of the NWPs, it has been successful in helping to ensure that the NWPs 
comply with the requirements of Section 404(e) of the Clean Water Act, 
specifically that the NWP can authorize only those activities that 
result in no more than minimal individual and cumulative environmental 
effects. As the NWP program has expanded over the past 38 years, the 
PCN process has provided a mechanism where district engineers are given 
the opportunity to review certain proposed NWP activities before they

[[Page 57315]]

take place, to determine whether the proposed activities will result in 
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, including mitigation requirements, to comply with the 
``no more than minimal individual and cumulative adverse environmental 
effects'' requirement. When a district engineer reviews a PCN for a 
proposed activity, and determines that the activity is likely to result 
in more than minimal adverse environmental effects after considering a 
mitigation proposal submitted by the applicant (see 33 CFR 330.1(e)(3), 
he or she may exercise discretionary authority and require an 
individual permit for the proposed activity. The PCN process provides 
flexibility in the NWP program by requiring case-specific review of 
certain proposed activities, and authorizing those activities (with or 
without special conditions) instead of requiring individual permits. By 
using NWPs to authorize activities that have no more than minimal 
adverse effects, the Corps can focus a greater proportion of its finite 
resources on evaluating individual permit applications.
    Under the current and past NWPs, the Corps has authorized tens of 
thousands of activities each year. Over the years, Corps districts have 
reviewed hundreds of thousands of NWP PCNs and issued hundreds of 
thousands of NWP verification letters in response to those PCNs. In 
litigation that has arisen from time to time challenging NWP 
verifications issued in response to PCNs, federal courts have generally 
upheld such verifications as consistent with the Clean Water Act and 
otherwise applicable law (e.g., Snoqualmie Valley Preservation v. 
USACE, 683 F.3d 1155 (9th Cir. 2012); Sierra Club v. Bostick, 787 F.3d 
1043 (10th Cir. 2015); Sierra Club v. U.S. Army Corps of Engineers, 803 
F.3d 31 (D.C. Cir. 2015)). The continued operation of the NWP Program, 
and its reliance on the PCN process over the past 38 years to ensure 
that activities authorized by NWPs result in no more than minimal 
individual and cumulative adverse environmental effects, demonstrates 
the importance and success of the PCN process as a tool to efficiently 
authorize activities that require authorization under Section 404 of 
the Clean Water Act and Section 10 of the Rivers and Harbors Act of 
1899.
    The mitigation requirements in the NWPs are another tool to comply 
with the requirements of Section 404(e) of the Clean Water Act. During 
the PCN review process, district engineers will evaluate compliance 
with the mitigation requirements for the NWPs in the ``Mitigation'' 
general condition (general condition 23 in this proposal). Paragraph 
(a) of the ``Mitigation'' general condition requires the NWP activity 
to 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). Under 
this general condition and 33 CFR 330.1(e)(3), the district engineer 
may require additional mitigation, including compensatory mitigation, 
so that the authorized work has no more than minimal individual and 
cumulative adverse environmental effects.
    Regional conditions are another tool to ensure that activities 
authorized by NWPs result in no more than minimal individual and 
cumulative adverse environmental effects. Under 33 CFR 330.5(c), 
division engineers have the authority to assert discretionary authority 
to modify, suspend, or revoke NWP authorizations for a specific 
geographic area, class of activity, or class of waters within his or 
her division, including on a statewide basis. If the 300 linear foot 
limit for losses of stream bed is removed from these NWPs, division 
engineers can impose regional conditions to put a smaller acreage limit 
on losses of stream bed, if such a lower limit is needed to satisfy the 
requirement that NWPs may authorize only activities that have no more 
than minimal individual and cumulative adverse environmental effects.
    Activity-specific permit conditions may be imposed by district 
engineers during the review of an NWP PCN to comply with the no more 
than minimal adverse environmental effects requirements for the NWPs. 
Under 33 CFR 330.4(e)(2), a district engineer has the authority to 
exercise discretionary authority for a proposed NWP activity whenever 
he or she determines that the proposed activity would have more than 
minimal individual or cumulative adverse effects on the environment or 
otherwise may be contrary to the public interest. Prior to requiring 
another form of DA authorization for the proposed activity, the 
district engineer may provide the applicant with the opportunity to 
propose mitigation to reduce the adverse environmental effects so that 
they are no more than minimal. If such mitigation is necessary to 
qualify for NWP authorization, the district engineer will add 
conditions to the NWP authorization to require those mitigation 
measures, which may include compensatory mitigation, to ensure that the 
NWP activity results in no more than minimal individual and cumulative 
adverse environmental effects.
    We are proposing to replace the 300 linear foot limit for losses of 
stream bed with a different tool to encourage minimization of losses of 
stream bed and comply with the requirements of section 404(e) of the 
Clean Water Act. Since 2007, the NWPs have had a \1/10\-acre threshold 
for requiring wetland compensatory mitigation for NWP activities that 
require PCNs (see 72 FR 11195). This compensatory mitigation threshold 
has been an important tool for driving avoidance and minimization of 
wetland impacts.
    The \1/10\-acre threshold for requiring wetlands compensatory 
mitigation has been an effective tool for minimizing wetland losses 
authorized by NWPs. In the ``Mitigation Rule Retrospective: A Review of 
the 2008 Regulations Governing Compensatory Mitigation for Losses of 
Aquatic Resources'' published by the Corps' Institute of Water 
Resources in 2015 (Report 2015-R-03), an analysis of the Corps' permit 
data from 2010 to 2014 demonstrated that a substantial majority of fill 
impacts authorized by NWPs and other general permits were less than \1/
10\-acre in size (see Figure 5 of that report). These authorized fill 
impacts were for wetlands, streams, and other waters. Project 
proponents likely designed their projects to minimize losses of 
jurisdictional waters and wetlands to qualify for general permit 
authorization and avoid the cost of providing compensatory mitigation 
to offset the authorized losses. We believe that adding a compensatory 
mitigation requirement for losses of greater than \1/10\-acre of stream 
bed can be equally effective in minimizing losses of stream bed under 
the NWP authorization process.
    More recent (FY 2018) permit data demonstrate that this 
minimization has continued in the 2017 NWPs. According to Figure 5.1 of 
the draft Regulatory Impact Analysis, which is provided in the docket 
for this proposed rule (docket number COE-2020-0002) as supplementary 
information for this proposed rule, 82 percent of all of the verified 
NWP impacts involving discharges of dredged or fill material into 
waters of the United States were less than \1/10\-acre.
    To apply this mitigation tool to the NWPs, we are proposing to 
modify paragraph (d) of the ``Mitigation'' general condition to require 
compensatory mitigation for losses of greater than \1/10\-acre of 
stream bed that

[[Page 57316]]

require pre-construction notification. This proposed modification is 
similar to the wetland compensatory mitigation provision in paragraph 
(c) of the ``Mitigation'' general condition. Consistent with the 
current paragraph (c), which we are not proposing to change, the 
proposed modifications to paragraph (d) would give the district 
engineer the discretion to waive the requirement to provide 
compensatory mitigation for losses of greater than \1/10\-acre of 
stream bed if she or he makes a written determination that some other 
form of mitigation would be more environmentally appropriate. The 
district engineer may also waive the compensatory mitigation 
requirement if he or she determines that the adverse environmental 
effects of the proposed activity are no more than minimal without 
compensatory mitigation, and issues an activity-specific waiver of the 
compensatory mitigation requirement. We believe the proposed addition 
of a \1/10\-acre threshold for requiring stream compensatory mitigation 
will have a similar effect of encouraging minimization of stream bed 
impacts authorized by NWPs, including NWPs 21, 29, 39, 40, 42, 43, 44, 
50, 51, and 52.
    (2) More accurate quantification of losses authorized by NWPs. 
Another reason for these proposed changes is that quantifying losses of 
stream bed in acres to count towards the \1/2\-acre limit most 
accurately represents the amount of stream bed lost as a result of 
filling or excavation, and the subsequent functions that are expected 
to be lost. Using linear feet to quantify stream impacts and stream 
compensatory mitigation credits does not take into account the scale of 
the stream reach being impacted by an authorized activity or restored 
for compensatory mitigation (Doyle et al. 2015, Lave 2014). Accurately 
quantifying the amount of stream bed lost, and the degree to which 
those functions are lost (e.g., total versus partial loss, permanent 
versus temporary loss), informs the minimal adverse effects 
determinations made by district engineers.
    Within a watershed, the sizes and channel morphologies (shapes) of 
river and stream channels throughout the tributary network vary 
significantly, from the headwaters to where the mouth of the river 
drains into the ocean, lake, or other body of water. As one moves from 
the headwaters to stream and river channels further down in the 
watershed, stream and river channels get progressively larger to 
accommodate the increasing amount of water that is transported by the 
tributary network (Leopold 1994). Downing et al. (2012) examined the 
mean width of streams in various locations in the tributary network, 
using the Strahler (1957) classification system for stream order. A 
headwater stream at the top of the stream network is a 1st order stream 
under the Strahler (1957) classification system. The stream order 
number increases as tributaries join together further down in the 
watershed. For example, the Ohio River is an 8th order stream. The 
largest river in the United States, the Mississippi River, is a 10th 
order stream.
    According to Downing et al. (2012), the mean width of a first order 
headwater stream is 6.3 feet. The mean width of a third order stream is 
25 feet, and the mean width of a fifth order stream is 240 feet. An 
eighth order stream has a mean width of 1,688 feet and a tenth order 
stream has a mean width of 3,392 feet. Because of this substantial 
variation in stream width throughout a tributary network, using linear 
feet to quantify stream impacts does not accurately reflect the amount 
of stream bed filled, excavated, or otherwise directly affected by 
construction activities, dredging activities, and other activities that 
can physically alter river and stream beds, as well as their banks. If 
all rivers and streams had relatively uniform width, then linear feet 
could be an accurate method for quantifying stream bed impacts. For 
example, if the activities authorized by NWPs or other types of DA 
permits were limited to headwater streams, then linear feet could be an 
effective way to quantify stream bed impacts to inform permit decisions 
by district engineers. However, NWPs and other DA permits authorize 
activities throughout the stream network, and quantifying those impacts 
accurately is important for making permit decisions. In this section, 
we discuss our proposal to quantify losses of stream bed authorized by 
NWP in acres.
    BenDor and others (2009) examined the spatial distribution of 
stream impacts authorized by DA permits in North Carolina. They found 
that stream impacts occurred throughout a watershed, but were 
concentrated in urban and suburban areas where development activities 
are occurring. In urban and suburban areas, stream impacts are not 
limited to headwater streams and they observed that the restoration of 
headwater streams was often used to provide compensatory mitigation to 
offset impacts to streams of various sizes (BenDor et al. 2009).
    Losses of stream bed authorized by NWPs and other DA permits can 
occur in a proportion of the stream bed (e.g., bank stabilization where 
the loss of stream bed occurs near the bank while the remainder of the 
stream bed along the affected stream reach is not filled or excavated). 
Losses of stream bed authorized by NWPs and other DA permits can also 
occur to the entire stream bed within the affected stream reach, such 
as piping and filling the stream to create land to build upon. When the 
loss of stream bed is quantified using the area of stream bed filled or 
excavated, the verified impacts reflect whether only a portion of the 
stream bed was filled or excavated, or whether the entire stream bed 
along that stream reach was filled or excavated. In contrast, when the 
loss of stream bed is quantified in linear feet, the verified impacts 
do not distinguish between partial or complete filling or excavation of 
the stream bed along the affected stream reach. The uncertainty 
associated with using linear feet to quantify losses of stream bed 
makes it more challenging for district engineers to make consistent, 
transparent, and defensible NWP verification decisions.
    In Section D of the 2012 NWPs (see 77 FR 10287), District 
Engineer's Decision, we added a list of nine factors district engineers 
should consider when evaluating PCNs to determine whether a proposed 
NWP activity will result in no more than minimal individual and 
cumulative adverse environmental effects. In the 2017 NWPs (see 82 FR 
2005), we added a tenth factor for the district engineer to consider 
when making his or her decision for an NWP PCN. The ten factors in 
paragraph 2 of Section D, ``District Engineer's Decision,'' for making 
minimal adverse environmental effects determinations are:
    (1) The direct and indirect effects caused by the NWP activity;
    (2) the cumulative adverse environmental effects caused by 
activities authorized by NWP and whether those cumulative adverse 
environmental effects are no more than minimal;
    (3) the environmental setting in the vicinity of the NWP activity;
    (4) the type of resource that will be affected by the NWP activity;
    (5) the functions provided by the aquatic resources that will be 
affected by the NWP activity;
    (6) the degree or magnitude to which the aquatic resources perform 
those functions;
    (7) the extent that aquatic resource functions will be lost as a 
result of the NWP activity (e.g., partial or complete loss);
    (8) the duration of the adverse effects (temporary or permanent);

[[Page 57317]]

    (9) the importance of the aquatic resource functions to the region 
(e.g., watershed or ecoregion); and
    (10) mitigation required by the district engineer.
    In the ``District Engineer's Decision'' section of the NWPs, we 
also stated that if an appropriate functional 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.
    Three of the 10 factors in paragraph 2 of the ``District Engineer's 
Decision'' section relate to the impacts the proposed NWP activity 
would have on aquatic resource functions: (1) The functions provided by 
the aquatic resources that will be affected by the NWP activity, (2) 
the degree or magnitude to which the aquatic resources perform those 
functions, and (3) the extent that aquatic resource functions will be 
lost as a result of the NWP activity (e.g., partial or complete loss). 
To assist in applying these factors, it is important to accurately 
quantify the proposed impacts, because the amount of aquatic resources 
affected by the proposed NWP activity is often used as a surrogate for 
the aquatic resource functions affected by that activity. In the 
absence of an appropriate functional or condition assessment for 
streams, the amount of stream bed filled or excavated can be a 
surrogate for the stream functions lost as a result of the permitted 
activity. It may not be practicable to apply a functional or condition 
assessment to a proposed NWP activity (if an appropriate functional or 
condition assessment is available) within the timeframes of the PCN 
review process.
    Currently, NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 can be 
used to authorize discharges of dredged or fill material into all non-
tidal rivers and streams throughout a watershed. For the reasons 
discussed in this section, and for effective and more defensible 
implementation of the NWP program, we believe that stream bed losses 
authorized by NWPs should be quantified in acres, not linear feet, when 
a functional or condition assessment is not available or not 
practicable to use.
    Losses of stream bed authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 
50, 51, and 52 can occur along a couple of continuums: (1) The 
proportion of the river or stream reach is impacted by the NWP activity 
(e.g., from a small partial loss along a stream bank to a complete 
filling or excavation of the river or stream bed) and (2) the range of 
non-tidal river and stream sizes within a watershed. Quantifying losses 
of stream bed via linear feet does not provide any ability to 
differentiate the amount of stream bed lost along these two continuums.
    With respect to the first continuum, some activities authorized by 
NWP may only fill or excavate stream bed next to the stream bank while 
the remaining stream bed along that stream reach is not filled or 
excavated. Other activities authorized by NWP may fill or excavate the 
entire stream bed along the affected stream reach. When only a portion 
of the stream bed is filled or excavated, the portion of the stream bed 
that is not filled or excavated can continue performing its physical, 
chemical, and biological processes. In situations where only a portion 
of the stream bed is filled, there will likely be only a partial loss 
of stream functions because the areas of stream bed near the authorized 
activity that have not been filled will continue to provide some degree 
of stream functions. For example, a bank stabilization activity along a 
river bank will fill only a portion of the stream bed up to the 
ordinary high water mark and the river will continue to flow past the 
stabilized bank, whereas filling the entire stream bed often results in 
a complete loss of stream functions. Using linear feet to quantify the 
impacts of these two different types of impacts does not distinguish 
between the substantially different effects on stream functions in the 
two different scenarios, whether those effects are no more than minimal 
and thus qualify for NWP authorization, or if the effects are more than 
minimal and require individual permits.
    When assessing the impacts of NWP activities on rivers and streams, 
it is important to consider the relative extent of the filling or 
excavation of the stream bed. When using linear feet to quantify stream 
impacts, the filling or excavation of 100 feet of a small headwater 
stream has the same value as the filling or excavation of 100 feet of a 
larger stream in the middle of the stream network within watershed 
(e.g., a 4th order stream under the Strahler (1957) classification 
method), even though the actual amount of stream bed filled or 
excavated is substantially larger for the 4th order stream than for the 
headwater stream. Therefore, quantifying impacts in linear feet does 
not always accurately represent the actual amount of stream bed filled 
or excavated because it does not take into account the width of the 
stream bed filled or excavated. Furthermore, quantifying stream bed 
losses in linear feet is not an effective surrogate for quantifying the 
amount of stream functions lost because of a permitted activity. In-
stream ecological functions occur over the area of stream bed present 
within a stream reach.
    Regarding the second continuum, within a watershed, streams can 
vary substantially in size, depending on stream order under the 
Strahler (1957) classification system. In addition, stream reaches can 
vary in the functions they provide, depending on their location in the 
stream network or in the watershed and other factors. Headwater 
streams, mid-watershed streams, and lowland streams exhibit different 
structure, functions, and dynamics. Impacts to streams of different 
stream orders for the same amount of linear foot impact can have 
substantially different outcomes in terms of the acres or square feet 
of stream bed actually filled or excavated, and the amount of aquatic 
resource functions that may be lost as a result of the permitted 
activity. In general, headwater streams are 1st and 2nd order streams 
under the Strahler (1957) stream classification system. In their global 
examination of the abundance and size distribution of streams, Downing 
et al. (2012) found that the mean widths of 1st and 2nd order streams 
are 6.2 feet and 8.5 feet, respectively. Moving down a watershed from 
headwater streams to mid-watershed streams and lowland streams, mean 
stream width (and the size of the river or stream bed) increases 
substantially. According to Downing et al. (2012), a 3rd order stream 
has a mean width of 24.6 feet, a 4th order stream has a mean width of 
90.2 feet, and a 5th order stream has a mean width of 238.5 feet.
    For example, under the current 300 linear foot limit for losses of 
stream bed, the quantity of stream bed filled or excavated and the 
subsequent loss of stream functions is likely to vary substantially by 
stream order, if all other factors are considered equal. Using the mean 
stream widths found by Downing et al. (2012), filling or excavating 300 
linear feet of a 1st order headwater stream with an average width of 6 
feet results in the loss of 1,800 square feet (0.04 acre) of stream bed 
and the associated functions it provides. For a typical 2nd order 
stream, which has an average width of 9 feet, filling or excavating 300 
linear feet of that stream bed would result in the loss of 2,700 square 
feet (0.06 acre) of stream bed. Filling or excavating 300 linear feet 
of a 3rd order stream, which has an average width of 25 feet, would 
result in a loss of 7,500 square feet of stream bed (0.17 acre). 
Filling or excavating 300 linear feet of a 4th order mid-watershed 
stream with an average width of 90 feet results in the loss of 27,000 
square feet (0.62 acre) of stream bed. (The latter

[[Page 57318]]

example is provided for illustrative purposes even though it could not 
be authorized by any of these NWPs because the loss of waters of the 
United States would exceed \1/2\-acre.)
    These examples demonstrate the potentially large range of impacts 
to streams that can occur for a specific number of linear feet of 
stream bed impacted, compared with the number of square feet of stream 
bed impacted. In other words, there can be large differences in losses 
of stream bed that can result from filling or excavating 300 linear 
feet of stream bed in different stream orders within a stream network 
within a watershed. To more accurately quantify losses of stream bed 
authorized by NWPs and associated losses of stream functions, we are 
proposing to rely on the \1/2\-acre limit and other tools described 
above to comply with the requirement that the NWPs may only authorize 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. Therefore, using an acreage limit for 
losses of stream bed instead of a linear foot limit will more 
accurately quantify losses of stream bed, since a linear foot limit 
does not take into account the width of the stream bed.
    In developing this proposal, we have also drawn upon information 
that has appeared in the scientific literature. A linear foot metric 
for quantifying stream impacts or stream compensatory mitigation does 
not properly take into account the scale or size of the affected stream 
reach (Lave et al. 2010) or act as an effective surrogate for the 
amount of stream functions performed within that stream reach. In 
situations where it is not practicable or feasible to assess or measure 
stream functions (e.g., minor activities authorized by NWPs general 
permits), using square feet to quantify the ability of a stream to 
perform ecological functions has a sounder scientific basis than using 
linear feet (Doyle et al. 2015).
    In 33 CFR 332.2, the Corps defines ``functional capacity'' as ``the 
degree to which an area of aquatic resource performs a specific 
function.'' In other words, the amount of space occupied by a wetland, 
stream, or other aquatic resource, plus the degree to which that 
wetland, stream, or other aquatic resource performs certain functions, 
determine the amount of functions provided by the wetland, stream, or 
other aquatic resource. For example, if a wetland or stream performs 
functions at an 80 percent level, a larger wetland or stream will 
contribute more functions to the watershed than a smaller wetland or 
stream. (The larger wetland or stream will have a higher functional 
capacity than the smaller wetland or stream, if both the larger and 
smaller wetland or stream perform functions at the same level.) For 
rivers and streams, a larger amount of stream bed provides more 
physical space for aquatic habitat, more substrate for biogeochemical 
cycling functions, and greater capacity for hydrologic functions. 
Therefore, actual amount of wetland, stream, or other type of aquatic 
resource impacted as a result of a proposed NWP activity is critical 
for determining whether that activity will result in no more than 
minimal individual and cumulative adverse environmental effects. Using 
linear feet to quantify impacts to streams does not provide an adequate 
surrogate for the functions lost as a result of a regulated activity 
because it does not accurately represent the physical space in which 
the hydrologic, biogeochemical, and habitat functions are being 
performed by that stream.
    (3) Provide consistency in the numeric limits for these NWPs for 
all non-tidal waters of the United States. The proposed removal of the 
300 linear foot limit for losses of stream bed would also provide more 
equivalency in protection for all non-tidal waters of the United 
States. Currently, under NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 
52 losses of non-tidal wetlands and other non-tidal waters that are not 
streams are limited to \1/2\-acre. In the 2017 NWPs, losses of stream 
bed are limited to 300 linear feet, unless the district engineer waives 
the 300 linear foot limit for losses of intermittent and ephemeral 
stream bed (as explained above, under the Navigable Waters Protection 
Rule ephemeral streams are no longer subject to Clean Water Act 
jurisdiction). Under the 300 linear foot limit, many streams in a 
stream network are subject to a more stringent quantitative limit than 
non-tidal wetlands, ponds, or lakes. For example, for a first order 
headwater stream with an average width of 6.2 feet (Downing et al. 
2012), under the 300 linear foot limit 0.043 acre of stream bed can be 
filled or excavated. As another example, for a third order stream with 
an average width of 34.6 feet (Downing et al. 2012), under the 300 
linear foot limit 0.238 acre of stream bed can be filled or excavated. 
Therefore, the 300 linear foot limit for losses of stream bed is more 
restrictive than the \1/2\-acre limit for losses of non-tidal wetlands 
and other non-tidal waters, and decreases the utility of the NWPs for 
losses of stream bed that result in no more than minimal individual 
adverse environmental effects.
    The Clean Water Act Section 404(b)(1) Guidelines at 40 CFR 230.1(d) 
states that from ``a national perspective, the degradation or 
destruction of special aquatic sites, such as filling operations in 
wetlands, is considered to be among the most severe environmental 
impacts covered by these Guidelines.'' Under the 404(b)(1) Guidelines, 
special aquatic sites include sanctuaries and refuges (40 CFR 230.40), 
wetlands (Sec.  230.41), mud flats (Sec.  230.42), vegetated shallows 
(Sec.  230.43), coral reefs (Sec.  230.44), and riffle and pool 
complexes (Sec.  230.45). The 404(b)(1) Guidelines do not rank special 
aquatic sites in order of importance, or provide differing degrees of 
protection to the various types of special aquatic sites. The 
evaluation process is the same for all special aquatic sites, which 
gives the district engineer or other permitting authority substantial 
discretion in determining whether a proposed discharge complies with 
the Guidelines. Other regulations for implementing Section 404 of the 
Clean Water Act do not grant special status to streams over other types 
of waters of the United States, such as lakes and ponds.
    The 404(b)(1) Guidelines at 40 CFR 230.45 define ``riffle and pool 
complexes'' as:

    Steep gradient sections of streams are sometimes characterized 
by riffle and pool complexes. Such stream sections are recognizable 
by their hydraulic characteristics. The rapid movement of water over 
a coarse 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. Pools are characterized by a 
slower stream velocity, a steaming flow, a smooth surface, and a 
finer substrate. Riffle and pool complexes are particularly valuable 
habitat for fish and wildlife.

    Rivers and streams exhibit a variety of morphologies, and riffle 
and pool complexes are just one of several morphologies. Montgomery and 
Buffington (1997) developed a classification system for stream channel 
reach morphology in mountain watersheds. For alluvial stream channels, 
they identified five types of channel bed morphologies: Cascade 
channels, step-pool channels, plane-bed channels, riffle-pool channels, 
and dune-ripple channels. Streams in mountain drainage basins also 
occur as colluvial channels and bedrock channels (Montgomery and 
Buffington 1997). Lowland rivers typically exhibit braided channel 
morphology (Chalov 2001). Lowland rivers may also have an anastomosing 
morphology, which consists of multiple river channels separated by 
islands that have been cut from the floodplain (Knighton and Nanson 
1993).

[[Page 57319]]

    Therefore, riffle and pool complexes are only a subset of the 
stream channel types typically found in a stream network within a 
watershed. Riffle and pool complexes occur in perennial stream channels 
that have bed material that is larger in grain size than coarse sand 
(Leopold 1994). According to Allan and Castillo (2007), riffle and pool 
complexes are usually found in unconfined stream channels with moderate 
to low gradients where the bed material is mostly gravel. Step-pool 
complexes are usually found in mountain areas where the stream bed 
material consists of boulders and large rocks, with a channel 
morphology of nearly vertical steps and short pools (Leopold 1994). 
Cascade channels, step-pool channels, plane-bed channels, dune-ripple 
channels, colluvial channels, bedrock channels, braided rivers and 
streams, and anastomosing rivers are not special aquatic sites under 
the 404(b)(1) Guidelines, and are not subject to the more restrictive 
regulations that apply to special aquatic sites such as wetlands and 
riffle and pool complexes.
    Section 230.1(d) of the 404(b)(1) Guidelines states that from a 
``national perspective, the degradation or destruction of special 
aquatic sites, such as filling operations in wetlands, is considered to 
be among the most severe environmental impacts covered by these 
Guidelines.'' Under the current NWPs, project proponents can discharge 
dredged or fill material into non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters, that cause the 
loss of up to \1/2\-acre of wetlands. Under the current limits of these 
NWPs, a project proponent can fill or excavate no more than 300 linear 
feet of perennial stream bed (which may or may not have riffle and pool 
complexes), which for headwater streams would usually be substantially 
less than \1/2\-acre. When taking into account the regulatory approach 
in the 404(b)(1) Guidelines, and other regulations and policies for 
implementing Section 404 of the Clean Water Act, there does not seem to 
be a the legal, regulatory, or policy justification for a more 
restrictive numeric limit for losses of stream bed compared with other 
types of waters of the United States.
    Headwater streams and rivers and larger streams perform important 
ecological roles in riverine systems. Examples of the ecological roles 
of headwater streams include: Storing and transporting water, retaining 
and transforming nutrients and contaminants, collecting and 
transforming organic matter that supports the production of aquatic 
organisms such as invertebrates and fish, influencing water 
temperature, and providing habitats for various species of fish, 
amphibians, and invertebrates (Meyer and Wallace 2001). Large rivers 
and their floodplains support diverse biological communities through 
the complex and variable habitats that are developed and maintained by 
these systems (Sparks 1995), as well as populations of those species. 
Large rivers and their floodplains also provide biological linkages 
such as migration corridors, as well as conduits for the movement of 
water, sediment, nutrients, and contaminants (Sparks 1995).
    From a functional perspective, streams, including headwater streams 
and higher order streams, perform the following categories of 
functions: System dynamics, hydrologic balance, sediment processes, and 
character, biological support, and chemical processes and pathways 
(Fischenich 2006). System dynamics includes stream evolution processes, 
succession of riparian plant communities, and energy management. 
Hydrologic balance involves surface water storage and surface/
subsurface water exchange processes, and hydrodynamics. Sediment 
processes and character include sediment continuity and the quality and 
quality of river and stream sediments. Biological support involves 
biological communities and processes, providing life cycle habitats, 
and trophic structures and processes. Chemical processes and pathways 
include water and soil quality as well as nutrient cycling (e.g., 
nitrogen). These basic stream functions were identified by a committee 
of scientists, engineers, and practitioners (Fischenich 2006), and 
apply to streams of all sizes. Headwater streams are linked to larger 
streams located in downstream tributaries through the transport of 
water, sediment, nutrients, and organic matter (Gomi et al. 2002).
    How these various stream functions manifest themselves in 
particular stream reaches within the tributary network of a watershed 
can vary. In headwater streams, hydrologic, biological, and geomorphic 
processes are strongly influenced by interactions between surrounding 
lands and the stream channels (Gomi et al. 2002). Much of the water in 
headwater streams comes from lands adjacent to those streams, whereas 
most of the water flowing through downstream tributaries (i.e., higher 
order streams) comes from headwater streams and other lower order 
streams (NRC 2002). Rivers and larger streams downstream of the 
headwaters are affected by the water flows from headwater streams, as 
well as water flows from floodplains and riparian areas, and usually 
have larger water storage capacities than headwater streams (Gomi et 
al. 2002). In rivers and larger streams, flooding usually occurs more 
gradually and for longer durations compared with the more abrupt 
flooding of headwater streams (NRC 2002). Stream channels that have 
substantial floodplains perform hydrologic transport and storage 
functions differently than stream channels that little or no floodplain 
(Beechie et al. 2013). Headwater streams and rivers and streams 
downstream of headwaters differ in ecosystem productivity, with gross 
primary production and macroinvertebrate production increasing 
significantly as stream and river size increases (Finlay 2011). The 
greater ecosystem productivity in rivers and larger streams compared to 
headwater streams may also result in these rivers and larger streams 
having a higher capacity to support other ecosystems functions, 
including habitat for larger predators and nutrient uptake (Finlay 
2011).
    Denitrification in streams is dependent on the area of stream bed 
where benthic sediment can interact with the nitrogen-laden water 
flowing in the stream channel (Alexander et al. 2000). Nitrogen loss in 
streams decreases as the size of the stream channel increases 
(Alexander et al. 2000), because water depth is usually greater in 
larger streams and there is less interaction between the water column 
and the stream sediments where the denitrification processes occur. In 
forested areas, headwater streams areas receive detritus (e.g., leaf 
litter, stems) from the surrounding forest and store, transform, and 
transport the organic matter and nutrients to downstream stream reaches 
(Meyer and Wallace and 2001) where they are used by organisms that live 
in those downstream waters. Organic matter transport and storage 
processes are affected by the structure of stream channels and the 
interactions between streams and their floodplains or riparian areas 
(Beechie et al. 2013). Organic matter is an important resource for 
streams because of its role in stream productivity.
    In terms of biological processes, the community structure of 
aquatic organisms and the structure of food webs of larger, downstream 
tributaries are different from headwater streams, and they are subject 
to disturbance regimes that are somewhat dissimilar from those 
experienced by headwater streams (Gomi et al. 2002). In-stream 
biological processes are dependent on a number of factors, such as 
stream flow,

[[Page 57320]]

the condition of the riparian area, and the diversity of in-stream 
habitats (Beechie et al. 2013). Larger streams also provide larger 
conduits for the movement of aquatic organisms and the transportation 
of sediment and nutrients (BenDor et al. 2009) through the stream 
network. In-stream habitat structure also varies from the headwaters to 
the mouth of the tributary system, from the step-pool stream morphology 
found in many headwater streams to braided, straight, or meandering 
lowland river channels (Beechie et al. 2013).
    Considering the similarities and differences in functions provided 
by rivers and streams in various locations throughout the tributary 
network in a watershed, the relative importance of the various stream 
orders in a tributary network is subjective. Commenters are invited to 
provide information on whether there are bases in statute, regulation, 
science, or policy on placing greater importance or value on headwater 
streams to support more stringent quantitative limits on losses of 
stream bed authorized by NWP activities, or whether consistent 
quantitative limits should apply to all non-tidal waters and wetlands. 
An additional consideration that factors into a district engineer's 
decision for a proposed NWP activity is the degree of stream functions 
being provided by a particular stream reach, which can vary from a 
fairly high level of functioning to degraded. The degree of 
functionality is strongly dependent on land uses in the watershed 
(e.g., Allan 2004) and other factors. For example, as land use 
intensity in a watershed increases, the ability of streams to remove 
nitrogen from the water column decreases (Mulholland et al. 2008). The 
PCN review process takes these factors, and other factors, into account 
when district engineers decide whether proposed activities qualify for 
NWP authorization. The various factors considered by district engineers 
are listed in Section D of the NWPs, in the second paragraph.
    The proposed changes to NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, 
and 52 are intended to provide equitable numeric limits for all non-
tidal waters and wetlands, in a manner consistent with current laws, 
regulations, and policies, including the 404(b)(1) Guidelines. The PCN 
review process would continue to be used to ensure that activities 
authorized by NWPs would continue to satisfy the requirement that they 
result in no more than minimal individual and cumulative adverse 
environmental effects.
    We are seeking comment on whether there is a legal, regulatory, 
policy, or scientific basis for imposing a more restrictive limit on 
losses of stream bed versus losses of non-tidal wetlands and other non-
tidal waters. In addition, we are soliciting comment on whether there 
is a scientific, policy, regulatory, or legal basis for a more 
restrictive limit on losses of headwater stream bed versus losses of 
stream bed for the larger streams that are further down in the stream 
network of a watershed.
    (4) Further the objective of the NWP Program in authorizing 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. A fourth reason for these proposed 
modifications is that they would further streamline the NWP 
authorization process and advance the objective of the NWP Program, 
which is to authorize, with little, if any, delay or paperwork certain 
activities having minimal impacts (see 33 CFR 330.1(b)). The proposed 
removal of the 300 linear foot limit for losses of stream bed from NWPs 
21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 would provide NWP 
authorization for losses of stream bed and other non-tidal waters that 
are less than \1/2\-acre, rather than requiring individual permits for 
losses of stream bed that are greater than 300 linear feet in length 
but less than \1/2\-acre in size. Other tools, such as the \1/2\-acre 
limit and the PCN process, would be used to ensure that these NWPs only 
authorize activities that result in no more than minimal individual and 
cumulative adverse environmental effects. For NWPs 21, 29, 39, 40, 42, 
43, 44, 50, and 52, pre-construction notification is required for all 
authorized activities. For NWP 51, pre-construction notification is 
required for losses of greater than \1/10\-acre of waters of the United 
States.
    Removing the 300 linear foot limit and the waiver provision for 
losses of stream bed would make NWP authorization available for 
proposed activities that will result in the loss of \1/2\-acre or less 
of stream bed and other non-tidal waters, as long as the district 
engineer determines after reviewing the PCN that the proposed activity 
would result in no more than minimal individual and cumulative adverse 
environmental effects. It could reduce the number of standard 
individual permits currently required to authorize losses of stream bed 
greater than 300 linear feet that also result in the loss of less than 
\1/2\-acre of stream bed, in areas where regional general permits are 
not available to authorize such activities.
    In addition, we are also proposing to remove the waiver provision 
from NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. Removal of the 
waiver provision may reduce costs to permittees, the Corps, and the 
federal and state agencies that participate in the agency coordination 
process in paragraph (d) of the ``Pre-Construction Notification'' 
general condition. In the 2017 versions of NWPs 21, 29, 39, 40, 42, 43, 
44, 50, 51, and 52, district engineers can waive the 300 linear foot 
limit for losses of intermittent and ephemeral stream bed, if after 
reviewing the PCN and conducting agency coordination under paragraph 
(d) of NWP general condition 32, the district engineer determines the 
individual and cumulative adverse environmental effects of the proposed 
activity will be no more than minimal. Under the 2020 final rule 
defining ``waters of the United States,'' intermittent streams are 
still subject to Clean Water Act jurisdiction, so removal of the 300 
linear foot limit for losses of intermittent stream bed and the waiver 
provision can provide cost savings to both permittes and the Corps. For 
permittees, removal of the waiver provision would reduce costs due to 
delays in receiving an NWP verification while the district engineer 
conducts agency coordination to determine if a waiver should be issued. 
For the Corps, administrative costs would be reduced because the Corps 
would no longer have to send copies of PCNs to the federal and state 
agencies that participate in the agency coordination process. The 
administrative costs for federal and state agencies would be reduced 
because they would not have to review PCNs that include requests for 
waiver of the 300 linear foot limit for losses of intermittent and 
ephemeral stream bed and write comments to send to the district 
engineer.
    Request for comment. We welcome comments and suggestions on the 
proposal to remove the 300 linear foot limit and to rely on the \1/2\-
acre limit, the PCN process, the proposed modification of the 
``mitigation'' general condition, and other tools to comply with the 
statutory and regulatory requirement that activities authorized by NWP 
must result in no more than minimal individual and cumulative adverse 
environmental effects. We are also inviting comment on whether there 
are situations where quantifying losses of stream bed in linear feet 
more accurately represents the actual amount of stream bed filled or 
excavated as a result of an NWP activity and would result in more 
defensible determinations on whether a proposed NWP activity will 
result in no more than minimal individual and cumulative adverse 
environmental effects. Such comments should include information that 
helps illustrate or explain how and under what circumstance using a 
linear foot

[[Page 57321]]

measure to quantify losses of stream bed is more accurate than using 
square feet or acres to quantify the amount of authorized impacts.
    We are also soliciting comment on the legal, regulatory, policy, or 
scientific bases for imposing different numeric limits on stream bed 
losses versus losses of non-tidal wetlands or other types of non-tidal 
waters. For example, commenters are invited to consider the regulatory 
approach in the current 404(b)(1) Guidelines, as well as other 
regulations and policies for implementing Section 404 of the Clean 
Water Act, to provide their views on whether there are legal, 
regulatory, and/or policy justifications for a more restrictive numeric 
limit for losses of stream bed compared with other types of waters of 
the United States. Commenters are encouraged to provide supporting 
information in the form of citations to laws, regulations, and 
policies, and the scientific literature, because substantive 
information would be valuable in assisting the Corps in preparing the 
final NWPs.
    We are also requesting comment on an alternative hybrid approach to 
establishing consistent quantitative limits for losses of stream bed 
authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. Under 
this hybrid approach, losses of stream bed would continue to be 
quantified in linear feet as long as the activities authorized by these 
NWPs would result only in the loss of stream bed. There would be linear 
foot limits for losses of stream bed by stream order identified using 
the Stahler (1957) method, and the mean stream widths identified by 
Downing et al. (2012). If a proposed NWP activity would result in the 
loss of stream bed plus other types of waters of the United States, 
such as non-tidal wetlands, the losses of waters of the United States 
would be quantified in acres and subjected to the \1/2\-acre limit. The 
following table presents the various limits for different stream orders 
and for other types of non-tidal waters of the United States.

