[Federal Register Volume 86, Number 8 (Wednesday, January 13, 2021)]
[Rules and Regulations]
[Pages 2744-2877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00102]



[[Page 2743]]

Vol. 86

Wednesday,

No. 8

January 13, 2021

Part II





 Department of Defense





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Department of the Army, Corps of Engineers





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33 CFR Chapter II





Reissuance and Modification of Nationwide Permits; Final Rule

  Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / 
Rules and Regulations  

[[Page 2744]]


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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


Reissuance and Modification of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final rule.

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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 NWPs help protect the aquatic environment and 
the public interest by providing incentives to reduce impacts on 
jurisdictional waters and wetlands while effectively authorizing 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. In this final rule, the Corps is 
reissuing and modifying 12 existing NWPs and issuing four new NWPs. For 
these 16 NWPs, the Corps is also reissuing and modifying the NWP 
general conditions and definitions. The Corps is not reissuing or 
modifying the remaining 40 existing NWPs or finalizing proposed new NWP 
E at this time. Those 40 remaining NWPs continue to be in effect under 
the January 6, 2017, final rule and the existing general conditions and 
definitions in the 2017 final rule continue to apply to those permits.

DATES: These 16 NWPs, the 32 general conditions, and the associated 
definitions will go into effect on March 15, 2021.

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

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. General
    B. Overview of Proposed Rule
    C. Overview of This Final Rule
    D. Status of Existing Permits
    E. Nationwide Permit Verifications
    F. Executive Order 13783, Promoting Energy Independence and 
Economic Growth
    G. Executive Order 13777, Enforcing the Regulatory Reform Agenda
    H. Executive Order 13921, Promoting American Seafood 
Competitiveness and Economic Growth
    I. 2018 Legislative Outline for Rebuilding Infrastructure in 
America
II. Discussion of Public Comments
    A. Overview
    B. Responses to General Comments
    C. Comments on Proposed Actions Under Executive Order 13921, 
Promoting American Seafood Competitiveness and Economic Growth
    D. Comments on the 2018 Legislative Outline for Rebuilding 
Infrastructure in America
    E. Comments on Regional Conditioning of Nationwide Permits
    F. Comments on Proposed Removal of the 300 Linear Foot Limit for 
Losses of Stream Bed
    G. Response to Comments on Specific Nationwide Permits
    H. Responses to Comments on the Nationwide Permit General 
Conditions
    I. Discussion of Proposed Modifications to Section D, District 
Engineer's Decision
    J. 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. 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
Nationwide Permits, Conditions, Further Information, and Definitions

List of Acronyms

BMP Best Management Practice
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 Nationwide Permits Included in This Rule and General Conditions 
Nationwide Permits (NWPs)

12. Oil or Natural Gas Pipeline Activities
21. Surface Coal Mining Activities
29. Residential Developments
39. Commercial and Institutional Developments
40. Agricultural Activities
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
48. Commercial Shellfish Mariculture Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
55. Seaweed Mariculture Activities
56. Finfish Mariculture Activities
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances

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, where those 
activities will result in no more than minimal individual and 
cumulative adverse

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environmental effects. NWPs 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, for the purpose of 
streamlining 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, 
where those activities would 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)). NWPs 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.
    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 for 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 deemed 
authorized by the NWP (see 33 CFR 330.1(e)(1)).
    In fiscal year 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 to reduce the adverse effects of their planned activities 
that would otherwise require an individual permit under Section 404 of 
the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 
1899, in order to qualify for NWP authorization. This reduction in 
adverse effects can therefore reduce a project's impact on the Nation's 
aquatic resources.
    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, after public notice and comment, 
to modify, suspend, or revoke NWP authorizations on a regional basis to 
take into account regional differences among aquatic resources and to 
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 II.G for more information on regional conditions 
for the NWPs.
    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, publicly-available 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 activity being authorized by the NWP will have no more 
than 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/or 
use of best management practices and/or compensatory mitigation 
requirements to offset authorized losses of jurisdictional waters and 
wetlands so that the net adverse environmental effects caused by the 
authorized activity 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 the adverse 
environmental effects will be more than minimal, or otherwise 
determines that ``sufficient concerns for the environment or any other 
factor of