----------------------------------------------------------------------------------------------------------------
                                               Mean stream width
          Aquatic resource category             (Downing et al.       Quantitative limit (includes \1/2\-acre
                                                  2012) (feet)         equivalent for losses of stream bed)
----------------------------------------------------------------------------------------------------------------
Non-tidal wetlands...........................                n/a  \1/2\-acre.
Other non-tidal waters (e.g., lakes, ponds,                  n/a  \1/2\-acre.
 ditches).
1st order streams............................                6.3  3,470 linear feet.
2nd order streams............................                8.6  2,540 linear feet.
3rd order streams............................               24.8  880 linear feet.
4th order streams............................               90.8  240 linear feet.
5th order streams............................                240  90 linear feet.
6th order streams............................                641  35 linear feet.
A proposed NWP activity that would impact                    n/a  \1/2\-acre.
 both stream bed and another aquatic resource
 category (e.g., non-tidal wetlands).
----------------------------------------------------------------------------------------------------------------

    A critical component of effectively applying this hybrid approach 
is identifying the correct stream order for the stream segment that is 
proposed to be filled or excavated as a result of the proposed NWP 
activity. The scale of the map used identify stream segments influences 
the stream order assigned to those stream segments (Gomi et al. 2002). 
The addition or exclusion of a small stream segment can substantially 
alter the stream orders identified for downstream stream segments 
(Leopold 1994), so complete and accurate mapping would be needed to 
implement this hybrid approach for quantitative limits for these NWPs. 
Topographic maps drawn at 1:100,000 or 1:500,000 scales exclude more 
headwater and other smaller order streams than topographic maps that 
are drawn at a 1:24,000 scale (Meyer and Wallace 2001, Leopold 1994). 
Topographic maps drawn at 1:24,000 scale do not show a substantial 
proportion of perennial headwater streams (Leopold 1994) in the 
tributary network. In a study of stream mapping in the southeastern 
United States, only 14 to 20 percent of the stream network was mapped 
on 1:24,000 scale topographic maps (Hansen 2001). A study in 
Massachusetts showed that 1:25,000 metric scale topographic maps 
exclude over 27 percent of stream miles in a watershed (Brooks and 
Colburn 2011). Brooks and Coburn (2011) concluded that are significant 
and complex stream networks exist upslope of most mapped stream 
origins.
    In this hybrid approach, the linear foot limits would only apply to 
losses of stream bed. If a proposed NWP activity would result in a 
combination of losses of stream bed and other types of waters of the 
United States, such as non-tidal wetlands, then the \1/2\-acre limit 
would apply to the combined losses of stream bed and non-tidal 
wetlands, to keep those losses below \1/2\-acre.The Corps invites 
public comment on this hybrid approach, and any suggestions on how it 
could be improved for clarity and consistent application.

B. Discussion of Additional Proposed Modifications to Existing 
Nationwide Permits

    NWP 3. Maintenance. We are proposing to modify paragraph (a) of 
this NWP to authorize the repair, rehabilitation, or replacement of any 
currently serviceable structure or fill that did not require DA 
authorization at the time it was constructed. This proposed 
modification is intended to provide consistency with another NWP that 
authorizes maintenance activities, NWP 31 (Maintenance of Existing 
Flood Control Facilities). Nationwide permit 31 authorizes maintenance 
of existing flood control facilities that were constructed at a time 
when DA authorization was not required for that construction.
    Prior versions of NWP 3 that were issued in 1982 (47 FR 31832) and 
1986 (51 FR 41255) authorized the maintenance of any currently 
serviceable structure or fill that was constructed prior to the 
requirement for authorization. When NWP 3 was reissued in 1991 (56 FR 
59141), this provision was removed without explanation. We are 
proposing to reinstate this provision in NWP 3 to authorize maintenance 
of these structures and fills, as long as they are currently 
serviceable. If they are not currently serviceable, then they would 
require a different form of DA authorization to reconstruct those 
structures and fills.
    Under the current NWP 3, the repair, rehabilitation, or replacement 
of any currently serviceable structure or fill that was constructed 
before the permit requirements under section 404 of the Clean Water Act 
and/or section 10 of the

[[Page 57322]]

Rivers and Harbors Act of 1899 were established requires an individual 
permit unless the repair, rehabilitation, or replacement activity 
qualifies for authorization under another NWP or a regional general 
permit. These structures and fills have been in place for many years, 
and the other terms of paragraph (a) of this NWP will help ensure that 
the adverse environmental effects of these repair, rehabilitation, or 
replacement activities will be no more than minimal. This includes the 
requirement that the structures or fills be currently serviceable, and 
that only minor deviations in the configuration of the structure or 
fill are authorized.
    In addition, we are proposing to modify the ``Note'' in NWP 3 to 
replace the phrase ``previously authorized'' with ``currently 
serviceable'' to be consistent with our proposal to modify paragraph 
(a) to authorize the repair, rehabilitation, or replacement of any 
currently serviceable structure or fill that did not require DA 
authorization at the time it was constructed. The currently serviceable 
structure or fill could have been previously authorized, authorized by 
33 CFR 330.3, or did not require Corps authorization at the time it was 
constructed.
    We are also proposing to modify paragraph (a) of this NWP to 
authorize the placement of new or additional riprap to protect the 
structure, provided the placement of riprap is the minimum necessary to 
protect the structure or to ensure the safety of the structure. This 
provision was last in the 2007 version of NWP 3 (see 72 FR 11181). It 
was removed from the 2012 NWP 3 (see 84 FR 1984). The placement of 
riprap to protect the structure or fill, or to comply with current 
construction codes or safety standards, could be authorized under the 
current text of NWP 3 as a minor deviation, but we are proposing to 
provide clarity and regulatory certainty to prospective permittees and 
other interested parties by adding an explicit provision to paragraph 
(a). We are proposing to restore, with minor changes to better fit the 
text into paragraph (a), the provision concerning the placement of 
riprap to protect the structure or ensure safety that was in the 2007 
NWP 3. Adding small amounts of riprap to protect the existing structure 
should, in most circumstances result in no more than minimal individual 
and cumulative adverse environmental effects because that riprap will 
protect the structure from erosive forces that can damage the structure 
and move pieces of the structure into the waterway where it can 
adversely affect the waterbody. Adding small amounts of riprap will 
help improve the safety of the structure, an important consideration 
under the Corps' public interest review factors at 33 CFR 320.4.
    NWP 12. Oil and Natural Gas Pipeline Activities. We are proposing 
to modify this NWP to limit it to oil and natural gas pipeline 
activities and to issue two new NWPs to authorize electric utility line 
and telecommunications activities (proposed new NWP C) and other 
utility line activities that convey other substances, such as potable 
water, sewage, wastewater, stormwater, brine, or industrial products 
that are not petrochemicals (proposed new NWP D). Proposed NWPs C and D 
are discussed further below. We are also proposing to reduce the number 
of thresholds that trigger the need for a PCN from seven to two. Pre-
construction notification will be required for all utility line 
activities that require authorization under section 10 of the Rivers 
and Harbors Act of 1899. Pre-construction notification will continue to 
be required for utility line activities that result in the loss of 
greater than \1/10\-acre of waters of the United States.
    We are proposing to modify NWP 12 to authorize only oil and natural 
gas pipeline activities. We are also proposing to issue two separate 
and new NWPs to authorize electric utility line and telecommunications 
activities (proposed new NWP C) and utility lines that convey 
substances other than oil or natural gas or electricity (proposed new 
NWP D). The intent of this proposal is to tailor these NWPs to more 
effectively address potential differences in how the different types of 
utility lines are constructed, maintained, and removed, and to 
potentially add industry-specific standards or best management 
practices that would be appropriate to add as national terms to the 
applicable NWP to help ensure that the NWP authorizes only those 
activities that will result in no more than minimal individual and 
cumulative adverse environmental effects. The ``terms'' of an NWP, as 
defined at 33 CFR 330.2(h), are ``the limitations and provisions 
included in the description of the NWP itself.''
    The majority of NWP 12 activities are for oil and natural gas 
pipeline activities. We examined a sample of NWP 12 verifications 
issued between March 19, 2017, and March 18, 2019, and found that 58 
percent of the authorized activities were for oil and gas pipelines. 
Electric utility line and telecommunications activities accounted for 
12 percent of the verified NWP 12 activities during that time period. 
Other utility line activities, such as water lines, sewer lines, pipes 
for conveying stormwater, wastewater, and brine, and other types of 
utility lines comprises the remaining 30 percent of the NWP 12 
verifications issued.
    Oil and natural gas pipelines can be constructed in-ground or above 
ground. Oil and natural gas pipelines can vary substantially in length 
and diameter. The main oil pipelines used to transport crude oil to 
different regions of the country are typically 8 to 24 inches in 
diameter, although the largest oil pipeline in the United States is the 
Trans-Alaska Pipeline System, with a 48-inch diameter.\2\ Oil gathering 
lines can be smaller, usually ranging from 2 to 8 inches in diameter.
---------------------------------------------------------------------------

    \2\ https://pipeline101.org/How-Do-Pipelines-Work (accessed 
March 31, 2020).
---------------------------------------------------------------------------

    Oil and natural gas pipelines, especially interstate transmission 
lines, can extend for long distances, with numerous crossings of waters 
of the United States that may be authorized by NWP 12. Oil and natural 
gas pipelines can run across states, or can be smaller local lines. In 
the United States, there are approximately 72,000 miles of crude oil 
pipelines.\3\ For natural gas pipelines, there are over 300,000 miles 
of interstate and intrastate transmission pipelines in the United 
States, along with 2,100,000 miles of natural gas distribution 
pipelines.\4\
---------------------------------------------------------------------------

    \3\ Ibid.
    \4\ https://pipeline101.com/Why-Do-We-Need-Pipelines/Natural-Gas-Pipelines (accessed April 1, 2020).
---------------------------------------------------------------------------

    Natural gas pipelines can range in size from 6 to 48 inches \5\ in 
diameter, with the size being dependent on their intended function. For 
example, the main transmission pipes for transporting natural gas are 
typically 16 to 48 inches in diameter, and the pipelines that branch 
off of the main transmission pipeline are usually 6 and 16 inches in 
diameter. The majority of interstate natural gas pipelines are between 
24 and 36 inches in diameter. Rights of way for natural gas pipelines 
are generally up to 60 feet in width.\6\
---------------------------------------------------------------------------

    \5\ http://naturalgas.org/naturalgas/transport/ (accessed March 
31, 2020).
    \6\ https://www.nwnatural.com/business/safety/pipelinerightofway 
(accessed March 31, 2020).
---------------------------------------------------------------------------

    The Corps is proposing to remove electric utility lines and 
telecommunication lines, as well as utility lines that convey water and 
other substances, from NWP 12 because of the differences between oil 
and natural gas pipelines, electric and telecommunication lines, and 
utility lines that carry water and other substances. Some of these 
differences are described in the following paragraphs.
    Electric utility lines and telecommunication lines vary in size and 
length, and how they are

[[Page 57323]]

constructed. Electric utility lines and telecommunication lines can be 
overhead transmission lines supported by towers or poles, or they can 
be buried underground. The footprints of the structures that support 
overhead electric lines, and the impacts of installing those 
structures, are fairly small, with the ground disturbance generally 
limited to the immediate vicinity of the structure, Overhead 
transmission line towers have footings that are usually 5 to 8 feet 
wide \7\ and embedded into the soil surface, and their relatively small 
size results in small impacts to wetlands and types of other waters. 
The footings are generally several feet in size. The wooden poles used 
for overhead electric transmission lines can be up to 27 inches in 
diameter,\8\ and these poles are usually inserted into the soil surface 
by digging a hole, with some soil disturbance in the vicinity of the 
installed pole. Electric transmission cables can also be installed in 
the ground through trenching and backfilling, and through horizontal 
directional drilling. Electric transmission lines have relatively 
smaller diameters compared with those of oil or natural gas pipelines 
and other pipelines. For example, a 500-kV underground electric cable 
is usually had a diameter of 5.5 to 6 inches.\9\ The installation of 
underground electric lines can more adverse environmental impacts than 
the construction of overhead electric transmission lines.\10\
---------------------------------------------------------------------------

    \7\ https://www.xcelenergy.com/staticfiles/xe/Corporate/Corporate%20PDFs/OverheadVsUnderground_FactSheet.pdf (accessed April 
1, 2020).
    \8\ http://www.ldm.com/docs/dimensiontables_df_sp.pdf (accessed 
April 1, 2020).
    \9\ https://www.datcllc.com/learn/underground-transmission/ 
(accessed April 1, 2020).
    \10\ Ibid and https://www.xcelenergy.com/staticfiles/xe/Corporate/Corporate%20PDFs/OverheadVsUnderground_FactSheet.pdf 
(accessed April 1, 2020).
---------------------------------------------------------------------------

    In the United States, there are more than 360,000 miles of 
transmission lines (U.S. Department of Energy 2015, citing the North 
American Electric Reliability Corporation Electricity Supply and Demand 
Database at http://www.nerc.com/page.php?cid=4[bond]38). From these 
transmission lines, other electric lines are constructed to transmit 
the electrical energy to users, such as commercial building and 
residences.
    Utility lines for conveying potable water, water, sewage, 
stormwater, wastewater, brine, irrigation water, and industrial 
products that are not petrochemicals, are often limited to specific 
areas, where they serve cities, towns, and other communities, 
residential developments, commercial developments, These utility lines 
can be constructed below ground, by trenching and backfilling or by 
horizontal directional drilling. They can also be constructed above 
ground in some circumstances. Utility lines for transporting water, 
sewage, and other substances vary in diameter. Main pipelines for 
transporting potable water are often 24 inches in diameter, although 
some of these water lines can be larger (NRC 2006). Water lines used 
for both transmission and distribution are usually 16 to 20 inches in 
diameter (NRC 2006). Distribution water lines are typically 4 to 12 
inches in diameter (NRC 2006). Sanitary sewer pipelines can range in 
size from 3 inches to a two feet in diameter.\11\ The size of the 
trench for installing underground water, sewer, and other utility 
pipelines, as well as the disturbed areas next to the trench, likely 
varies with the size of the pipeline.
---------------------------------------------------------------------------

    \11\ https://www.engineeringtoolbox.com/sewer-pipes-capacity-d_478.html (accessed July 14, 2020).
---------------------------------------------------------------------------

    As suggested above, there are likely generally to be differences in 
the relative amounts of ground disturbance and other related 
activities, including impacts to wetlands and other waters, for oil and 
gas pipelines, electric transmission lines, and pipelines carrying 
water and other substances that suggest that there is potential for 
adding different terms to each of these three proposed NWPs to include 
national standards and best management practices to help ensure that 
each of these NWPs authorizes only those activities that have no more 
than minimal adverse environmental effects.
    For the proposed modification of NWP 12, we are soliciting comments 
and suggestions for national standards or best management practices for 
oil and natural gas pipeline activities that would be appropriate to 
add to this NWP, and within the Corps' legal authority to enforce as 
terms and conditions of an NWP authorization. Adding such national 
standards or best management practices may also address concerns 
expressed regarding Corps regional conditions added to the NWPs by 
division engineers that are discussed above in the preamble to this 
proposed rule. To summarize, a number of commenters have expressed 
concern about potential inconsistency in Corps regional conditions for 
the NWPs, and adding national standards and best management practices 
to the text of proposed NWP 12 has potential to provide additional 
environmental protection and promote consistency, regulatory certainty, 
transparency and predictability.
    For the proposed modifications of NWP 12 and the proposed new NWPs 
C and D, we are proposing to retain the basic structure of the 2017 NWP 
12, since many of the activities authorized by the 2017 NWP 12 could 
apply to any utility line, regardless of what substances it conveys. 
That basic structure would provide consistency and be familiar to 
potential users of the new NWP 12 and new NWPs C and D.
    We are proposing to change the title of this NWP to ``Oil or 
Natural Gas Pipeline Activities'' to reflect the type of substances 
that can be conveyed by these utility lines. The title of this NWP 
refers to ``activities'' because the Corps does not regulate oil or 
natural gas pipelines per se. The Corps only regulates specific 
activities associated with oil or natural gas pipelines that are 
regulated under Section 404 of the Clean Water Act (i.e., discharges of 
dredged or fill material into waters of the United States) and Section 
10 of the Rivers and Harbors Act of 1899 (i.e., structures or work in 
navigable waters of the United States).
    We are proposing to modify the second paragraph of this NWP to 
replace the phrase ``utility lines'' with ``oil or natural gas 
pipelines'' to address the increased specificity of this NWP to oil or 
natural gas pipelines. We are also proposing to replace the definition 
of ``utility line'' with ``oil or natural gas pipeline.'' The proposed 
definition of ``oil or natural gas pipeline'' reads as follows: ``An 
`oil or natural gas pipeline' is defined as any pipe or pipeline for 
the transportation of any form of oil or natural gas, including 
petrochemical products, for any purpose.'' Including petrochemical 
products in the proposed definition is intended to clarify that this 
NWP covers utility lines that convey chemicals isolated or derived from 
petroleum or natural gas.
    We are proposing to retain the paragraph covering substations 
constructed in non-tidal waters of the United States because oil or 
natural gas substations are often necessary for an oil or natural gas 
pipeline. We are proposing to modify the fifth paragraph of this NWP to 
authorize foundations for above-ground oil or natural gas pipelines 
into all waters of the United States. In this paragraph, we are also 
proposing to remove references to ``towers'' since towers are generally 
constructed for overhead electric lines. We are proposing to retain the 
paragraph on access roads, since access roads may be necessary to 
construct or maintain oil or natural gas pipelines. In paragraph six, 
we are proposing to change the last sentence to state that oil or 
natural gas pipelines routed in, over,

[[Page 57324]]

or under section 10 waters without a discharge of dredged or fill 
material require a section 10 permit.
    We are proposing to retain the paragraph that authorizes, to the 
extent that DA 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 oil or natural gas pipelines. Horizontal directional drilling 
may be used to construct or replace oil or natural gas pipelines, and 
if inadvertent returns occur during these activities, this NWP can be 
used to authorize remediation activities so that they can occur in a 
timely manner to minimize adverse environmental effects that might be 
caused by these inadvertent returns. In addition, we are proposing to 
retain the paragraph that authorizes temporary structures, fills, and 
work, including the use of temporary mats, necessary to conduct the oil 
or natural gas pipeline activity.
    We are proposing to modify this NWP to reduce the number of PCN 
thresholds, to simplify the notification requirements of this NWP and 
reduce burdens on the regulated public. The proposed changes to the PCN 
requirements would retain those PCN thresholds that involve regulated 
activities that have a more substantive potential result in more than 
minimal adverse environmental effects and should be reviewed by the 
district engineer to determine whether those proposed activities 
qualify for NWP authorization or discretionary authority exercised to 
require an individual permit. In the paragraphs below, we summarize the 
history of the PCN requirements for NWP 12. We also discuss our 
rationales for removing specific PCN thresholds to simplify the PCN 
requirements for this NWP, and for proposed new NWPs C and D.
    Nationwide permit 12 was first issued in 1977 (42 FR 37146, at 33 
CFR 323.4-3(a)(1)). The original NWP 12 authorized discharges of 
dredged or fill material ``placed as backfilling or bedding for utility 
line crossings provided there is no change in pre-construction bottom 
contours.'' The 1977 NWP 12 also included a statement that a utility 
line in navigable waters of the United States would require separate 
authorization under Section 10 of the Rivers and Harbors Act of 1899. 
This NWP did not have any PCN requirements. The versions of NWP 12 
issued in 1982 (47 FR 31833) and 1986 (51 FR 41255) authorized similar 
activities and did not have any PCN requirements. The 1991 NWP 12 (56 
FR 59141) did not have any PCN requirements and the NWP was reissued 
with modifications to authorize associated outfall and intake 
structures. The 1991 NWP 12 excluded activities that drain a water of 
the United States, such as drainage tile. It also imposed requirements 
for temporary sidecasting of excavated material into waters of the 
United States, and for backfilling trenches.
    When NWP 12 was reissued in 1996 (61 FR 65874), it was modified to 
authorize utility lines that required section 10 authorization and four 
PCN thresholds were added to that NWP. Pre-construction notification 
was required if the proposed NWP activity met any of these four 
criteria: (1) Mechanized land-clearing in a forested wetland, (2) a 
section 10 permit is required for the utility line, (3) the utility 
line in waters of the United States exceeds 500 feet, or, (4) the 
utility line is placed within a jurisdictional area (i.e., a water of 
the United States), and it runs parallel to a streambed that is within 
that jurisdictional area.
    The first PCN threshold was added in 1996 to provide district 
engineers an opportunity to review utility line activities that involve 
mechanized land-clearing of forested wetlands to determine whether 
those activities will result in no more than minimal adverse 
environmental effects (61 FR 65884) The second PCN threshold was added 
to ensure the navigable capacity of navigable waters of the United 
States (i.e., section 10 waters) will not be adversely affected by 
utility line activities that require section 10 authorization. The 
third and fourth PCN thresholds were also added to provide the district 
engineer to review proposed utility lines placed parallel to a stream 
bed or utility lines in waters of United States that exceed 500 linear 
feet (61 FR 65884).
    In 2000, as part of its effort to replace NWP 26 with new and 
modified NWPs (see 65 FR 12818), NWP 12 was reissued with modifications 
to authorize discharges of dredged or fill material into waters of the 
United States to construct utility line substations, foundations for 
overhead utility line towers, poles, and anchors, and access roads to 
construct and maintain utility lines (65 FR 12887). These additional 
activities may have been authorized by NWP 26, and three PCN thresholds 
were added to the 2000 NWP 12. Those three new PCN thresholds were: (1) 
Discharges associated with the construction of utility line substations 
that result in the loss of greater than \1/10\-acre of waters of the 
United States; (2) permanent access roads constructed above grade in 
waters of the United States for a distance of more than 500 feet; and 
(3) permanent access roads constructed in waters of the United States 
with impervious materials. These additional PCN thresholds were added 
to give district engineers the opportunity to review the proposed 
activities and determine whether they qualify for NWP authorization (65 
FR 12845). These PCN thresholds were retained when NWP 12 was reissued 
in 2002 (67 FR 2080).
    In the 2007 NWPs, the provision requiring the project proponent to 
submit a PCN if the proposed NWP 12 activity involves discharges 
associated with the construction of utility line substations that 
result in the loss of greater than \1/10\-acre of waters of the United 
States was changed. The modified PCN threshold applies to all 
discharges of dredged or fill material into waters of the United States 
authorized by NWP 12 that result in the loss of greater than \1/10\-
acre of waters of the United States (see 72 FR 11183). These PCN 
thresholds were retained when NWP 12 was reissued in 2012 (77 FR 10272) 
and 2017 (82 FR 1986).
    To simplify the PCN requirements for this NWP and focus the PCN 
requirements on activities that have a substantive potential to result 
in more than minimal adverse environmental effects, we are proposing to 
remove the following PCN thresholds: (1) Utility line activities 
involving mechanized land clearing in a forested wetland for the 
utility line right-of-way; (2) the utility line in waters of the United 
States, excluding overhead lines, exceeds 500 feet; (3) 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; (4) permanent access roads are constructed 
above grade in waters of the United States for a distance of more than 
500 feet; and (5) permanent access roads are constructed in waters of 
the United States with impervious materials. The reduction of the 
number of PCN thresholds in NWP 12 will reduce burdens on the regulated 
public, simplify the NWP, and eliminate redundancy. Since these PCN 
thresholds were adopted, there have been requirements added to NWP 12 
that address the adverse environmental impacts that the PCN thresholds 
were trying to address, and those added requirements apply to all NWP 
12 activities, including those activities that do not require PCNs. 
Those

[[Page 57325]]

requirements are discussed below, including the reasons why removing 
the PCN thresholds will reduce redundancy with the requirements of NWP 
12 that minimize adverse environmental effects of authorized 
activities.
    In the paragraphs below, we discuss each of the five PCN thresholds 
and why we are proposing to remove that PCN threshold to simplify the 
PCN requirements and reduce redundancy. In the paragraphs that follow, 
we use the term ``utility line'' because we are proposing the same PCN 
thresholds for NWPs 12, C, and D.
    (i) The activity involves mechanized land clearing in a forested 
wetland for the utility line right-of-way. This PCN threshold was added 
to NWP 12 in 1996. We are proposing to remove this PCN threshold 
because mechanized landclearing of forested wetlands in the utility 
line right of way usually results in temporary impacts to the wetlands 
and other waters as the trees are removed to clear a right-of-way for 
the utility line. Even though the trees are removed, the disturbed 
wetland will develop a new plant community, and because of the 
maintenance that is normally required for utility line rights-of-way to 
protect the utility line, the plant community will likely consist 
primarily of herbaceous plants and shrubs. If mechanized landclearing 
of forested wetlands in the utility line right-of-way results in the 
loss of greater than \1/10\ acre of wetland, then the proposed activity 
would require a PCN. There is some soil disturbance during mechanized 
landclearing activities, but under the requirements of NWP 12 the 
disturbed soils must be restored to pre-construction elevations (see 
the ninth paragraph of the 2017 NWP 12). For mechanized landclearing, a 
section 404 permit is required if that soil disturbance meets the 
definition of ``discharge of dredged material'' at under 33 CFR 
323.2(d).
    Despite the removal of the trees, under the current requirements 
for NWP 12, the affected area should remain a wetland, even though the 
plant community will be managed so that it does not damage the utility 
line or adversely affect its operation and use. The cleared forested 
wetland is likely to develop into an herbaceous wetland or a scrub-
shrub wetland, depending on the maintenance requirements for the 
utility line. Even with such a change in plant community structure, the 
affected wetlands will continue to provide habitat functions, since the 
habitat functions of forests differ somewhat from the habitat functions 
of herbaceous or scrub-shrub wetlands. Despite the change in general 
plant community structure, the wetland will still perform hydrologic 
functions (e.g., water storage) and biogeochemical cycling functions 
(e.g., nitrogen cycling).
    In 2007 (see 72 FR 11183), the text of NWP 12 was modified by 
adding a paragraph that authorizes temporary structures, fills, and 
work, including the use of temporary mats, necessary to conduct the 
utility line activity. The NWP also requires temporary fills to be 
removed in their entirety after construction of the utility line, and 
the affected areas returned to pre-construction elevations. NWP 12 also 
currently requires the areas affected by temporary fills to be 
revegetated, as appropriate. This provision applies to all NWP 12 
activities, including those activities that do not require PCNs. This 
provision was retained in the 2012 NWP 12 (77 FR 10271) and the 2017 
NWP 12 (82 FR 1985). The requirement that temporary fills, including 
temporary fills that are created as a result of mechanized land 
clearing of a forested wetland in the utility line right of way, must 
be restored to pre-construction elevations helps ensure that the 
wetlands in the utility line right-of-way remain wetlands, even if a 
different category of wetland. Those wetlands will continue to provide 
hydrologic functions, biogeochemical cycling functions, and habitat 
functions. For those NWP 12 activities that require PCNs under any of 
the other PCN thresholds, district engineers can require mitigation for 
the change in wetland functions that may occur as a result of changing 
the wetland type from forested to herbaceous or scrub-shrub wetland 
(see paragraph (i) of the ``mitigation'' general condition (GC 23)).
    (ii) The utility line in waters of the United States, excluding 
overhead lines, exceeds 500 feet. This PCN threshold was also added to 
NWP 12 in 1996 and applies to primarily to underground utility lines 
(e.g., utility lines installed by trenching and backfilling). This PCN 
threshold could apply to above-ground utility lines, if the 
installation of those above-ground utility lines involves discharges of 
dredged or fill material into waters of the United States. Some above-
ground utility lines are constructed with footings that support the 
utility line a short distance above ground, but not to a height that 
would be considered an overhead utility line. Above-ground utility 
lines that involve only structures, with no associated discharge of 
dredged or fill material into waters of the United States, do not 
require DA authorization unless they trigger a DA permit requirement 
under Section 10 of the Rivers and Harbors Act of 1899. If section 10 
authorization is required, then a PCN is required for the proposed 
activity under the first the PCN thresholds we are proposing to retain 
under proposed NWPs 12, C, and D.
    For underground utility lines that are installed by trenching and 
backfilling, there are a couple of provisions in NWP 12 that will 
ensure that these activities will result in only temporary impacts to 
jurisdictional waters and wetlands. The first requirement is the third 
paragraph of the 2017 NWP 12:

    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.

    This provision requires the restoration of the affected 
jurisdictional waters and wetland, and prohibits below-ground utility 
line installations that would drain the wetland or other type of water. 
Therefore, this requirement helps to ensure that no permanent wetland 
losses occur as a result of these activities. Various iterations of 
this provision have been in NWP 12 since 1991.
    For underground utility lines that are installed by horizontal 
directional drilling, there is no ground disturbance except at the 
entry and exit points for the drilling equipment. If the entry and/or 
exit points are in jurisdictional waters and wetlands, and the creation 
of the entry and exit points during construction result in discharges 
of dredged or fill material into waters of the United States, then a 
section 404 permit is required. The rest of the utility line will be 
below any wetlands or other waters that are on the surface, but the 
installation of the below-ground utility line itself does not trigger a 
requirement for a section 404 permit because it is below the surface 
and does not involve a discharge of dredged or fill material. The entry 
and exit points for the horizontal directional drilled utility line 
would have to be restored after construction is completed because of 
the other provisions of NWP 12. Under this PCN threshold, a utility 
line that is installed by horizontal directional drilling under 
jurisdictional waters and wetlands for a length of more than 500

[[Page 57326]]

linear feet would require a PCN, even though the construction of that 
utility line does not trigger a permit requirement under Section 404 of 
the Clean Water Act. This potential scenario is one reason why we are 
proposing to remove this PCN threshold, especially as horizontal 
directional drilling is increasing in use to avoid or minimize impacts 
to aquatic resources and other resources. We are also proposing to 
remove this PCN threshold for clarity, because there can be varying 
interpretations of whether a utility line constructed below wetlands or 
other types of waters via horizontal directional drilling is in waters 
of the United States.
    The other provision of NWP 12 that helps ensure that wetland 
impacts caused by underground utility lines are temporary, and make 
this PCN threshold unnecessary is the ninth paragraph of the 2017 NWP 
12, which we are proposing to retain in proposed NWPs 12, C, and D:

    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.

    This provision was added to NWP 12 in 2007, after the PCN threshold 
was added in 1996. The NWP requires the affected wetlands and waters be 
restored by removing temporary fills in their entirety and returned to 
pre-construction elevations. Revegetation of the affected area may also 
occur, or the affected area can be allowed to revegetate through 
natural processes, such as plants that germinate and grow from the seed 
bank present in the soil and plant propagules colonizing the affected 
area from nearby plant communities.
    We are proposing to remove this PCN threshold because of the 
requirements in the NWP to ensure that these impacts are temporary. We 
are also proposing to remove this provision to take away any ambiguity 
that may exist when applying this PCN threshold to utility lines 
constructed by horizontal directional drilling. We believe the other 
terms and conditions of this NWP will ensure that utility lines, 
excluding overhead utility lines, in waters of the United States for a 
distance of more than 500 linear feet have no more than minimal 
individual and cumulative adverse environmental effects.
    (iii) 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. We are proposing to 
remove this PCN threshold for reasons similar to the reasons provided 
above, that is, the requirements of the third and ninth paragraphs of 
2017 NWP 12 to restore these temporary impacts. The third paragraph 
addresses the requirements for trenching and backfilling underground 
utility lines to ensure those impacts are temporary and do not result 
in a loss of waters of the United States. The ninth paragraph also 
addresses the requirements for restoring temporary fills, so that those 
fills do not result in losses of jurisdictional waters and wetlands.
    There may be utility lines constructed in stream beds, where the 
stream bed is excavated to create a trench, and after the utility line 
is placed in the trench, the trench is backfilled. This is a temporary 
impact, because the stream bed material that is excavated from the 
stream bed to create the trench is required by the NWP to be used for 
backfilling the trench. After the trench is backfilled, the stream 
flows will continue to transport sediment through normal stream fluvial 
geomorphic processes. Stream beds are dynamic and are constantly 
shifting, and the flowing water transports sediments of varying sizes 
downstream. Sediment transport may occur as bed load or suspended load 
(Leopold 1994). Bed load is sediment (usually larger sediment such as 
gravel or cobbles) that is transported downstream along the stream bed, 
and suspended load is sediment (usually fine sediment such as silt) 
that is transported in the water column.
    Likewise, utility lines constructed parallel to a stream bed that 
are in jurisdictional waters are subject to the requirements in the 
third and ninth paragraphs of NWP 12 to ensure that the impacts of 
constructing, maintaining, removing, or replacing those utility lines 
are temporary and no more than minimal.
    Since this PCN threshold is addressed by the requirements to ensure 
that the impacts of utility line construction, maintenance, removal, or 
replacement in waters of the United States are temporary, we are 
proposing to remove this PCN threshold. The requirements in NWP 12 for 
trenching and backfilling, avoiding constructing french drains, 
removing temporary fills, and restoring areas affected by temporary 
fills, will ensure that those activities result in no more than minimal 
individual and cumulative adverse environmental effects.
    (iv) Permanent access roads are constructed above grade in waters 
of the United States for a distance of more than 500 feet. This PCN 
threshold is redundant with the requirement to submit a PCN for the 
loss of greater than \1/10\-acre of waters of the United States. Access 
roads for electric utility lines and telecommunication lines have 
average widths that range from 12 feet to 20 feet, but may be up to 40 
feet wide in some circumstances.\12\ Access roads for oil or natural 
gas pipelines have average widths that range from 12 to 24 feet.\13\
---------------------------------------------------------------------------

    \12\ https://www.aeptransmission.com/property-owners/access-roads.php (accessed April 1, 2020).
    \13\ https://www.blm.gov/sites/blm.gov/files/Chapter%204%20-%20Construction%20and%20Maintenance.pdf (accessed April 1, 2020).
---------------------------------------------------------------------------

    A permanent access road with an average width of 12 feet 
constructed over 500 feet in jurisdictional wetlands will result in a 
loss of 0.14 acre of waters of the United States. Since the narrowest 
access road constructed over 500 linear feet would result in a loss of 
greater than \1/10\ acre, this PCN threshold does not cover any 
activities that are not already covered by the PCN threshold that 
requires notification for losses of waters of the United States that 
exceed \1/10\-acre. Therefore, this PCN threshold is redundant with the 
\1/10\-acre PCN threshold and we are proposing to remove it.
    (v) Permanent access roads are constructed in waters of the United 
States with impervious materials. This PCN threshold was added to NWP 
12 in 2000 (65 FR 12888). The sixth paragraph of the 2017 NWP 12 
addresses the requirements for access roads for utility lines, and we 
are proposing to retain this paragraph (with some minor changes to 
address differences among the various types of utility lines) in the 
proposed modifications to NWP 12 and in proposed new NWPs C and D. This 
paragraph imposing the following requirements for access roads:

    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 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

[[Page 57327]]

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.

    Permanent access roads constructed in waters of the United States 
that will result in the loss of greater than \1/10\-acre of waters of 
the United States require PCNs under the PCN threshold for losses of 
greater than \1/10\-acre. For permanent access roads that would result 
in the loss of less than \1/10\-acre of waters of the United States, 
the project proponent could choose to use NWP 14 to authorize that road 
crossing in waters of the United States without having to submit a PCN, 
as long as the waters of the United States are not wetlands or another 
type of special aquatic site.
    This paragraph requires permittees to construct access roads, 
including access roads constructed with impervious materials, so that 
the length of the road minimizes any adverse effects on waters of the 
United States. These access roads must also be constructed as near as 
possible to pre-construction contours and elevations (e.g., at grade 
corduroy roads or geotextile/gravel roads). In addition, 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.
    These requirements help minimize the adverse environmental effects 
that access roads constructed with impervious materials may have on 
waters of the United States. The requirement to construct access roads 
as near as possible to pre-construction contours and elevations 
minimizes adverse effects to surface hydrology, and preventing 
obstructions to water flowing over the soil surface that could impound 
water. This paragraph also requires the construction of bridges or 
culverts to help maintain surface flows. These requirements 
substantially reduce the potential for access roads constructed with 
impervious materials and causing the loss of less than \1/10\-acre of 
waters of the United States to have more than minimal adverse 
environmental effects. Therefore, we are proposing to remove this PCN 
threshold. The requirement that NWPs can authorize only those 
activities that have no more than minimal individual and cumulative 
adverse environmental effects can be achieved through the requirements 
in the text of this NWP, as well as the NWP general conditions.
    We are proposing a new PCN threshold for NWP 12 for proposed oil or 
natural gas pipeline activities that are associated with an overall 
project that is greater than 250 miles in length, and the purpose of 
the overall project is to install new pipeline (vs. conduct repair or 
maintenance activities) along the majority of the distance of the 
overall project length). For these oil or natural gas pipeline 
activities, we are proposing to require the prospective permittee to 
include, in the pre-construction notification, the locations and 
proposed losses of waters of the United States for all crossings of 
waters of the United States that require DA authorization, including 
those crossings that would not require pre-construction notification. 
We are proposing to add this PCN threshold to provide the district 
engineer the opportunity to review all crossings of waters of the 
United States for long-distance oil or natural gas pipelines to ensure 
that the activities authorized by NWP 12 will result in no more than 
minimal individual and cumulative adverse environmental effects. We 
invite public comment on the 250 mile threshold, and whether the 
threshold should be for a greater or lesser number of miles.
    Division engineers continue to have the authority to modify this 
NWP to lower the PCN thresholds if they believe that lower PCN 
thresholds are necessary to give district engineers the opportunity to 
review proposed NWP 12 activities and make activity-specific 
determinations of NWP eligibility. Lower PCN thresholds established by 
division engineers may also give district engineers the ability to 
impose mitigation requirements on these activities if they have the 
potential to result in more than minimal individual and cumulative 
adverse environmental effects in a Corps district, watershed, or other 
geographic region.
    Under this proposal, district engineers also retain their authority 
to modify, suspend, or revoke NWP 12 authorizations under a case-
specific basis, in accordance with the procedures in 33 CFR 330.5(d). 
District engineers can exercise their discretionary authority to add 
conditions to the NWP 12 authorization to ensure that the authorized 
activities result in no more than minimal adverse environmental 
effects.
    We are proposing to remove Note 3 that was in the 2017 NWP 12 
because that note applied to aerial electric power transmission lines 
crossing navigable waters of the United States. It would have no 
applicability to oil or natural gas pipelines crossing navigable waters 
of the United States. We are also proposing to remove the 2017 NWP's 
Note 7 because sending a copy of the PCN and NWP verification to the 
Department of Defense Siting Clearinghouse was intended to give the 
Siting Clearinghouse an opportunity to evaluate potential effects of 
overhead electric utility lines and telecommunication lines on military 
activities.
    We are seeking comment on these proposed changes to the PCN 
thresholds for NWP 12, as well as modifying this NWP to limit it to oil 
or natural gas pipeline activities. Electric utility line and 
telecommunications activities in waters of the United States could be 
authorized by proposed new NWP C. Utility lines that convey potable 
water, sewage, storm water, wastewater, irrigation water, brine, and 
other substances that are not oil or natural gas or are not 
electricity, could be authorized by proposed new NWP D.
    NWP 13. Bank stabilization activities. We are proposing to add a 
``Note'' to this NWP to make prospective permittees aware of the 
availability of NWP 54 (Living Shorelines) to authorize the 
construction and maintenance of living shorelines to control shore 
erosion in coastal waters, including the Great Lakes. As defined in NWP 
54, a living shoreline is an approach to bank stabilization that 
generally has the following characteristics: (1) It has a footprint 
that is made up mostly of native material; (2) 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; (3) 
it should maintain the natural continuity of the land-water interface, 
and retain or enhance shoreline ecological processes; and (4) it must 
have a substantial biological component, either tidal or lacustrine 
fringe wetlands or oyster or mussel reef structures. This note may 
encourage prospective permittees to consider living shorelines as an 
alternative to other approaches to bank stabilization in coastal 
waters. This note is not intended to convey a preference for a 
particular approach to bank stabilization or a particular approach to 
project design.
    NWP 14. Linear Transportation Projects. We are proposing to add 
``driveways'' to the list of examples of the types of linear 
transportation projects authorized by this NWP, to clarify that the 
construction or expansion of driveways can be authorized by NWP 14. 
When we modified NWP 14 in 2000 to authorize

[[Page 57328]]

some activities that were previously covered by NWP 26, the updated NWP 
authorized both public linear transportation projects and private 
linear transportation projects (see 65 FR 12888). When we reissued NWP 
14 in 2002, we modified this NWP to remove the distinction between 
public and private linear transportation projects so that NWP 14 would 
simply authorize linear transportation projects (see 67 FR 2080-2081).
    In 2000 (see 65 FR 12818), the Corps modified six of the NWPs 
issued in 1996 to replace NWP 26, but we did not reissue the remaining 
32 NWPs that were issued in 1996. The 1996 NWPs were published in the 
Federal Register on December 13, 1996, (61 FR 65874), and those NWPs 
expired on February 11, 2002. The NWPs modified in 2000 were NWP 3 
(maintenance), NWP 7 (outfall structures and maintenance), NWP 12 
(utility line activities), NWP 14 (linear transportation crossings), 
NWP 27 (stream and wetland restoration activities), and NWP 40 
(agricultural activities), and those NWPs had a new expiration date of 
June 5, 2005. To keep all of the NWPs on the same 5-year cycle, in 2002 
(see 67 FR 2020) the Corps reissued all of the existing NWPs, including 
the NWPs issued in 2000 to replace NWP 26, with an expiration date of 
March 19, 2007. The Corps changed the expiration date of NWPs 3, 12, 
14, 27, 39, 40, 41, 42, 43, and 44 from June 5, 2005, to March 18, 
2002.
    Under the current definition of ``single and complete linear 
project'' (which we are proposing to reissue without change), 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.'' A 
driveway can be considered a linear transportation project at a smaller 
scale because it provides a means for a vehicle to get from a road (a 
point of origin) to a house, commercial building, or other structure (a 
terminal point). In past versions of this NWP, driveways were not 
explicitly identified as examples of linear transportation projects. 
The parenthetical in the first sentence of this NWP is not an 
exhaustive list, so we are seeking comment on whether to add driveways 
to the list of examples to provide clarity to district engineers and 
the regulated public.
    NWP 17. Hydropower Projects. We are proposing to modify this NWP to 
authorize discharges of dredged or fill material into waters of the 
United States associated with hydropower projects with a generating 
capacity of less than 10,000 kilowatts (kW), to be consistent with the 
current definition of ``small hydroelectric power project.'' This NWP 
currently authorizes hydropower projects having less than 5,000 kW of 
total generating capacity at existing reservoirs, where the project is 
licensed by the Federal Energy Regulatory Commission, or a licensing 
exemption granted by the Federal Energy Regulatory Commission. The 
Hydropower Regulatory Efficiency Act of 2013 (Pub. L. 113-23) changed 
the definition of ``small hydroelectric power project'' by raising the 
generating capacity limit for such projects from 5,000 kW to 10,000 kW. 
The proposed modification would make NWP 17 consistent with the current 
threshold for which the Federal Energy Regulatory Commission can issue 
a license or exemption for small hydroelectric power projects while 
still ensuring that projects have no more than minimal adverse 
environmental effects.
    This NWP authorizes only discharges of dredged or fill material 
into waters of the United States to construct hydropower facilities 
that satisfy criteria (a) or (b) in the first paragraph of the NWP. The 
Federal Energy Regulatory Commission licenses the construction and 
operation of hydropower facilities. Section 10 permit requirements for 
non-federal hydropower development are met through the Commission's 
licensing process, so separate authorization from the Corps under 
section 10 of the Rivers and Harbors Act of 1899 is not required.
    For hydropower projects, the Corps' regulatory authority is limited 
to discharges of dredged or fill material into waters of the United 
States under Section 404 of the Clean Water Act. Discharges of dredged 
or fill material into waters of the United States may be necessary to 
install the small hydropower unit into the dam that stores water that 
is passed through the hydropower unit to generate electricity. The 
changes to the dam that involve discharges of dredged or fill material 
may be small, and the district engineer will review the PCN to 
determine if the proposed discharges will result in no more than 
minimal individual and cumulative adverse environmental effects.
    NWP 19. Minor Dredging. We are proposing to modify this NWP to 
increase the limit for the amount of material dredged from navigable 
waters of the United States (i.e., waters subject to regulation under 
section 10 of the Rivers and Harbors Act of 1899) from 25 cubic yards 
to 50 cubic yards. Currently, this NWP does not authorize minor 
dredging activities that dredge or degrade through siltation coral 
reefs, sites that support submerged aquatic vegetation, anadromous fish 
spawning areas, or wetlands. This NWP also requires the dredged 
material to be deposited and retained in an area that has no waters of 
the United States, unless the district engineer approves, through a 
separate authorization such as an individual permit or regional general 
permit, the deposition of the dredged material into waters of the 
United States. With the current terms and conditions, including the 
current prohibitions against impacting coral reefs, sites that support 
submerged aquatic vegetation, anadromous fish spawning areas, and 
wetlands, we believe that with an increase in the cubic yard limit to 
50 cubic yards, this NWP will continue to authorize only those dredging 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. We would also like to solicit public 
comment on whether a different cubic yard limit, such as 30 or 100 
cubic yards, would be more appropriate for this NWP.
    Division engineers have the authority through 33 CFR 330.5(c) to 
add regional conditions to decrease the cubic yard limit for this NWP. 
District engineers have the authority to assert discretionary authority 
to decrease the cubic yard limit on a case-by-case basis, through the 
modification procedures at 33 CFR 330.5(d). We are soliciting comment 
on this proposed change in the cubic yard limit for NWP 19.
    NWP 21. Surface Coal Mining Activities. In addition to proposing to 
modify this NWP by removing the 300 linear foot limit for losses of 
stream bed, we are also proposing to remove the requirement for all 
permittees to obtain written verification before proceeding with the 
authorized work in waters of the United States. Removal of the 
requirement to obtain written verification prior to conducting the 
permitted activity would make this NWP consistent with the other NWPs 
that require PCNs and are authorized under 33 CFR 330.1(e)(1) if the 
district engineer does not respond to the PCN within 45 days of receipt 
of a complete PCN.
    Nationwide permit 21 was first issued in 1982 to authorize 
discharges of dredged or fill material into waters of the United States 
associated with surface coal mining activities and to avoid duplication 
with the regulation of surface coal mining activities by the Department 
of the Interior under the Surface Mining Control and Reclamation Act of 
1977 (45 FR 62735). From 1982 to 2012, NWP 21 had no acreage limit. In 
2012, a \1/2\-acre limit was added to NWP 21 for new surface coal 
mining activities (see 77 FR 10274),

[[Page 57329]]

but that NWP also included a provision (paragraph (a) of the 2012 NWP 
21) that allowed surface coal mining activities that were previously 
authorized by NWP 21 to have 5 additional years to complete the 
authorized work. Some surface coal mining activities authorized by NWP 
21 impacted large acreages of jurisdictional waters and wetlands. For 
example, under grandfathering provision in paragraph (a) of the 2012 
NWP 21, one surface coal mining activity that was previously authorized 
under the 2007 NWP 21 and authorized to continue under the 2012 NWP 21 
impacted 182 acres of jurisdictional waters and wetlands. Another 
surface coal mining activity authorized under the grandfathering 
provision of the 2012 NWP 21 impacted 54 acres of jurisdictional waters 
and wetlands.
    The 1982 NWP 21 included a requirement for the prospective 
permittee to give the district engineer an opportunity to review the 
proposed surface coal mining activity. The proposed activity would be 
authorized by NWP 21 if the district engineer determined that the 
individual and cumulative adverse effects on the environment from the 
structures, work, or discharges are minimal (47 FR 31833). This 
provision was the first pre-construction notification (PCN) requirement 
for an NWP, and it was also the origin of the requirement to receive 
written authorization from the district, thus requiring the district 
engineer to issue a determination that the proposed activity qualified 
for NWP authorization. In the 2002 reissuance of NWP 21, the NWP was 
modified to require that the district engineer issue his or her 
determination in writing (67 FR 2081). This requirement for a written 
verification was continued in the 2007 NWP 21 (72 FR 11184) and the 
2012 NWP 21 (77 FR 10274).
    Since the proposed NWP 21 retains the \1/2\-acre limit that is in 
numerous other NWPs (e.g., NWPs 12, 29, 39, 40, 42, 43, 44, 50, 51, and 
52), and it can no longer authorize surface coal mining activities that 
result in large acreages of impacted waters and wetlands, we are 
proposing to remove the requirement for written verifications in order 
to be consistent with the other NWPs that have the \1/2\-acre limit, 
and eliminate an additional burden on the regulated public that is not 
present in similar NWPs. The 45-day clock for the district engineer's 
review of PCNs at 33 CFR 330.1(e)(1), as well as the provision for the 
NWP authorization to be in effect if the district engineer does not 
respond to the PCN within that 45-day period, is an important tool to 
provide predictability to the regulated public and fulfill the 
objective of the NWP program. That objective is to ``regulate with 
little, if any, delay or paperwork certain activities having minimal 
impacts'' (33 CFR 330.1(b)). For those commenters who oppose the 
removal of the requirement for a written verification from this NWP, we 
ask that they explain why discharges of dredged or fill material into 
waters of the United States associated with surface coal mining 
activities should be treated differently than other NWPs that also have 
a \1/2\-acre limit and authorize discharges of dredged or fill material 
into similar types of waters.
    In addition, we are proposing to remove the phrase ``as part of an 
integrated permit processing procedure'' from the first paragraph of 
this NWP. The Office of Surface Mining Reclamation and Enforcement has 
responsibility for authorizing surface coal mining activities only in 
Tennessee and Washington. Even though this provision has been in place 
since 2007, no integrated permit processing procedures have been 
developed for coal mining activities in these two states, and it is 
unlikely that such procedures will developed in the future. Therefore, 
we are proposing to remove this text from the NWP because it has no 
applicability. We are soliciting comments on whether integrated permit 
processing procedures for the activities authorized by this NWP may be 
developed in the future.
    27. Aquatic Habitat Restoration, Enhancement, and Establishment 
Activities. We are proposing to change the second sentence of the 
second paragraph of this NWP to state that an ecological reference may 
be based on the characteristics of one or more intact aquatic habitats 
or riparian areas. The design and evaluation of ecosystem restoration, 
enhancement, or establishment projects may involve the use of more than 
one reference site.
    In addition, we are proposing to modify this NWP by adding coral 
restoration or relocation activities to the list of examples of 
activities authorized by this NWP. In recent years, there has been 
increased interest in coral restoration or relocation activities, and 
these activities can result in increases in the ecological functions 
and services performed by corals and coral reefs in a region. Depending 
on how those activities are conducted, they may require DA 
authorization under section 10 of the Rivers and Harbors Act. They may 
also require DA authorization under section 404 of the Clean Water Act. 
In the ``Notification'' section of this NWP, we are proposing to add a 
new paragraph (2) to state that pre-construction notification is 
required for permittees that propose to conduct coral restoration or 
relocation activities in accordance with a binding agreement with the 
NMFS or any of its designated state cooperating agencies.
    We are also proposing to add ``releasing sediment from reservoirs 
to restore downstream habitat.'' Reservoirs may trap sediment, which 
may subsequently cause losses of sediment downstream of the reservoir 
and erosion and degradation of downstream habitat. The trapping of 
sediment by reservoirs also decreases their water storage capacity and 
the utility of those reservoirs in serving the water needs of the local 
population. Sediment supplies and transport regimes in rivers and 
streams are important factors for determining channel morphology and 
its ability to provide habitat for a variety of aquatic organisms, as 
well as water quality (Wohl et al. 2015). Effective management of 
sediment at reservoirs can help rectify the impacts that dams have on 
sediment transport processes. Sediments may be deliberately passed 
through reservoirs so that the sediment can be transported downstream 
to sustain or improve downstream habitats, while maintaining reservoir 
capacity (Kondolf et al. 2014). Depending on how sediments are passed 
through reservoirs, these reservoir sediment management activities may 
trigger a section 404 permit requirement. Regulatory Guidance Letter 
05-04 (which was issued on August 19, 2005) discusses the circumstances 
under which discharges of sediments from or through a dam require DA 
authorization under section 404 of the Clean Water Act and section 10 
of the Rivers and Harbors Act of 1899.
    The passing of sediments through a reservoir to restore downstream 
riverine habitat by sustaining sediment transport processes can result 
in a net increase in aquatic resource functions and services performed 
by the affected rivers and streams. In other words, managing reservoir 
operations by releasing sediment in a controlled manner can help 
reverse, to some degree, the degradation of riverine habitat caused by 
the trapping of sediment by the reservoir and erosion of downstream 
river reaches due to a diminished sediment supply. Therefore, we are 
soliciting comment on adding ``releasing sediment from reservoirs to 
restore downstream habitat'' to the list of examples of activities 
authorized by NWP 27 to provide general permit authorization when those 
activities result in no more than minimal

[[Page 57330]]

individual and cumulative adverse environmental effects.
    NWP 39. Commercial and Institutional Developments. As discussed 
above, we are proposing to remove the 300 linear foot limit for losses 
of stream bed. In the ``Note,'' we are proposing to add the phrase ``by 
the Corps'' to make it clear that the Corps district, not the 
permittee, will send a copy of the NWP PCN and NWP verification to the 
Department of Defense Siting Clearinghouse.
    NWP 41. Reshaping of Existing Drainage and Irrigation Ditches. We 
are proposing to modify this NWP by adding irrigation ditches. The 
current NWP authorizes the reshaping of existing drainage ditches 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. These gentler slopes can reduce erosion, increase 
growth of vegetation, and increase uptake of nutrients and other 
substances by vegetation. Similar benefits to water quality may occur 
with irrigation ditches, so we are seeking comment on whether to modify 
this NWP to include irrigation ditches.
    In the 2020 final rule defining waters of the United States, some 
ditches will continue to be subject to Clean Water Act jurisdiction as 
tributaries, provided they are waters under 33 CFR 328.3(a)(1) or (2), 
or were constructed in adjacent wetlands that are waters under Sec.  
328.3(a)(4). Therefore, this NWP will continue to have some utility 
under the 2020 definition of ``waters of the United States.''
    NWP 43. Stormwater Management Facilities. We are proposing to 
remove the 300 linear foot limit for losses of stream bed from this NWP 
and the ability of the district engineer to waive the 300 linear foot 
limit for losses of intermittent and ephemeral stream bed. To ensure 
that this NWP will only authorize those activities that have no more 
than minimal individual and cumulative adverse environmental effects, 
we will rely on the \1/2\-acre limit, the PCN review process, and the 
division and district engineers' authority under 33 CFR 330.5(c) and 
(d) respectively, to modify, suspend, or revoke NWP authorizations. 
This proposed modification is intended to provide consistency in NWP 
limits It is also intended to further streamline the NWP authorization 
process.
    In addition, we are proposing to add the phrase ``such as features 
needed'' after ``into waters,'' because green infrastructure 
constructed to reduce inputs of sediments, nutrients, and other 
pollutants into waters may be done for purposes other than meeting 
targets established under Total Daily Maximum Loads.
    NWP 44. Mining Activities. We are proposing to modify paragraph (b) 
of this NWP to address work (e.g., dredging) in non-tidal navigable 
waters of United States subject to section 10 of the Rivers and Harbors 
Act of 1899. Dredging or other work in navigable waters could be used 
to mine aggregates from these waters, and may not result in a discharge 
of dredged or fill material. This proposed change would make the work 
regulated under section 10 subject to the \1/2\-acre limit.
    NWP 48. Commercial Shellfish Mariculture Activities. We are 
proposing a few modifications to this NWP. We are proposing to change 
the title of this NWP from ``Commercial Shellfish Aquaculture 
Activities'' to ``Commercial Shellfish Mariculture Activities'' to more 
accurately reflect where these activities are conducted (i.e., coastal 
waters). We are proposing to remove the \1/2\-acre limit for impacts to 
submerged aquatic vegetation in project areas that that have not been 
used for commercial shellfish aquaculture activities during the past 
100 years. Since we are proposing to remove that limit, we are also 
proposing to remove the definition of ``new commercial shellfish 
aquaculture operation'' that we adopted in 2017. In addition, we are 
also proposing to remove both PCN thresholds for this NWP, as well as 
the paragraph that identifies the additional information that 
permittees must submit with NWP 48 PCNs.
    We are proposing to change the title of this NWP to ``Commercial 
Shellfish Mariculture Activities'' because the NWP only authorizes 
activities in coastal waters. Mariculture is the cultivation of 
organisms in marine and estuarine open water environments (NRC 2010). 
This proposed change would also provide consistency between NWP 48 and 
the two proposed new NWPs for activities associated with the production 
of seaweed and finfish in coastal waters and in federal waters on the 
outer continental shelf. The term ``aquaculture'' refers to a broad 
spectrum of production of aquatic organisms. In the United States 
aquaculture activities encompass the production of marine and 
freshwater finfish, as well as shellfish (bivalve molluscs and 
crustaceans). Oysters, clams, and mussels are examples of bivalve 
molluscs. Bivalve Since aquaculture activities in the United States 
include both water-based and land-based activities, we are proposing 
the use the term ``mariculture'' in the NWPs 48, A, and B to clarify 
that these NWPs only authorize activities in marine and estuarine 
waters.
    In response to the October 10, 2019 decision of the United States 
District Court, Western District of Washington at Seattle in the 
Coalition to Protect Puget Sound Habitat v. U.S. Army Corps of 
Engineers et al. (Case No. C16-0950RSL) and Center for Food Safety v. 
U.S. Army Corps of Engineers et al. (Case No. C17-1209RSL), we have 
made substantial revisions to the draft national decision document for 
this proposed NWP. The draft revisions are intended to address the 
concerns identified in the district court's decision. A copy of the 
draft national decision document is available in the docket at 
www.regulations.gov (COE-2020-0002), and we seek public comment on that 
draft decision document.
    The district court found that the national decision document did 
not satisfy the requirements of NEPA and the 404(b)(1) Guidelines. The 
district court said the national decision document should provide a 
more thorough discussion of the direct and indirect impacts of these 
activities, and use a broader set of scientific literature to support 
that discussion. It also said that the national decision document 
should not focus on only on oyster mariculture, but it should also 
discuss mariculture for other shellfish species, such as clams and 
mussels. More specifically, the district court said the national 
decision document should present a more detailed discussion of the 
potential impacts of commercial shellfish mariculture activities on 
aquatic vegetation other than seagrasses, benthic communities, fish, 
birds, water quality, and substrate characteristics. The district court 
also stated that the national decision document should include a more 
rigorous analysis to support a finding that the NWP would authorize 
only activities with no more than minimal individual and cumulative 
adverse environmental effects.
    We are proposing to remove the \1/2\-acre limit for impacts to 
submerged aquatic vegetation in project areas that that have not been 
used for commercial shellfish aquaculture activities during the past 
100 years. Shellfish mariculture can have both positive and negative 
effects on marine and estuarine waters (NRC 2010, Tallis et al. 2009). 
We are proposing to remove the \1/2\-acre limit because the impacts of 
commercial shellfish mariculture activities on submerged aquatic 
vegetation are often temporary, and these activities do not convert 
aquatic habitat to non-aquatic

[[Page 57331]]

habitat or upland (i.e., they do not result in permanent losses of 
aquatic resources). While bivalve shellfish mariculture activities have 
impacts on estuaries, those impacts neither result in losses of 
estuarine habitat nor do they degrade water quality in a manner 
comparable to other human activities (Dumbauld et al. 2009). In 
addition, the \1/2\-acre limit for impacts to submerged aquatic 
vegetation only has limited effect. If a proposed commercial shellfish 
mariculture activity would result in impacts to more than \1/2\-acre of 
submerged aquatic vegetation, it can be authorized by an individual 
permit. After that individual permit expires, it would be considered an 
existing commercial shellfish mariculture activity that has occurred 
during the past 100 years and could be authorized by NWP 48.
    According to Clewell and Aronson (2013), anthropogenic and natural 
disturbances to ecosystems can be placed in three categories: (1) 
Stress with maintenance of ecosystem integrity; (2) moderate 
disturbance where the ecosystem can recover in time through natural 
processes; and (3) impairment, which may result in a more severe 
disturbance that may require human intervention (e.g., restoration) to 
prevent the ecosystem from changing into an alternative, perhaps less 
functional ecological state. For commercial shellfish mariculture 
activities, the impacts generally fall within the first two categories 
because shellfish mariculture activities do not cause a loss in 
ecosystem integrity or ecosystem components can recover over time after 
those impacts occur. In estuaries and coastal waters where commercial 
shellfish mariculture activities occur, bivalve molluscs such as 
oysters, mussels, and clams were overharvested over many years (Lotze 
et al. 2006), substantially changing the ecological structure, 
functions, and dynamics of coastal and estuarine waters such as the 
Chesapeake Bay and various estuaries on the west coast. The impacts 
from the overharvesting of bivalve molluscs in these waters falls under 
the third category of disturbances identified by Clewell and Aronson 
(2013). Bivalve shellfish mariculture activities can also be considered 
restorative actions (NRC 2010), by increasing the numbers of bivalve 
molluscs in coastal waters where they were depleted through overfishing 
and recognizing the ecosystem functions and services those bivalve 
molluscs provide.
    Bivalve shellfish mariculture activities can have temporary and 
permanent impacts on the aquatic environment, including the species 
that inhabit coastal waters. These impacts are discussed in more detail 
below. The severity of the impacts, both negative and positive, can 
vary as a result of scale and location of the shellfish mariculture 
operation, the species being cultivated, the equipment and techniques 
used by the grower, and the hydrodynamic and physical characteristics 
of the mariculture site (NRC 2010). In its 2010 report titled 
``Ecosystem Concepts for Sustainable Bivalve Mariculture'' the National 
Research Council (NRC) recommended that the impacts should be evaluated 
in a policy context that examines the relative costs and benefits of 
seafood production for human consumption and altering aquatic 
ecosystems.
    The responses of seagrasses to disturbances caused by bivalve 
shellfish mariculture activities vary by regional environmental 
conditions and mariculture practices (Ferriss et al. 2019). Recovery of 
submerged aquatic vegetation after disturbance may be inhibited by poor 
habitat quality (e.g., poor water quality, temperature stress) or a 
lack of seagrass seeds (Orth et al. 2017). Seagrass recovery after 
disturbance also varies by species because of differences in life 
history patterns, with some species able to grow and reproduce more 
quickly than other species (Fonseca et al. 1998). Eelgrass recovery 
takes longer after mechanical harvesting methods, such as dredging, 
compared to hand harvesting methods (Ferriss et al. 2019). Seagrasses 
may be perennial or annuals, and seagrass beds are dynamic and change 
over time (Fonseca et al. 1998). Reproduction can occur via seeds or 
rhizomes. Some seagrass beds can persist for years, other beds change 
with the seasons, and other beds vary in step with the life history of 
the species. Patchy beds of submersed aquatic vegetation can be as 
ecologically valuable as large, dense seagrass beds (Fonseca et al. 
1998). In a meta-analysis of studies that examined the effects of 
bivalve shellfish mariculture activities on eelgrass, Ferriss et al. 
(2019) concluded that the responses of eelgrass to bivalve mariculture 
are variable and dependent on eelgrass characteristics, how the bivalve 
molluscs are cultivated and harvested, and the region in which these 
activities are conducted.
    Temporary impacts include temporary structures placed in navigable 
waters, such as bags, cages, trays, and racks; stakes; and long-lines 
that are supported by stakes or piles. Temporary impacts also include 
dredging, and the duration of those impacts can vary depending on the 
intensity and duration of dredging. Permanent impacts can include 
permanent structures such as piles that are installed in the waterbody 
to provide a permanent structure to attach equipment to, and shell or 
gravel that is discharged into the waterbody to provide suitable 
substrate for larval bivalve shellfish to attach to and grow. The 
species cultivated by mariculture activities also affect the aquatic 
environment and other species, for example by altering water quality 
through suspension feeding or competition for space. Those impacts can 
be positive, negative, or neutral, and can vary the techniques used for 
bivalve shellfish mariculture activities. There is a substantial amount 
of scientific literature regarding the interactions between bivalve 
shellfish mariculture activities and submerged aquatic vegetation that 
has shown that the impacts of these activities on submerged aquatic 
vegetation are often temporary, some of which is discussed below.
    Bivalve mariculture activities can disturb benthic plants and 
animals, modify biogeochemical processes, change water flows, alter 
substrate composition, and provide structures with hard habitat that 
attracts fish and invertebrates, which may include both native and non-
native species (NRC 2010). Kellogg et al. (2018) did not find any 
significant negative impacts on benthic macroinvertebrate communities 
caused by oyster mariculture activities. Impacts to submerged aquatic 
vegetation caused by oyster cultivation activities can be reduced 
through by using cultivation techniques that result in fewer impacts or 
by reducing oyster planting densities (Tallis et al. 2009). Bivalve 
shellfish mariculture activities are similar to other food production 
activities, in that they involve trade-offs with the ecosystems being 
affected by those activities (Tallis et al. 2009), in order to provide 
food for people. Standards and best management practices can be 
implemented by growers to minimize the adverse environmental effects of 
commercial shellfish mariculture operations (NRC 2010). Standards and 
best management practices would be more appropriately developed for 
certain species or regions (Simenstad and Fresh 1995) because these 
standards and practices can vary in effectiveness for different species 
or groups of species. Species-specific or regional standards and best 
management practices may be appropriate as regional conditions approved 
by division engineers. Such standards and best management practices may 
added to DA permits as permit conditions if they satisfy the criteria 
for permit conditions at 33 CFR 325.4(a): That is they are

[[Page 57332]]

necessary to satisfy legal requirements, and are directly related to 
the impacts of the proposal, appropriate to the scope and degree of 
those impacts, and reasonably enforceable.
    As an example, these standards and practices may be identified as a 
result of consultation under section 7 of the Endangered Species Act as 
was the case in Washington State when the Corps completed programmatic 
consultation on aquaculture activities in Washington State with the US 
Fish and Wildlife Service and the National Marine Fisheries Service in 
2016. The comprehensive analysis completed by the Corps in its 
biological assessment and the Services analyses in their biological 
opinions, provided much information and each programmatic biological 
opinion contained numerous conditions to protect listed species and 
their designated critical habitat. Those conditions are included as 
special conditions in each verification of NWP 48 provided by the Corps 
to commercial shellfish growers.
    As discussed above, shellfish mariculture activities have both 
positive and negative environmental effects, including effects on 
certain species that inhabit coastal waters. The severity of those 
impacts can vary by the mariculture method and location, as well as the 
intensity and duration of the operation (NRC 2010). Commercial 
shellfish mariculture techniques vary, and some species can be grown 
through a variety of techniques. Bivalve mariculture techniques include 
on-bottom and off-bottom culture methods, and some shellfish 
mariculture methods involve dredging whereas others do not. The adverse 
effects of dredging associated with bivalve shellfish mariculture 
activities, including harvesting, vary with intensity and duration of 
the dredging, as well as the type of substrate and which species are 
present in the area (NRC 2010). Both on-bottom and off-bottom bivalve 
mariculture techniques may involve the use of bags, racks, cages, and 
trays. The various bivalve mariculture methods can exhibit substantial 
differences in impacts to the aquatic environment, and to species that 
inhabit coastal waters. Commercial shellfish mariculture operations may 
use chemicals to control fouling organisms (NRC 2010). Operators may 
also use pesticides to control predators, but the discharge of 
pesticides into navigable waters is regulated under Section 402 of the 
Clean Water Act, not section 404.
    On-bottom bivalve shellfish mariculture techniques include adding 
shell, gravel, or other material to create substrate for larval bivalve 
molluscs to attach to and grow until they are harvested, either by 
dredging or by hand. The shell, gravel, or other material may be 
deposited in a manner to create hummocks, or the material may be 
deposited so that it is relatively flat. On-bottom methods also involve 
placing cages, racks, and bags on the bottom of the waterbody. When the 
bivalves are ready to be harvested, the cages, racks, and bags are 
removed until they are ready to be used for the next growing cycle. In 
general, dredging is not used with bottom culture that uses cages, 
racks, and bags (NRC 2010). On-bottom culture using cages, racks, and 
bags usually does not involve substantial disturbance of the substrate. 
The placing of shell, gravel, or other material for bottom culture 
generally has longer lasting impacts compared with those stemming from 
the use of cages, racks, and bags. The deposited shell or gravel can 
bury submerged aquatic vegetation and other benthic organisms. Cages, 
racks, and bags can also cover submerged aquatic vegetation and other 
benthic organisms, but with a lesser degree of disturbance where 
recovery can occur more quickly than when dredging is used during 
mariculture operations. There may also be foot traffic in intertidal 
areas where bags and racks are used for bottom culture, to maintain 
those structures and to harvest the bivalve shellfish. The use of 
cages, bags, and racks can also alter water flow through the site, and 
well as sediment deposition (NRC 2010). The placement of bags in the 
intertidal zone may also reduce foraging habitat for shorebirds (NRC 
2010), and those adverse effects may cease after the bags are removed. 
On-bottom culture is used for clam, including geoducks. Geoducks are 
cultivated in the intertidal zone in plastic tubes covered by a net to 
keep predators from eating the geoduck (Dumbauld et al. 2009). Geoducks 
are harvested by jetting water into the substrate and pulling out the 
geoduck (NRC 2010).
    Off-bottom bivalve shellfish mariculture techniques involve the use 
of floating containers, suspended containers, or lines. These methods 
are typically used in deeper waters (Dumbauld et al. 2009). The 
floating or suspended containers may be bags, cages, and racks that are 
supported in the water column. Off-bottom cultivation methods can shade 
submerged aquatic vegetation and other benthic organisms but they do 
not disturb the substrate. The shading impacts will cease after the 
floating or suspended containers are removed. They can also interfere 
with navigation. The suspended and floating containers can act as 
attractants for fish and large crustaceans (e.g., crabs), which may 
feed on the fouling (epibiotic) organisms that attach to the bags, 
cages, racks, and lines (NRC 2010). These off-bottom structures may 
also have positive and negative effects on birds, marine mammals, and 
marine turtles (NRC 2010), such as attracting prey species that those 
organisms can feed on or by posing a risk of entanglement and drowning. 
Long lines can be used to cultivate oysters and mussels, where the long 
line is supported by stakes, and other lines hang vertically in the 
water column that hold the seeds of the molluscs to be cultivated so 
that they can feed and grow (Dumbauld et al. 2009). Long-lines can 
alter the hydrodynamics in the vicinity of the mariculture operation, 
and increase sedimentation in the area (NRC 2010). This sedimentation 
and reduced wave energy may create habitat conditions that favor 
seagrassses (Ferriss et al. 2019), Turner et al. (2019) found that 
shellfish mariculture structures substantially reduced currents in the 
vicinity of the bivalve mariculture activities. After the long-lines 
are removed, the hydrodynamics and sedimentation is likely to quickly 
recover. When long-lines are used for bivalve mariculture, harvesting 
is usually done by hand (Dumbauld et al. 2009).
    Structures used for shellfish mariculture activities can provide 
habitat for a wide variety of organisms, and serve as attractants for 
fish, mobile crustaceans, birds, and other organisms (e.g., Dumbauld et 
al. 2015, McKindsey et al. 2011, NRC 2010, D'Amours et al. 2008, Powers 
et al. 2007). Fouling organisms such as barnacles, tunicates, sponges, 
and bryozoans may establish and grow on these structures, and provide 
food for fish and motile crustaceans (Hosack et al. 2006), as well as 
birds NRC 2010,. They can also provide hiding places to avoid 
predators. Lines and nets used for commercial shellfish mariculture 
activities may pose a risk of entanglement for birds, marine mammals, 
and marine turtles (NRC 2010).
    Shellfish mariculture techniques may involve dredging, and the 
duration and intensity of the impacts of dredging can vary by substrate 
type (NRC 2010). Submerged aquatic vegetation can recovery after being 
impacted by dredging for shellfish mariculture activities, and that 
recovery may take a few years or more (Dumbauld et al. 2009). Eelgrass 
recovers after manual and mechanical harvesting of cultivated bivalve 
molluscs, but recovery generally

[[Page 57333]]

takes longer when mechanical harvesting techniques are used (Ferriss et 
al. 2019). Manual harvesting methods include the use of hands, rakes, 
and hoes, whereas mechanical harvesting methods include the use of 
dredging, sediment liquefaction, dragging and digging (Ferriss et al. 
2019). Commercial shellfish mariculture activities have been occurring 
in Washington State since the mid-1800s (Washington Sea Grant 2015), 
and eelgrass continues to persist in the waters of that state. Bivalve 
shellfish mariculture activities and submerged aquatic vegetation have 
existed next to each other for hundreds of years (Ferriss et al. 2019), 
which demonstrates the temporary nature of the impacts of these 
activities on seagrasses and the resilience of seagrasses to the 
periodic disturbances caused by these activities. On-bottom bivalve 
shellfish mariculture techniques that does not involve anti-predator 
measures generally results in increases in eelgrass growth, decreases 
in eelgrass density, and neutral effects on eelgrass biomass, 
reproduction, and structure, and these effects may be caused by 
competition for space (Ferriss et al. 2019). Off-bottom bivalve 
shellfish mariculture techniques generally result in negative effects 
on eelgrass density, reproduction, and percent cover, with neutral 
effects on eelgrass biomass and growth; the negative effects may be 
caused by shading from long-lines and suspended bags (Ferriss et al. 
2019). Skinner et al. (2014) observed shading effects on eelgrass from 
suspended oyster bag culture in eastern Canada.
    Compared with other techniques, bivalve shellfish mariculture 
activities that involve dredging can have more substantial impacts on 
estuaries and the organisms that inhabit those estuaries. Oysters can 
be harvested by hand or by using machines (Tallis et al. 2009). 
Mechanical harvesting can include grading, tilling, and dredging the 
substrate of the waterbody. Floating and bottom culture shellfish 
mariculture techniques that use lines, cages, bags, rafts, and racks do 
not require dredging of the substrate (NRC 2010). Recovery of areas 
disturbed by these floating and bottom culture shellfish mariculture 
techniques that do not involve dredging can occur rather quickly as 
long as there is minimal disturbance of the substrate. For example, 
shading impacts are quickly reversed after the bags, cages, racks, and 
long-lines are removed from the waterbody.
    For commercial shellfish mariculture activities, the impacts of 
commercial shellfish mariculture activities at a project site can fall 
into two categories: (1) Pulse disturbances, which are disturbances of 
relatively short duration caused by individual shellfish mariculture 
activities after which another ecosystem component (e.g., seagrass) 
could recover after a period of time, and (2) press disturbances, which 
are longer duration disturbances (e.g., permanent in-water structures) 
and have longer lasting effects on ecosystem components (Dumbauld et 
al. (2009)). In an evaluation of four oyster mariculture activities in 
the Chesapeake Bay, Kellogg et al. (2018) found few differences in 
water quality, sediment quality, and macrofauna community structure 
within the mariculture sites and areas outside the mariculture sites. 
Small, low density oyster mariculture activities in moderately flushed 
waters caused only minimal impacts to water quality Turner et al. 
(2019). If commercial shellfish mariculture activities cease in an 
estuary inhabited by submerged aquatic vegetation, the submerged 
aquatic vegetation that was impacted by those commercial shellfish 
mariculture activities generally recover within a few years (Dumbauld 
et al. 2009). These situations occur when the grower is letting the 
bottom of the waterbody go fallow for a period of time or has decided 
to cease commercial shellfish mariculture operations altogether in that 
area. After disturbance, recovery of submerged aquatic vegetation may 
be through asexual reproduction (i.e., the spread of rhizomes) or 
sexual reproduction (i.e., the production of seeds and subsequent 
germination) (Wisehart et al. 2007). Both natural and human-induced 
disturbances, including bivalve shellfish mariculture and harvesting 
activities, stimulate sexual reproduction of submerged aquatic 
vegetation (NRC 2010). Tallis et al. (2009) observed that eelgrass 
exhibited higher growth rates in areas where shellfish were dredged or 
hand-picked from the bottom than eelgrass inhabiting areas where no 
bivalve shellfish harvesting was occurring. Therefore, submerged 
aquatic vegetation has the ability to recover fairly quickly after 
cultivated bivalve shellfish are removed.
    Bivalve shellfish mariculture has been occurring in the United 
States for more than 100 years (NRC 2010), and submerged aquatic 
vegetation has continued to persist in waterbodies where there these 
activities are conducted. Submerged aquatic vegetation beds are 
dynamic, and often vary from year to year even in waters where water 
quality is high (Orth et al. 2006), so changes in submerged aquatic 
vegetation beds may result from anthropogenic and/or natural causes at 
various temporal and spatial scales. Dumbauld et al. (2009) concluded 
that eelgrass and shellfish mariculture have co-existed in west coast 
estuaries for decades. These west coast estuaries had substantial 
populations of native oysters, and after those native oysters were 
overharvested, they did not recover (Dumbauld et al. 2009) to historic 
population sizes. Tallis et al. (2009) concluded that there are trade-
offs to be considered when evaluating shellfish mariculture activities 
and their impacts on submerged aquatic vegetation. When district 
engineers evaluate permit applications and general permit verification 
requests for commercial shellfish mariculture activities requiring DA 
authorization, they should consider the ecological functions and 
services provided by the cultivated bivalve molluscs and the ecological 
functions and services provided by submerged aquatic vegetation and 
other species inhabiting the affected waterbodies. That evaluation can 
occur during the public interest review for an individual permit or 
when determining whether to exercise discretionary authority for a 
proposed general permit activity.
    If commercial shellfish mariculture activities occur within 
estuarine or marine waters inhabited by submerged aquatic vegetation, 
there will be competition between the shellfish and submerged aquatic 
vegetation for space, unless the shellfish mariculture activities can 
avoid areas inhabited by submerged aquatic vegetation. In west coast 
estuaries, eelgrass co-exist with shellfish on intertidal flats at the 
low densities practiced for shellfish mariculture (Dumbauld et al. 
2009). Tallis et al. (2009) observed that eelgrass density decreased 
with increasing shellfish mariculture density because of competition 
for space. Introduced Pacific oysters now occupy areas that were 
historically extensive beds of native oysters (Dumbauld et al. 2009), 
so this competition for space has occurred under both natural 
conditions and mariculture operations. In the Chesapeake Bay, expanding 
oyster mariculture efforts can compete with submerged aquatic 
vegetation for space in shallow waters (Orth et al. 2017), but current 
oyster populations in that waterbody are approximately 1 percent of 
their historical level (using the early 1800s as a baseline) because of 
overfishing, habitat loss, and disease (Wilberg 2011). If shellfish 
mariculture activities cease temporarily (e.g., during fallow periods) 
or permanently (e.g., by terminating those activities), the submerged 
aquatic vegetation is likely