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the public interest so requires'' consistent with 33 CFR 330.4(e)(2).
    During the review of PCNs, district engineers assess cumulative 
adverse environmental effects at an appropriate regional scale. 
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. For purposes of the NWP program, 
cumulative effects are the result of the combined effects of activities 
authorized by NWPs during the period the NWPs are in effect. The 
cumulative effects are assessed against the current environmental 
setting to determine whether the cumulative adverse environmental 
effects are more than minimal. The district engineer uses his or her 
discretion to determine the appropriate regional scale for evaluating 
cumulative effects.
    For the NWPs, the appropriate regional scale for evaluating 
cumulative effects may be a waterbody, watershed, county, state, or a 
Corps district, as appropriate. 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 jurisdictional 
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.
    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.
    Further, the Corps' public interest review regulations at 33 CFR 
320.4(a)(1) require consideration of cumulative impacts for the 
issuance of DA permits. Since the required public interest review 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 activity to be authorized by an NWP, 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 
application for an individual permit.
    There may be activities authorized by NWPs that cross more than one 
Corps district or more than 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. Overview of Proposed Rule

    On September 15, 2020, the Corps published in the Federal Register 
(85 FR 57298) a proposed regulation to reissue with modification the 
existing NWPs and associated general conditions and definitions and to 
create five new NWPs (2020 Proposal). The Corps provided a 60-day 
public comment period which closed on November 16, 2020. Among other 
things, the Corps proposed the following: (1) To create two new NWPs to 
authorize certain categories of mariculture activities (i.e., seaweed 
and finfish mariculture) that are not currently authorized by NWP 48; 
(2) to divide the NWP that authorizes utility line activities (NWP 12) 
into three separate NWPs that address the differences in how different 
utility line 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; (3) a new NWP which would 
authorize discharges of dredged or fill material into jurisdictional 
waters for the construction, expansion, and maintenance of water reuse 
and reclamation facilities; and (4) to remove the 300 linear foot limit 
for losses of stream bed from 10 NWPs (NWPs 21, 29, 39, 40, 42, 43, 44, 
50, 51, and 52). The Corps requested comment on these and all other 
aspects of the proposal.

C. Overview of This Final Rule

    This final rule replaces 12 of the existing NWPs that were 
published in the January 6, 2017, final rule (82 FR 1860), 
specifically: NWP 12 (oil or natural gas pipeline activities; NWP 21 
(surface coal mining activities); NWP 29

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(residential developments); NWP 39 (commercial and institutional 
developments); NWP 40 (agricultural activities); NWP 42 (recreational 
facilities); NWP 43 (stormwater management facilities); NWP 44 (mining 
activities); NWP 48 (commercial shellfish mariculture activities); NWP 
50 (underground coal mining activities); NWP 51 (land-based renewable 
energy generation facilities); and NWP 52 (water-based renewable energy 
generation pilot projects). This final rule issues four new NWPs: NWP 
55 (seaweed mariculture activities); NWP 56 (finfish mariculture 
activities); NWP 57 (electric utility line and telecommunications 
activities); and NWP 58 (utility line activities for water and other 
substances).
    For the 16 NWPs included in this final rule, the Corps is also 
reissuing the general conditions and definitions, with some changes. 
The Corps is not reissuing or modifying the remaining 40 NWPs included 
in the 2020 Proposal or taking any action on the proposed new NWP E at 
this time. The general conditions and definitions published in the 
January 6, 2017, final rule (82 FR 1860) continue to apply to the 40 
existing 2017 NWPs that continue to remain in effect after the final 
rule for the 16 reissued and new NWPs goes into effect on March 15, 
2021.
    The 16 permits being finalized in this rule include permits 
proposed partly in response to E.O. 13783, Promoting Energy 
Independence and Economic Growth, and E.O. 13921, Promoting American 
Seafood Competitiveness and Economic Growth. The Corps is also 
reissuing NWPs 12 and 48 partly to address issues raised in two federal 
district court decisions: United States District Court for the District 
of Montana Great Falls Division's decision in Northern Plains Resource 
Council, et al., v. U.S. Army Corps of Engineers, et al., (Case No. CV 
19-44-GF-BMM) and the United States District Court, Western District of 
Washington at Seattle's decision 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).

D. Status of Existing Permits

    When the Corps modifies existing NWPs, the modified NWPs replace 
the prior versions of those NWPs so that there are not two sets of NWPs 
in effect at the same time. Having two sets of NWPs in effect at the 
same time creates regulatory uncertainty if each set of those NWPs has 
different limits, requirements, and conditions because permittees may 
be unclear as to which limits, requirements, and conditions apply to 
their authorized activities. In addition, differences in NWP limits, 
requirements, and conditions between two sets of NWPs can create 
challenges for district engineers in terms of enforcement and 
compliance efforts.
    The Corps is modifying the expiration date for the 12 existing NWPs 
(i.e., NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52) that are 
issued in this final rule to March 15, 2021. The expiration date for 
the 12 existing NWPs and the 4 new NWPs issued in this final rule is 
five years after the date those NWPs go into effect. 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 an 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 under any of the 12 NWPs issued in this final rule, 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. As long as the verified NWP activities continue to comply with 
the terms and conditions of the 12 existing NWPs issued in this final 
rule, those activities continue to be authorized by the applicable 
NWP(s) until March 18, 2022, unless a 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 
2017 NWPs, but no longer qualify for authorization under any of the 12 
existing NWPs that are reissued in this final rule, continue to be 
authorized by the 2017 NWP(s) for 12 months as long as those activities 
have commenced (i.e., are under construction) or are under contract to 
commence in reliance upon an NWP prior to the date on which the NWP 
expires. That authorization is contingent on the activity being 
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.
    The 16 NWPs issued in this final rule go into effect on March 15, 
2021. The 2017 versions of the 12 NWPs reissued in this final rule 
expire on March 15, 2021. The 12 existing NWPs and 4 new NWPs issued in 
this final rule expire five years after March 15, 2021.

E. Nationwide Permit Verifications

    Certain NWPs require the permittee to submit a PCN, and thus 
request confirmation from the district engineer prior to commencing the 
proposed NWP activity, to ensure that the NWP activity complies with 
the terms and conditions of the NWP. The requirement to submit a PCN is 
identified in the NWP text, as well as certain general conditions. 
General condition 18 requires non-federal permittees to submit PCNs for 
any proposed activity that might affect ESA-listed species or 
designated critical habitat, if listed species or designated critical 
habitat are in the vicinity of the proposed activity, or if the 
proposed activity is located in critical habitat. General condition 20 
requires non-federal permittees to submit PCNs for any proposed 
activity that may have the potential to cause effects to any historic 
properties listed in, determined to be eligible for listing in, or 
potentially eligible for listing in, the National Register of Historic 
Places.
    In the PCN, the project proponent must specify which NWP or NWPs he 
or she wants to use to provide the required Department of Army (DA) 
authorization under Section 404 of the Clean Water Act and/or Section 
10 of the Rivers and Harbors Act of 1899. For voluntary NWP 
verification requests (where a PCN is not required), the request should 
also identify the NWP(s) the project proponent wants to use. The 
district engineer should verify the activity under the NWP(s) requested 
by the project proponent, as long as the proposed activity complies 
with all applicable terms and conditions, including any applicable 
regional conditions imposed by the division engineer. All NWPs have the 
same general requirements: That the authorized activities may only 
cause no

[[Page 2748]]

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

F. Executive Order 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, Office of the Assistant Secretary of the Army (Civil Works) 
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 Office of the Assistant Secretary of the Army (Civil Works) 
issued its report on October 25, 2017, and 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.''

G. 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. Comments received in response to the July 20, 2017, 
Federal Register notice can be viewed at www.regulations.gov in docket 
number COE-2017-0004.