[[Page 57334]]

to recover unless other stressors (e.g., increased turbidity) prevent 
submerged aquatic vegetation beds from re-establishing themselves.
    The continued persistence of submerged aquatic vegetation in 
coastal waterbodies in which shellfish mariculture has been conducted 
for decades indicates that adverse impacts to seagrasses are temporary. 
In waterbodies inhabited by submerged aquatic vegetation where 
shellfish mariculture is conducted, seagrass is in dynamic equilibrium 
with the shellfish mariculture activities (Dumbauld et al. 2009). The 
amount of time it takes for submerged aquatic vegetation to recover 
from disturbances caused by shellfish mariculture activities varies by 
plant species, the extent of the disturbance, the intensity of the 
disturbance, the seasonal timing of disturbance, and sediment 
characteristics (NRC 2010). In their review of the effects of shellfish 
mariculture activities on seagrasses in estuaries on the west coast of 
the United States, Dumbauld et al. (2009) found that the amount of time 
it took eelgrass to recover to pre-disturbance levels varied from less 
than 2 years to more than 5 years. In estuaries on the west coast of 
the United States, shellfish mariculture activities have been 
undertaken for over a century and have not been found to cause 
estuarine waterbodies to change to an alternative state or exhibit a 
decreased ability to recover from disturbances (Dumbauld et al. 2009).
    This NWP authorizes activities under Section 10 of the Rivers and 
Harbors Act of 1899 and Section 404 of the Clean Water Act. Under 
Section 10 of the Rivers and Harbors Act of 1899, the Corps regulates 
structures and work in navigable waters of the United States. The 
Corps' section 10 regulations at 33 CFR 322.2(b) define ``structure'' 
as including, ``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 obstacle or obstruction.'' The Corps' 
section 10 regulations at 33 CFR 322.2(c) define ``work'' as including, 
``without limitation, any dredging or disposal of dredged material, 
excavation, filling, or other modification of a navigable water of the 
United States.''
    Certain commercial bivalve shellfish mariculture activities involve 
structures regulated under section 10, such as racks, cages, bags, 
lines, nets, and tubes, when those structures are placed in navigable 
waters. Dredging activities for commercial shellfish mariculture 
activities, including dredging for harvesting and bed preparation, are 
regulated under section 10 as work. Placing fill material in navigable 
water, including shell or gravel to provide suitable substrate for 
bivalve shellfish larvae to attach to and grow, is also regulated under 
section 10 as ``work.'' This is an on-bottom cultivation technique that 
can involve placing a relatively thin layer of shell, gravel, or other 
suitable material on the bottom of the waterbody, or placing that fill 
material to create mounds that reduce the likelihood of sedimentation 
that could smother bivalve shellfish larvae or older shellfish.
    The installation and use of structures such as racks, cages, bags, 
lines, nets, and tubes, in navigable waters for commercial bivalve 
shellfish mariculture activities in navigable waters requires DA 
authorization under Section 10 of the Rivers and Harbors Act of 1899. 
Those structures may be floating or suspended in navigable waters, 
placed on the bottom of the waterbody, or installed in the substrate of 
the waterbody. The placement of mariculture structures in the water 
column or on the bottom of a waterbody does not result in a discharge 
of dredged or fill material that is regulated under section 404. While 
the presence of these structures in a waterbody may alter water 
movement and cause sediment to fall out of suspension onto the bottom 
of the waterbody, that sediment deposition is not considered a 
discharge of dredged or fill material because those sediments were not 
discharged from a point source. In general, the placement of bivalve 
shellfish mariculture structures on the bottom of a navigable 
waterbody, or into the substrate of a navigable waterbody does not 
result in discharges of dredged or fill material into waters of the 
United States that are regulated under Section 404 of the Clean Water 
Act.
    This NWP also authorizes discharges of dredged or fill material 
into waters of the United States under Section 404 of the Clean Water 
Act, and some commercial bivalve shellfish mariculture activities 
involve discharges of dredged or fill material into these waters. The 
term ``discharge of dredged material'' is defined at 33 CFR 323.2(d) 
and the term ``discharge of fill material'' is defined at 33 CFR 
323.2(f). Some commercial shellfish mariculture activities involve 
mechanical or hydraulic harvesting techniques that may result in 
discharges of dredged material into jurisdictional waters and wetlands. 
As discussed above, on-bottom bivalve shellfish mariculture activities 
may involve placing fill material such as shell or gravel to provide 
suitable substrate for bivalve shellfish larvae to attach to and grow 
on the bottom of the waterbody. These fill activities may require 
section 404 authorization.
    The Corps' regulations at 33 CFR 323.2(e) define the term ``fill 
material'' as ``material placed in waters of the United States where 
the material has the effect of: (i) Replacing any portion of a water of 
the United States with dry land; or (ii) Changing the bottom elevation 
of any portion of a water of the United States.'' Examples of fill 
material regulated under section 404 include, but are not limited to: 
``rock, sand, soil, clay, plastics, construction debris, wood chips, 
overburden from mining or other excavation activities, and materials 
used to create any structure or infrastructure in the waters of the 
United States'' (Sec.  323.2(e)(2)). Fill material does not include 
trash or garbage (Sec.  323.2(e)(3)).
    The term ``shellfish seeding'' is defined in Section E of the NWPs 
as 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.'' This definition was adopted 
in the NWPs in 2007 (see 72 FR 11197). Other materials may be used for 
bivalve shellfish seeding such as nets, bags, and ropes. Shellfish seed 
can be produced in a hatchery. Shellfish seed can also be produced in 
waterbodies where bivalve larvae can attach to appropriate materials, 
such as shell pieces, bags, or ropes.
    Placing shellfish seed on the bottom of a waterbody is not a 
``discharge of fill material'' and thus does not require a section 404 
permit. Placing gravel or shell on the bottom of a waterbody to provide 
suitable substrate for bivalve larvae to attach to is considered to be 
a ``discharge of fill material'' and would require section 404 
authorization. The shellfish themselves, either growing on the bottom 
of a waterbody or in nets, bags, or on ropes, are not considered to be 
``fill material'' and do not require a section 404 permit to be 
emplaced, remain in place, or to be removed from a waterbody.
    We invite comment on the various techniques used for commercial 
shellfish mariculture activities and which specific permit requirements 
are triggered by each of those techniques. Commenters are encouraged to 
provide

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information in support of their views on which commercial shellfish 
mariculture techniques require DA authorization only under Section 10 
of the Rivers and Harbors Act of 1899, under Section 404 of the Clean 
Water Act, or under both permitting authorities.
    Neither the Clean Water Act nor the Clean Water Act Section 
404(b)(1) Guidelines prohibit discharges of dredged or fill material or 
other types of impacts to submerged aquatic vegetation. Despite the 
status of submerged aquatic vegetation in the 404(b)(1) Guidelines as a 
special aquatic site (i.e., vegetated shallows under 40 CFR 230.43), 
the Guidelines do not prohibit discharges of dredged or fill material 
into special aquatic sites as long as a section 404 permit is issued by 
the Corps of Engineers or other permitting authority (e.g., a state or 
tribe that has approved by EPA to implement the section 404 permit 
program under section 404(g) of the Act). For activities authorized by 
the NWPs, the individual and cumulative adverse environmental effects 
caused by permitted impacts to submerged aquatic vegetation must be no 
more than minimal.
    Submerged aquatic vegetation can also provide important nursery 
habitat for finfish and crustaceans (NRC 2010), including species that 
may be listed as endangered or threatened under the Endangered Species 
Act (ESA). For some species listed as endangered or threatened under 
the ESA, emergent and submerged aquatic vegetation has been determined 
to be a physical or biological feature essential to the conservation of 
the species. Under the ``Endangered Species'' general condition, if the 
district engineer determines the proposed NWP 48 activity may affect 
designated critical habitat, he or she will conduct ESA section 7 
consultation with the U.S. Fish and Wildlife Service and/or the 
National Marine Fisheries Service, as appropriate. During the ESA 
section 7 consultation process, impacts to submerged aquatic vegetation 
may be addressed through conservation measures (i.e., measures to 
avoid, minimize, or offset impacts) identified through formal or 
informal consultation, or as terms and conditions of an incidental take 
statement in a biological opinion.
    If a proposed NWP 48 activity may have adverse effects on essential 
fish habitat (EFH), which may include areas with submerged aquatic 
vegetation, the district engineer will initiate EFH consultation with 
the appropriate office of the National Marine Fisheries Service. 
Division engineers may add regional conditions to NWPs to require PCNs 
for proposed activities that have the potential to adversely affect 
EFH, so that the district engineer can initiate EFH consultation when 
he or she determines that a specific NWP activity may adversely affect 
EFH. Essential fish habitat may include submerged aquatic vegetation 
beds for the fish species in the region. Through this consultation 
process, the National Marine Fisheries Service may provide the district 
engineer with EFH Conservation Recommendations. The district engineer 
has the authority to add certain EFH Conservation Recommendations as 
permit conditions to the NWP authorization, when he or she determines 
such conditions are needed to ensure that the NWP activity results in 
no more than minimal adverse environmental effects.
    When proposed NWP 48 activities require PCNs under paragraph (c) of 
general condition 18, impacts to submerged aquatic vegetation that is a 
physical or biological feature essential to the conservation of the 
species will be evaluated through the ESA section 7 process. If a 
district engineer determines that a proposed NWP 48 activity may 
adversely affect essential fish habitat, the district engineer will 
prepare an EFH assessment and initiate EFH consultation with the NMFS. 
Impacts to submerged aquatic vegetation that is a component of EFH may 
be addressed through EFH conservation recommendations that are adopted 
by the district engineer. We believe ESA section 7 consultations, EFH 
consultations under the Magnuson-Stevens Fishery Conservation and 
Management Act, and regional conditions imposed by division engineers 
to restrict or prohibit the use of NWP 48 are appropriate avenues to 
address impacts to submerged aquatic vegetation that may be caused by 
activities authorized by NWP 48.
    We are proposing to remove the PCN threshold for commercial 
shellfish mariculture activities that include a species that has never 
been cultivated in the waterbody. The current PCN threshold addresses 
native species that have not been commercially cultivated in the 
waterbody. Shellfish mariculture provides an opportunity to increase 
populations of native shellfish in coastal waters in cases where those 
populations declined (NRC 2010) because of overharvesting or other 
stressors. In addition, NWP 48 currently prohibits: (1) The cultivation 
of a nonindigenous species unless that species has been previously 
cultivated in the waterbody, and (2) the cultivation of an aquatic 
nuisance species as defined in the Nonindigenous Aquatic Nuisance 
Prevention and Control Act of 1990. These prohibitions will continue to 
help control one mechanism of intentional introductions of non-native 
species into coastal waters.
    We are also proposing to remove the PCN requirement for any 
proposed commercial shellfish mariculture activity that occurs in a 
project area that has not been used for commercial shellfish 
mariculture activities in the past 100 years. If, in the final NWP, we 
remove the definition of ``new commercial shellfish aquaculture 
operation,'' as well as the term that excludes new activities that 
directly affect more than \1/2\-acre of submerged aquatic vegetation 
from the authorization provided by NWP 48, then this PCN threshold will 
no longer be necessary. The proposed removal of this PCN threshold 
would also be consistent with our view that commercial shellfish 
mariculture activities typically only have temporary impacts on 
submerged aquatic vegetation and that cultivated shellfish and 
submerged aquatic vegetation can sustain a healthy co-existence and 
provide estuarine and marine ecosystems with a variety of ecological 
functions and services, including habitat for a number of finfish and 
invertebrate species. We developed this view after reviewing a number 
of scientific studies of interactions between submerged aquatic 
vegetation and shellfish mariculture operations, and a number of those 
studies are discussed in this preamble.
    All NWP 48 activities conducted by non-federal permittees must 
comply with the requirements of 33 CFR 330.4(f)(2) and paragraph (c) of 
the ``Endangered Species'' general condition. The proposed removal of 
the PCN requirement from this NWP does not affect the PCN requirement 
for non-federal permittees established in Sec.  330.4(f)(2) and 
paragraph (c) of general condition 18. Section 330.4(f)(2) and 
paragraph (c) of the ``Endangered Species'' general condition require 
non-federal permittees to notify the district engineer if any 
federally-listed endangered or threatened species or designated 
critical habitat might be affected or is in the vicinity of the 
project. For a proposed NWP 48 activity that might affect listed 
species or designated critical habitat, the non-federal applicant is 
required to submit a PCN to the district engineer. The district 
engineer will evaluate the PCN and determine whether the proposed 
activity ``may affect'' listed species or designated critical habitat. 
If the district engineer makes a ``may affect'' determination, he or 
she will conduct formal or informal section 7

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consultation, unless the proposed activity is covered by an existing 
regional programmatic section 7 consultation.
    In regions where there are substantive concerns that proposed NWP 
48 activities have the potential to result in more than minimal 
individual and cumulative adverse environmental effects, division 
engineers can impose regional conditions to require PCNs for some or 
all proposed NWP 48 activities in specified Corps districts.
    Section 101(a)(2) of the Clean Water Act states that ``it is the 
national goal that wherever attainable, an interim goal of water 
quality which provides for the protection and propagation of fish, 
shellfish, and wildlife and provides for recreation in and on the water 
be achieved by July 1, 1983.'' [33 U.S.C. 1251(a)(2)] In other words, 
one of the objectives of the Clean Water Act is to promote water 
quality that supports the propagation of fish and shellfish. Bivalve 
molluscs cultivated through commercial shellfish mariculture activities 
help improve water quality through filter feeding, removing 
particulates and nutrients from the water column which can improve 
water clarity and reduce the potential for eutrophication (e.g., NRC 
2010). Commercial shellfish mariculture activities can also provide 
structural habitat that can support populations of fish, large 
invertebrates such as crabs, and other animals (e.g., Dumbauld et al. 
2015, Powers et al. 2007). In addition to producing food, mariculture 
can provide a variety of other ecosystem services, including other 
provisioning services, regulating services, habitat or supporting 
services, and cultural services (Alleway 2019). Agricultural ecosystems 
can provide a variety of ecological functions and services, in addition 
to food production (Power 2010), and bivalve shellfish mariculture is 
an example of an agricultural ecosystem in coastal waters. Depending on 
how they are structured and managed, agricultural activities may 
provide ecological services or disservices, and trade-offs need to be 
considered by decision-makers and other entities (Power 2010), which 
may consist of growers, regulatory agencies, resource agencies, or 
other stakeholders.
    Submerged aquatic vegetation and bivalve molluscs provide important 
ecological functions and services to estuarine waters (Dumbauld and 
McCoy 2015, NRC 2010). Seagrasses provide the following ecosystem 
functions and services: Habitat for a variety of aquatic organisms, 
organic carbon production and export, nutrient cycling, sediment 
stabilization, enhanced biodiversity, and energy exchanges with 
adjacent habitats (Orth et al. 2017, Orth et al. 2006). Bivalve 
molluscs provide ecological functions and services such as water 
turbidity reduction through suspension feeding, biodeposition of 
organic material with plant nutrients, denitrification, carbon 
sequestration, providing structural habitat for a variety of fish, 
crustaceans, and epibiotic organisms, and habitat and shoreline 
stabilization (NRC 2010), as well as secondary production that 
contributes to energy exchanges among terrestrial and aquatic 
organisms. There is substantial overlap between the ecosystem functions 
and services provided by submerged aquatic vegetation and bivalve 
shellfish.
    Bivalve shellfish mariculture activities can contribute to the 
restoration of aquatic ecosystems (NRC 2010), because the shellfish 
produced by these activities can provide ecological functions and 
services (e.g., water quality, habitat, and food production) that were 
diminished or eliminated in waterbodies as a result of overfishing 
historic stocks of bivalve shellfish. Oyster mariculture activities may 
not provide identical ecological functions and services and functions 
as natural oyster reefs, but cultivated oysters do provide some of 
these functions and services without substantial investment of public 
funds (Kellogg et al. 2018) that may be needed for restoration 
activities. In the Chesapeake Bay, oyster mariculture activities are a 
component of watershed management activities (Turner et al. 2019) 
because of their potential to help improve water quality. In the west 
coast of the United States, the extent of oyster grounds and oyster 
biomass is less than one percent of historic levels (Zu Ermgassen et 
al. 2012). In the Chesapeake Bay, oyster abundance decreased by more 
than 99 percent since the early 19th century (Wilberg et al. 2011). In 
a global assessment of seagrass losses over time, Waycott et al. (2009) 
estimated that the area of coastal waters occupied by seagrasses have 
declined by nearly 30 percent since the late 19th century. Lotze et al. 
(2006) estimated that estuarine and coastal waters have lost more than 
65 percent of wetland and seagrass habitat, and more than 90 percent of 
important species, including oysters. Commercial shellfish mariculture 
can be an alternative means of providing a variety of ecosystem 
functions and services to coastal waters (NRC 2010), in areas where 
more traditional restoration approaches may not be practical or 
sufficient funding cannot be obtained (Alleway 2019). The ecological 
functions and services performed by cultivated bivalve molluscs can 
also facilitate the establishment and persistence of submerged aquatic 
vegetation by improving water clarity and providing nutrients for 
seagrass growth and reproduction (NRC 2010).
    Suspension feeding bivalve shellfish such as oysters and mussels 
and submerged aquatic vegetation both provide important ecological 
functions and services for estuarine ecosystems (e.g., NRC 2010). 
Bivalve shellfish mariculture activities can contribute to the 
restoration of aquatic ecosystems (NRC 2010), because the shellfish 
produced by these activities can provide ecological functions and 
services (e.g., water quality, habitat, and food production) that were 
diminished or eliminated in waterbodies as a result of overfishing 
historic stocks of bivalve shellfish. Commercial shellfish mariculture 
can be an alternative means of providing a variety of ecosystem 
functions and services to coastal waters, in areas where more 
traditional restoration approaches may not be practical or sufficient 
funding cannot be obtained (Alleway 2019).
    In waterbodies inhabited by both submerged aquatic vegetation and 
shellfish, these organisms provide important ecological functions and 
services to estuarine ecosystems and to the people that live in the 
vicinity of those estuaries. Both submerged aquatic vegetation and 
bivalve shellfish are considered ecosystem engineers (Ruesink et al. 
2005, Dumbauld et al. 2009) that have substantial impacts on the 
structure, functions, and dynamics of estuarine and marine ecosystems. 
While shellfish mariculture activities can disturb submerged aquatic 
vegetation beds, those activities can also increase production of 
submerged aquatic vegetation beds by reducing water turbidity, which 
allows submerged aquatic vegetation to establish and grow in deeper 
water, and by providing nutrients for their growth (NRC 2010). Bivalve 
shellfish mariculture activities can perform regulating services such 
as nutrient cycling, assimilation, and removal; habitat and supporting 
services including structural habitat for finfish and invertebrates, 
including fouling organisms that serve as food for other aquatic 
animals; and cultural services such as individual and community 
connections with the marine environment, as well as employment 
opportunities in distressed or geographically isolated communities 
(Alleway et al. 2019, NRC 2010). Gallardi (2014) found that shellfish

[[Page 57337]]

mariculture modifies benthic habitat that supports increased numbers of 
crustaceans and some fish species.
    Bivalve shellfish perform the same physiological functions (e.g., 
suspension feeding) regardless of whether they are naturally occurring 
(i.e., occupying estuarine and marine habitats through natural 
colonization or human seeding activities) or are being cultivated for 
commercial purposes. In other words, naturally occurring and cultivated 
shellfish perform virtually the same ecological functions and services 
and contribute to the overall ecological functions and services 
provided by the ecosystem or waterbody. Ecosystem services provided by 
filter-feeding bivalve molluscs include reduction of turbidity, the 
fertilization of benthic habitats, reducing the adverse effects of 
eutrophication by consuming phytoplankton and facilitating 
denitrification, carbon sequestration, providing habitat for other 
marine and estuarine organisms, and stabilizing habitats and shorelines 
(NRC 2010). Shell growth that occurs in cultured and naturally 
occurring oysters, mussels, and other bivalve shellfish sequesters 
carbon (NRC 2010). Areas used for oyster mariculture generally support 
a more diverse community of benthic and epibenthic plants and animals 
than soft substrates that are inhabited primarily by burrowing 
invertebrates (Simenstad and Fresh 1995, Dumbauld et al. 2009). While 
seagrasses can provide nursery habitat for a variety of aquatic 
species, other structured habitats in coastal waters, such as oyster 
reefs, cobble reefs, and macroalgal beds can also provide nursery 
habitat for fish and crustaceans (Heck et al. 2003). Powell et al. 
(2007) found that netting used for on-bottom clam culture can provide 
nursery habitat for mobile invertebrates and juvenile fish.
    Estuarine and marine ecosystems in which shellfish mariculture 
occur are dynamic, complex ecosystems subject to numerous types of 
natural and anthropogenic disturbances and are inhabited by a variety 
of species (e.g., NRC 2010, Simenstad and Fresh 1995). Submerged 
aquatic vegetation, bivalve molluscs, finfish, and other groups of 
species are all components of these complex ecosystems. Humans have 
been altering estuaries for millennia, by overexploitation of 
resources, habitat modifications, pollution, and other activities 
(Lotze et al. 2006). Commercial shellfish mariculture activities and 
seagrasses have coexisted for decades and centuries (Ferriss et al. 
2109, Washington Sea Grant 2015). Overfishing of oysters over time is 
one mechanism that has been a driver for many changes to estuaries, 
since habitat destruction, pollution, eutrophication, invasive species, 
disease outbreaks, and climate change generally occurred after 
overfishing depleted populations of these species (Jackson et al. 
2001). For example, in the Chesapeake Bay the oyster population has 
decreased to a level that 50 times less than the level it was in the 
early 1900s (Rothschild et al. 1994). Human activities have removed 
approximately 95 percent of important estuarine species (such as 
oysters), removed more than 65 percent of submerged aquatic vegetation, 
degraded water quality, destroyed habitat, and increased the rates of 
species invasions (Lotze et al. 2006). Submerged aquatic vegetation and 
wetlands have been lost or degraded from estuaries as a result of 
reclamation activities, eutrophication, habitat destruction, disease, 
and removal by people (Lotze et al. 2006). The filter-feeding performed 
by bivalve molluscs cultivated by mariculture activities can reduce 
turbidity in the water column to support the growth and persistence of 
submerged aquatic vegetation that provides nursery habitat for a number 
of species of fish, molluscs, and crustaceans that are important to 
commerce (NRC 2010).
    Effects of shellfish mariculture on the environment can be positive 
or negative depending on the specific activity and environmental 
component being evaluated (Gallardi 2014, NRC 2010). The individual 
effect of shellfish mariculture activities on the environment can be 
temporary or permanent, and can vary in intensity. Oysters and other 
filter-feeding bivalve molluscs produced through mariculture activities 
may help improve water quality and reduce the effects of eutrophication 
(Jackson et al. 2001).
    When evaluating the cumulative effects of shellfish mariculture 
activities on estuarine and marine ecosystems, including submerged 
aquatic vegetation, several investigators have recommending conducting 
this evaluation at an ecosystem or landscape scale (e.g., NRC 2010, 
Simenstad and Fresh 1995, Dumbauld et al. 2015), rather than focusing 
on only the immediate site where the mariculture activities are 
occurring. Using an ecosystem or landscape scale approach for assessing 
the cumulative effects of shellfish mariculture activities helps take 
into account the highly dynamic nature of coastal waters, and the 
various ecological components of those waters (e.g. water quality, 
seagrasses, finfish species, and invertebrate species) and how they 
change over time and space as a result of natural and anthropogenic 
disturbances. A cumulative effects analysis would also provide context 
on the degree to which commercial shellfish mariculture activities, 
compared to other human activities such as urban, suburban, and 
agricultural land uses in coastal watersheds, forestry activities in 
coastal watersheds, shoreline alteration activities, and point and non-
point sources of pollution, that contribute to cumulative effects that 
alter the structure, functions, and dynamics of coastal waters. An 
ecosystem or landscape approach for assessing the cumulative effects of 
shellfish mariculture activities would provide a better understanding 
of the scale and intensity of the effects of those mariculture 
activities on the structure functions, and dynamics of coastal waters 
(NRC 2010), and assist the Corps in determining whether NWP 48 
activities are resulting in no more than minimal cumulative adverse 
environmental effects. Further discussion of cumulative effects 
analysis is provided below.
    The method and location of shellfish mariculture strongly influence 
what types of impacts will occur and the intensity of those impacts 
(NRC 2010). A small mariculture operation conducted in a large, well 
flushed coastal waterbody is likely to have impacts within the normal 
range of disturbances naturally occurring in that waterbody, but as 
shellfish mariculture operations get larger, more severe impacts may 
occur (NRC 2010). Those impacts may include direct competition for 
resources (e.g., space and food), the consumption of more eggs and 
larvae of other aquatic species, and the potential for oxygen depletion 
(anoxia) to occur there is not sufficient flushing to facilitate the 
removal of the feces produced by the cultivated shellfish (NRC 2010).
    For activities authorized by NWPs, the Corps is required to 
consider the individual impacts caused by each NWP activity, as well as 
the cumulative impacts of NWP activities. In addition to the 
environmental impacts caused by individual commercial shellfish 
mariculture activities, the Corps is required to consider the 
cumulative effects of those activities. The analysis of individual 
adverse environmental effects differs from the analysis of cumulative 
adverse environmental effects. The environmental impacts caused by an 
individual activity include the direct and indirect effects caused by 
that activity on particular resources. The direct and indirect 
environmental effects caused by an individual activity contribute to 
cumulative effects, if the affected resource(s) do not fully recover

[[Page 57338]]

before another activity that is conducted at that location directly and 
indirectly affects the resource(s).
    The environmental effects of proposed activities are evaluated by 
assessing the direct and indirect effects that those activities have on 
the current environmental setting (Canter 1996). Under CEQ's NEPA 
regulations, the current environmental setting is the ``affected 
environment'' (40 CFR 1502.15). In the FWS's and NMFS's regulations for 
ESA section 7 consultations for proposed federal actions, the current 
environmental setting is the ``environmental baseline'' (50 CFR 
402.02). The Corps' regulations at 33 CFR parts 320 to 332 do not 
include a provision that explicitly defines the concept of the current 
environmental setting, but its NEPA regulations in Appendix B to 33 CFR 
part 325 refers to CEQ's definition of ``affected environment.'' The 
Clean Water Act Section 404(b)(1) Guidelines require the permitting 
authority to determine the ``potential short-term or long-term effects 
of a proposed discharge of dredged or fill material on the physical, 
chemical, and biological components of the aquatic environment'' (see 
40 CFR 230.11). As a general practice, section 230.11 is applied to the 
current physical, chemical, and biological components of the aquatic 
environment since the Guidelines do not indicate that an alternative 
interpretation should be applied.
    The current environmental setting is the product of the cumulative 
effects of human activities that have occurred over many years, as well 
as the natural processes that have influenced, and continue to 
influence, the structure, functions, and dynamics of ecosystems. The 
current environmental setting can vary substantially in different areas 
of the country and in different waterbodies. The current environmental 
setting is dependent in part on the degree to which past and present 
human activities have altered aquatic and terrestrial resources in a 
particular geographic area over time. Since humans have altered aquatic 
and terrestrial environments in numerous, substantial ways for 
millennia (e.g., Evans and Davis 2018, Ellis 2015), the current 
environmental setting takes into account how human activities and 
changing biotic and abiotic conditions have modified aquatic and 
terrestrial resources. The marine and coastal waters in which 
commercial shellfish activities occur have been altered by numerous 
human activities over many years, and the various categories of 
activities are discussed in more detail below. Consistent with the 
environmental assessment practices described above, the individual and 
cumulative adverse environmental effects of commercial shellfish 
mariculture activities in a particular waterbody should be evaluated in 
the context of the current environmental setting for that waterbody, 
including the lands that drain to that waterbody.
    In order to effectively understand and manage ecosystems, it is 
necessary to take into account how people have reshaped aquatic and 
terrestrial resources over time (Ellis 2015). Effective management of 
ecosystems is dependent upon understanding how human activities can 
have direct, indirect, and cumulative effects on those ecosystems. The 
current state of an ecosystem (e.g., a wetland or an estuary) can range 
from ``near natural'' (i.e., minimally disturbed) to semi-natural to 
production systems such as agricultural lands to overexploited (i.e., 
severely impaired) (van Andel and Aronson 2012). Degradation occurs 
when an ecosystem is subjected to a prolonged disturbance (Clewell and 
Aronson 2013), and the degree of degradation can be dependent, in part, 
on the severity of disturbance. Degradation can also result from 
multiple disturbances over time: that is cumulative impacts. Other 
factors that affect an ecosystem's response to a disturbance are 
resistance and resilience.
    For ecosystems, stability is the ability of an ecosystem to return 
its starting state after one or more disturbances cause a significant 
change in environmental conditions (van Andel et al. 2012). Resistance 
is the ability of an ecosystem to exhibit little or no change in 
structure or function when exposed to a disturbance (van Andel et al. 
2012). Resilience is the ability of an ecosystem to regain its 
structural and functional characteristics in a relatively short amount 
of time after it has been exposed to a disturbance (van Andel et al. 
2012). Human activities can change the resilience of ecosystems 
(Gunderson 2000). In some situations, resilience can be a positive 
attribute (e.g., the ability to withstand disturbances), and in other 
situations, resilience can be a negative attribute (e.g., when it is 
not possible to restore ecosystem because it has changed too much and 
is resistant to being restored) (Walker et al. 2004). The concept of 
ecological resilience presumes the existence of multiple stable states, 
and the ability of ecosystems to tolerate some degree of disturbance 
before transitioning to an alternative (different) stable state 
(Gunderson 2000). Resilience cannot be determined by examining only one 
scale (e.g., a project site); multiple scales (e.g., site, waterbody, 
watershed) must be considered because disturbances can occur at various 
scales (Walker et al. 2004). Diversity of functional groups and species 
within ecosystems is important for resilience (Folke et al. 2004), and 
management efforts that focus on single species such as seagrasses 
might not help sustain or improve resilience of an ecosystem.
    Ecosystems can exist in multiple stable states, and the resilience 
and resistance of an ecosystem will influence whether it will transform 
into an alternative stable state (Gunderson 2000). A regime shift 
(i.e., a change from one stable state to an alternative stable state) 
can occur when human activities reduce the resilience of an ecosystem, 
or functional groups of species within that ecosystem, or when there 
are changes in the magnitude, frequency, and duration of disturbances 
(Folke et al. 2004). Regime shifts can be caused by removal of species, 
pollution, land use changes, changes in environmental conditions, and 
altered disturbance regimes (Folke et al. 2004). A regime shift to an 
alternative stable state can be desirable or undesirable.
    An example of a regime change in an estuary is a shift from an 
estuary with clear waters and benthic communities dominated by 
seagrasses, to an estuary with turbid waters dominated by phytoplankton 
that has insufficient light for seagrasses to grow and persist (Folke 
et al. 2004). Another example of a regime shift is where an increase in 
nutrients to a wetland (likely from many sources in the area draining 
to that wetland) causes a wetland's plant community from a diverse 
plant community dependent on low nutrient levels to a monotypic plant 
community dominated by an invasive species that can persist under the 
higher nutrient levels (Gunderson 2000).
    Management activities can be undertaken to enhance resilience to 
reduce the risk of an undesirable regime change (Folke et al. 2000). In 
the two examples provided above, efforts to reduce nutrient inputs can 
help reduce the likelihood of a regime change caused by changes in 
nutrient inputs. The ecological functions and services provided by 
bivalve molluscs that are grown in coastal waters through commercial 
shellfish mariculture activities can contribute to the ecological 
resilience of estuarine and marine systems, for example by removing 
phytoplankton and nutrients that contribute to eutrophication.
    Determining whether an ecosystem altered by human activities is 
degraded

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or in an alternative stable state depends on the perspective of the 
person making that judgment (Hobbs 2016). That judgment is dependent in 
part on the ecological functions and services currently being provided 
by the alternative stable state and the value local stakeholders place 
on those ecosystem functions and services. In other words, different 
people may have different views on the ecological state of a particular 
ecosystem (Hobbs 2016, Walker et al. 2004): Some people may think it is 
degraded and other people may think it continues to provide important 
ecological functions and services. It is also important to understand 
that degradation falls along a continuum, ranging from minimally 
degraded to severely degraded, since all ecosystems have been directly 
or indirectly altered by human activities to some degree. Degraded 
ecosystems can continue to provide important ecological functions and 
services, although they may be different from what they provided 
historically.
    As discussed above, the current environmental setting consists of 
ecosystems (e.g., estuaries, wetlands, rivers) that have been altered 
by various human activities to different degrees over time. The present 
effects of past actions and the effects of actions occurring at the 
present time form the current environmental setting against which 
cumulative effects are evaluated (Clarke Murray et al. 2014, Stakhiv 
1998). An important aspect of understanding the current environmental 
setting is understanding the cumulative effects that have occurred to 
those ecosystems over time, and to provide a basis of comparison for 
determining whether a federal agency's proposed action will result in 
an acceptable or unacceptable addition to cumulative effects.
    The terms ``cumulative effects'' and ``cumulative impacts'' has 
been defined in various ways. For example, the National Research 
Council (NRC) (1986) defined ``cumulative effects'' as the on-going 
degradation of ecological systems caused by repeated perturbations or 
disturbances. MacDonald (2000) defines ``cumulative effects'' as the 
result of the combined effects of multiple activities that occur in a 
particular area that persist over time. Cumulative effects are caused 
by the interaction of multiple activities in a landscape unit, such as 
a watershed or ecoregion (Gosselink and Lee 1989).
    Cumulative effects can accrue in a number of ways. Cumulative 
effects can occur when there are repetitive disturbances at a single 
site over time, and the resource is not able to fully recover between 
each disturbance. Cumulative effects can also occur as a result of 
multiple activities occurring in a geographic area over time. 
Cumulative effects can result from additive interactions or synergistic 
interactions (i.e., the combined effect is greater than the sum of the 
effects of individual activities) among disturbances (MacDonald 2000). 
Cumulative effects can also result from antagonistic interactions among 
disturbances (Crain et al. 2008).
    Cumulative effects analysis requires an understanding of how 
various resources interact with each other within an appropriate 
landscape unit, such as a watershed (NRC 1986, Bedford and Preston 
1988) or a waterbody. Cumulative effects analysis also requires 
understanding and acknowledgement of the complexity, natural variation, 
and uncertainty in ecosystems (Clark Murray 2014), as well as 
acknowledgement of our incomplete understanding of these resources. 
Different disturbances can have different degrees of influence on the 
resource being evaluated, and it is often difficult to identify which 
disturbances the cumulative effects analysis should focus on, and to 
determine the degree to which a particular type of disturbance 
contributes to cumulative effects (Halpern and Fujita 2013). Because of 
the complexity of cumulative effects and the larger geographic and time 
scales over which cumulative effects occur, it is difficult to identify 
specific linkages between a potential disturbance and a particular 
resource, especially for resources that respond to a variety of human 
activities and other disturbances (Gosselink and Lee 1989). In 
addition, disturbances that affect ecosystems and specific resources 
within those ecosystems also change over space and time, making it 
difficult to identify relevant disturbances and their connections to 
the resource(s) being evaluated in the cumulative effects analysis, 
especially if those disturbances occur at distant locations (Halpern 
and Fujita 2013). An additional challenge for cumulative effects 
analysis is defining recovery rates for affected resources (MacDonald 
2000), since recovery of a resource after a disturbance occurs can 
reduce contributions to cumulative effects. Recovery rates relate to 
the resilience of the resource(s) that are the focus of the cumulative 
effects analysis.
    In marine and coastal waters, contributors to cumulative effects 
include human activities in the ocean, coastal areas, and watersheds 
that drain to those marine and coastal waters (Korpinen and Andersen 
2016). In marine and coastal environments, human activities and other 
disturbances that affect resources in those waters can come from a 
variety of sources, including water-based activities (e.g., 
transportation, fishing, mariculture, power generation, and tourism) 
and land-based activities (e.g., urban and suburban development, 
agriculture, non-point source pollution, forestry activities, power 
generation, and mining activities) (Clark Murray et al. 2014).
    Humans have been altering estuarine waters and coastal areas for 
millennia (Day et al. 2013), but those changes have rapidly accelerated 
over the past 150 to 300 years (Lotze et al. 2006). Coastal waters are 
affected by a wide variety of activities that contribute to cumulative 
effects to estuarine and marine ecosystems. The Millennium Ecosystem 
Assessment (MEA) (2005) identified five major categories of activities 
that affect coastal waters and wetlands and the ecological functions 
and services they provide: Habitat alterations, climate change, 
invasive species, overharvesting and overexploitation, and pollution 
(e.g., nitrogen and phosphorous), which are driven indirectly by 
increases in population and economic development. More specific 
categories of activities that alter coastal waters and wetlands include 
activities that alter coastal forests, wetlands, and coral reef 
habitats for aquaculture; the construction of urban areas, industrial 
facilities, resorts, and port developments; dredging and reclamation 
activities; shore protection structures; infrastructure such as 
causeways and bridges; and various types of fishing activities (MEA 
2005). Day et al. (2013) identified the following general categories of 
human activities that impact estuaries: Physical alterations (e.g., 
habitat modifications and changes in hydrology and hydrodynamics), 
increases in inputs of nutrients and organic matter (enrichment), 
releases of toxins, and changes in biological communities as a result 
of harvesting activities and intentional and unintentional 
introductions of new species.
    Robb (2014) identified a number of threats to estuaries and 
estuarine habitats, such as land-based activities in surrounding 
watersheds, such as development activities, agricultural activities, 
forestry activities, pollution, freshwater diversions, shoreline 
stabilization, waterway impairments, and inputs of debris and litter. 
With respect to activities occurring directly in coastal waters, Robb 
(2014) identified the following threats: Shoreline development, the 
construction and operation of port facilities, dredging, marine 
pollution, aquaculture activities,

[[Page 57340]]

resource extraction activities, species introductions, and recreational 
activities. Adverse effects to coastal waters are caused by habitat 
modifications, point source pollution, non-point source pollution, 
changes to hydrology and hydrodynamics, exploitation of coastal 
resources, introduction of non-native species, global climate change, 
shoreline erosion, and pathogens and toxins (NRC 1994). Jackson et al. 
(2001) found that the earliest major human disturbances to coastal 
waters were overfishing species that live in those waters, followed in 
time by other human disturbances such as pollution, water quality 
degradation, physical habitat modifications, species introductions, and 
climate change. In North America, impacts to coastal waters due to 
overfishing occurred long before Europeans occupied coastal lands (Rick 
et al. 2016, Jackson et al. 2001). For estuaries, general drivers of 
ecosystem degradation are land use, exploitation (including overfishing 
of bivalve molluscs such as oysters), and human population growth 
(Jackson et al. 2001).
    The geographic scope for a cumulative effects analysis should be 
determined by the spatial scale of the processes that most strongly 
influence the resource(s) being evaluated (MacDonald 2000). The 
temporal scope of a cumulative effects analysis should will encompass 
the past, present, and reasonably foreseeable future actions that may 
affect the resource(s) being evaluated (Clarke Murray et al. 2014, 
MacDonald 2000).
    MacDonald (2000) presents a continuum of methods for evaluating 
cumulative effects, ranging from checklists to detailed models. 
Cumulative impact maps can be a useful tool for assessing the 
cumulative effects of human activities on marine ecosystem (Halpern and 
Fujita 2013). The Council on Environmental Quality (1997) identified 
several categories of methods for evaluating cumulative effects, 
including questionnaires, checklists, matrices, models, trends 
analyses, and the use of geographic information systems. The 
appropriate method is dependent on available information, the scope of 
the cumulative effects analysis, the resource(s) of concern and other 
factors.
    Cumulative effects analyses must be, in many cases, qualitative 
analyses because of a lack of data on the resources being evaluated, 
the human activities that directly and indirectly affect those 
resources, and how those resources respond to disturbances caused by 
various human activities, such as the disturbances and threats to 
estuarine waters identified above. Data gaps are another important 
challenge, because information on ecosystem condition and the various 
stressors that affect ecosystem condition is often lacking or 
inadequate (Halpern and Fujita 2013). The lack of needed data is 
particularly relevant for a national action such as the issuance of an 
NWP, because of the paucity of national quantitative data on the 
quality and quantity of aquatic resources, the various human activities 
that can contribute to cumulative effects to those aquatic resources, 
and the variability in how aquatic resources respond to disturbances 
caused by different human activities. For a national action, regional 
variability in aquatic resources and the ecological functions and 
services they provide presents additional challenges to performing 
cumulative effects analyses.
    A qualitative analysis of cumulative effects is usually necessary 
because of incomplete understanding of the relevant ecosystem processes 
and how they are affected by the various stressors and disturbances 
that occur across space and time and contribute to cumulative effects 
(MacDonald 2000, Bedford and Preston 1988). Uncertainty is unavoidable 
in cumulative effects analysis, because of the complexity of the 
processes and interactions that need to be considered (Reid 1998). 
Because of the complexity of cumulative effects and the larger 
geographic and time scales at which they occur (e.g., past, present, 
and future activities in a waterbody or watershed) it is difficult to 
identify specific relationships where anthropogenic and natural 
disturbances affect the resource(s) being evaluated, especially for 
ecosystem components that respond to a variety of human activities and 
natural disturbances (Gosselink and Lee 1989). Predicting cumulative 
effects is difficult because of potential higher order interactions, 
such as the interactions between various stressors that contribute to 
cumulative effects, responses of species to a particular stressor may 
be dependent on context and influenced by other stressors, species may 
have different tolerances to specific stressors, and interactions among 
species may cause different stressor responses (Crain et al. 2008).
    For the issuance of an NWP, Corps Headquarters prepares a national 
decision document that evaluates, in general terms, the individual 
impacts of NWP activities as well the cumulative environmental effects 
of those activities that are anticipated to occur during the period of 
up to five years during which an NWP is normally in effect. The 
analysis in the national decision document occurs at a national level, 
because the NWP authorizes activities across the country. In the NWP 
program, a division engineer has discretionary authority to modify, 
suspend, or revoke an NWP on a regional basis or for a class of waters 
when he or she determines that proposed NWP activities would result in 
more than minimal individual and cumulative adverse environmental 
effects in a particular geographic area or class of waters (33 CFR 
330.4(e)(1)). A district engineer has discretionary authority to 
modify, suspend, or revoke an NWP authorization for a specific activity 
when she or he determines that the proposed NWP activity may result in 
more than minimal individual and cumulative adverse environmental 
effects (33 CFR 330.4(e)(2)).
    The national decision document provides a general discussion of the 
potential impacts of individual NWP activities on the aquatic 
environment, including specific resource categories such as wetlands, 
fish and wildlife, and water quality. The national decision document 
also discusses how the NWP general conditions help avoid and minimize 
the adverse environmental effects to ensure that NWP activities will 
result in no more than minimal individual and cumulative adverse 
environmental effects. The national decision document does not include 
regional analyses or site-specific analyses because the national 
decision document is used to decide whether Corps Headquarters should 
issue the NWP. Regional analyses will be conducted by division 
engineers when they decide whether to exercise their discretionary 
authority to modify, suspend, or revoke NWP authorizations on a 
regional basis. Site-specific analyses are conducted by district 
engineers when they review pre-construction notifications or voluntary 
requests for NWP verifications, to determine whether proposed 
activities are authorized by NWP or whether additional conditions are 
needed to ensure NWP activities will result in no more than minimal 
individual and cumulative adverse environmental effects. The cumulative 
effects analyses conducted in the national decision document for the 
issuance of an NWP are discussed in more detail in the following 
paragraphs.
    For the issuance of an NWP, in the environmental assessment within 
the national decision document, the Corps evaluates the ``incremental 
impact'' the NWP is anticipated to have during the five year period the 
NWP is expected to be in effect. In the national decision document, the 
national environmental

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baseline is described in the ``affected environment'' section (section 
3.0). The affected environment is described using available national-
scale information, including national assessments of the quantity and 
quality of aquatic resources in the United States and land uses within 
the United States. The environmental baseline is used to evaluate the 
significance of the effects of the proposed action, and whether an 
environmental impact statement is required to satisfy NEPA 
requirements.
    There is no requirement in CEQ's NEPA regulations for quantitative 
analyses of the impacts anticipated to be caused by a federal agency's 
proposed action. Qualitative analyses may be sufficient to satisfy NEPA 
requirements for the evaluation of the effects of the proposed action.
    For the purposes of the Clean Water Act Section 404(b)(1) 
Guidelines, EPA defines ``cumulative impacts'' as ``the changes in an 
aquatic ecosystem that are attributable to the collective effect of a 
number of individual discharges of dredged or fill material.'' (See 40 
CFR 230.11(g)(1).) The Guidelines require the permitting authority to 
predict cumulative effects in its 404(b)(1) Guidelines analysis for the 
issuance of a general permit by estimating ``the number of individual 
discharge activities likely to be regulated under a general permit 
until its expiration, including repetitions of individual discharge 
activities at a single location.'' (See 40 CFR 230.7(b)(3).)
    When the Corps prepares its 404(b)(1) Guidelines analysis in its 
national decision document for the issuance of an NWP that authorizes 
discharges of dredged or fill material into waters of the United 
States, it estimates the number of times that NWP may be used to 
authorize discharges of dredged or fill material into waters of the 
United States. The Corps also estimates the acreages of permitted 
impacts and compensatory mitigation requirements that may occur while 
the NWP is in effect (usually for a 5-year period), even though the 
Guidelines do not require those estimates. The estimated use of the NWP 
during the 5-year period the NWP is anticipated to be in effect is also 
considered (as well as other components of the 404(b)(1) Guidelines 
analysis) when the Corps determines whether the issuance of the NWP and 
its subsequent use while it is in effect will result in no more than 
minimal individual and cumulative adverse effects on the aquatic 
environment.
    The 404(b)(1) Guidelines include an adaptability provision that 
recognizes that the level of documentation for determining compliance 
with the Guidelines should reflect the significance and complexity of 
the discharge activity (40 CFR 230.6(b)). That adaptability provision 
provides the Corps with discretion in terms of the information 
necessary for the 404(b)(1) Guidelines analysis for an NWP that can 
only authorize activities that have no more than minimal individual and 
cumulative adverse environmental effects. For individual activities 
authorized by NWPs (i.e., when the Corps district issues an NWP 
verification), the 404(b)(1) Guidelines analysis is not to be repeated 
(see 40 CFR 230.6(d)).
    When assessing cumulative effects under the 404(b)(1) Guidelines, 
the current environmental setting (i.e., the environmental baseline) is 
a critical consideration, since it is used to determine the degree to 
which a particular NWP activity (or the total of NWP activities 
occurring during the 5-year period the NWP is in effect), is 
anticipated to add to cumulative effects to the environment. Since the 
NWPs are issued before any authorized activities can occur, it is by 
necessity a predictive evaluation. For the purposes of NEPA, the Corps 
evaluates whether the activities authorized by the NWP during that 5-
year period are likely to result in an incremental contribution to 
cumulative effects that would, or would not, have a significant impact 
to the quality of the human environment and therefore would not require 
the preparation of an environmental impact statement. For the issuance 
of an NWP under Section 404 of the Clean Water Act and Section 10 of 
the Rivers and Harbors Act of 1899, the Corps evaluates whether the 
activities authorized by the NWP during the 5-year period it is 
anticipated to be effect will have only minimal cumulative adverse 
effects on the current environmental setting.
    The ``no more than minimal'' threshold for the NWPs is a subjective 
threshold that requires the consideration of numerous factors, 10 of 
which are listed in paragraph 2 of Section D, ``District Engineer's 
Decision.'' The ``no more than minimal adverse environmental effects'' 
threshold cannot be quantified, because they are many factors to 
consider when making such determinations, and few of those factors can 
be quantified. For example, the environmental setting in the vicinity 
of the NWP activity cannot be quantified, and is usually understood in 
a qualitative manner. Considerations when evaluating this factor 
include, but are not limited to, whether the environmental setting 
consist of an urban or suburban area; whether the environmental setting 
is subjected to other land uses, such as agriculture, mining, 
recreation, or other activities; and whether the environmental setting 
is in a wilderness area or another area that has not been subjected to 
a substantial amount of land uses changes for human activities.
    Since all ecosystems have been affected by human activities to some 
degree, in many cases the current environmental setting likely 
continues to provide some degree of ecological functions and services 
to local communities, even though it has changed over time, perhaps to 
a new stable state. The degree or magnitude to which aquatic resources 
perform ecological functions usually must be assessed through 
qualitative means, because the actual measurement of ecological 
functions requires repeated measurements over time to quantify 
ecosystem processes (Stein et al. 2009). Quantitative measurements of 
aquatic resource functions and services is usually beyond the resources 
available to Corps districts and permit applicants. The duration of the 
adverse effects (temporary or permanent), can be influenced by the 
resilience and resistance of the aquatic resource disturbances caused 
by NWP activities. There is also the uncertainty regarding the degree 
of change to the aquatic environment that will occur as a result of the 
individual and cumulative adverse environmental effects of NWP 
activities. For some ecosystems, passing a threshold can result in 
substantial changes to the ecosystem, and for other ecosystems those 
changes may be more subtle (Folke et al. 2004).
    Uncertainty and unpredictability are inherent and unavoidable when 
managing ecosystems, as new situations arise and these ecosystems 
change because of management actions (Gunderson 2000). An adaptive 
management approach is needed to respond to this uncertainty and 
unpredictability (Gunderson 2000). The NWP program has tools available 
to address this uncertainty, such as the ability of division engineers 
to modify, suspend, or revoke NWP authorizations in a particular 
waterbody or region (see 33 CFR 330.5(c)) where new information 
indicates that the individual and cumulative adverse environmental 
effects caused by NWP activities may be becoming more than minimal.
    Regime changes and tipping points are concepts in ecology that 
address thresholds of changes and the degree of those changes. Regime 
changes and tipping points generally relate to cumulative impacts 
because they are usually brought about by disturbances caused by 
multiple human activities

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over time. Regime changes may be expressed as gradual or sudden changes 
in ecosystem structure, functions, and dynamics. An alternative state 
brought about by a regime change may be desirable or undesirable, 
depending on whether the alternative state for an ecosystem continues 
to provide ecological functions and services (Folke et al. 2004). In 
ecology, a tipping point is a threshold whereby an ecosystem would 
abruptly shift from one ecological state to a substantially different 
ecological state (Moore 2018), with relatively large changes in 
ecosystem structure, functions, and dynamics. In the context of aquatic 
resources, examples of tipping points include eutrophication of 
waterbodies and the formation of dead zones in ocean waters (Moore 
2018). Tipping points are difficult to predict (Moore 2018).
    The ecological changes that occur after a tipping point or regiment 
change threshold is crossed can generally be considered relatively 
severe changes, rather than changes that are more than minimal. Regime 
changes and tipping points may be more indicative of environmental 
changes or impacts that are more than minimal. Regime changes and 
tipping points may not a useful tool for determining whether the 
individual and cumulative adverse environmental effects of NWP 
activities are ``no more than minimal'' or ``more than minimal.'' 
Therefore, the determination of whether NWP activities are resulting in 
only minimal individual and cumulative adverse environmental effects 
will have to continue to be made through decisions made through the 
judgment exercised by district engineers, division engineers, and Corps 
Headquarters.
    We are inviting comment on the proposed changes to this NWP, 
including the proposed removal of the notification thresholds and the 
removal of the \1/2\-acre limit for direct effects to submerged aquatic 
vegetation. Division engineers can impose regional conditions to ensure 
that activities authorized by this NWP will result in no more than 
minimal adverse environmental effects. District engineers can add 
activity-specific permit conditions to this NWP. District engineers can 
also issue regional general permits to authorize similar activities in 
their geographic area of responsibility.
    NWP 49. Coal Remining Activities. We are proposing to modify this 
NWP by removing the requirement for all permittees to obtain written 
verification before proceeding with the authorized work in waters of 
the United States. Removal of the requirement to obtain written 
authorization from the district engineer prior to conducting the 
permitted activity would make this NWP consistent with the other NWPs 
that require PCNs and are authorized under 33 CFR 330.1(e)(1) if the 
district engineer does not respond to the PCN within 45 days of receipt 
of a complete PCN. As with all other NWPs that have PCN requirements, 
45 days should be a sufficient amount of time for a district engineer 
to review the PCN and determine whether the proposed activity qualifies 
for NWP authorization or whether discretionary authority should be 
exercised and an individual permit required because the proposed 
activity is unlikely to result in a net increase in aquatic resource 
functions.
    When this NWP was originally issued in 2007 (72 FR 11191), the 
requirement for the permittee to receive written authorization from the 
district engineer before commencing the proposed activity was intended 
to provide consistency with NWP 21, which authorizes surface coal 
mining activities. The 2007 NWP 21 did not have any acreage limits (72 
FR 11184).
    In addition, we are proposing to remove the phrase ``as part of an 
integrated permit processing procedure'' from the first paragraph of 
this NWP. This provision was included in the NWP when it was first 
issued in 2007 (see 72 FR 11191). The Office of Surface Mining 
Reclamation and Enforcement within the Department of the Interior has 
responsibility for authorizing surface coal mining activities only in 
Tennessee and Washington. Even though this provision has been in place 
since 2007, no integrated permit processing procedures have been 
developed for coal mining activities in these two states, and it is 
unlikely that such procedures will developed in the future. Therefore, 
we are proposing to remove this text from the NWP because it has no 
applicability. We invite public comment on whether integrated permit 
processing procedures for the activities authorized by this NWP may be 
developed in the future.
    NWP 50. Underground Coal Mining Activities. In addition to 
proposing to modify this NWP by removing the 300 linear foot limit for 
losses of stream bed, we are also proposing to remove the requirement 
for all permittees to obtain written verification before proceeding 
with the authorized work in waters of the United States. Removal of the 
requirement to obtain written verification prior to conducting the 
permitted activity would make this NWP consistent with the other NWPs 
that require PCNs and are authorized under 33 CFR 330.1(e)(1) if the 
district engineer does not respond to the PCN within 45 days of receipt 
of a complete PCN. As with the other NWPs that have a \1/2\-acre limit 
and require pre-construction notification, 45 days should be a 
sufficient amount of time for a district engineer to review the PCN and 
determine whether the proposed activity qualifies for NWP authorization 
or whether discretionary authority should be exercised and an 
individual permit required because the district engineer determines the 
proposed activity may result in more than minimal individual and 
cumulative adverse environmental effects.
    When this NWP was originally issued in 2007 (72 FR 11191), it did 
not have an acreage limit. The 2007 NWP 50 had a requirement for the 
permittee to receive written authorization from the district engineer 
before commencing the proposed activity. This provision was intended to 
provide consistency with NWP 21, which authorizes surface coal mining 
activities.
    The \1/2\-acre limit was added to NWP 50 in 2012 (see 77 FR 10281), 
so that it would be consistent with numerous other NWPs (e.g., NWPs 12, 
21, 29, 39, 40, 42, 43, 44, 51, and 52). We are proposing to remove the 
requirement for written verifications to be consistent with the other 
NWPs that have the \1/2\-acre limit, and eliminate an additional burden 
on the regulated public that is not present in similar NWPs. The 45-day 
clock for the district engineer's review of PCNs at 33 CFR 330.1(e)(1), 
as well as the provision for the NWP authorization to be in effect if 
the district engineer does not respond to the PCN within that 45-day 
period, is an important tool to provide predictability to the regulated 
public and fulfill the objective of the NWP program. That objective is 
to ``regulate with little, if any, delay or paperwork certain 
activities having minimal impacts'' (33 CFR 330.1(b)). For those 
commenters who oppose the removal of the requirement for a written 
verification from this NWP, we ask that they explain why discharges of 
dredged or fill material into waters of the United States associated 
with surface coal mining activities should be treated differently than 
other NWPs that also have a \1/2\-acre limit and authorize discharges 
of dredged or fill material into similar types of waters.
    In addition, we are proposing to remove the phrase ``as part of an 
integrated permit processing procedure'' from the first paragraph of 
this NWP. The Office of Surface Mining Reclamation and Enforcement only 
has responsibility for authorizing surface coal mining activities in 
Tennessee and Washington. Even though this provision

[[Page 57343]]

has been in place since 2007, no integrated permit processing 
procedures have been developed for coal mining activities in these two 
states, and it is unlikely that such procedures will developed in the 
future. Therefore, we are proposing to remove this text from the NWP 
because it has no applicability. We are soliciting comments on whether 
integrated permit processing procedures for the activities authorized 
by this NWP may be developed in the future.
    We are also proposing to remove the ``Note'' from this NWP because 
coal preparation and processing activities should be included in the 
single and complete NWP 50 activity, and any losses of waters of the 
United States caused by those activities should be counted towards the 
\1/2\-acre limit rather than being separately authorized by NWP 21.
    NWP 51. Land-Based Renewable Energy Generation Facilities. In Note 
1, we are proposing to change the reference to NWP 12 NWP C, since we 
are proposing to issue a new NWP for electric utility line and 
telecommunications activities (i.e., proposed new NWP C).
    In Note 3, we are proposing to add the phrase ``by the Corps'' to 
make it clear that the Corps district, not the permittee, will send a 
copy of the NWP PCN and NWP verification to the Department of Defense 
Siting Clearinghouse.
    NWP 52. Water-Based Renewable Energy Generation Pilot Projects. In 
Note 5, we are proposing to add the phrase ``by the Corps'' to make it 
clear that the Corps district, not the permittee, will send a copy of 
the NWP PCN and NWP verification to the Department of Defense Siting 
Clearinghouse.

C. Discussion of Proposed New Nationwide Permits

    The Corps has heard from stakeholders that there may be aquaculture 
activities relating to growing seaweed and finfish that meet the 
statutory conditions of general permits but are not covered by NWP 48. 
After evaluating the issue, we believe that separate NWPs should be 
proposed for these activities. In addition, E.O. 13921 directed the 
Corps to develop, and propose for public comment, NWPs that authorize 
seaweed mariculture activities and finfish mariculture activities in 
marine and coastal waters, including federal waters on the outer 
continental shelf. We are also proposing to refer the aquaculture 
activities as mariculture activities to make it clear that the proposed 
NWPs would not authorize land-based finfish, shellfish, or seaweed 
farming activities. If the proposed NWPs are issued, then there would 
be NWP authorization available for the three main mariculture sectors: 
Shellfish, seaweed, and finfish. These three NWPs would support 
industries that have potential to become a growing share in food 
production to satisfy human nutritional needs, while decreasing 
dependence on wild stocks of finfish, shellfish, and seaweeds to serve 
those needs (Lester et al. 2018, Duarte et al. 2009).
    We are also seeking public comment on whether the Corps should 
issue a single NWP that authorizes both finfish and seaweed mariculture 
activities, as well as integrated multi-trophic mariculture activities.
    A. Seaweed Mariculture Activities. We are proposing to issue a new 
NWP to authorize structures and work in marine waters, including 
structures anchored to the seabed in federal waters over the outer 
continental shelf, for seaweed mariculture activities. We are also 
proposing to include in the terms of this NWP multi-trophic mariculture 
activities, if the mariculture operator wants to cultivate other 
species, such as bivalve shellfish, with the seaweed. Multi-species 
mariculture activities are an ecosystem-based approach to mariculture, 
with the objective of providing environmental benefits by recycling 
waste nutrients from fish and other species through assimilation by 
species of commercial value that consume those nutrients (e.g., 
seaweed, bivalve molluscs) (e.g., Troell et al. 2009, Soto et al. 
2009). Stand-alone commercial shellfish mariculture activities can be 
authorized by NWP 48, but NWP 48 does not authorize seaweed mariculture 
activities. Seaweed mariculture activities currently require individual 
permits, except in Corps districts that have issued regional general 
permits that authorize seaweed mariculture activities.
    Seaweed mariculture provisioning services include the production of 
food, medicines, texturizing agents, agar, and biofuel, and may also 
have positive effects on other fisheries, by providing habitat and 
nutrients (Alleway 2019). Seaweed produced through mariculture can be 
used to produce complex materials, pharmaceuticals, food ingredients, 
feed, and biofuels (Hasselstr[ouml]m et al. 2018). Seaweeds such as red 
algae provide ingredients to produce processed food, including 
thickening agents such as agar and carrageenan (Waters et al. 2019). 
Seaweed mariculture can also benefit marine waters by improving water 
quality through uptake and metabolism of nitrogen and phosphorous and 
by providing habitat for fish and other aquatic organisms 
(Hasselstr[ouml]m et al. 2018). Seaweeds can also be used to produce 
feed for finfish mariculture activities (Diana 2009). In addition, kelp 
and other seaweed have the potential to create nursery grounds for 
young fish and crustaceans and provide shelter from predation.
    In waters that are declining in their ability to perform various 
ecological functions and services, including water quality, because of 
climate change and other factors, shellfish, finfish, and seaweed 
mariculture can restore or maintain ecological functions or services 
(Alleway 2019). Spatial planning can be used to site mariculture 
activities so that they can potentially optimize (maximize) the 
beneficial ecological services provided (Alleway 2019).
    Seaweed mariculture activities are usually conducted through the 
use of floating racks or long-lines supported by stakes or floats. The 
floating racks or long-lines support kelps and other types of seaweed 
while they grow in the water column. Seaweed mariculture activities 
typically do not involve discharges of dredged or fill material into 
waters of the United States and normally do not require authorization 
under section 404 of the Clean Water Act. Therefore, we are proposing 
to issue this new NWP under the authority of section 10 of the Rivers 
and Harbors Act of 1899. We are seeking comment on whether seaweed 
mariculture activities may involve activities that may result in a 
discharge of dredged or fill material into waters of the United States, 
and thus require authorization under Section 404 of the Clean Water 
Act.
    We are proposing to issue this NWP to authorize seaweed mariculture 
activities in the territorial seas (3 nautical miles from the coast) 
and in federal waters beyond the territorial seas that overlie the 
outer continental shelf. In coastal waters subject to Section 10 of the 
Rivers and Harbors Act of 1899, the Corps regulates obstructions in 
navigable waters of the United States. Under section 4(f) of the Outer 
Continental Shelf Lands Act of 1953 as amended (43 U.S.C. 1333(e)), the 
authority of the Corps under Section 10 of the Rivers and Harbors Act 
of 1899 to prevent obstructions to navigation in navigable waters of 
the United States was extended to the seaward limit of the outer 
continental shelf for artificial islands, installations, and other 
devices located on the seabed. Therefore, under section 4(f) of the 
Outer Continental Shelf Lands Act of 1953, as amended, a section 10 
permit is required for seaweed mariculture structures on the

[[Page 57344]]

outer continental shelf that are anchored to the seabed. In recent 
years, there has been increased interest in conducting mariculture 
activities in federal waters on the outer continental shelf where there 
are fewer pollution sources and to avoid controversies concerning 
conflicting uses of coastal waters (NRC 2010), such as objections from 
waterfront property owners regarding aesthetic impacts, impacts on 
coastal navigation, and impacts on nearshore fishing activities.
    We are proposing to add terms to this NWP to prevent conflicts with 
other uses of ocean waters, and to satisfy the requirement that NWPs 
authorize only those activities that result in no more than minimal 
individual and cumulative adverse environmental effects. We are 
proposing to require that structures in an anchorage area established 
by the U.S. Coast Guard comply with the requirements in 33 CFR 
322.5(l)(2). We are also proposing to prohibit structures in 
established danger zones or restricted areas designated by the Corps 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. These proposed terms are similar to the terms 
we established for NWP 52, which was first issued in 2012 to authorize 
water-based renewable energy generation pilot projects, because there 
may be similar concerns regarding conflicting uses of these marine 
waters. We are also proposing to require PCNs for all activities 
authorized by this NWP to give district engineers the opportunity to 
review each proposed activity to determine whether any of these 
potential conflicts may arise and exercise discretionary authority if 
necessary.
    Seaweed mariculture activities in federal waters on the outer 
continental shelf may require authorizations from other federal 
agencies. For example, seaweed mariculture operator may be required to 
obtain from the Department of the Interior's Bureau of Ocean Energy 
Management a Right of Use and Easement (RUE) if the proposed seaweed 
mariculture activity will utilize or tether to existing oil and gas 
facilities on the outer continental shelf. Consultation with the 
Department of Interior's Bureau of Safety and Environmental Enforcement 
may also be required for proposed seaweed mariculture activities on the 
outer continental shelf. Seaweed mariculture operators that propose to 
establish a private aid to navigation to mark the location of the 
seaweed mariculture activity and ensure safe navigation in the vicinity 
of that activity may need to obtain authorization from the appropriate 
U.S. Coast Guard District.
    We are proposing to require PCNs for all activities authorized by 
this NWP to allow district engineers to review each proposed activity, 
including potential adverse effects on navigation. We are also 
proposing to require PCNs to include the following information in 
addition to the information required by paragraph (b) of the ``Pre-
Construction Notification'' general condition:
    (1) A map showing the locations and dimensions of the structure(s);
    (2) the name(s) of the species that will be cultivated during the 
period this NWP is in effect; and
    (3) general water depths in the project area(s) (a detailed survey 
is not required).
    Items (1) and (3) will assist district engineers in evaluating 
potential impacts to navigation. The prospective permittee needs to 
submit only one PCN per structure or group of structures to be used for 
the seaweed mariculture operation during the effective period of this 
NWP. The PCN should also describe all species and culture activities 
the operator expects to undertake during the effective period of this 
NWP. If an operator intends to undertake unanticipated changes to the 
seaweed mariculture operation during the effective period of this NWP, 
and those changes require DA authorization, the operator must contact 
the district engineer to request a modification of the NWP 
verification.
    District engineers will review PCNs for proposed seaweed 
mariculture activities to evaluate effects on the aquatic environment, 
navigation, and other public interest review factors. Section D of the 
NWPs describes the district engineer's evaluation process for PCNs, 
including determining whether the proposed activity will result in no 
more than minimal individual and cumulative adverse environmental 
effects. Division engineers can add regional conditions to this NWP to 
address specific environmental concerns and other public interest 
review factors at a regional level. District engineers can add 
activity-specific conditions to NWP verifications to ensure that a 
particular seaweed mariculture activity will result in no more than 
minimal individual and cumulative adverse environmental effects.
    Seaweed mariculture activities may alter estuarine and marine 
habitats utilized by endangered or threatened species. Some of these 
habitats may have been determined to be designated critical habitat for 
listed species. If a proposed seaweed mariculture activity might affect 
listed species or critical habitat, then the project proponent is 
required to identify in the PCN which listed species might be affected 
by the proposed activity. The district engineer will evaluate the 
effects to listed species caused by the seaweed mariculture activity 
and determine if ESA section 7 consultation is required. If the 
district engineer reviews the PCN and determines that the proposed 
seaweed mariculture activity will adversely affect essential fish 
habitat, he or she will conduct EFH consultation with the National 
Marine Fisheries Service.
    In this proposed new NWP, we are also soliciting comment on whether 
to include the production of other species, including shellfish such as 
mussels or oysters, along with seaweed species as part of a 
multispecies mariculture activity. For example, both kelp and mussels 
may be grown from lines hanging from the same floating rack.
    We are seeking comments on this proposed new NWP, including its 
terms and conditions. The proposed terms and conditions of this NWP, as 
well as the terms and conditions of the other NWPs we are proposing to 
issue or reissue, are provided at the end of this proposed rule 
document. In response to a PCN, the district engineer may impose 
activity-specific conditions on an NWP verification to ensure that the 
adverse environmental effects of the authorized activity are no more 
than minimal or exercise discretionary authority to require exercise 
discretionary authority to require an individual permit for the 
proposed activity.
    B. Finfish Mariculture Activities. We are proposing to issue a new 
NWP to authorize structures and work in marine and estuarine waters for 
finfish mariculture activities, including structures anchored to the 
seabed in waters overlying the outer continental shelf. This NWP would 
not authorize land-based finfish mariculture activities, such as the 
construction of ponds or other facilities to produce finfish such as 
catfish, carp, or tilapia. To make it clear that this NWP is limited to 
finfish mariculture activities in marine waters, and does not authorize 
land-based finfish aquaculture activities, we are proposing to use the 
term ``mariculture'' in this NWP. Mariculture is the cultivation of 
organisms in marine and estuarine open water environments (NRC 2010). 
In addition, this proposed NWP also would not authorize the 
construction of land-based fish hatchery facilities or other attendant 
features. If the construction of such land-based

[[Page 57345]]

facilities or attendant features requires DA authorization, those 
activities may qualify for authorization under NWP 39, which authorizes 
commercial and institutional developments.
    According to the Food and Agriculture Organization (FAO) of the 
United Nations, in the United States finfish production accounts for 65 
percent of total aquaculture.\14\ The predominant marine finfish 
species currently being cultivated in the United States are Atlantic 
salmon and white sturgeon. There are preliminary efforts at using 
mariculture to produce other finfish species, such as Atlantic cod, 
longfin yellowtail, sixfinger threadfin, and cobia. The FAO identified 
other species might be produced in the future through commercial 
finfish aquaculture efforts, including yellowfin tuna, sablefish, 
yellowtail amberjack, red drum, California flounder, summer flounder, 
and Florida pompano. In freshwater systems, channel catfish is the 
primary finfish species being cultivated. Other freshwater finfish 
species that are currently cultivated in the United States include 
cyprinids, rainbow trout, hybrid striped bass, and tilapia. This 
proposed new NWP would not authorize the cultivation of freshwater 
finfish species. Freshwater finfish aquaculture activities are often 
conducted in land-based facilities, the construction of which can have 
substantial impacts on wetlands and streams. Corps districts can 
develop regional general permits for such activities.
---------------------------------------------------------------------------

    \14\ http://www.fao.org/fishery/countrysector/naso_usa/en#tcN70085 (accessed 3/16/2020).
---------------------------------------------------------------------------

    In this NWP, we are also proposing to authorize multi-trophic 
mariculture activities, if the mariculture operator wants to cultivate 
other species, such as molluscan shellfish or seaweed, with the 
finfish. Multi-species mariculture activities are an ecosystem-based 
approach to mariculture, with the objective of providing environmental 
benefits by recycling waste nutrients from the cultivated finfish and 
other fish in the vicinity other species, when other species of 
commercial value that consume those waste nutrients (e.g., seaweed, 
bivalve molluscs) (e.g., Price and Morris 2013, Troell et al. 2009, 
Soto et al. 2009).
    Finfish mariculture activities in marine and estuarine waters are 
becoming a more important mechanism for producing finfish as source of 
protein to satisfy human nutritional needs (FAO 2018, Gentry et al. 
2017). We are proposing to issue this NWP to authorize finfish 
mariculture activities in marine and estuarine coastal waters out to 
the limit of the territorial seas (3 nautical miles from the baseline) 
and in ocean waters beyond the territorial seas that overlie the outer 
continental shelf. In coastal waters, under section 10 of the Rivers 
and Harbors Act of 1899 the Corps regulates obstructions in navigable 
waters of the United States. For finfish mariculture activities, this 
can include cages and net pens. Under section 4(f) of the Outer 
Continental Shelf Lands Act of 1953 as amended (43 U.S.C. 1333(e)), the 
authority of the Corps to prevent obstructions to navigation in 
navigable waters of the United States was extended to artificial 
islands, installations, and other devices located on the seabed, to the 
seaward limit of the outer continental shelf. Department of the Army 
authorization is required under Section 10 of the Rivers and Harbors 
Act of 1899 for finfish mariculture structures on the outer continental 
shelf that are anchored to the seabed. Project proponents may propose 
mariculture activities in federal waters on the outer continental shelf 
to avoid nearshore pollution and conflicting uses of coastal waters, 
including objections from waterfront property owners based on aesthetic 
impacts (NRC 2010).
    In addition to producing food, marine mariculture can provide a 
variety of ecosystem services, including other provisioning services, 
regulating services, habitat or supporting services, and cultural 
services (Alleway 2019). The specific ecosystem services provided are 
dependent on the functional characteristics of the species being 
cultivated, the characteristics of the surrounding environment, design 
of the mariculture operation, and how those operations occur (Alleway 
2019). Finfish mariculture operations can be sited, designed, and 
implemented to avoid or minimize certain adverse environmental effects 
(Price and Morris 2013). Mariculture structures may attract fish and 
invertebrates, including fouling species (which may be prey species), 
and may act as small reserves or protected areas, when fishing and 
other activities are prohibited in the areas being used for finfish 
mariculture (Alleway 2019).
    The impacts of mariculture activities on the environment are 
strongly influenced by how they are operated, including which species 
are being produced, stocking density, how the fish are being fed, and 
location (Gentry et al. 2017). Spatial planning for mariculture 
activities in federal waters over the outer continental shelf can be an 
important tool for siting these facilities to manage impacts on the 
aquatic environment (Gentry et al. 2017). One potential benefit of 
mariculture is that it can help reduce the amount of land needed to 
produce food to support increasing human populations, by increasing the 
share of food produced in the ocean (Froehlich et al. 2018).
    We are proposing to add terms to this NWP to prevent conflicts with 
other uses of ocean waters and ensure that the NWP authorizes only 
those activities that will result in no more than minimal individual 
and cumulative adverse environmental effects. We are proposing to 
require that structures in an anchorage area established by the U.S. 
Coast Guard comply with the requirements in 33 CFR 322.5(l)(2). We are 
also proposing to prohibit structures in established danger zones or 
restricted areas designated by the Corps 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. 
These proposed terms are similar to the terms we established for NWP 
52, which was first issued in 2012 to authorize water-based renewable 
energy generation pilot projects, because there may be similar concerns 
regarding conflicting uses of these marine waters. We are also 
proposing to require PCNs for all activities authorized by this NWP to 
give district engineers the opportunity to review each proposed 
activity to determine whether any of these potential conflicts may 
arise and exercise discretionary authority if necessary.
    Finfish mariculture activities may require authorization under 
Section 402 of the Clean Water Act for discharges of pollutants into 
navigable waters. These discharges may involve animal wastes, feeds, or 
chemicals. For purposes of the Clean Water Act (CWA), off-shore federal 
waters begin 3 miles from shore for all states. Section 402 of the CWA 
establishes the National Pollutant Discharge Elimination System (NPDES) 
and authorizes EPA (or states authorized by EPA) to issue NPDES permits 
for point source discharges of pollutants into waters of the U.S., 
including the territorial seas. Only EPA issues NPDES for discharges 
into off-shore federal waters. The EPA's NPDES permit regulations also 
include specific provisions that apply to offshore mariculture 
activities. EPA regulations use the term ``concentrated aquatic 
production facility'' to describe offshore mariculture. A concentrated 
aquatic animal production facility is a ``hatchery, fish farm, or other 
facility'' which is designated by EPA in

[[Page 57346]]

accordance with 40 CFR 122.24 or that meets the criteria in Appendix C 
to 40 CFR part 122. The EPA or authorized states may issue NPDES 
permits on an individual basis (i.e., for a single facility) or as a 
general permit that covers multiple operations with similar types of 
discharges, which may be within a specified geographic area. The 
process for a finfish mariculture operator to obtain an NPDES permit 
from the EPA or approved state is separate from the Corps' NWP 
authorization process.
    Finfish mariculture activities in federal waters on the outer 
continental shelf may require authorizations from other federal 
agencies. For example, the finfish mariculture operator may be required 
to obtain from the Bureau of Ocean Energy Management a Right of Use and 
Easement (RUE) if the proposed finfish mariculture activity will 
utilize or tether to existing oil and gas facilities on the outer 
continental shelf. Consultation with the Department of Interior's 
Bureau of Safety and Environmental Enforcement may also be required for 
proposed finfish mariculture activities on the outer continental shelf. 
Finfish mariculture operators that want to establish a private aid to 
navigation to mark the location of the finfish mariculture activity and 
ensure safe navigation in the vicinity of that activity may need to 
obtain authorization from the appropriate U.S. Coast Guard District.
    Finfish mariculture activities may alter estuarine and marine 
habitats utilized by endangered or threatened species. Some of these 
habitats may have been determined to be designated critical habitat for 
listed species. If a proposed finfish mariculture activity might affect 
listed species or critical habitat, then the project proponent is 
required to identify in the PCN which listed species might be affected 
by the proposed activity. The district engineer will evaluate the 
effects to listed species caused by the finfish mariculture activity 
and determine if ESA section 7 consultation is required. If the 
district engineer reviews the PCN and determines that the proposed 
finfish mariculture activity will adversely affect essential fish 
habitat, he or she will conduct EFH consultation with the National 
Marine Fisheries Service.
    We are proposing to require PCNs for all activities authorized by 
this NWP to allow district engineers to review each proposed activity. 
We are also proposing to require PCNs to include the following 
information in addition to the information required by paragraph (b) of 
the ``Pre-Construction Notification'' general condition:
    (1) A map showing the locations and dimensions of the structure(s);
    (2) the name(s) of the species that will be cultivated during the 
period this NWP is in effect; and
    (3) general water depths in the project area(s) (a detailed survey 
is not required).
    Items (1) and (3) will assist district engineers in evaluating 
potential impacts to navigation. The prospective permittee needs to 
submit only one PCN per structure or group of structures to be used for 
the finfish mariculture operation during the effective period of this 
NWP. The PCN should also describe all species and culture activities 
the operator expects to undertake during the effective period of this 
NWP. If an operator intends to undertake unanticipated changes to the 
finfish mariculture operation during the effective period of this NWP, 
and those changes require DA authorization, the operator must contact 
the district engineer to request a modification of the NWP 
verification.
    District engineers will review PCNs for proposed finfish 
mariculture activities to evaluate effects on the aquatic environment, 
navigation, and other public interest review factors. District 
engineers will also review PCNs to evaluate potential effects on 
anchorage areas established by the U.S. Coast Guard, danger zones or 
restricted areas designated by the Corps through the procedures in 33 
CFR part 334, federal navigation channels, shipping safety fairways or 
traffic separation schemes established by the U.S. Coast Guard, or EPA- 
or Corps-designated open water dredged material disposal areas. Section 
D of the NWPs describes the district engineer's evaluation process for 
PCNs, including determining whether the proposed activity will result 
in no more than minimal individual and cumulative adverse environmental 
effects. Division engineers can add regional conditions to this NWP to 
address specific environmental concerns and other public interest 
review factors at a regional level.
    We are inviting comments on this proposed new NWP, including its 
terms and conditions. The proposed terms and conditions of this NWP, as 
well as the terms and conditions of the other NWPs we are proposing to 
issue or reissue, are provided at the end of this proposed rule 
document. In response to a PCN, the district engineer may impose 
activity-specific conditions on an NWP verification to ensure that the 
adverse environmental effects of the authorized activity are no more 
than minimal or exercise discretionary authority to require exercise 
discretionary authority to require an individual permit for the 
proposed activity.
    C. Electric Utility Line and Telecommunications Activities. In the 
section of this preamble discussing the proposed changes to NWP 12, we 
discuss our proposal to modify NWP 12 to authorize oil or natural gas 
pipeline activities and to issue two new NWPs to authorize electric 
utility line and telecommunications activities (proposed new NWP C) and 
other utility lines that convey substances not covered by proposed NWPs 
12 and C, such as potable water, sewage, wastewater, stormwater, brine, 
and industrial products that are not petrochemical products (proposed 
new NWP D). To the extent that the scale of electrical energy 
generation from renewable energy sources (e.g., land-based renewable 
energy generation facilities authorized by NWP 51 that use solar and 
wind energy to generate electricity) increases, there will also be a 
need for additional electric transmission facilities to convey the 
electricity from the generation facilities to the end users.\15\ The 
electric utility line and telecommunications activities in waters of 
the United States that would be authorized by proposed new NWP C could 
be used to authorize activities associated with these new electric 
production facilities.
---------------------------------------------------------------------------

    \15\ U.S. Department of Energy, National Renewable Energy 
Laboratory, https://www.nrel.gov/analysis/transmission-infrastructure.html (accessed April 3, 2020).
---------------------------------------------------------------------------

    We are proposing to issue a new NWP to authorize only electric 
utility line and telecommunications activities. The intent of this 
proposal is to tailor this NWP to more effectively address the 
potential adverse environmental effects that may be caused by these 
activities, and possibly add various national standards and best 
management practices that could be incorporated into the text of the 
NWP to help ensure that these activities result in only minimal 
individual and cumulative adverse environmental effects.
    For this proposed NWP, we are soliciting comments and suggestions 
for national standards or best management practices for electric 
utility line and telecommunications activities that would be 
appropriate to add to this NWP, and within the Corps' legal authority 
to enforce as terms and conditions of an NWP authorization. Adding such 
national standards or best management practices may also address 
concerns expressed regarding Corps regional conditions added to the 
NWPs by division engineers that are discussed above in the preamble to 
this proposed

[[Page 57347]]

rule. Concerns about inconsistency in Corps regional conditions for an 
NWP can be addressed by adding more terms and conditions to the NWPs to 
ensure the NWP authorizes only those activities that result in no more 
than minimal adverse environmental effects.
    For proposed new NWP C, we are proposing to retain the basic 
structure of the 2017 NWP 12, since many of the activities authorized 
by the 2017 NWP 12 could apply to electric utility line and 
telecommunications activities. That basic structure would provide 
consistency and be familiar to potential users of the modified NWP 12 
and proposed new NWPs C and D.
    We are proposing to name this NWP to ``Electric Utility Line and 
Telecommunications Activities'' because these utility lines convey 
electricity. The electric utility lines and telecommunication lines 
covered by this NWP include metal wires and fiber optic cables. The 
title of this proposed new NWP refers to ``activities'' because the 
Corps does not regulate electric utility lines and telecommunication 
lines per se. The Corps only regulates specific activities associated 
with electric utility line and telecommunication line construction, 
maintenance, repair, and removal activities that are regulated under 
Section 404 of the Clean Water Act (i.e., discharges of dredged or fill 
material into waters of the United States) and Section 10 of the Rivers 
and Harbors Act of 1899 (i.e., structures or work in navigable waters 
of the United States). We are proposing to define the term ``electric 
utility line and telecommunication line'' as ``any cable, line, or wire 
for the transmission for any purpose of electrical energy, telephone, 
and telegraph messages, and internet, radio, and television 
communication.''
    This proposed NWP authorizes substations constructed in non-tidal 
waters of the United States because electric utility line and 
telecommunications substations are often necessary for an electric 
utility line or a telecommunication line. This proposed NWP also 
authorizes foundations for overhead electric utility line and 
telecommunication line towers, poles, and anchors because those 
features are necessary for most above-ground electric utility lines and 
telecommunications lines. The proposed NWP also authorizes access 
roads, with similar text as the access roads provision in NWP 12.
    We are proposing to include a paragraph that authorizes, to the 
extent that DA 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 electric utility lines and telecommunications lines. 
Horizontal directional drilling may be used to construct or replace 
electric utility lines and telecommunications lines, and if inadvertent 
returns occur during these activities, this NWP can be used to 
authorize remediation activities so that they can occur in a timely 
manner to minimize adverse environmental effects that might be caused 
by these inadvertent returns. In addition, we are proposing to include 
a paragraph, similar to the paragraph in NWP 12 that authorizes 
temporary structures, fills, and work, including the use of temporary 
mats, necessary to conduct the electric utility line or 
telecommunications activity.
    With respect to the PCN requirements for this proposed NWP, we are 
proposing to require PCNs for proposed electric utility line and 
telecommunications activities that: (1) Require a section 10 permit; or 
(2) that include discharge of dredged or fill material that will result 
in the loss of greater than \1/10\-acre of waters of the United States.
    In Note 7, we are proposing to add the phrase ``by the Corps'' to 
make it clear that the Corps district, not the permittee, will send a 
copy of the NWP PCN and NWP verification to the Department of Defense 
Siting Clearinghouse.
    We are soliciting comments on this proposed new NWP. We are also 
seeking comments and suggestions for national standards and best 
management practices that may be added to the text of this NWP to help 
ensure that this NWP authorizes only those electric utility line and 
telecommunications activities that will cause no more than minimal 
individual and cumulative adverse environmental effects.
    D. Utility Line Activities for Water and Other Substances. In 
conjunction with the proposal to modify NWP 12 to limit it to oil and 
natural gas pipeline activities, we are proposing to issue a new NWP to 
authorize utility line activities that convey water and other 
substances that are not covered by NWP 12 or the new proposed NWP C for 
electric utility line and telecommunications activities. This proposed 
new NWP would authorize utility lines that carry substances that are 
not oil, natural gas, petrochemicals, or electricity, such as potable 
water, sewage, stormwater, wastewater, brine, irrigation water, and 
industrial products that are not petrochemicals.
    As discussed above in the sections of the preamble on proposed NWP 
12 and proposed new NWP C, the intent of this proposal is to tailor 
these NWPs to more effectively address potential differences in how the 
different types of utility lines are constructed, maintained, repaired, 
and removed. We are proposing to add, if appropriate after considering 
the comments received in response to this proposed rule, industry-
specific standards or best management practices that could serve as 
national terms in the text of the NWP to help ensure that it authorizes 
only those activities that will result in no more than minimal 
individual and cumulative adverse environmental effects. The ``terms'' 
of an NWP, as defined at 33 CFR 330.2(h), are ``the limitations and 
provisions included in the description of the NWP itself.''
    For this proposed new NWP, we are soliciting comments and 
suggestions for national standards or best management practices for 
utility lines that convey water (including potable water), sewage, 
stormwater, wastewater, brine, irrigation water, and industrial 
products that are not petrochemicals. To be incorporated into the text 
of this NWP those standards would have to be within the Corps' legal 
authority to enforce as terms and conditions of an NWP authorization. 
Adding such national standards or best management practices may also 
reduce the need for Corps regional conditions, approved by division 
engineers, and promote consistency in the use of this NWP.
    For this proposed new NWP, we have retained the basic structure of 
the 2017 NWP 12. Much of the text in this NWP is similar to the text of 
the 2017 NWP 12 since many of the activities authorized by this NWP 
apply to any utility line, regardless of what substances it conveys. 
Maintaining the basic structure from the 2017 NWP 12 may help provide 
consistency and be familiar to potential users of the new NWP. We are 
also including the proposed modifications to NWP 12 and the terms of 
the proposed new NWP C for electric utility line and telecommunications 
activities.
    We are proposing to give this NWP the following title: ``Utility 
line activities for water and other substances.'' We are proposing to 
define ``utility line,'' for the purposes of this NWP, as ``any pipe or 
pipeline for the transportation of any gaseous, liquid, liquescent, or 
slurry substance, for any purpose, that is not oil or natural gas.'' 
The title of this NWP refers to