H. 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.

[[Page 2749]]

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. 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.
    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 proposed 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 invited public comment on whether a separate NWP 
should be issued to authorize structures or work regulated by the Corps 
for multi-species mariculture activities.
    As required by the Executive Order, the Corps proposed 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. Based on the reasons set out in the final 
rule, the Corps has decided to issue these two permits. These new NWPs 
authorize structures and work in navigable waters of the United States 
under Section 10 of the Rivers and Harbors Act of 1899. These new NWPs 
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 NWPs includes a provision on 
multi-trophic species mariculture activities in marine and coastal 
waters, including federal waters on the outer continental shelf. This 
provision for multi-trophic species mariculture gives flexibility to 
these NWPs to allow mariculture operators to propagate additional 
species, such as mussels, on their seaweed or finfish mariculture 
structures. Including this provision was an alternative to developing a 
separate NWP for multi-trophic species mariculture activities, and 
provides NWP authorization that is responsive to the E.O. The Corps 
recognizes that some mariculture operators may choose to produce 
seaweeds or finfish exclusively. As discussed in this final rule, the 
Corps issued proposed new NWP A as NWP 55 and issued proposed new NWP B 
as NWP 56.

I. 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 the recommended 
reforms was 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, in the 2020 Proposal the Corps invited comment on whether it 
can use its existing authority to create specific procedures or 
conditions by which Federal agencies that want to use NWPs for 
regulated activities would not need to submit PCNs, consistent with 
applicable law. The Corps specified that, 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)), 
and the right to take action to address situations where the Federal 
agency incorrectly determined that the NWP terms and conditions were 
met.
    The Corps sought public comment on whether to exempt federal 
agencies from PCN requirements 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. In the proposed rule 
the Corps stated that it 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.
    Consistent with this legislative principle, the Corps requested 
comment on whether to modify the NWPs that require PCNs to limit the 
PCN requirement to non-federal permittees. The Corps requested 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. After reviewing and 
considering public comments on this proposal, the Corps has determined 
not to finalize any change to PCN requirements for federal permittees.

II. Discussion of Public Comments

A. Overview

    In response to the 2020 Proposal, the Corps received more than 
22,700 comment letters, of which approximately 22,330 were form letters 
pertaining to the proposed removal of the 300 linear foot limit for 
losses of stream bed, the proposed changes to NWPs 21, 49, and 50, or 
the proposed reissuance of NWP 12. In addition to the various form 
letters, the Corps received

[[Page 2750]]

a few hundred individual comment letters. Those individual comment 
letters, as well as examples of the various form letters, are posted in 
the www.regulations.gov docket (COE-2020-0002) for this rulemaking 
action. The Corps reviewed and fully considered all comments received 
in response to the 2020 Proposal.