[[Page 57348]]

``activities'' because the Corps does not regulate utility lines, 
including water and sewer lines and industrial pipelines, per se. The 
Corps only regulates specific activities associated with construction, 
maintenance, repair, and removal of these types of utility lines that 
are regulated under Section 404 of the Clean Water Act (i.e., 
discharges of dredged or fill material into waters of the United 
States) and Section 10 of the Rivers and Harbors Act of 1899 (i.e., 
structures or work in navigable waters of the United States).
    In this NWP, we are proposing to include text from NWP 12 
concerning trench excavation, temporary sidecasting, and backfilling, 
since these types of activities generally apply to all types of 
underground utility lines. The proposed paragraph for utility line 
substations would have the \1/2\-acre limit for losses of non-tidal 
waters of the United States, and the prohibition against activities 
that result in the loss of non-tidal wetlands adjacent to tidal waters. 
We are also proposing to include the paragraph from NWP 12 that covers 
substations constructed in non-tidal waters of the United States 
because water lines, sewer lines, and other types of pipelines often 
require substations for their operation. These can include pumping 
stations or lifting stations. Pumping stations are used to move water 
and other substances through the utility line. Lift stations are used 
to move wastewater from lower elevations to higher elevations, and are 
needed in areas where the elevation of the source of the wastewater is 
not sufficient for gravity flow to occur, or when gravity conveyance 
requires greater excavation depths and high construction costs.\16\
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    \16\ https://www3.epa.gov/npdes/pubs/sewers-lift_station.pdf 
(accessed April 2, 2020).
---------------------------------------------------------------------------

    We are proposing to include a paragraph authorizing foundations for 
above-ground utility lines that is similar to the paragraph that was in 
the 2017 NWP 12. The proposed paragraph would read as follows: ``This 
NWP authorizes the construction or maintenance of foundations for 
above-ground utility lines in all waters of the United States, provided 
the foundations are the minimum size necessary.'' We are proposing to 
include the authorization of access roads, since access roads may be 
necessary to construct or maintain these utility lines. This proposed 
new NWP would also authorize utility lines routed in, over, or under 
section 10 waters without a discharge of dredged or fill material, but 
still require a section 10 permit.
    We are proposing to include the paragraph from the 2017 NWP 12 that 
authorizes, to the extent that DA 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. Horizontal directional drilling 
may be used to construct or replace utility lines, and if inadvertent 
returns occur during these activities, this NWP can be used to 
authorize remediation activities so that they can occur in a timely 
manner to minimize adverse environmental effects that might be caused 
by these inadvertent returns. In addition, we are proposing to retain 
the paragraph that authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to conduct the utility 
line activity.
    Regarding pre-construction notification requirements for this 
proposed new NWP, we are proposing to require PCNs for proposed utility 
line activities that: (1) Require a section 10 permit; or (2) that 
include discharge of dredged or fill material that will result in the 
loss of greater than \1/10\-acre of waters of the United States.
    We are proposing not to include Notes 3 and 7 from the 2017 NWP 12 
in this new NWP. Note 3 addressed the applicable minimum clearances for 
aerial electric power transmission lines crossing navigable waters of 
the United States. Those minimum clearances do not apply to utility 
lines that convey water and other substances. Note 7 stated that a copy 
of the PCN and NWP verification will be provided by the Corps to the 
Department of Defense Siting Clearinghouse, which will evaluate 
potential effects on military activities. Since electric utility lines 
and telecommunications lines are the types of utility lines that the 
Department of Defense Siting Clearinghouse wants to review to determine 
whether there are potential effects on military activities, we are 
proposing to not include that note because the proposed NWP does not 
authorize electric utility lines or telecommunications lines.
    We are inviting comments on this proposed new NWP. We are also 
seeking comments and suggestions for national standards and best 
management practices that may be added to the text of this NWP to help 
ensure that this NWP authorizes only those utility line activities that 
will cause no more than minimal individual and cumulative adverse 
environmental effects.
    E. Water Reclamation and Reuse Facilities. We are proposing to 
issue a new NWP to authorize discharges of dredged or fill material 
into waters of the United States associated with the construction, 
expansion, and maintenance of water reclamation and reuse facilities, 
including vegetated areas enhanced to improve water infiltration and 
constructed wetlands to improve water quality. While some construction, 
expansion, and maintenance activities for water reclamation and reuse 
facilities may occur in uplands, or in waters and wetlands that are not 
subject to Clean Water Act jurisdiction, the construction, expansion, 
or maintenance of some water reclamation and reuse facilities, 
including engineered infrastructure (e.g., constructed features to 
collect and treat onsite-available waters) and ecological 
infrastructure (e.g., enhancement of vegetated areas to improve water 
infiltration or constructed wetlands to remove pollutants), may require 
DA authorization under Section 404 of the Clean Water Act because the 
construction, expansion, or maintenance of these facilities may involve 
discharges of dredged or fill material into waters of the United 
States.
    Safe and reliable water supplies for human consumption, 
agriculture, business, industry, recreation, and healthy ecosystems are 
critical to our nation's communities and economy. Water reuse can 
improve the security, sustainability, and resilience of our nation's 
water resources. Increasing pressures on water resources has led to 
greater water scarcity and a growing demand for sufficient quantities 
of high-quality water. Many communities have initiated or are 
developing centralized systems for planned water reuse, including 
recycling of stormwater runoff and wastewater. Likewise, they are 
increasingly interested in decentralized systems that collect and treat 
onsite-available waters, such as greywater and rainwater for non-
potable applications. Three general types of water reuse include: Non-
potable water reuse, indirect potable water reuse, and direct potable 
water reuse.
    There are two main categories of water reuse: Non-potable reuse and 
potable water reuse. For non-potable water reuse, water is captured, 
treated, and used for non-drinking purposes, such as toilet flushing, 
clothes washing, and irrigation. For indirect potable water reuse, 
water is treated with an environmental buffer and used for drinking 
water. For example, stormwater or wastewater is first

[[Page 57349]]

directed to a municipal wastewater treatment plant for treatment. Once 
treated, it is then directed to an environmental buffer, such as a 
lake, river, or a groundwater aquifer that is used as a source drinking 
water. The water is then treated at a drinking water treatment plant 
and directed into the drinking water distribution system. With direct 
potable water reuse, water is treated and used for drinking water 
without an environmental buffer. For direct potable water reuse, 
stormwater or wastewater is directed to a municipal wastewater 
treatment plant and/or an advanced wastewater treatment facility for 
treatment. Once treated, it is then directed to a drinking water 
treatment plant for further treatment or sent directly to a drinking 
water distribution system.
    Municipal water reuse can help provide substantial increases in the 
amount of available water resources in the United States (NRC 2012), by 
reusing water that was previously discharged to marine or estuarine 
waters as wastewater. It also has potential applicability in inland 
areas of the United States. Water reclamation and reuse facilities may 
consist of engineered processes, or a combination of engineered 
features and ecological features (e.g., environmental buffers, 
constructed wetlands) (NRC 2012).
    Central to all water reuse applications (non-potable and potable) 
is the requirement that any source water for potential reuse must meet 
all applicable ``fit for purpose specifications'' established by EPA or 
states. These specifications ensure that the quality of the reused 
water is demonstrated to meet relevant and applicable public health, 
environmental and other end use quality and quantity criteria. The 
Corps does not have any authority to enforce any ``fit for purpose 
specifications'' developed by EPA or states. In addition, the Corps 
does not have the authority to regulate discharges of water from 
municipal wastewater treatment plants into lakes, rivers, environmental 
buffers, or groundwater because such water discharges are not 
``discharges of dredged material'' (defined at 33 CFR 323.2(d)) or 
``discharges of fill material'' (defined at 33 CFR 323.2(f)) and are 
not subject to regulation under Section 404 of the Clean Water Act. 
These discharges may be regulated by EPA or approved states under 
Section 402 of the Clean Water Act.
    Discharges of water from water reuse or reclamation facilities that 
involve underground injection may be subject to the Underground 
Injection Control program permit requirements under the Safe Drinking 
Water Act. Injection well requirements and their permitting authorities 
vary by geographic location and by the type of activities performed. 
The owner and operator of an injection well is responsible for 
determining and fulfilling all applicable requirements prior to 
commencing construction and injection operations. Additional 
information on the UIC program and a list of permitting authorities can 
be found at: https://www.epa.gov/uic. The Corps does not have any 
authority to regulate the operation of an injection well because that 
operation does not involve discharges of dredged or fill material into 
waters of the United States, so these activities are not addressed in 
the text of proposed new NWP E.
    Because some water reclamation and reuse facilities may require 
engineered and ecological infrastructure that is constructed in waters 
of the United States through discharges of dredged or fill material, 
and thus require Clean Water Act Section 404 authorization, we are 
proposing to issue a new NWP. However, it should be noted that there 
are existing NWPs that can be used to authorize discharges of dredged 
or fill material into waters of the United States for the construction, 
expansion, or maintenance of water reclamation and reuse facilities. 
Therefore, as discussed in more detail below, an alternative to issuing 
a new NWP to authorize discharges of dredged or fill material into 
waters of the United States for water reclamation and reuse facilities 
may be to provide clarification on which existing NWPs can be used to 
authorize discharges of dredged or fill material into waters of the 
United States for the construction, expansion, or maintenance of water 
reclamation and reuse facilities.
    Under the current NWPs, certain activities that do not cause the 
loss of greater than \1/2\-acre of waters of the United States 
associated with the construction, expansion, or maintenance of water 
reclamation and reuse facilities can be authorized by NWPs 29, 39, 40, 
and 42. For example, NWP 39 authorizes discharges of dredged or fill 
material into waters of the United States for the construction or 
expansion of commercial and institutional developments, including 
attendant features that are necessary for the use and maintenance of 
those commercial and institutional buildings. (An attendant feature is 
a feature that serves the development or other primary activity, such 
as supporting infrastructure or an amenity.) The text of NWP 39 
provides the following examples of attendant features that could be 
authorized: Roads, parking lots, garages, yards, utility lines, storm 
water management facilities, wastewater treatment facilities, and 
recreation facilities such as playgrounds and playing fields. Since the 
text of NWP 39 does not provide an exclusive list of examples of 
attendant features, attendant features for a commercial or 
institutional building may also include water reclamation and reuse 
facilities.
    Certain other existing NWPs can currently be used to authorize 
discharges of dredged or fill material into waters of the United States 
for development activities or other activities that may include the 
construction, expansion, or maintenance of water reclamation and reuse 
facilities. These NWPs include those relating to residential 
developments (NWP 29), agricultural activities (NWP 40), and 
recreational facilities (NWP 42). Utility lines for water reclamation 
and reuse facilities may be authorized by the proposed modifications of 
NWP 12 or by proposed new NWPs C or D, depending on the specific 
characteristics of the utility lines.
    The Corps is concerned that the current treatment of these water 
reclamation and reuse activities under the NWP program may not be 
obvious or may be confusing to the public. Accordingly, we are seeking 
comment on whether to issue a new NWP which would explicitly authorize 
discharges of dredged or fill material into waters of the United States 
for the construction, expansion, or maintenance of water reclamation 
and reuse facilities or, alternatively, to make it clear (whether 
within those four permits are elsewhere) that water reclamation and 
reuse facilities may be attendant features under these NWPs and not 
create a new NWP. In particular, we are seeking comment on which of the 
two alternatives would provide greater clarity for permit applicants 
and other members of the public and would approach with be easier to 
implement and rely upon.

D. Discussion of Proposed Modifications to Nationwide Permit General 
Conditions

    GC 13. Removal of Temporary Structures and Fills. In 2017, this 
general condition only applied to temporary fills. We are proposing to 
modify this general condition to apply to temporary structures. The 
proposed modification of this general condition would require that 
temporary structures be removed after they have fulfilled their 
intended purpose. If a temporary structure cannot be removed or the 
project proponent wants the structure to

[[Page 57350]]

permanently remain in place, he or she can apply for an individual 
permit to authorize the permanent structure unless there is an 
applicable NWP or regional general permit that authorizes the permanent 
structure.
    GC 17. Tribal Rights. In response to the Corps' July 20, 2017, 
Federal Register notice (82 FR 33470) issued by the Corps in response 
to E.O. 13777, some commenters recommended that either the Corps revert 
back to the general condition text that was in the 2012 NWPs (see 77 FR 
10283) or issue a statement that the general condition text adopted in 
2017 would not result in any changes in implementation of the NWPs. 
They expressed concern regarding how the ``minimal adverse effects'' 
standard would be applied to the full suite of tribal rights, and the 
potential for inconsistent application of that standard across Corps 
districts.
    The text of general condition 17 for the 2017 NWPs is: ``No NWP 
activity may cause more than minimal adverse effects on tribal rights 
(including treaty rights), protected tribal resources, or tribal 
lands.'' In the ``Definitions'' section of the 2017 NWPs we also added 
definitions of the terms ``protected tribal resources,'' ``tribal 
lands,'' and ``tribal rights'' to assist in the implementation of the 
revised general condition. Before the issuance of the 2017 NWPs, 
general condition 17, tribal rights, was written as follows: ``No 
activity or its operation may impair reserved tribal rights, including, 
but not limited to, reserved water rights and treaty fishing and 
hunting rights.'' The 2012 text for general condition 17 was used for 
the 2007 NWPs (72 FR 11192), 2002 NWPs (67 FR 2089, where it was 
numbered as general condition 8), 2000 NWPs (65 FR 12893, as general 
condition 8), 1996 NWPs (61 FR 65920, as general condition 8), 1991 
NWPs (56 FR 59145, as general condition 8). Similar wording of the text 
for this general condition was used in the 1986 NWPs at 33 CFR 
330.5(b)(10) (51 FR 41257): ``That the construction or operation of the 
activity will not impair reserved tribal rights, including but not 
limited to, reserved water rights and treaty fishing and hunting 
rights.'' This condition was not in the 1982 NWPs (see 33 CFR 330.5(b) 
at 47 FR 31834) or the 1977 NWPs (see 33 CFR 323.4-3(b) at 42 FR 
37147).
    In response to the concerns expressed above, we are proposing to 
modify this general condition to return the text that was in the 2012 
NWPs and prior NWPs to eliminate any confusion about the applicable 
standards that apply when considering potential impacts to tribal 
treaty rights when consulting with tribes, and when determining the 
applicability of an NWP for a proposed activity. We revised this 
general condition in 2017 to define the tribal rights that must be 
considered by district engineers. While prior versions of the general 
condition were not limited by the examples of tribal rights they 
referenced, the 2017 revision replaced those examples with definitions 
that were intended to more explicitly cover the suite of tribal rights, 
including treaty rights, protected tribal resources, and tribal lands. 
The 2017 NWPs also defined those terms to aid users in applying the 
general condition.
    The version of the general condition we are proposing today carries 
the current definition of ``tribal rights'' currently in the 
``Definitions'' section of the NWPs (Section E), which was taken from 
the 1998 Department of Defense American Indian and Alaska Native 
Policy, without change. We are also proposing to retain the definition 
of ``tribal lands'' which is used in the ``historic properties'' 
general condition (GC 20). The definition of ``tribal lands'' was also 
adopted from the 1998 Department of Defense American Indian and Alaska 
Native Policy. The proposed text of general condition 17 does not 
include the term ``protected tribal resources,'' so we are proposing to 
remove that definition from Section E of the NWPs.
    The 2017 revision to the general condition also sought to clarify 
the general threshold for when district engineers would consult with 
tribes for NWP activities. This was done by relying on the phrase 
``cause more than minimal adverse effects'', in order to be consistent 
with the threshold for general permits established by Section 404(e) of 
the Clean Water Act. As that standard already applies as a restriction 
for all general permit actions, we propose a revision that eliminates 
any redundancy and may avoid confusion in the future. By using the word 
``impair'' the general condition will be clearer that the NWPs do not 
change existing tribal trust duties of the Corps, or the rights of 
tribes. Rather, the proposed changes to the general condition will 
serve as a guide to users when undertaking tribal consultations 
regarding the application of an NWP to a particular activity, and when 
developing protocols regarding tribal notification that build upon the 
existing Department of Defense, Army, and Corps tribal consultation 
policies. The proposed changes to this general condition can also serve 
as a starting point for division engineers, tribes, and users of the 
NWPs to develop proposed regional conditions or activity-specific 
conditions
    The proposed changes to this general condition are also intended to 
clarify that the identification of a potential effect to a tribal right 
does not mean that a district engineer must exercise his or her 
discretionary authority to require an individual permit for a proposed 
activity. The Clean Water Act requirement that no activity authorized 
by an NWP may cause more than minimal adverse effects remains 
applicable in the context of potential effects to tribal rights, 
resources, or lands. This clarification in the proposed changes to this 
general condition is intended only to avoid any confusion between 
tribal consultation policies, tribal rights, and Clean Water Act 
requirements.
    GC 18. Endangered Species. We are proposing to modify this general 
condition to respond to the changes to U.S. Fish and Wildlife Service's 
(FWS) and National Marine Fisheries Service's (NMFS) Endangered Species 
Act (ESA) section 7 consultation regulations that were published in the 
Federal Register on August 27, 2019 (84 FR 44976). Those regulations 
amended the definition of ``effects of the action'' at 50 CFR 402.02 by 
removing the term ``indirect effects.''
    In the 2017 NWPs, we added definitions of ``direct effects'' and 
``indirect effects'' to paragraph (a) of general condition 18 to assist 
with compliance with this general condition (see 81 FR 35208). We used 
definitions from FWS and NMFS regulations and guidance to define these 
terms for general condition 18. Since the FWS and NMFS simplified the 
definition of the ``effects of the action'' in 2019 by collapsing the 
terms ``direct, ``indirect,'' ``interrelated,'' and ``interdependent'' 
from the prior definition, we believe the definitions of ``direct 
effects'' and ``indirect effects'' should be removed from paragraph (a) 
of general condition 18. We are proposing to replace those definitions 
with text referring to 50 CFR 402.02 for the current definition of 
``effects of the action'' for the purposes of ESA section 7 
consultation. In addition, we are proposing to add a reference to 50 
CFR 402.17, which provides additional regulatory text for implementing 
the definition of ``effects of the action'' by giving further 
explanation regarding ``activities that are reasonably certain to 
occur'' and ``consequences caused by the proposed action.'' We invite 
public comment on how to address the FWS's and NMFS's changes to their 
definition of ``effects of the action'' to facilitate ESA section 7 
compliance for activities that may be authorized by NWPs.

[[Page 57351]]

    GC 19. Migratory Birds and Bald and Golden Eagles. We first adopted 
this general condition in the 2012 NWPs (see 77 FR 10249). This general 
condition was added to the NWPs to clarify that permittees are 
responsible for complying with the Migratory Bird Treaty Act and the 
Bald and Golden Eagle Protection Act, and for obtaining any ``take'' 
permits that may be required under the U.S. Fish and Wildlife Service's 
regulations issued under those two statutes. Under the current general 
condition, if a proposed NWP activity might result in a ``take'' of 
migratory birds or bald and golden eagles, then the project proponent 
may be responsible for obtaining ``take'' permits from the U.S. Fish 
and Wildlife Service, which is responsible for administering the 
Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. 
For the purposes of the Migratory Bird Treaty Act the term ``take'' is 
defined in 50 CFR 10.12 as meaning: ``to pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, 
wound, kill, trap, capture, or collect.'' For the purposes of the Bald 
and Golden Eagle Protection Act the term ``take'' is defined in 50 CFR 
22.3 as meaning to: ``pursue, shoot, shoot at, poison, wound, kill, 
capture, trap, collect, destroy, molest, or disturb.''
    On December 22, 2017, Solicitor's Opinion M-37050 was issued by the 
Department of the Interior. In that memorandum, the Office of the 
Solicitor concluded that Migratory Bird Treaty Act does not prohibit 
incidental take of migratory birds. According to that Solicitor's 
Opinion, the Migratory Bird Treaty Act is limited to affirmative 
actions that have as their purpose the taking or killing of migratory 
birds.
    We note that the Bald and Golden Eagle Protection Act continues to 
make project proponents responsible for obtaining any ``take'' permits 
that may be required under the U.S. Fish and Wildlife Service's 
regulations issued under that statute. Consequently, we have revised 
the wording of this general condition, but left it in the NWP general 
conditions, as a helpful reminder to the regulated public that they 
should determine for themselves, with the assistance of the U.S. Fish 
and Wildlife Service, what take permits, if any, they might require.
    GC 20. Historic Properties. We are proposing to modify paragraph 
(c) of this general condition to state that the district engineer's 
identification efforts for historic properties shall be commensurate 
with potential impacts.
    We are also proposing to modify paragraphs (c) and (d) of this 
general condition by moving the last sentence of paragraph (c) to 
paragraph (d). Under this proposal, paragraph (d) informs the non-
federal applicant that if pre-construction notification is required 
under paragraph (c) of this general condition, then he or she shall not 
begin the NWP activity until the district engineer has determined the 
proposed activity has no potential to cause effects to historic 
properties or has completed NHPA section 106 consultation. Paragraph 
(d) requires the district engineer to notify the non-federal applicant 
within 45 days of receipt of a complete PCN whether NHPA section 106 
consultation is required.
    GC 23. Mitigation. We are proposing to modify paragraph (d) of this 
general condition to establish a threshold for requiring compensatory 
mitigation for losses of stream bed that is similar to the threshold 
for wetlands in paragraph (c) of this general condition. We are 
proposing to add a \1/10\-acre threshold for requiring compensatory 
mitigation for losses of stream beds that require pre-construction 
notification, unless the district engineer determines on a case-by-case 
basis that compensatory mitigation should not be required because other 
forms of mitigation would be more environmentally appropriate and 
issues an activity-specific waiver of this requirement. Stream 
compensatory mitigation may be provided through mitigation banks, in-
lieu fee programs, or permittee-responsible mitigation.
    We are proposing to add this \1/10\-acre threshold for requiring 
compensatory mitigation for losses of stream bed that require pre-
construction notification to strengthen the mitigation requirements for 
those NWPs where we are proposing to remove the 300 linear foot limit 
for losses of stream bed. The mitigation requirements of the NWPs 
include paragraph (a) of this general condition, which requires 
permittees to design and construct NWP activities to avoid and minimize 
adverse effects to waters of the United States to the maximum extent 
practicable on the project site (i.e., on-site). The mitigation 
requirements of the NWPs also include paragraphs (c) and (d) of general 
condition 23, which address compensatory mitigation requirements for 
NWP activities. We are proposing to apply the same \1/10\-acre 
threshold for compensatory mitigation to offset losses of stream bed 
that has been applied to wetland losses since 2007 (see 72 FR 11193). 
We are also proposing to allow the district engineer to waive the 
requirement to provide compensatory mitigation for losses of greater 
than \1/10\-acre of stream bed when he or she determines that other 
forms of mitigation, such as best management practices and other 
minimization measures, are more environmentally preferable forms of 
mitigation to ensure that the authorized activity results in no more 
than minimal individual and cumulative adverse environmental effects.
    The \1/10\-acre threshold for requiring wetland compensatory 
mitigation for wetland losses authorized by NWP that require pre-
construction notification has been an effective tool in minimizing 
losses of wetlands, and we anticipate that applying a similar approach 
to losses of stream bed will be equally effective at minimizing losses 
of stream bed. In FY 2018, 82% of the fills in waters of the United 
States verified by Corps districts as being authorized by NWP impacted 
\1/10\-acre or less. Those verified impacts include both permanent and 
temporary impacts. We believe that imposing this \1/10\-acre threshold 
for requiring compensatory mitigation for losses stream bed, plus the 
district engineer's review of pre-construction notifications, will 
minimize losses of stream bed despite removing the 300 linear foot 
limit. When a district engineer reviews a PCN, and he or she determines 
that additional avoidance and minimization are necessary to qualify for 
NWP authorization, the district engineer can require the applicant to 
propose mitigation so that the adverse environmental impacts would be 
no more than minimal (see 33 CFR 330.1(e)(3)).
    We are soliciting comment on our proposal to add a \1/10\-acre 
threshold for requiring compensatory mitigation for losses of stream 
bed authorized by NWP that require compensatory mitigation. We are also 
seeking comment on including a provision similar to the provision for 
wetland compensatory mitigation, which would allow the district 
engineer to waive the compensatory mitigation requirement if she or he 
makes an activity-specific determination that other forms of mitigation 
would be environmentally preferable.
    In paragraph (e) of this general condition, we are proposing to 
change the third sentence as follows: ``If restoring or enhancing 
riparian areas involves planting vegetation, only native species should 
be planted.'' The original sentence stated that restored riparian areas 
should consist of native species. The restoration and enhancement of 
riparian areas as mitigation for NWP activities should not require 
continuous vegetation management, since continuous vegetation 
management is usually not practicable for dynamic ecosystems

[[Page 57352]]

such as riparian areas. For initial actions to restore or enhance 
riparian areas that involve planting to re-establish or enhance the 
riparian plant community, native species should be planted. However, 
some of the initial plantings will die and be replaced by other plants 
through natural recruitment and ecosystem development processes. Some 
of the plants that colonize the riparian area may be non-native 
species, especially if non-native species are well established in the 
region (e.g., Shackelford et al. 2013, Prach et al. 2015, Van den Bosch 
and Matthews 2017) and cannot be practicably managed because they are 
likely recolonize the site through normal plant community development 
processes. Non-native riparian plant species can provide important 
contributions to the ecological structure and functions of riparian 
areas.
    Compensatory mitigation requirements for NWP authorizations and 
other types of DA permits must be practicable (see 33 CFR 332.3(a)(1)). 
The practicability requirement applies to all aspects of compensatory 
mitigation, including the mitigation work plan (33 CFR 332.4(c)(7)) and 
any long-term management requirements (33 CFR 332.7(d)) imposed by the 
district engineer. In addition, compensatory mitigation projects should 
be self-sustaining once their ecological performance standards have 
been achieved (33 CFR 332.7(b)). A self-sustaining plant community will 
change over time, and the species composition of the compensatory 
mitigation project site is likely to reflect the species composition of 
similar habitat types in the region, which may include a mix of native 
and non-native species. The potential impacts of attempts to manage or 
eradicate non-native plant species should also be considered, such as 
the impacts of herbicides on native species and water quality 
(Shackelford et al. 2013) and the disturbances caused by physically 
removing non-native individuals that may create an opportunity for 
other non-native individuals to colonize that space (i.e., secondary 
invasion (Pearson et al. 2016)).
    When the district engineer requires the restoration or enhancement 
of riparian area as compensatory mitigation for NWP activities, 
monitoring of the compensatory mitigation is required under 33 CFR 
332.6. Monitoring requirements, including the length of the monitoring 
period, is determined by the district engineer. The monitoring period 
must be a minimum of 5 years, unless the district engineer determines 
that the compensatory mitigation project has achieved its performance 
standards before that 5-year period ends (see 33 CFR 332.6(b). If the 
district engineer imposes a performance standard that limits the amount 
of non-native species inhabiting a compensatory mitigation site, during 
the monitoring period the district engineer can require the party 
responsible for the compensatory mitigation project to remove the non-
native species that exceed the limit in that performance standard. 
After the monitoring period ends, the restored or enhanced riparian 
area can be allowed to go through normal plant community development 
processes, with the plant community likely changing in a manner similar 
to the other plant communities in the region.
    GC 25. Water Quality. We are proposing to modify this general 
condition to articulate that if the state, authorized tribe, or EPA 
(i.e., the certifying authority under section 401 of the Clean Water 
Act) issued a water quality certification for the issuance of an NWP, 
and the permittee cannot comply with all of the conditions in that 
water quality certification, he or she must submit an application to 
the certifying authority that satisfies the requirements of 40 CFR 
121.5(b) for a water quality certification or waiver for the activity 
involving a specific discharge to be authorized by the NWP.
    When Corps Headquarters issues, reissues, or modifies NWPs that may 
result in discharges into waters of the United States, certifying 
authorities have the opportunity to issue water quality certifications 
(WQCs) for those NWPs, or waive the requirement to obtain WQC. The 
certifying authority may also deny WQC for the issuance of the NWP, and 
require project proponents to obtain WQCs or waivers for case-specific 
NWP activities by submitting a certification request in accordance with 
40 CFR 121.5(b).
    In a WQC for the issuance of an NWP, the certifying authority may 
impose conditions in the WQC for the issuance of the NWP. The division 
engineer will review the conditions in the WQC and will make those 
conditions regional conditions on the NWP unless he or she determines 
that any of those conditions do not comply with the Corps' regulations 
regarding permit conditions at 33 CFR 325.4 (see 33 CFR 330.4(c)(2)). 
If the division engineer determines that the WQC conditions do not 
comply with 33 CFR 325.4, she or he will consider the conditioned WQC 
to be a denial of certification, and any prospective permittee that 
wants to use that NWP needs to submit an application to the certifying 
authority consistent with the requirements of 40 CFR 121.5(b) to obtain 
an WQC or waiver for the specific activity that may result in a 
discharge in order for the activity to be authorized by NWP.
    To qualify for NWP authorization, the proposed activity must comply 
with all of the NWP's terms and conditions (see 33 CFR 330.1(c)). The 
Corps will consider unauthorized any activity requiring Corps 
authorization if that activity is under construction or completed and 
does not comply with all of the terms and conditions of an NWP. This 
includes any conditions added to the NWP authorization through a WQC.
    If the certifying authority adds conditions to a WQC for the 
issuance of a general permit and the division engineer accepts those 
conditions as regional conditions to the NWP in accordance with 33 CFR 
330.4(c)(2), and the applicant cannot comply with all of the conditions 
in the WQC, then in order to comply with the requirements of Section 
401 of the Clean Water Act, the applicant would need to apply to the 
certifying authority for a WQC for the specific discharge to be 
authorized by NWP activity, or obtain an activity-specific waiver. The 
inability to comply with all conditions of a WQC does not preclude the 
use of the NWP to authorize the regulated discharge into waters of the 
United States; such circumstances would be considered a denial of WQC 
until the project proponent obtains an activity-specific WQC or waiver 
for the discharge to be authorized by the NWP for the proposed project. 
Section 401 of the Clean Water Act does not give the certifying 
authority the ability to dictate what type of permit or license is 
issued by a federal agency. The certifying authority only has the 
authority to determine whether a proposed discharge into waters of the 
United States that would be permitted or licensed by a federal agency 
complies with applicable water quality requirements. As stated in 33 
CFR 330.4(c)(5), the district engineer will not require or process an 
individual permit application solely because WQC has been denied for 
that NWP. To comply with the requirements of Section 401 of the Clean 
Water Act, the applicant has the option of obtaining a WQC for that 
specific NWP activity, or a waiver, for the proposed activity.
    GC 26. Coastal Zone Management. We are proposing to modify this 
general condition to say that if the state issued a general Coastal 
Zone Management Act (CZMA) consistency concurrence for the NWP, and the 
permittee cannot comply with all conditions of that general 
concurrency, then he or she must obtain an individual CZMA consistency

[[Page 57353]]

concurrence or presumption of concurrence from the state in order for 
the activity to be authorized by NWP.
    When Corps Headquarters issues, reissues, or modifies NWPs that 
authorize activities that may have a reasonably foreseeable effect on 
any coastal use or resource, the state has the opportunity to issue a 
general CZMA consistency concurrence for those NWPs, or issue a 
presumption of concurrence. The state may impose conditions on that 
general CMZA consistency concurrence. The division engineer will review 
the conditions on the general CZMA consistency concurrence and will 
make those conditions regional conditions on the NWP unless he or she 
determines that any of those conditions do not comply with the Corps' 
regulations regarding permit conditions at 33 CFR 325.4 (see 33 CFR 
330.4(d)(2)). If the division engineer determines that the general CZMA 
consistency concurrence conditions do not comply with 33 CFR 325.4, she 
or he will consider CZMA consistency to be denied without prejudice. In 
those circumstances, any prospective permittee that wants to use that 
NWP to authorize activities within or outside the state's coastal zone 
that affect land or water uses or natural resources of the state's 
coastal zone needs to obtain an individual CZMA consistency concurrence 
or a presumption of concurrence in order for the activity to be 
authorized by NWP (see 15 CFR 930.31(d)).
    To qualify for NWP authorization, the proposed activity must comply 
with all of the NWP's terms and conditions (see 33 CFR 330.1(c)). The 
Corps will consider unauthorized any activity requiring Corps 
authorization if that activity is under construction or completed and 
does not comply with all of the terms and conditions of an NWP. This 
includes any conditions added to the NWP authorization through a 
categorical or individual CZMA consistency concurrence.
    If the certifying agency added conditions to a general CZMA 
consistency concurrence and the division engineer accepted those 
conditions as regional conditions to the NWP in accordance with 33 CFR 
330.4(d)(2), and the applicant cannot comply with all of the conditions 
in the general CZMA consistency concurrence, then in order to comply 
with the requirements of the CZMA, the applicant would need to apply to 
the state for an individual CZMA consistency concurrence, or obtain a 
presumption of concurrence. The inability to comply with all conditions 
of a general CZMA consistency concurrence does not preclude the use of 
the NWP to authorize the permitted activities; such circumstances would 
be considered a denial without prejudice until the project proponent 
obtains an individual CZMA consistency concurrence or a presumption of 
concurrence. As stated in 33 CFR 330.4(d)(5), the district engineer 
will not require or process an individual permit application solely 
because CZMA consistency concurrence has not been granted for that NWP. 
To comply with the requirements of the CZMA, the applicant has the 
option of obtaining an individual CZMA consistency concurrence or a 
presumption of concurrence.
    GC 28. Use of Multiple Nationwide Permits. General condition 28 
address the use of more than one NWP to authorize a single and complete 
project. Under general condition 28, more than one NWP can be used to 
authorize a single and complete project, as long as the acreage loss of 
waters of the United States does not exceed the acreage limit of the 
NWP with the highest specified acreage limit. Under the current wording 
of this general condition, if two or more NWPs are proposed to be used 
to authorize a single and complete project, and two or more of those 
NWPs have specified acreages limits, the current wording of this 
general condition could result in situations where an NWP with a higher 
specified acreage limit could be used to circumvent the limit of an NWP 
with a lower specified acreage limit. For example, if NWP 39 is 
combined with NWP 46 to authorize a single and complete project, under 
the current general condition the loss of waters of the United States 
to construct the commercial and institutional development could be 
greater \1/2\-acre since NWP 46 has a specified acreage limit of 1-
acre.
    There are a few NWPs that have numeric acreage limits greater than 
\1/2\-acre: NWP 46, which authorizes discharges of dredged or fill 
material into certain ditches constructed in uplands, NWP 32 for 
completed enforcement actions, and NWP 34, which authorizes discharges 
of dredged or fill material into waters of the United States for 
cranberry production activities. Nationwide permit 46 has an acreage 
limit of one acre. NWP 32 has a 1-acre limit for tidal waters and a 5-
acre limit for non-tidal waters. Nationwide permit 34 has an acreage 
limit of 10 acres. There are also NWPs with specified acreage limits of 
less than \1/2\-acre that could potentially be used with other NWPs 
with higher specified acreage limits to authorize single and complete 
projects: NWP 18, which has a \1/10\-acre limit and NWP 14, which has a 
\1/3\-acre for activities in tidal waters.
    To prevent using NWPs with higher acreage limits to increase the 
acreage loss of waters of the United States for NWPs with lower 
specified acreage limits, we are proposing to modify this general 
condition to address two situations: (1) Only one of the NWPs used to 
authorize a single and complete project has a specified acreage limit; 
and (2) two or more NWPs used to authorize the single and complete 
projects have different specified acreage limits. In the first 
situation, we are proposing minor changes to retain the approach that 
is currently in the general condition: That the loss of waters of the 
United States cannot exceed the specified acreage limit. To address the 
second situation, and ensure that an NWP with a higher specified 
acreage limit cannot be used to circumvent the acreage limit for 
another NWP and authorize a greater loss of waters of the United States 
than could be authorized if that second NWP were to be used to 
authorize an activity on its own, we are proposing to add text to the 
general condition to state that the activities authorized by the 
respective NWPs cannot exceed their specified acreage limits. We 
propose to include an example to help illustrate how proposed paragraph 
(b) of this general condition should be applied.
    GC 31. Activities Affecting Structures or Works Built by the United 
States. Under the current Engineer Circular for processing requests to 
alter Corps Civil Works Projects pursuant to 33 U.S.C. 408 (EC 1165-2-
220, issued on September 10, 2018), Corps districts are required to 
conduct section 10 and section 404 permit evaluations and requests for 
408 permissions in a coordinated and concurrent manner. Therefore, we 
are proposing to retain this general condition with minor 
modifications. Under Appendix G-4 of EC 1165-2-220, when proposed 
activities may impact the usefulness of a USACE Navigation project and 
the scope of analysis for activities that require section 10 
authorization and section 408 permission is identical, the Corps will 
review the proposed activities and may issue a single section 10 
authorization that covers the section 408 activity. In the section 10 
authorization, the Corps district will include any necessary section 
408 conditions.
    GC 32. Pre-Construction Notification. We are proposing several 
modifications to this general condition to provide consistency with 
proposed changes to the NWPs and to clarify pre-construction 
notification requirements.