B. Responses to General Comments

    Many commenters expressed general support for the proposed rule, as 
well as the NWP program as a whole, and many commenters stated 
opposition to the proposed changes to the NWPs or the use of NWPs to 
authorize certain activities. Many commenters said that the NWP program 
should be discontinued. Many commenters objected to reissuing the NWPs 
ahead of schedule, stating that early reissuance of the NWPs presents 
an unnecessary burden and cost to the agency and the public. Many 
commenters stated that the proposed NWPs do not comply with the Clean 
Water Act, the National Environmental Policy Act, the Endangered 
Species Act, the National Historic Preservation Act, the Magnuson 
Stevens Act, and other federal laws. Many commenters said that the NWP 
program is pushing species closer to extinction.
    The NWP program is an important component of the Corps Regulatory 
Program because it provides an efficient means of authorizing 
activities that result in no more than minimal individual and 
cumulative adverse environmental effects so that the Corps can devote 
more of its resources for evaluating proposed activities that require 
Department of the Army (DA) authorization that have the potential to 
cause more substantial adverse environmental effects. The 
grandfathering provisions in the Corps' NWP regulations at 33 CFR 
330.6(a)(3)(ii) and 330.6(b) and as described in Section I.D, Status of 
Existing Permits, provide mechanisms to reduce regulatory burdens when 
the Corps modifies or reissues the NWPs to replace existing NWPs. The 
NWPs are issued in compliance with the Clean Water Act, the National 
Environmental Policy Act, the Endangered Species Act, the National 
Historic Preservation Act, the Magnuson Stevens Act, and other 
applicable federal laws.
    Several commenters said that the proposal is not compliant with the 
regulations that govern NWPs. Several commenters stated that every NWP 
authorization should be announced through a public notice. Several 
commenters said that the Corps does not have the authority to enforce 
state conditions. One commenter stated that each NWP should include a 
state-level review prior to verification. One commenter asserted that 
the proposal violates the authority of individual states to resolve 
noncompliance with water quality standard permits. One commenter stated 
that the Corps should ensure compliance with Safe Water Drinking Act 
when verifying NWP eligibility. One commenter said that the proposed 
rule conflicts with efforts to update state general permits.
    The 16 NWPs issued in this final rule comply with the Corps' NWP 
regulations at 33 CFR part 330. The NWPs authorize only those 
activities that have no more than minimal individual and cumulative 
adverse environmental effects, so it is not necessary to issue public 
notices to announce the tens of thousands of NWP verification letters 
Corps districts issue each year. The Corps acknowledges that it does 
not have the authority to enforce conditions provided by states, except 
for those conditions added to the NWPs by water quality certifications 
by certifying authorities and Coastal Zone Management Act consistency 
concurrences issued by states, that are within the Corps' legal 
authority to enforce. States can take actions to enforce their own 
water quality requirements, including permits issued under Section 402 
of the Clean Water Act. The Corps does not have the legal authority to 
enforce the Safe Water Drinking Act. The issuance or reissuance of the 
NWPs is independent of the issuance of general permits by states, or 
the issuance of state programmatic general permits by Corps districts.
    Several commenters said that the proposed rule did not allow 
sufficient time for adequate review by states and tribes. Several 
commenters requested additional time to review the proposed NWPs. One 
commenter said that the comment period should be extended by 180 days. 
One commenter stated that Corps divisions and districts should not 
solicit comments on proposed regional conditions concurrently with the 
public comment period of the NWP reissuance. Many commenters said that 
the Corps should have a lead district for every state.
    For the 2020 Proposal, the Corps provided a 60-day comment period, 
which is same duration the Corps has used for past rulemaking actions 
involving the issuance, reissuance, and/or modification of the NWPs. 
The Corps sent response letters to entities that made timely requests 
for extensions of the comment period for the 2020 Proposal. In the 2020 
Proposal, the Corps did not propose a large number or substantial 
changes to the NWPs. Soliciting public comment on proposed regional 
conditions concurrently with the proposed issuance or reissuance of the 
NWPs is consistent with the Corps' NWP regulations at 33 CFR 
330.5(b)(2)(ii). The Corps has a designated a lead district for each 
state; these districts have been identified since 2004. As discussed in 
Section I.A., the Corps issued a Director's Policy Memorandum on May 
15, 2018, that further clarified its policy for designating a lead 
district for activities that require Department of the Army permits 
that cross district or state boundaries.
    One commenter stated that the Corps is required under Section 
404(e) of the Clean Water Act to hold a public hearing, which it cannot 
meaningfully accomplish given the pandemic. One commenter said the NWPs 
should not allow losses of up to \1/2\-acre of waters of the United 
States in areas that have already been heavily impacted and should not 
be used in areas where critical and essential habitat exists for 
species that are federally threatened or endangered species.
    The Corps declined to hold a public hearing on the proposed NWPs 
because it determined that a public hearing was unlikely to provide 
additional information that would inform the Corps' decision on whether 
to issue these NWPs. Under the Corps' regulations at 33 CFR 327.4(b), 
requests for public hearing under this paragraph shall be granted, 
unless the Corps determines that the issues raised are insubstantial or 
there is otherwise no valid interest to be served by holding a public 
hearing. The Corps received approximately 22,700 comments on the 
proposed rule, and it is unlikely that any statements provided during a 
public hearing would raise issues that are different that the issues or 
concerns discussed in the written comments received in response to the 
2020 Proposal.
    The NWPs can be used in any area of the United States, except where 
the NWPs have been revoked by division engineers on a regional basis 
(e.g., to use a programmatic general permit instead of the NWPs) or 
suspended or revoked by district engineers on a case-by-case basis. The 
NWPs can be used in a variety of areas ranging from environmental 
settings that have been heavily impacted by human activities to 
environmental settings that have been shaped by fewer or less severe 
impacts caused by human activities. For those NWPs with a \1/2\-acre 
limit for losses of waters of the United States (e.g., NWPs