[[Page 57354]]

    We are proposing to change paragraph (a)(2) of this general 
condition by removing the following sentence: ``Also, work cannot begin 
under NWPs 21, 49, or 50 until the permittee has received written 
approval from the Corps.'' This proposed change will conform to one of 
the changes we are proposing for these three NWPs, which is to remove 
the term requiring the permittee to obtain a written verification from 
the district engineer before commencing the regulated activities in 
waters of the United States. As discussed above, we are proposing to 
make NWPs 21, 49, and 50 consistent with the other NWPs that require 
pre-construction notification, where the project proponent can proceed 
with the authorized work if the district engineer does not respond to 
the PCN within 45 days (see 33 CFR 330.1(e)(1)).
    We are proposing to modify paragraph (b)(4) of this general 
condition by dividing it into subparagraphs to clarify different 
requirements of a complete PCN: The description of the proposed NWP and 
associated information (subparagraph (b)(4)(i)); the quantities of 
anticipated losses of waters, wetlands, and other special aquatic sites 
for linear projects (subparagraph (b)(4)(ii)); and the inclusion of 
sketches with the PCN (subparagraph (b)(4)(iii)). In subparagraph 
(b)(4)(i), we are proposing to add ``(including the same NWP for 
activities that do not require PCNs)'' after ``any other NWP(s)'' to 
clarify that the PCN must identify non-PCN NWPs that are used to 
authorize any part of the proposed project or related activity, 
including separate and distant crossings of waters and wetlands for 
linear projects. For example, if the applicant is constructing a 
highway, and there are four separate and distant water crossings that 
may qualify for NWP 14 authorizations, and two of those crossings 
require PCNs and the other two do not require PCNs, then the PCN needs 
to state that the applicant is proposing to use NWP 14 to provide DA 
authorization for the non-PCN water crossings.
    In subparagraph (b)(4)(ii), we are proposing to clarify the 
information requirements for linear projects, and state that these 
information requirements do not trigger a PCN requirement for those 
crossings authorized by NWP that do not require PCNs. For linear 
projects where one or more single and complete crossings require pre-
construction notification, the PCN must include the quantity of 
anticipated losses of wetlands, other special aquatic sites, and other 
waters for each single and complete crossing, including those single 
and complete crossings authorized by NWP but do not require PCNs. We 
are also proposing to modify this subparagraph to state that this 
information will be used by the district engineer to evaluate the 
cumulative adverse environmental effects of the proposed linear 
project. The quantity of losses of wetlands, other special aquatic 
sites, and other waters that are caused by single and complete 
crossings authorized by non-PCN NWPs is being provided to the district 
engineer for informational purposes only to assist in her or his 
cumulative effects evaluation in accordance with Section D (District 
Engineer's Decision), and the district engineer should not process 
those non-PCN NWP activities as PCNs.
    In the first sentence of paragraph (b)(5), we are proposing to 
remove the phrase ``and perennial, intermittent, and ephemeral 
streams,'' and replace it with ``streams.'' If there are streams on the 
project site, then the PCN must include a delineation of those streams. 
In addition, we are proposing to modify paragraph (b)(5) to be 
consistent with our proposal to remove the 300 linear foot limit for 
losses of stream bed in NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 
52, and rely on the \1/2\-acre limit, PCN review process, and the 
ability of division and district engineers to modify, suspend, or 
revoke NWP authorizations on a regional or case-by-case basis, 
respectively, to comply with the requirement that NWPs may only 
authorize those activities that have no more than minimal individual 
and cumulative adverse environmental effects. The delineation of 
streams on the project site will be used to calculate the area of 
stream bed is proposed to be filled or excavated and thus results in a 
loss of stream bed. The area of stream bed filled or excavated would be 
applied to the \1/2\-acre limit for these NWPs, to determine whether 
the loss of stream bed plus the losses of any other non-tidal waters 
and wetlands exceeds the \1/2\-acre limit.
    We are proposing to modify paragraph (c) to state that the PCN 
should be submitted using Form ENG 6082 that was approved earlier this 
year. Form ENG 6082 should be used instead of ENG 4345, which is the 
standard individual permit application form. Block 18 of Form ENG 6082 
has a space for the project proponent to identify the specific NWP(s) 
she or he wants to use to authorize the proposed activity. Therefore, 
we are proposing to remove the text of paragraph (c) that stated that a 
completed ENG 4345 must clearly indicated that it is an NWP PCN and 
must include all of the information required by subparagraphs (b)(1) 
through (10) of this general condition.
    Because of our proposal to remove the 300 linear foot limit for 
losses of stream bed in NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 
52, as well as the associated waiver provision for losses of 
intermittent and ephemeral stream bed, we are proposing to modify 
paragraph (d)(2) of the agency coordination provisions of this general 
condition. We are proposing to remove the requirement for agency 
coordination for 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. Under the 
2017 NWPs, the project proponent could request a waiver of the 300 
linear foot limit, in cases where intermittent or ephemeral stream bed 
would be filled or excavated by the proposed NWP activity. The district 
engineer would coordinate the PCN with federal and state agencies to 
solicit comments to help the district engineer determine whether a 
waiver should be granted. Under this proposal, agency coordination 
would still be required for all NWP activities that require PCNs and 
result in the loss of greater than \1/2\-acre of waters of the United 
States; NWP 13 activities in excess of 500 linear feet, fills greater 
than one cubic yard per running foot, or involve discharges into of 
dredged or fill material into special aquatic sites; and 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.

E. Discussion of Proposed Modifications to Section D, ``District 
Engineer's Decision''

    In paragraph 1 of Section D, we are proposing to remove provisions 
that refer to potential waivers of the 300 linear foot limit for losses 
of stream bed authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, 
and 52. We are proposing this change to be consistent with our proposal 
to remove the 300 linear foot limit and the waiver provision from those 
NWPs. In the second sentence of paragraph 4, we are proposing to remove 
``or to evaluate PCNs for activities authorized by NWPs 21, 49, and 
50'' because we are proposing to remove the requirement that permittees 
obtain written verification from the district engineer before these 
activities are authorized. Pre-construction notifications for 
activities authorized by NWPs 21, 49, and 50 will be subject to the 
same timeframes as other NWP activities that require PCNs. This 
includes the ability for the permittee to presume that her or his 
project qualifies

[[Page 57355]]

for the NWP unless she or he is otherwise notified by the DE within a 
45-day period (see 33 CFR 330.1(e)(1)), or Endangered Species Act 
Section 7 consultation and/or National Historic Preservation Act 
Section 106 consultation needs to be completed for non-federal 
permittees to comply with the requirements of general conditions 18 and 
20.

F. Discussion of Proposed Modifications to Section F, ``Definitions''

    Ephemeral stream and intermittent stream. We are proposing to 
remove the definitions of ``ephemeral stream'' and ``intermittent 
stream,'' because we are proposing to remove the 300 linear foot limit 
and the ability of district engineers to waive that 300 linear foot 
limit on a case-by-case basis. Those two definitions would no longer be 
needed for the NWPs if the 300 linear foot limit is removed. The 
affected NWPs are: 21, 29, 39, 40, 42, 43, 44, 51, and 52. If the 300 
linear foot limit for losses of stream bed and the waiver provision are 
removed in the final NWPs, the terms ``ephemeral stream'' and 
``intermittent stream'' would no longer appear in the text of the NWPs 
and would no longer be needed to implement those NWPs. It should also 
be noted that ephemeral streams are not considered to be ``waters of 
the United States'' under the 2020 amendments to 33 CFR part 328. Part 
328 of the Corps' regulations defines ``waters of the United States'' 
for the purposes of the Clean Water Act.
    Loss of waters of the United States. We are proposing to rearrange 
the sentences in this definition so that the sentence that defines the 
loss of stream bed is moved to become the second sentence of this 
definition. In addition, we are proposing to modify this sentence to 
state that the stream bed would have to be permanently adversely 
affected, to be consistent with the first sentence of this definition. 
For consistency with our proposal to remove the 300 linear foot limit 
for losses of stream bed from 21, 29, 39, 40, 42, 43, 44, 51, and 52, 
and rely on the \1/2\-acre limit and other tools to comply with the 
statutory requirement that the NWPs only authorize those activities 
that have no more than minimal individual and cumulative adverse 
environmental effects, we are proposing to remove ``linear feet'' from 
the third sentence. This would provide consistency among the various 
types of waters when applying the fourth sentence of this definition, 
which states that the acreage 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.
    Ordinary high water mark. We are proposing to modify the definition 
of ``ordinary high water mark'' to be consistent with the definition in 
the 2020 final rule defining ``waters of the United States'' at 33 CFR 
328.3(c)(7).
    Perennial stream. We are proposing to modify the definition of 
``perennial stream'' to be consistent with the definition of 
``perennial'' in the 2020 final rule defining ``waters of the United 
States'' at 33 CFR 328.3(c)(8).
    We are proposing to retain the definition of ``perennial stream'' 
in the NWPs because it would still be included in the terms of NWPs 40 
and 43 if the 300 linear foot limit for losses of stream bed and the 
waiver provision are removed. Nationwide permit 40 does not authorize 
the construction of farm ponds in perennial streams. Nationwide permit 
43 does not authorize discharges of dredged or fill material for the 
construction of new stormwater management facilities in perennial 
streams.
    The definitions of ``perennial stream,'' ``intermittent stream,'' 
and ``ephemeral stream'' were added to the NWPs in 2000 (see 65 FR 
12818) because some terms and conditions of the 2000 NWPs applied to 
perennial, intermittent, or ephemeral streams. When the NWPs were 
reissued in 2002 (67 FR 2020), we added provisions to certain NWPs 
(i.e., NWPs 39, 40, 42, and 43) that allowed district engineers to 
waive the 300 linear foot limit for losses of intermittent and 
ephemeral stream bed when the proposed NWP activities were determined 
by district engineers to result in no more than minimal individual and 
cumulative adverse environmental effects. The waiver provision did not 
apply to losses of perennial stream bed.
    Protected tribal resources. Because of the proposed changes to NWP 
general condition 17, tribal rights, we are proposing to remove this 
definition from the NWPs since this term is not in the text of the 
proposed general condition. The term ``protected tribal resources'' 
does not appear elsewhere in the text of NWPs, general conditions, or 
definitions, or in Section D, ``District Engineer's Decision.''

III. Compliance With Relevant Statutes

A. National Environmental Policy Act Compliance

    We have prepared a draft decision document for each proposed NWP. 
Each draft decision document contains an environmental assessment (EA). 
The EA includes the public interest review described in 33 CFR 
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 draft decision 
document will also include analysis conducted pursuant to guidelines 
set out in accordance with 40 CFR 230.7 from the Clean Water Act 
section 404(b)(1) Guidelines. These decision documents evaluate the 
environmental effects of each NWP from a national perspective.
    The draft decision documents for the proposed NWPs are available on 
the internet at: www.regulations.gov (docket ID number COE-2020-0002) 
as Supporting Documents. We are soliciting comments on these draft 
national decision documents, and any comments received will be 
considered when preparing the final decision documents for the NWPs.
    After the NWPs are issued or reissued, division engineers will 
issue supplemental documents to evaluate environmental effects on a 
regional basis (e.g., state or Corps district). The supplemental 
documents are prepared by Corps districts, but must be approved and 
formally 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 for any 
specific geographic area within his or her division. For some Corps 
districts, their geographic area of responsibility covers an entire 
state. For other states, there is more than one Corps district 
responsible for implementing the Corps Regulatory Program, including 
the NWP program. In those states, there is a lead Corps district 
responsible for preparing the supplemental documents for all of the 
NWPs. The supplemental documents will discuss regional conditions 
imposed by division engineers to protect the aquatic environment 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 verification stage. Each national 
NWP decision document includes a national-scale NEPA cumulative effects 
analysis. Each supplemental document has a NEPA cumulative effects 
analysis conducted for a region, which is usually a state or Corps 
district. When a district engineer issues a verification letter in 
response to

[[Page 57356]]

a PCN or a voluntary request for a NWP verification, the district 
engineer prepares a brief decision document. That decision document 
explains whether the proposed NWP activity, after considering permit 
conditions such as 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 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.
    After the NWPs are issued or reissued and go into effect, district 
engineers will monitor the use of these NWPs on a regional basis (e.g., 
within a watershed, county, state, Corps district or other appropriate 
geographic area), to ensure that the use of a particular NWP is not 
resulting in more than minimal cumulative adverse environmental 
effects. The Corps staff that evaluate NWP PCNs that are required by 
the text of the NWP or by NWP general conditions or regional conditions 
imposed by division engineers, or voluntarily submitted to the Corps 
district by project proponents to receive written NWP verifications, 
often work in a particular geographic area and have an understanding of 
the activities that have been authorized by NWPs, regional general 
permits, and individual permits over time, as well as the current 
environmental setting for that geographic area. If the Corps district 
staff believe that the use of an NWP in that geographic region may be 
approaching a threshold above which the cumulative adverse 
environmental effects for that category of activities may be more than 
minimal, the district engineer may either make a recommendation to the 
division engineer to modify, suspend, or revoke the NWP authorization 
in that geographic region in accordance with the procedures in 33 CFR 
330.5(c). Alternatively, under the procedures at 33 CFR 330.5(d), the 
district engineer may also modify, suspend, or revoke NWP 
authorizations on a case-by-case basis to ensure that the NWP does not 
authorize activities that result in more than minimal cumulative 
adverse environmental effects.

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

    The proposed NWPs are issued in accordance with Section 404(e) of 
the Clean Water Act and 33 CFR part 330. These NWPs authorize 
categories of activities that are similar in nature. The ``similar in 
nature'' requirement does not mean that activities authorized by an NWP 
must be identical to each other. We believe that the ``categories of 
activities that are similar in nature'' requirement in Clean Water Act 
section 404(e) is to be interpreted broadly, for practical 
implementation of this general permit program.
    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. The NWPs provide incentives 
for project proponents to minimize impacts to jurisdictional waters and 
wetlands to qualify for NWP authorization instead of having to apply 
for individual permits. 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 330.4(e), allow district engineers 
to exercise discretionary authority to modify, suspend, or revoke NWP 
authorizations or to require individual permits, and ensure compliance 
with section 404(e) of the Clean Water Act. For each NWP that may 
authorize discharges of dredged or fill material into waters of the 
United States, the national decision documents prepared by Corps 
Headquarters include a 404(b)(1) Guidelines analysis. The supplemental 
documents prepared by division engineers will discuss regional 
circumstances to augment the 404(b)(1) Guidelines analyses in the 
national decision documents. These 404(b)(1) Guidelines analyses are 
conducted in accordance with 40 CFR part 230.7.
    The 404(b)(1) Guidelines analyses in the national decision 
documents also include cumulative effects analyses done in accordance 
with 40 CFR 230.7(b) and 230.11(g). 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.

C. 2020 Revisions to the Definition of ``Waters of the United States'' 
(i.e., the Navigable Waters Protection Rule)

    Corps general permits are not intended to make or imply a final 
conclusion regarding what water bodies are or are not subject to CWA 
jurisdiction. Instead, a Corps general permit merely states that, if a 
person complies with all of the terms and conditions of the general 
permit, that person's proposed discharges of dredged or fill material 
into the water body will be consistent with the CWA, on the ground that 
any such discharges either (1) are legally authorized under the CWA (to 
the extent that the water body is subject to CWA jurisdiction) or (2) 
are otherwise consistent with the CWA to the extent that the water body 
is nor jurisdictional under the CWA. The Corps acknowledges that some 
members of the public may seek to comply with the conditions of a 
general permit even for water bodies that are not jurisdictional under 
the CWA. Such practice, though not required, is not unlawful. The Corps 
is not required to make a formal determination whether a particular 
wetland or water is subject to jurisdiction under Section 404 of the 
Clean Water Act or Section 10 of the Rivers and Harbors Act of 1899 
before issuing an individual permit or a general permit verification. 
Many project proponents prefer the time savings that can occur when the 
Corps issues an individual permit or general permit verification 
without expending the time and resources needed to make a formal, 
definitive determination whether those wetlands and waters are 
regulated under those two authorities.
    On April 21, 2020, the U.S. Environmental Protection Agency (EPA) 
and the Army published the Navigable Waters Protection Rule revising 
the definition of ``waters of the United States'' (85 FR 22250). 
Specifically, this final rule revises the Corps' regulations at 33 CFR 
328.3, where the definition of ``waters of the United States'' is 
located for the purposes of implementing Section 404 of the Clean Water 
Act (CWA). On June 22, 2020, the Navigable Waters Protection Rule 
became effective in all states and jurisdictions except for the State 
of Colorado due to a court-issued stay in that state (the case is 
currently under appeal). The rule has also been challenged in several 
other district courts.
    Please note that some of the proposed NWPs could authorize 
activities that involve the discharge of dredged or fill material into 
water bodies that are not subject to CWA jurisdiction. For example, a 
project proponent could

[[Page 57357]]

proceed with an NWP activity that does not require submission of a PCN 
to the Corps in a non-jurisdictional water without getting a definitive 
determination from the Corps that the wetland or waterbody is not a 
water of the United States and thus not subject to CWA jurisdiction. As 
another example, if a proposed NWP activity requires pre-construction 
notification, the district engineer could issue the NWP verification 
based on the delineation of wetlands, other special aquatic sites, and 
other waters provided with the PCN in accordance with paragraph (b)(5) 
of NWP general condition 32, without the Corps making any formal 
determination as to whether those wetlands, special aquatic sites, and 
other waters are ``waters of the United States.''
    During the pendency of any litigation challenging the Navigable 
Waters Protection Rule, the NWPs will continue to authorize discharges 
of dredged or fill material in all water bodies that are subject to CWA 
jurisdiction, or may be subject to CWA jurisdiction, at the time those 
discharges occur. Where a particular water body into which a person 
proposes to discharge dredged or fill material is subject to CWA 
jurisdiction, compliance with the terms and conditions of one or more 
NWPs, or an individual permit, will be necessary. An affected party has 
the opportunity to request an approved jurisdictional determination 
from the Corps if the affected party would like the Corps' formal 
determination on the jurisdictional status of a water or feature under 
the CWA.

D. Compliance With the Endangered Species Act

    The Corps has determined 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). Those regulations and general condition 
18 require non-federal permittees to submit PCNs for any activity that 
might affect listed species or designated critical habitat. The Corps 
then evaluates the 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). Since ``might'' has a lower probability of 
occurring, it is below the threshold (i.e., ``may affect'') that 
triggers the requirement for ESA section 7 consultation for a proposed 
Federal action.
    If the project proponent is required to submit a PCN and 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 district will either make a ``no 
effect'' determination or a ``may affect'' determination. If the Corps 
district makes a ``may affect'' determination, it 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 
under its regulations at 33 CFR part 326 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 for ESA section 7 
consultation pursuant to 23 U.S.C. 327(a)(2)(B), 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. For those NWPs that require 
pre-construction notification for proposed activities, the federal 
permittee is required to provide the district engineer with the 
appropriate documentation to demonstrate compliance with section 7 of 
the ESA. 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 proposed activity to fulfill both the federal 
agency's and the Corps' obligations to comply with the ESA.
    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 section 7 of the ESA for the NWPs. 
That letter explained that the issuance or reissuance of the NWPs, as 
compliance with section 7 of the ESA is governed by NWP general 
condition 18 (which applies to every NWP and which relates to 
endangered and threatened species), and 33 CFR 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 
this proposed issuance/reissuance of NWPs. Those principles are 
discussed in more detail below.
    The only activities that are immediately authorized by NWPs are 
``no effect'' activities under Section 7 of the ESA and its 
implementing regulations at 50 CFR part 402. Therefore, the issuance or 
reissuance of NWPs does not require ESA section 7 consultation because 
no activities authorized by any NWPs ``may affect'' listed species or 
critical habitat without first completing activity-specific ESA Section 
7 consultations with the Services, as required by general condition 18 
and 33 CFR 330.4(f). Regional programmatic ESA section 7 consultations 
may also be used to satisfy the requirements of the NWPs in general 
condition 18 and 33 CFR 330.4(f) if a proposed NWP activity is covered 
by that regional programmatic consultation.
    In the May 11, 2015, issue of the Federal Register (80 FR 26832) 
the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries 
Service (NMFS) published a final rule that amended the incidental take 
statement provisions of the implementing regulations for ESA section 7 
at 50 CFR part 402. That final rule went into effect on June 10, 2015. 
In that final rule, the FWS and NMFS defined two types of programmatic 
ESA section 7 consultations, and discussed the circumstances which 
providing an

[[Page 57358]]

incidental take statement with a biological opinion for a programmatic 
section 7 consultation is appropriate. The two types of programmatic 
section 7 consultations are: Framework programmatic actions and mixed 
programmatic actions.
    A framework programmatic action is federal action that approves a 
framework for the development of future actions that are authorized, 
funded, or carried out at a later time. A mixed programmatic action is 
a federal action that approves action(s) that will not be subject to 
further section 7 consultation, and approves a framework for the 
development of future actions that are authorized, funded, or carried 
out at a later time. Definitions of ``framework programmatic action'' 
and ``mixed programmatic action'' are provided at 50 CFR 402.02. In the 
preamble to the 2015 final rule, the FWS and NMFS stated that action 
agencies can seek to engage in section 7 consultation on programmatic 
actions to gain efficiencies in the section 7 consultation process (80 
FR 26836).
    The 2015 amendments to 50 CFR part 402 also address the 
circumstances when incidental take statements will be provided in 
biological opinions for programmatic actions. In the final rule, the 
FWS and NMFS stated that since a framework programmatic action does not 
authorize any federal action to proceed, no take is anticipated to 
result from the framework programmatic action itself, and, therefore, 
the FWS and NMFS are not required to provide an incidental take 
statement in a biological opinion for a framework programmatic action 
(see 80 FR 26835). The FWS and NMFS acknowledged that adoption of a 
framework action by the federal action agency would not, by itself, 
result in any anticipated take of listed species (see 80 FR 26836). 
Therefore, the FWS and NMFS determined that it is appropriate not to 
provide an incidental take statement at the program level; any take 
that may occur when future actions are implemented under the framework 
action would be addressed through activity-specific ESA section 7 
consultations. For a national framework programmatic action, 
anticipated take from future actions could also be addressed through 
incidental take statements in regional programmatic section 7 
consultations. In the preamble to the 2015 final rule, the FWS and NMFS 
identified the Corps' NWP program as an example of a framework action 
at a national scale that can address ESA section 7 consultation 
requirements at a later time as appropriate, as specific activities are 
authorized, funded, or carried out (see 80 FR 26835).
    The FWS's and NMFS's regulations at 50 CFR 402.14(a) require each 
Federal agency to review its actions at the earliest possible time to 
determine whether a proposed action may affect listed species or 
critical habitat. This requirement applies to framework actions, 
including framework actions that occur at a national scale. If the 
Federal agency determines its proposed action may affect listed species 
or critical habitat, formal consultation is required unless the FWS 
and/or NMFS provide written concurrence that the proposed action is not 
likely to adversely affect any listed species or critical habitat. 
However, if the Federal agency determines that its proposed action, 
including any framework action, will have no effect on listed species 
or critical habitat, section 7 consultation is not required. The ESA 
section 7 consultation regulations at 50 CFR 402.14(a) state that the 
Director of FWS or NMFS may request a Federal agency to enter into 
consultation if he or she identifies any action of that agency that may 
affect listed species or critical habitat and for which there has been 
no consultation. When such a request is made, the Director shall 
forward to the Federal agency a written explanation of the basis for 
the request. Section 402.14(a) provides a mechanism whereby the NMFS or 
FWS can provide their disagreement with a Federal agency's ``no 
effect'' determination for the purposes of ESA section 7 for a proposed 
Federal action, including a framework action.
    In the August 27, 2019, issue of the Federal Register (84 FR 44976) 
the FWS and NMFS published a final rule that amended their regulations 
for interagency cooperation under Section 7 of the ESA. That final rule 
went into effect on October 28, 2019. With respect to making effects 
determinations for proposed federal actions, such as activities 
authorized by NWPs, the FWS and NMFS made two important changes to 50 
CFR part 402: (a) Introducing the term ``consequences'' to help define 
what is an effect under ESA section 7, and (b) emphasizing that to be 
considered an ``effect of the action'' under section 7 consultation, 
the consequences caused by the action would not occur but for the 
proposed action and must be reasonably certain to occur (see 84 FR 
44977). Further clarification of ``activities that are reasonably 
certain to occur'' and ``consequences caused by the proposed action'' 
were provided by the FWS and NMFS in rule text added at 50 CFR 
402.17(a) and (b), respectively. When the Corps district receives a 
pre-construction notification for a proposed NWP activity, it is 
responsible for applying the definition of ``effect of the action'' to 
the proposed NWP activity and to determine the consequences caused by 
the proposed action and which activities are reasonably certain to 
occur. The Corps district determines whether the proposed NWP activity 
``may affect'' listed species or designated critical habitat and 
initiates formal or informal section 7 consultation unless it 
determines the proposed NWP activity will have ``no effect'' on listed 
species or designated critical habitat.
    Applying the 2019 amendments to the section 7 regulations to the 
NWP program, consequences to listed species and designated critical 
habitat caused by proposed NWP activities must be reasonably certain to 
occur. In the preamble to their final rule, the FWS and NMFS stated 
that for a ``consequence or an activity to be considered reasonably 
certain to occur, the determination must be based on clear and 
substantial information'' (see 84 FR 44977). The FWS and NMFS explained 
that ``clear and substantial'' means that there has to be a firm basis 
for supporting a conclusion that a consequence of a federal action is 
reasonably certain to occur. The determination that a consequences is 
reasonably certain to occur should not be based on speculation or 
conjecture, and the information used to make that determination should 
have a ``degree of certitude'' (see 84 FR 44977). The Corps will apply 
these considerations when evaluating pre-construction notifications for 
proposed NWP activities.
    The final rule issued by the FWS and NMFS on August 27, 2019 (84 FR 
44976) also provided further discussion of programmatic ESA section 7 
consultations, including framework programmatic actions. In the 
preamble to that final rule, the FWS and NMFS stated that ESA section 7 
provides significant flexibility for Federal agency compliance with the 
ESA. Furthermore, the FWS and NMFS acknowledged that while federal 
action agencies have an obligation to consult on programs that are 
considered agency actions that may a affect listed species or critical 
habitat, ``many types of programmatic consultation would be considered 
an optional form of section 7 compliance to, for example, address a 
collection of agency actions that would otherwise be subject to 
individual consultation.'' (See 84 FR 44996.)
    As discussed in this proposed rule, the NWP program has been 
structured,

[[Page 57359]]

through the requirements of NWP general condition 18 and 33 CFR 
330.4(f) to focus ESA section 7 compliance at the activity-specific and 
regional scales. Each year, Corps districts initiate thousands of 
formal and informal ESA section 7 consultations for specific NWP 
activities (see below), and many Corps districts have worked with the 
FWS and NMFS to develop formal and informal regional programmatic 
consultations. Focusing ESA section 7 compliance at the activity-
specific scale and regional programmatic scale is more efficient for 
the permittees, the Corps, and the FWS and NMFS because it is at the 
activity-specific and regional scales that informal consultation 
written concurrences and biological opinions with incidental take 
statements are completed for proposed NWP activities.
    As stated in 50 CFR 402.14(i)(6), for a framework programmatic 
action, an incidental take statement is not required at the 
programmatic level, and any incidental take resulting from any action 
subsequently authorized, funded, or carried out under the program will 
be addressed in subsequent section 7 consultation, as appropriate. For 
a proposed NWP activity that may affect listed species or designated 
critical habitat a biological opinion with an incidental take statement 
is needed for the NWP activity to go forward, unless the FWS or NMFS 
issued a written concurrence that the proposed NWP activity is not 
likely to adversely affect listed species or designated critical 
habitat. It is through activity-specific section 7 consultations and 
regional programmatic section 7 consultations that effective protection 
of listed species and their designated critical habitat is achieved.
    After applying the 2015 and 2019 amendments to 50 CFR part 402 to 
the NWP rulemaking process, the Corps continues to believe that the 
issuance or reissuance of the NWPs has ``no effect'' on listed species 
or designated critical habitat, and that the ESA section 7 compliance 
is most effectively achieved by applying the requirements of general 
condition 18 and 33 CFR 330.4(f) to specific proposed NWP activities 
that identified after the NWPs are issued and go into effect. 
Compliance with the requirements of ESA section 7 can also be achieved 
by applying appropriate formal or informal regional programmatic ESA 
section 7 consultations that have been developed by Corps districts 
with regional offices of the FWS and NMFS.
    ESA section 7 requires each federal agency to ensure, through 
consultation with the Services, that ``any action authorized, funded, 
or carried out'' by that agency ``is not likely to jeopardize the 
continued existence of listed species or adversely modify designated 
critical habitat.'' (See 16 U.S.C. 1536(a)(2).) Accordingly, the 
Services' section 7 regulations specify that an action agency must 
ensure that the action ``it authorizes,'' including authorization by 
permit, does not cause jeopardy or adverse modification. (See 50 CFR 
402.01(a) and 402.02.) Thus, in assessing application of ESA section 7 
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 
listed species and critical habitat, general condition 18 expressly 
prohibits any activity ``which `may affect' a listed species or 
critical habitat, unless section 7 consultation addressing the effects 
of the proposed activity has been completed.'' General condition 18 
also states that if an activity ``might affect'' a listed species or 
critical habitat, a non-federal applicant must submit a PCN 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.'' In addition, 33 CFR 330.4(f)(2) imposes a PCN 
requirement for proposed NWP activities by non-federal permittees where 
listed species or critical habitat might be affected or are in the 
vicinity of the proposed NWP activity. Section 330.4(f)(2) also 
prohibits those permittees from beginning the NWP activity until 
notified by the district engineer that the requirements of the ESA have 
been satisfied and that the activity is authorized. Permit applicants 
that are Federal agencies should follow their own requirements for 
complying with the ESA (see 33 CFR 330.4(f)(1)).
    Thus, because no NWP can or does authorize an activity that may 
affect a listed species or critical habitat absent an activity-specific 
ESA section 7 consultation or applicable regional programmatic ESA 
section 7 consultation, and because any activity that may affect a 
listed species or critical habitat must undergo an activity-specific 
consultation or be in compliance with a regional programmatic ESA 
section 7 consultation before the district engineer can verify that the 
activity is authorized by NWP, the issuance or reissuance of NWPs has 
``no effect'' on listed species or critical habitat. Accordingly, the 
action being ``authorized'' by the Corps (i.e., the issuance or re-
issuance of the NWPs themselves) has no effect on listed species or 
critical habitat.
    To help ensure protection of listed species and critical habitat, 
general condition 18 and 33 CFR 330.4(f) establish a more stringent 
threshold than the threshold set forth in the Services' ESA section 7 
regulations for initiation of section 7 consultation. Specifically, 
while section 7 consultation must be initiated for any activity that 
``may affect'' listed species or critical habitat, for non-federal 
permittees general condition 18 require submission of a PCN to the 
Corps 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 prohibits work until 
``notified by the district engineer that the requirements of the ESA 
have been satisfied and that the activity is authorized.'' (See 
paragraph (c) of general condition 18.) The PCN must ``include the 
name(s) of the endangered or threatened species that might be affected 
by the proposed work or that utilize the designated critical habitat 
that might be affected by the proposed work.'' (See paragraph (b)(7) of 
the ``Pre-Construction Notification'' general condition.) Paragraph (f) 
of general condition 18 notes that information on the location of 
listed species and their critical habitat can be obtained from the 
Services directly or from their websites.
    General condition 18 makes it clear to project proponents that an 
NWP does not authorize the ``take'' of an endangered or threatened 
species. Paragraph (e) of general condition 18 also states that a 
separate authorization (e.g., an ESA section 10 permit or a biological 
opinion with an ``incidental take statement'') is required to take a 
listed species. In addition, paragraph (a) of general condition 18 
states that no activity is authorized by 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'' or ``which will directly or indirectly destroy or 
adversely modify the critical habitat of such species.'' Such 
activities would require district engineers to exercise their 
discretionary authority and subject the proposed activity to the 
individual permit review process, because an activity that would

[[Page 57360]]

jeopardize the continued existence of a listed species, or a species 
proposed for listing, or that would destroy or adversely modify the 
critical habitat of such species would not result in minimal adverse 
environmental effects and thus cannot be authorized by NWP.
    The Corps' NWP regulations at 33 CFR 330.1(c) state that an 
``activity is authorized under an NWP only if that activity and the 
permittee satisfy all of the NWP's terms and conditions.'' Thus, if a 
project proponent moves forward with an activity that ``might affect'' 
an ESA listed species without complying with the PCN or other 
requirements of general condition 18, the activity is not authorized 
under the CWA. In this case, the project proponent could be subject to 
enforcement action and penalties under the CWA. In addition, if the 
unauthorized activity results in a ``take'' of listed species as 
defined by the ESA and its implementing regulations, then he or she 
could be subject to penalties, enforcement actions, and other actions 
by the FWS or NMFS under section 11 of the ESA.
    For listed species under the jurisdiction of the FWS, information 
on listed species that may be present in the vicinity of a proposed 
activity is available through the Information Planning and Consultation 
(IPaC) system,\17\ an on-line project planning tool developed and 
maintained by the FWS.
---------------------------------------------------------------------------

    \17\ https://ecos.fws.gov/ipac/.
---------------------------------------------------------------------------

    During the process for developing regional conditions, Corps 
districts coordinate or consult with FWS and/or NMFS regional or field 
offices to identify regional conditions that can provide additional 
assurance of compliance with general condition 18 and 33 CFR 
330.4(f)(2). Such 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.
    Corps district offices meet with local representatives of the FWS 
and NMFS to establish or modify existing procedures, where necessary, 
to ensure that the Corps has the latest information regarding the 
existence and location of any threatened or endangered species or their 
critical habitat. Corps districts can also establish, through local 
procedures or other means, additional safeguards that ensure compliance 
with the ESA. Through formal ESA section 7 consultation, or through 
other coordination with the FWS and/or the NMFS, as appropriate, the 
Corps establishes procedures to ensure that NWP activities will not 
jeopardize any threatened and endangered species or result in the 
destruction or adverse modification of designated critical habitat. 
Such procedures may result in the development of regional conditions 
added to the NWP by the division engineer, or in activity-specific 
conditions to be added to an NWP authorization by the district 
engineer.
    Based on the fact that NWP issuance or reissuance has no effect on 
listed species or critical habitat and any proposed NWP activity that 
``may affect'' listed species or critical habitat will undergo an 
activity-specific ESA section 7 consultation, there is no requirement 
that the Corps undertake programmatic consultation for the NWP program. 
The national programmatic consultations conducted in the past for the 
NWP program were voluntary consultations. Regional programmatic 
consultation can be conducted by Corps districts and regional or local 
offices of the FWS and/or NMFS to provide further assurance against 
potential adverse effects on listed species or critical habitat, and 
assure other benefits to listed species or critical habitat, such as 
through the establishment of additional procedures, regional NWP 
conditions, activity-specific NWP conditions, or other safeguards that 
may be employed by Corps district offices based on further discussions 
between the Corps and the FWS and NMFS.
    Examples of regional programmatic consultations currently in 
effect, with the applicable Service the Corps consulted with, include: 
The Standard Local Operating Procedures for Endangered Species in 
Mississippi (2017--FWS); the Endangered Species Act Section 7 
Programmatic Biological Opinion and Magnuson-Stevens Fishery 
Conservation and Management Act Essential Fish Habitat Consultation for 
Tidal Area Restoration Authorized, Funded, or Implemented by the Corps 
of Engineers, Federal Emergency Management Agency, and Federal Highways 
Administration, in Oregon and the Lower Columbia River (NMFS--2018); 
the U.S. Anny Corps of Engineers Jacksonville District's Programmatic 
Biological Opinion (JAXBO) (NMFS--2017); Missouri Bat Programmatic 
Informal Consultation Framework (FWS--2019); Revised Programmatic 
Biological/Conference Opinion for bridge and culvert repair and 
replacement projects affecting the Dwarf Wedgemussel, Tar River 
Spinymussel, Yellow Lance and Atlantic Pigtoe. Programmatic Conference 
Opinion (PCO) for Bridge and Culvert Replacement/Repairs/
Rehabilitations in Eastern North Carolina, NCDOT Divisions 1-8 (FWS--
2018); and the Corps and NOAA Fisheries Greater Atlantic Regional 
Fisheries Office (GARFO) Not Likely to Adversely Affect Program 
Programmatic Consultation (NMFS--2017).
    The programmatic ESA section 7 consultations the Corps conducted 
for the 2007 and 2012 NWPs were voluntary consultations. The voluntary 
programmatic consultation conducted with the NMFS for the 2012 NWPs 
resulted in a biological opinion issued on February 15, 2012, which was 
replaced by a new biological opinion issued on November 24, 2014. A new 
biological opinion was issued by NMFS after the proposed action was 
modified and triggered re-initiation of that programmatic consultation. 
The programmatic consultation on the 2012 NWPs with the FWS did not 
result in a biological opinion. For the 2017 NWPs, we did not request a 
national programmatic consultation.
    In the Corps Regulatory Program's automated information system 
(ORM), 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 evaluates approximately 35,000 NWP PCNs and 
requests for NWP verifications for activities that do not require PCNs, 
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 section 7 consultations whenever they determine 
proposed NWP activities ``may affect'' listed species or critical 
habitat. District

[[Page 57361]]

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 for activities authorized by NWPs. 
These section 7 consultations are tracked in ORM. In FY 2018 (October 
1, 2017 to September 30, 2018), Corps districts conducted 640 formal 
consultations and 3,048 informal consultations under ESA section 7 for 
NWP PCNs. During that time period, the Corps also used regional 
programmatic consultations for 7,148 NWP PCNs to comply with ESA 
section 7. Therefore, each year an average of more than 10,800 formal, 
informal, and programmatic ESA section 7 consultations are conducted 
with the FWS and/or NMFS in response to NWP PCNs, including those 
activities that required PCNs under paragraph (c) of general condition 
18. For a linear project authorized by NWPs 12 or 14, where the 
district engineer determines that one or more crossings of waters of 
the United States that require Corps authorization ``may affect'' 
listed species or designated critical habitat, the district engineer 
initiates a single section 7 consultation with the FWS and/or NMFS for 
all of those crossings that he or she determines ``may affect'' listed 
species or designate critical habitat. The number of section 7 
consultations provided above represents the number of NWP PCNs that 
required some form of ESA section 7 consultation, not the number of 
single and complete projects authorized by NWP that may be included in 
a single PCN. A single NWP PCN may include more than one single and 
complete project, especially if it is for a linear project such as a 
utility line or road with multiple separate and distant crossings of 
jurisdictional waters and wetlands from its point of origin to its 
terminal point.
    During the process for reissuing the NWPs, Corps districts will 
coordinate with regional and field offices of the FWS and NMFS to 
discuss whether new or modified regional conditions should be imposed 
on the NWPs to improve protection of listed species and designated 
critical habitat and ensure that the NWPs only authorize activities 
with no more than minimal individual and cumulative adverse 
environmental effects. Regional conditions must comply with the Corps' 
regulations at 33 CFR 325.4 for adding permit conditions to DA 
authorizations. The Corps decides whether suggested regional conditions 
identified during this coordination are appropriate for the NWPs. 
During this coordination, other tools, such as additional regional 
programmatic consultations or standard local operating procedures, 
might be developed to facilitate compliance with the ESA while 
streamlining the process for authorizing activities under the NWPs. 
Section 7 consultation on regional conditions occurs only when a Corps 
districts makes a ``may affect'' determination and initiates formal or 
informal section 7 consultation with the FWS and/or NMFS, depending on 
the species that may be affected. Otherwise, the Corps district 
coordinates the regional conditions with the FWS and/or NMFS. Regional 
conditions, standard local operating procedures, and regional 
programmatic consultations are important tools for protecting listed 
species and critical habitat and helping to tailor the NWP program to 
address specific species, their habitats, and the stressors that affect 
those species.

E. 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 will be 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 will 
coordinate with NMFS regional offices, to the extent necessary, to 
develop NWP regional conditions that conserve EFH and are consistent 
with the NMFS regional EFH Conservation Recommendations. Corps 
districts will conduct consultations in accordance with the EFH 
consultation regulations at 50 CFR 600.920.

F. Compliance With Section 106 of the National Historic Preservation 
Act

    The NWP regulations at 33 CFR 330.4(g) and the ``Historic 
Properties'' general condition (general condition 20), ensure that all 
activities authorized by NWPs comply with section 106 of the NHPA. The 
``Historic Properties'' general condition 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 the 
``Historic Properties'' general condition 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 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 the ``Historic Properties'' general 
condition, 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

[[Page 57362]]

by the ``Historic Properties'' general condition. Programmatic 
agreements (see 36 CFR 800.14(b)) may also be used to satisfy the 
requirements of the NWPs in the ``Historic Properties'' general 
condition 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, the ``Historic Properties'' general condition 
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. The ``Historic Properties'' general 
condition 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 the ``Historic Properties'' general condition).
    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 section 106 consultation 
(unless that activity is covered under a programmatic agreement) before 
the district engineer can verify that the activity is authorized by 
NWP, the issuance or reissuance of NWPs has ``no potential to cause 
effects'' on historic properties. Accordingly, the action being 
``authorized'' by the Corps, which is the issuance or re-issuance of 
the NWPs by Corps Headquarters, has no potential to cause effects on 
historic properties.
    To help ensure protection of historic properties, the ``Historic 
Properties'' general condition 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 the ``Historic Properties'' general condition 
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.'' The ``Historic Properties'' 
general condition 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 the ``Historic Properties'' general condition.) 
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 the ``Pre-Construction Notification'' general condition.)
    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 the ``Historic Properties'' general condition and 33 CFR 
330.4(g)(2) for NWP activities undertaken by non-federal permittees. 
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 the 
``Historic Properties'' general condition (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.

G. Compliance With Section 401 of the Clean Water Act

    A water quality certification issued by a state, authorized tribe, 
or EPA, or a waiver thereof, is required by Section 401 of the Clean 
Water Act, for an activity authorized by NWP which may result in a 
discharge from a point source into waters of the United States. Water 
quality certifications may be granted without conditions, granted with 
conditions, denied, or waived for specific NWPs.
    We believe that, in general, the activities authorized by the NWPs 
will comply with the applicable provisions of sections 301, 302, 303, 
306, and 307 of the Clean Water Act, and state or tribal regulatory 
requirements for point source discharges into waters of the United 
States. The NWPs are conditioned to ensure that adverse environmental 
effects will be no more than minimal and address the types of 
activities that would be routinely authorized if evaluated under the 
individual permit process. We recognize that in some states or tribal 
lands there will be a need to conduct individual state or tribal review 
for some activities, to ensure compliance with the applicable 
provisions of sections 301, 302, 303, 306, and 307 of the CWA and other 
appropriate provisions of state/tribal law. Each Corps district will 
initiate discussions with their respective state(s), tribe(s), and EPA 
regional offices, as appropriate, to discuss issues of concern and 
identify regional approaches to address the scope of waters, 
activities, discharges, and PCN requirements, as appropriate, to 
resolve any issue, as necessary.
    Shortly after the publication of this proposed rule in the Federal 
Register, Corps districts will send letters to certifying agencies 
(i.e., states,

[[Page 57363]]

authorized tribes, or EPA region, as appropriate) to request water 
quality certification for these NWPs. The certifying authorities will 
have 60 days to issue, deny, or waive WQC for the proposed NWPs. Their 
WQC requests will include this Federal Register notice, and may also 
include their proposed Corps regional conditions.
    After the 60-day period, Corps districts will send letters to the 
EPA Administrator to notify the Administrator of the proposed NWPs and 
the certifications issued by the certifying agency or agencies. It is 
EPA's role under section 401(a)(2) to consider whether the permit for 
which a WQC has been granted or waived may cause potential impacts to 
waters within neighboring jurisdictions. The 401(a)(2) process is a 
separate action that occurs after the certifying authority has acted on 
a certification request. The statute provides EPA with 30 days to 
determine, in its discretion, whether the water quality of a 
neighboring jurisdiction may be affected by the certified permit. If 
the EPA determines the water quality of a neighboring jurisdiction may 
be affected by issuance of the certified general permit, the statute 
provides neighboring jurisdictions with 60 days to determine whether 
the discharge will violate its water quality requirements, object to 
the issuance of a license or permit, and request a public hearing. A 
federal agency may not issue the license or permit until the section 
401(a)(2) process concludes.
    If a certifying agency denies WQC for the issuance of an NWP, then 
the discharges are not authorized by that NWP unless and until a 
project proponent obtains WQC for the specific discharge from the 
certifying authority, or a waiver of WQC occurs.
    Please note that in some states the Corps has issued state 
programmatic general permits (SPGPs) or regional general permits 
(RGPs), and within those states some or all of the NWPs may be 
suspended or revoked by division engineers. Concurrent with today's 
proposal, district engineers may be proposing suspension or revocation 
of the NWPs in states where SPGPs or RGPs will be used in place of some 
or all of the NWPs.
    We note that EPA recently issued revisions to its regulations 
governing the Clean Water Act section 401 certification process on June 
1, 2020. In the future, it may be necessary or appropriate for the 
Corps to revise its own section 401 regulations, including 33 CFR 
330.4, in light of EPA's Clean Water Act Section 401 Certification 
Rule. We invite comments from the public on whether and, if so, when 
the Corps should revise those regulations in light of the new EPA 
regulations. We will update this language, as appropriate, in the final 
NWPs.

H. Section 307 of the Coastal Zone Management Act (CZMA)

    Any state with a federally-approved CZMA program must concur with 
the Corps' determination that activities authorized by NWPs which are 
within, or will have reasonably foreseeable effects on any land or 
water uses or natural resources of the state's coastal zone, are 
consistent with the CZMA program to the maximum extent practicable. 
Coastal Zone Management Act consistency concurrences may be issued 
without conditions, issued with conditions, or denied for specific 
NWPs.
    We believe that, in general, the activities authorized by the NWPs 
will be consistent with state CZMA programs/enforceable policies. The 
NWPs are conditioned to ensure that adverse environmental effects will 
be no more than minimal and address the types of activities that would 
be routinely authorized if evaluated under the individual permit 
process. We recognize that in some states there will be a need to 
conduct individual state review for some activities, to ensure 
consistency with the state's CZMA program. Each Corps district will 
initiate discussions with their respective state(s) to discuss issues 
of concern and identify regional approaches to address the scope of 
waters, activities, discharges, and PCN requirements, as appropriate, 
to resolve these issues.
    This Federal Register notice serves as the Corps' determination 
that the activities authorized by these NWPs are, to the maximum extent 
practicable, consistent with state CZMA programs. This determination is 
contingent upon the addition of state CZMA conditions and/or regional 
conditions, by the issuance by the state of an individual consistency 
concurrence, or when a presumption of concurrence occurs when the state 
does not act within six months after receiving a request for 
concurrence. States are requested to concur or object to the 
consistency determination for these NWPs following 33 CFR 330.4(d).
    The Corps' CZMA consistency determination only applies to NWP 
authorizations for activities that are within, or affect, any land, 
water uses or natural resources of a State's coastal zone. A state's 
coastal zone management plan may identify geographic areas in federal 
waters on the outer continental shelf, where activities that require 
federal permits conducted in those areas require consistency 
certification from the state because they affect any coastal use or 
resource. In its coastal zone management plan, the state may include an 
outer continental shelf plan. An outer continental shelf plan is a plan 
for ``the exploration or development of, or production from, any area 
which has been leased under the Outer Continental Shelf Lands Act'' and 
regulations issued under that Act (see 15 CFR 930.73). Activities 
requiring federal permits that are not identified in the state's outer 
continental shelf plan are considered unlisted activities. If the state 
wants to review an unlisted activity under the CZMA, then it must 
notify the applicant and the federal permitting agency that it intends 
to review the proposed activity. Nationwide permit authorizations for 
activities that are not within or would not affect a state's coastal 
zone do not require the Corps' CZMA consistency determinations and thus 
are not contingent on a State's concurrence with the Corps' consistency 
determinations.
    If a state objects to the Corps' CZMA consistency determination for 
an NWP, then the affected activities are not authorized by NWP within 
that state until a project proponent obtains an individual CZMA 
consistency concurrence, or sufficient time (i.e., six months) passes 
after requesting a CZMA consistency concurrence for the applicant to 
make a presumption of consistency, as provided in 33 CFR 330.4(d)(6). 
However, when applicants request NWP verifications for activities that 
require individual consistency concurrences, and the Corps determines 
that those activities meet the terms and conditions of the NWP, in 
accordance with 33 CFR 330.6(a)(3)(iii) the Corps will issue 
provisional NWP verification letters. The provisional verification 
letter will contain general and regional conditions as well as any 
activity-specific conditions the Corps determines are necessary for the 
NWP authorization. The Corps will notify the applicant that he or she 
must obtain an activity-specific CZMA consistency concurrence or a 
presumption of concurrence before he or she is authorized to start work 
in waters of the United States. That is, NWP authorization will be 
contingent upon obtaining the necessary CZMA consistency concurrence 
from the state, or a presumption of concurrence. Anyone wanting to 
perform such activities where pre-construction notification to the 
Corps is not required has an affirmative responsibility to present a 
CZMA consistency determination to the appropriate state

[[Page 57364]]

agency for concurrence. Upon concurrence with such CZMA consistency 
determinations by the state, the activity would be authorized by the 
NWP. This requirement is provided at 33 CFR 330.4(d).

IV. Economic Impact

    The proposed NWPs are expected to increase the number of activities 
eligible for NWP authorization, and reduce the number of activities 
that require individual permits. The Corps estimates that the proposed 
NWPs will authorize an additional 255 activities each year. 
Subsequently, 255 fewer activities each year would require individual 
permits. By authorizing more activities by NWP, this proposal will 
reduce burden for the regulated public primarily in the form of 
compliance costs. The proposed changes would increase the number of 
categories of activities authorized by NWP, and subsequently reduce the 
number of activities that require individual permits. By increasing the 
number of activities that can be authorized by NWPs, the proposed 
changes would decrease compliance costs for permit applicants since, as 
discussed below, the compliance costs for obtaining NWP authorization 
are less than the compliance costs for obtaining individual permits. In 
addition, the NWPs provide incentives to project proponents to minimize 
impacts to jurisdictional waters and wetlands in exchange for receiving 
the required Department of the Army authorization in less time compared 
to the amount of time required to obtain individual permits. In FY2018, 
the average time to receive an NWP verification was 45 days from the 
date the Corps district receives a complete PCN, compared to 264 days 
to receive a standard individual permit after receipt of a complete 
permit application (see table 1.2 of the draft regulatory impact 
analysis for this proposed rule, which is available in the 
www.regulations.gov docket (docket number COE-2020-0002)).
    As discussed in the Regulatory Impact Analysis for this proposed 
rule, the Corps estimates that a permit applicant's compliance cost for 
obtaining NWP authorization in 2016$ ranges from $4,161 to $13,871 
(Institute for Water Resources (2001),\18\ adjusted for inflation using 
the GDP deflator approach). The Corps estimates that a permit 
applicant's compliance costs for obtaining an individual permit for a 
proposed activity impacting up to 3 acres of wetland ranges from 
$16,646 to $33,391 in 2016$. Considering how the proposed NWPs will 
increase the number of activities authorized by NWP each year, the 
Corps estimates that the proposal, when compared with the 2017 NWPs, 
will decrease compliance costs for the regulated public by 
approximately $8 million per year. We solicit comment on the 
assumptions and methodology used to calculate the compliance costs and 
burden in general associated with the NWP. We are particularly 
interested in whether there is a more recent study estimating 
compliance cost than the Institute for Water Resources study cited 
above.
---------------------------------------------------------------------------

    \18\ Institute for Water Resources (IWR). 2001. Cost analysis 
for the 2000 issuance and modification of nationwide permits. 
Institute for Water Resources (Alexandria, VA). 29 pp. plus 
appendices.

------------------------------------------------------------------------
    Nationwide permit(s)        Proposed changes     Anticipated impacts
------------------------------------------------------------------------
 NWP 21.............  Remove 300 linear     Increase number of
 NWP 29.............   foot limit for        activities
 NWP 39.............   losses of stream      authorized by NWP;
 NWP 40.............   bed and rely on \1/   decrease number of
 NWP 42.............   2\-acre limit, pre-   activities
 NWP 43.............   construction          requiring
 NWP 44.............   notification (PCN)    individual permits.
 NWP 50.............   review process, and
 NWP 51.............   other tools to
 NWP 52.............   comply with Clean
                               Water Act Section
                               404(e).
 NWP 3..............  Authorize             Increase number of
                               maintenance of        activities
                               fills that were       authorized by NWP;
                               constructed prior     decrease number of
                               to establishment of   activities
                               requirement for       requiring
                               Clean Water Act       individual permits.
                               section 404
                               authorization;
                               clarify that NWP
                               authorizes small
                               amounts of riprap
                               to protect
                               structure or fill.
 NWP 12.............  Issue separate NWPs   No change in number
 NWP C..............   for oil or natural    of NWP
 NWP D..............   gas pipeline          authorizations.
                               activities,
                               electric utility
                               line and
                               telecommunications
                               activities, and
                               utility lines for
                               water and other
                               substances; reduce
                               number of PCN
                               thresholds.
 NWP 14.............  Add ``driveways'' to  Increase number of
                               examples of           activities
                               activities            authorized by NWP;
                               authorized by this    decrease number of
                               NWP.                  activities
                                                     requiring
                                                     individual permits.
 NWP 19.............  Increase limit to 50  Increase number of
                               cubic yards.          activities
                                                     authorized by NWP;
                                                     decrease number of
                                                     activities
                                                     requiring
                                                     individual permits.
 NWP 21.............  Remove requirement    No change in number
 NWP 49.............   for written           of NWP
 NWP 50.............   authorization         authorizations.
                               before commencing
                               authorized activity.
 NWP 27.............  Add coral             Increase number of
                               restoration and       activities
                               relocation. Add       authorized by NWP;
                               reservoir sediment    decrease number of
                               management to         activities
                               provide continuity    requiring
                               in sediment           individual permits.
                               transport through
                               reservoirs.
 NWP 41.............  Add irrigation        Increase number of
                               ditches.              activities
                                                     authorized by NWP;
                                                     decrease number of
                                                     activities
                                                     requiring
                                                     individual permits.
 NWP 48.............  Remove \1/2\-acre     Increase number of
                               limit for impacts     activities
                               to submerged          authorized by NWP;
                               aquatic vegetation    decrease number of
                               and pre-              activities
                               construction          requiring
                               notification          individual permits.
                               thresholds.

[[Page 57365]]

 
 NWP A..............  Issue new NWP to      Increase number of
                               authorize seaweed     activities
                               mariculture           authorized by NWP;
                               activities.           decrease number of
                                                     activities
                                                     requiring
                                                     individual permits.
 NWP B..............  Issue new NWP to      Increase number of
                               authorize finfish     activities
                               mariculture           authorized by NWP;
                               activities.           decrease number of
                                                     activities
                                                     requiring
                                                     individual permits.
 NWP E..............  Issue new NWP to      These activities may
                               authorize             be authorized by
                               discharges of         existing NWPs, but
                               dredged or fill       additional
                               material for water    clarification may
                               reclamation and       be appropriate.
                               reuse facilities.
 General condition    Restore text of       No change in number
 17, tribal rights.            general condition     of NWP
                               in 2012 NWPs.         authorizations.
 General condition    Revise to address     No change in number
 18, endangered species.       2019 changes to 50    of NWP
                               CFR part 402.         authorizations.
 General condition    Add \1/10\-acre       No change in number
 23, mitigation.               threshold for         of NWP
                               compensatory          authorizations.
                               mitigation for
                               losses of stream
                               bed.
 General condition    Clarify that if NWP   No change in number
 25, water quality.            activity does not     of NWP
                               comply with           authorizations.
                               conditions of a
                               general water
                               quality
                               certification, an
                               individual
                               certification is
                               required, unless a
                               waiver occurs.
 General condition    Clarify that if NWP   No change in number
 26, coastal zone management.  activity does not     of NWP
                               comply with           authorizations.
                               conditions of a
                               general consistency
                               concurrence, and
                               individual
                               consistency
                               concurrence is
                               required, unless
                               presumption occurs.
 General condition    Modify general        No change in number
 28, use of multiple NWPs.     condition to          of NWP
                               clarify application   authorizations.
                               to NWPs with
                               different numeric
                               limits.
 General condition    Modify to encourage   No change in number
 32, pre-construction          use of Form ENG       of NWP
 notification.                 6082 for NWP pre-     authorizations.
                               construction
                               notifications.
------------------------------------------------------------------------

V. Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31885, June 10, 1998) 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. While different NWPs require that different 
information be included in a PCN, the Corps estimates that a PCN takes, 
on average, 11 hours to complete. The proposed NWPs would decrease the 
total paperwork burden associated with this program because the Corps 
estimates that under this proposal 221 fewer PCNs would be required 
each year. This reduction is due to the proposed removal of the PCN 
thresholds from NWP 48 for commercial shellfish mariculture activities 
and the proposed PCN thresholds for the proposed modifications for NWP 
12 (oil and natural gas pipeline activities), proposed new NWP C 
(electric utility line and telecommunications activities), and proposed 
new NWP D (utility line activities for water and other substances). The 
paperwork burden associated with the proposed NWPs is expected to 
decrease by approximately 2,321 hours per year from 360,074 hours to 
357,753 hours.
    The following table summarizes the projected changes in paperwork 
burden from the 2017 NWPs to the proposed 2020 NWPs.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                       Estimated changes
                                                                                Number of NWP    Estimated changes  Estimated changes     in number of
                                                             Number of NWP      activities not    in NWP PCNs per      in number of         standard
                                                             PCNs per year      requiring PCNs          year          authorized NWP       individual
                                                                                   per year                             activities      permits per year
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017 NWPs................................................             32,734             31,920
Proposed 2020 NWPs.......................................             32,523             32,386               -211               +255               -255
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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. 
For the Corps Regulatory Program under section 10 of the Rivers and 
Harbors Act of 1899, Section 404 of the Clean Water Act, and section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements is 
maintained by the Corps of Engineers (OMB approval number 0710-0003).

Executive Order 12866

    This action is a significant regulatory action under Executive 
Order 12866 (58 FR 51735, October 4, 1993) that was submitted to the 
Office of Management and Budget (OMB) for review.

Executive Order 13771

    This proposed rule is expected to be a deregulatory action under 
E.O. 13771.

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

[[Page 57366]]

regulatory policies that have federalism implications.'' The proposed 
issuance and modification of NWPs does not have federalism 
implications. We do not believe that the proposed 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. The 
proposed NWPs will not impose any additional substantive obligations on 
state or local governments. Therefore, Executive Order 13132 does not 
apply to this proposal.

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 rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
proposed 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 proposed 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 statues 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, Department of the Army (DA) permits are 
required for discharges of dredged or fill material into waters of the 
United States. Under section 10, 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 install 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 modified or 
reissued, they will expire on March 18, 2022, and small entities and 
other project proponents would be required to obtain alternative forms 
of DA permits (i.e., standard 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 with the compliance costs for individual permits, 
most of the terms and conditions of the proposed NWPs are expected to 
result in decreases in the costs of complying with the permit 
requirements of sections 10 and 404. The anticipated decrease in 
compliance cost results from the lower cost of obtaining NWP 
authorization instead of standard permits. Unlike standard permits, 
NWPs authorize activities without the 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 limits and mitigation measures, 
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 proposed nationwide 
permits 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 
the proposed work will result in only minimal adverse effects on the 
aquatic environment and other public interest review factors. The terms 
and conditions of the revised NWPs will not impose substantially higher 
costs on small entities than those of the existing 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 authorization, 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 proposing some 
modifications to the NWPs to authorize additional activities. 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.
    We are interested in the potential impacts of the proposed NWPs on 
small entities and welcome comments on issues related to such impacts.

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,

[[Page 57367]]

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 proposed NWPs 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. The proposed 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 proposal is not subject to the requirements of sections 
202 and 205 of the UMRA. For the same reasons, we have determined that 
the proposed NWPs contain no regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, the 
proposed issuance and modification of 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 proposed NWPs are not subject to this Executive Order because 
they are not economically significant as defined in Executive Order 
12866. In addition, the proposed 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 proposal to issue NWPs does not have tribal implications. It 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 
proposal. However, in the spirit of Executive Order 13175, we 
specifically request comment from Tribal officials on the proposed 
rule. Each Corps district will be conducting government-to-government 
consultation with Tribes, to identify regional conditions or other 
local NWP modifications that may be necessary to protect aquatic 
resources of interest to Tribes, as part of the Corps' responsibility 
to protect trust resources.

Environmental Documentation

    A draft decision document has been prepared for each proposed NWP. 
Each draft decision document includes a draft environmental assessment 
and public interest review determination. If an NWP authorizes 
discharges of dredged or fill material into waters of the United 
States, the draft decision document includes a 404(b)(1) Guidelines 
analysis. These draft decision documents are available at: 
www.regulations.gov (docket ID number COE-2020-0002). 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 after it is published in 
the Federal Register. The proposed NWPs are not a ``major rule'' as 
defined by 5 U.S.C. 804(2), because they are not likely to result in: 
(1) An annual effect on the economy of $100,000,000 or more; (2) a 
major increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies, or geographic regions; or 
(3) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

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 proposed modifications of 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

    The proposed modifications of the 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 it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

VI. References

    A complete list of all references cited in this document is 
available on the internet at http://www.regulations.gov

[[Page 57368]]

in docket number COE-2020-0002 or upon request from the U.S. Army Corps 
of Engineers (see FOR FURTHER INFORMATION CONTACT).

Authority

    We are proposing to reissue 52 existing NWPs and issue 5 new NWPs 
under the authority of Section 404(e) 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.).

William H. Graham,
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. Oil or Natural Gas Pipeline 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 Mariculture 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
    A. Seaweed Mariculture Activities
    B. Finfish Mariculture Activities
    C. Electric Utility Line and Telecommunications Activities
    D. Utility Line Activities for Water and Other Substances
    E. Water Reclamation and Reuse Facilities
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 Birds and Bald and Golden Eagles
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
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
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
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, or of any currently serviceable structure or fill that did not 
require a permit at the time it was constructed, 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

[[Page 57369]]

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 includes the placement of new or additional riprap to 
protect the structure or fill, provided the placement of riprap is the 
minimum necessary to protect the structure or fill or to ensure the 
safety of the structure or fill. This NWP 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 currently serviceable 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 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

[[Page 57370]]

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. Oil or Natural Gas Pipeline Activities. Activities required for 
the construction, maintenance, repair, and removal of oil and natural 
gas pipelines 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.
    Oil or natural gas pipelines: 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 oil and 
natural gas pipelines, including outfall and intake structures. There 
must be no change in pre-construction contours of waters of the United 
States. An ``oil or natural gas pipeline'' is defined as any pipe or 
pipeline for the transportation of any form of oil or natural gas, 
including petrochemical products, for any purpose.
    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.
    Oil or natural gas pipeline substations: This NWP authorizes the 
construction, maintenance, or expansion of substation facilities 
associated with an oil or natural gas pipeline 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 above-ground oil or natural gas pipelines: This NWP 
authorizes the construction or maintenance of foundations for above-
ground oil or natural gas pipelines in all waters of the United States, 
provided the foundations are the minimum size necessary.
    Access roads: This NWP authorizes the construction of access roads 
for the construction and maintenance of oil or natural gas pipelines, 
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 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 oil or natural gas pipelines 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). Oil or 
natural gas pipelines routed in, over, 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 oil or natural gas 
pipelines. 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 oil or natural gas 
pipelines.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to conduct the oil or 
natural gas pipeline 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

[[Page 57371]]

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: (1) A section 10 permit is required; (2) the discharge will result 
in the loss of greater than \1/10\-acre of waters of the United States; 
or (3) the proposed oil or natural gas pipeline activity is associated 
with an overall project that is greater than 250 miles in length and 
the project purpose is to install new pipeline (vs. conduct repair or 
maintenance activities) along the majority of the distance of the 
overall project length. If the proposed oil or gas pipeline is greater 
than 250 miles in length, the pre-construction notification must 
include the locations and proposed impacts for all crossings of waters 
of the United States that require DA authorization, including those 
crossings authorized by NWP would not otherwise require pre-
construction notification. (See general condition 32.) (Authorities: 
Sections 10 and 404)

    Note 1:  Where the oil or natural gas pipeline is constructed, 
installed, or maintained 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 oil or natural gas pipeline to protect navigation.


    Note 2:  For oil or natural gas pipeline 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. Oil or natural gas pipeline 
activities must comply with 33 CFR 330.6(d).


    Note 3:  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 oil or 
natural gas pipeline must be removed upon completion of the work, in 
accordance with the requirements for temporary fills.


    Note 4: Pipes or pipelines used to transport gaseous, liquid, 
liquescent, or slurry substances over navigable waters of the United 
States are considered to be bridges, 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 oil or natural 
gas pipelines will require a section 404 permit (see NWP 15).


    Note 5:  This NWP authorizes oil or natural gas pipeline 
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 6:  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)(4) 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 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)

    Note:  In coastal waters and the Great Lakes, living shorelines 
may be an appropriate option for bank stabilization, and may be 
authorized by NWP 54.

    14. Linear Transportation Projects. Activities required for 
crossings of waters of the United States associated with the 
construction, expansion, modification, or improvement of linear

[[Page 57372]]

transportation projects (e.g., roads, highways, railways, trails, 
driveways, 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)(4) 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 Clean Water Act 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 10,000 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. 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 50 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

[[Page 57373]]

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 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. 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. (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 the vessel is listed or eligible for listing in the 
National Register of Historic Places, 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), 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, 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 Letter(s). (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. Any future approved 
categorical exclusions will be announced in Regulatory Guidance 
Letters and posted on this same website.

    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,

[[Page 57374]]

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 one or more intact aquatic habitats or riparian 
areas of the same type that exist 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; releasing sediment from reservoirs to restore 
downstream habitat, 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; coral restoration or 
relocation; 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 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

[[Page 57375]]

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) Activities conducted in accordance with the terms and 
conditions of a binding coral restoration or relocation agreement 
between the project proponent and the NMFS or any of its designated 
state cooperating agencies;
    (3) 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
    (4) 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. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    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 
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.

[[Page 57376]]

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 (insert applicable dates based on 
final NWPs) the district engineer will not require additional 
compensatory mitigation for maintenance activities authorized by 
this 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

[[Page 57377]]

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;
    (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 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

[[Page 57378]]

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. 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 by the 
Corps 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. 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)

    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 and Irrigation 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 and 
irrigation ditches constructed in waters of the United States, for the 
purpose of improving water quality by regrading the drainage or 
irrigation 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 drainage ditch 
cannot increase drainage capacity beyond the original as-built capacity 
nor can it expand the area drained by the drainage ditch as originally 
constructed (i.e., the capacity of the drainage 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 or 
irrigation ditches constructed in waters of the United States; the 
location of the centerline of the reshaped drainage or irrigation ditch 
must be approximately the same as the location of the centerline of the 
original drainage or irrigation 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. 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, such as 
features needed 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. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.

[[Page 57379]]

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) or work in non-tidal navigable waters of the United States 
(i.e., section 10 waters), 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.
    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. (Authorities: 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 Mariculture 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 mariculture 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 mariculture 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.
    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; 
or
    (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. (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.



[[Page 57380]]


    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 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. (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 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. 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. (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)
    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. 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 C 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 C and/or NWP 14 shall 
be used if those activities meet the terms and conditions of NWPs C 
and 14, including any applicable regional conditions and any case-
specific conditions imposed by the district engineer.


    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 by the Corps 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 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 limit.
    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.

[[Page 57381]]

    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 review and/or approval from the Corps 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 by the Corps 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 that 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.

    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

[[Page 57382]]

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.

    A. Seaweed Mariculture Activities. Structures or work in marine 
waters, including structures anchored to the seabed in waters overlying 
the outer continental shelf, for seaweed mariculture activities. This 
NWP also authorizes shellfish mariculture if shellfish production is a 
component of an integrated multi-trophic mariculture system (e.g., the 
production of seaweed and shellfish on the same structure or a nearby 
mariculture structure that is part of the single and complete project).
    This NWP authorizes the installation of buoys, long-lines, floats, 
anchors, rafts, racks, and other similar structures into navigable 
waters of the United States. Rafts, racks and other floating structures 
must be securely anchored and clearly marked.
    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.
    This NWP does not authorize:
    (a) The cultivation of an aquatic nuisance species as defined in 
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990; 
or
    (b) Attendant features such as docks, piers, boat ramps, 
stockpiles, or staging areas.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer. (See general condition 32.)
    In addition to the information required by paragraph (b) of general 
condition 32, the preconstruction notification must also include the 
following information: (1) A map showing the locations and dimensions 
of the structure(s); (2) the name(s) of the species that will be 
cultivated during the period this NWP is in effect; and (3) general 
water depths in the project area(s) (a detailed survey is not 
required). No more than one pre-construction notification per structure 
or group of structures should be submitted for the seaweed mariculture 
operation during the effective period of this NWP. The pre-construction 
notification should describe all species and culture activities the 
operator expects to undertake during the effective period of this NWP. 
(Authority: Section 10)

    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.''

    B. Finfish Mariculture Activities. Structures or work in marine and 
estuarine waters, including structures anchored to the seabed in waters 
overlying the outer continental shelf, for finfish mariculture 
activities. This NWP also authorizes shellfish mariculture and/or 
seaweed mariculture if the shellfish and/or seaweed production are a 
component of an integrated multi-trophic mariculture system (e.g., the 
production of seaweed or shellfish on the structure used for finfish 
mariculture, or a nearby mariculture structure that is part of the 
single and complete project).
    This NWP authorizes the installation of cages, net pens, anchors, 
floats, buoys, and other similar structures into navigable waters of 
the United States. Net pens, cages, and other floating structures must 
be securely anchored and clearly marked.
    This NWP does not authorize the construction of land-based fish 
hatcheries or other attendant features.
    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.
    This NWP does not authorize:
    (a) The cultivation of an aquatic nuisance species as defined in 
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990; 
or
    (b) Attendant features such as docks, piers, boat ramps, 
stockpiles, or staging areas.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer. (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 locations and dimensions 
of the structure(s); (2) the name(s) of the species that will be 
cultivated during the period this NWP is in effect; and (3) general 
water depths in the project area(s) (a detailed survey is not 
required). No more than one pre-construction notification per structure 
or group of structures should be submitted for the finfish mariculture 
operation during the effective period of this NWP. The pre-construction 
notification should describe all species and culture activities the 
operator expects to undertake during the effective period of this NWP. 
(Authority: Section 10)

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


    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

[[Page 57383]]

the ecological stability of infested waters, or commercial, 
agricultural, aquacultural, or recreational activities dependent on 
such waters.''

    C. Electric Utility Line and Telecommunications Activities. 
Activities required for the construction, maintenance, repair, and 
removal of electric utility lines, telecommunication 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.
    Electric utility lines and telecommunication 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 electric utility lines and telecommunication lines. There 
must be no change in pre-construction contours of waters of the United 
States. An ``electric utility line and telecommunication line'' is 
defined as any cable, line, or wire for the transmission for any 
purpose of electrical energy, telephone, and telegraph messages, and 
internet, radio, and television communication.
    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 electric 
utility line or telecommunication line crossing of each waterbody.
    Electric utility line and telecommunications substations: This NWP 
authorizes the construction, maintenance, or expansion of substation 
facilities associated with an electric utility line or 
telecommunication 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 electric utility line or telecommunication 
line towers, poles, and anchors: This NWP authorizes the construction 
or maintenance of foundations for overhead electric utility line or 
telecommunication 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 electric utility lines or 
telecommunication lines, including overhead lines and 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 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 electric utility lines or telecommunication 
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). Electric utility lines or telecommunication lines 
constructed over section 10 waters and electric utility lines or 
telecommunication 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 electric utility 
lines or telecommunication 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 
electric utility lines or telecommunication lines.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to conduct the electric 
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: (1) A section 10 permit is required; or (2) the discharge will 
result 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:  Where the electric utility line is constructed, 
installed, or maintained 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 electric utility line to protect navigation.


    Note 2:  For electric utility line or telecommunications 
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. Electric utility 
line and telecommunications activities must comply with 33 CFR 
330.6(d).


    Note 3:  Electric utility lines or telecommunication 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).



[[Page 57384]]


    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 electric 
utility line or telecommunication line must be removed upon 
completion of the work, in accordance with the requirements for 
temporary fills.


    Note 5: This NWP authorizes electric utility line and 
telecommunication 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 6: For overhead electric utility lines and 
telecommunication lines authorized by this NWP, a copy of the PCN 
and NWP verification will be provided by the Corps to the Department 
of Defense Siting Clearinghouse, which will evaluate potential 
effects on military activities.


    Note 7: For 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)(4) 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).

    D. Utility Line Activities for Water and Other Substances. 
Activities required for the construction, maintenance, repair, and 
removal of utility lines for water and other substances, excluding oil, 
natural gas, and electricity. Oil or natural gas pipeline activities or 
electric utility line and telecommunications activities may be 
authorized by NWPs 12 or C, respectively. This NWP also authorizes 
associated utility line 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 for water and 
other substances, 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 that is not oil, natural gas, or petrochemicals. 
Examples of activities authorized by this NWP include utility lines 
that convey water, sewage, stormwater, wastewater, brine, irrigation 
water, and industrial products that are not petrochemicals. 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 
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 above-ground utility lines: This NWP authorizes the 
construction or maintenance of foundations for above-ground utility 
lines in all waters of the United States, provided the foundations are 
the minimum size necessary.
    Access roads: This NWP authorizes the construction of access roads 
for the construction and maintenance of utility lines, including 
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 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

[[Page 57385]]

commencing the activity if: (1) A section 10 permit is required; or (2) 
the discharge will result 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: Where the utility line is constructed, installed, or 
maintained 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: 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 4:  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 5:  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 6:  For 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)(4) 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).

    E. Water reclamation and reuse facilities. Discharges of dredged or 
fill material into non-tidal waters of the United States for the 
construction, expansion, and maintenance of water reclamation and reuse 
facilities, including vegetated areas enhanced to improve water 
infiltration and constructed wetlands to improve water quality.
    The discharge must not cause 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.
    This NWP also authorizes temporary fills, including the use of 
temporary mats, necessary to construct the water reuse project and 
attendant features. 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. 
(See general condition 31.) (Authority: Sections 10 and 404)

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, 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).

[[Page 57386]]

    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 Structures and Fills. Temporary structures 
and 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. 
Permittees shall not begin the NWP activity until notified by the 
district engineer that the Federal agency with direct management 
responsibility for that river has determined in writing that the 
proposed NWP activity will not adversely affect the Wild and Scenic 
River designation or study status.
    (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 activity or its operation may impair reserved 
tribal rights, including, but not limited to, reserved water rights and 
treaty fishing and hunting rights.
    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 
consequences of the proposed activity on listed species or critical 
habitat has been completed. See 50 CFR 402.02 for the definition of 
``effects of the action'' for the purposes of ESA section 7 
consultation, as well as 50 CFR 402.17, which provides further 
explanation under ESA section 7 regarding ``activities that are 
reasonably certain to occur'' and ``consequences caused by the proposed 
action.''
    (b) Federal agencies should follow their own procedures for 
complying with the requirements of the ESA (see 33 CFR 330.4(f)(1)). 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. For activities where the non-Federal applicant has 
identified listed species or critical habitat that might be affected or 
is in the vicinity of the activity, and has so notified the Corps, the 
applicant shall not begin

[[Page 57387]]

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 that an action authorized by NWP complies with 
the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection 
Act. The permittee is responsible for contacting the appropriate local 
office of the U.S. Fish and Wildlife Service to determine what 
measures, if any, are necessary or appropriate to reduce adverse 
effects to migratory birds or eagles, including whether ``incidental 
take'' permits are necessary and available 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 (see 33 CFR 330.4(g)(1)). 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 commensurate with potential impacts, which may 
include background research, consultation, oral history interviews, 
sample field investigation, and/or 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.
    (d) Where the non-Federal applicant has identified historic 
properties on which the proposed NWP activity might have the potential 
to cause effects and has 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. 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

[[Page 57388]]

engineer will notify the non-Federal applicant that he or she cannot 
begin the activity until section 106 consultation is 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.
    (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. 
Permittees that discover any previously unknown historic, cultural or 
archeological remains and artifacts while accomplishing the activity 
authorized by NWP, they must immediately notify the district engineer 
of what they 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 by permittees in the 
designated critical resource waters including wetlands adjacent to 
those waters. The district engineer may authorize activities under 
these NWPs only after she or he determines 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) Compensatory mitigation at a minimum one-for-one ratio will be 
required for all losses of stream bed 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. This compensatory 
mitigation requirement may be satisfied through the restoration or 
enhancement of riparian areas next to streams in accordance with 
paragraph (e) of this general condition. For losses of stream bed 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. 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. If restoring 
riparian areas involves planting vegetation, only native species should 
be planted. 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

[[Page 57389]]

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 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 needs to address only the baseline 
conditions at the impact site and the number of credits to be provided 
(see 33 CFR 332.4(c)(1)(ii)).
    (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 the certifying authority (state, 
authorized tribe, or EPA, as appropriate) has not previously certified 
compliance of an NWP with CWA section 401, a CWA section 401 water 
quality certification for the proposed discharge must be obtained or 
waived (see 33 CFR 330.4(c)). If the permittee cannot comply with all 
of the conditions of a water quality certification previously issued by 
certifying agency for the issuance of the NWP, then the permittee must 
obtain a water quality certification or waiver for the proposed 
discharge in order for the activity to be authorized by NWP. The 
district engineer or certifying authority 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)). If the permittee cannot comply with all of 
the conditions of a coastal zone management consistency concurrence 
previously issued by the state, then the permittee must obtain an 
individual coastal zone management consistency concurrence or 
presumption of concurrence in order for the activity to be authorized 
by NWP. 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 
CWA 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 authorized, subject to the 
following restrictions:

[[Page 57390]]

    (a) If only one of the NWPs used to authorize the single and 
complete project has a specified acreage limit, the acreage loss of 
waters of the United States cannot 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.
    (b) If one or more of the NWPs used to authorize the single and 
complete project has specified acreage limits, the acreage loss of 
waters of the United States authorized by those NWPs cannot exceed 
their respective specified acreage limits. For example, if a 
residential subdivision is constructed under NWP 29, and the single and 
complete project includes the filling of an upland ditch authorized by 
NWP 46, the maximum acreage loss of waters of the United States for the 
residential subdivision under NWP 29 cannot exceed \1/2\-acre, and the 
total acreage loss of waters of United States due to the NWP 29 and 46 
activities cannot exceed 1 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.''

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(Transferee)

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(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, 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 review by, or 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 and/or review is not authorized by NWP 
until the appropriate Corps office issues the section 408 permission or 
completes its review 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. 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

[[Page 57391]]

to use to authorize the proposed activity;
    (4)(i) 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.
    (ii) For linear projects where one or more single and complete 
crossings require pre-construction notification, 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 (including 
those single and complete crossings authorized by NWP but do not 
require PCNs). This information will be used by the district engineer 
to evaluate the cumulative adverse environmental effects of the 
proposed linear project, and does not change those non-PCN NWP 
activities into NWP PCNs.
    (iii) 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 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 or streams 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 NWP activity that requires permission from, or review 
by, 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, or review by, the Corps office having jurisdiction over that 
USACE project.
    (c) Form of Pre-Construction Notification: The nationwide permit 
pre-construction notification form (Form ENG 6082) should be used for 
NWP PCNs. 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 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 (iii) 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

[[Page 57392]]

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 that 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 single and complete 
crossings of waters of the United States that require PCNs to determine 
whether they individually satisfy the terms and conditions of the 
NWP(s), as well as the cumulative effects caused by all of the 
crossings of waters of the United States authorized by NWP. If an 
applicant requests a waiver of an applicable limit, as provided for in 
NWPs 13, 36, 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.
    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 or streams, 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. 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 that 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

[[Page 57393]]

be authorized within the 45-day PCN period (unless additional time is 
required to comply with general conditions 18, 20, and/or 31), 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 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.
    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.
    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. The loss of 
stream bed includes the acres of stream bed that are permanently 
adversely affected by filling or excavation 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. 
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

[[Page 57394]]

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: The term ordinary high water mark means 
that line on the shore established by the fluctuations of water and 
indicated by physical characteristics such as a clear, natural line 
impressed on the bank, shelving, changes in the character of soil, 
destruction of terrestrial vegetation, the presence of litter and 
debris, or other appropriate means that consider the characteristics of 
the surrounding areas.
    Perennial stream: A perennial stream has surface water flowing 
continuously year-round during a typical year.
    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 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.
    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

[[Page 57395]]

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.
    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. 2020-17116 Filed 9-14-20; 8:45 am]
BILLING CODE 3720-58-P