[[Page 2751]]

21, 29, 39, 40, 42, 43, 44, 50, 51, and 52), PCNs are required for all 
proposed activities (except for maintenance activities under NWP 43 and 
losses of less than \1/10\-acre of waters of the United States for NWP 
51), which gives district engineers the opportunity to review proposed 
activities in their current environmental setting and determine whether 
those activities will result in no more than minimal individual and 
cumulative adverse environmental effects.
    The ability for division and district engineers to modify, suspend, 
or revoke NWPs on a regional or case-by-case basis is a key tool for 
ensuring that the NWPs only authorize activities that cause no more 
than minimal individual and cumulative adverse environmental effects. 
There is substantial variation in aquatic resource types across the 
country, as well as a large amount of variability among geographic 
regions in the quantity of those resources. Those regional differences 
require division and district engineers to have the authority to tailor 
the NWPs to address regional and site-specific concerns. The NWPs can 
only be issued for a period of 5 years because of the statutory 
language in section 404(e) of the Clean Water Act, as well as the 
Corps' regulations at 33 CFR 330.6(b). Section 330.6(b) states that if 
``an NWP is not modified or reissued within five years of its effective 
date it automatically expires and becomes null and void.'' The 5-year 
cycle for reissuing the NWPs provides sufficient time to make necessary 
changes to the NWPs to ensure that the NWPs only authorize those 
activities that result in no more than minimal individual and 
cumulative adverse environmental effects.
    Many commenters objected to the proposed NWPs, stating that they 
authorize activities that result in more than minimal individual and 
cumulative adverse environmental effects and that they do not authorize 
categories of activities that are similar in nature. Many commenters 
said that the Corps has not done any meaningful analysis of the 
cumulative effects from NWPs. A few commenters said that since the 
Corps does not require pre-construction notifications (PCNs) for all 
NWP activities, it could not ensure that NWP activities result in no 
more than minimal individual and cumulative adverse environmental 
effects. One commenter said that Corps districts should improve their 
tracking of cumulative impacts. A number of commenters opposed the 
NWPs, stating that they authorize activities associated with larger 
projects that have substantial environmental impacts. Several 
commenters said that the NWPs should either not authorize activities 
that impact streams and rivers occupied by anadromous salmon, or 
compensatory mitigation should always be required for those activities. 
One commenter stated that the NWPs should not be used in areas with 
substantial cumulative impacts, such as essential fish habitat and 
areas inhabited by ESA-listed species. Many commenters said that Corps 
should fund an independent evaluation of its methodology for assessing 
cumulative impacts. One commenter said that the proposal should be 
based on peer-reviewed scientific analysis. One commenter stated that 
the proposal should include a scientific support document. One 
commenter said that NWPs should only authorize activities with 
predictable environmental effects and outcomes.
    The NWP activities that do not require PCNs are those activities 
that have characteristics that do not result in more than minimal 
adverse environmental effects, such as small structures in navigable 
waters subject to section 10 of the Rivers and Harbors Act of 1899 or 
minor fills in waters of the United States associated with maintenance 
activities or temporary impacts.
    For the issuance or reissuance of these NWPs, the Corps has 
conducted the required cumulative effects analyses. In the national 
decision document for each NWP issued or reissued in this final rule, 
the Corps evaluated the cumulative impacts that are anticipated to 
occur during the 5-year period the NWPs are expected to be in effect. 
The cumulative impacts are evaluated against the current environmental 
setting or baseline, in accordance with typical practices for 
conducting environmental impact analyses. The Corps' public interest 
review regulations at 33 CFR 320.4(a)(1) and the Corps' general permit 
regulations at 33 CFR 322.2(f) and 323.2(h) require consideration of 
cumulative effects for the issuance of permits.
    For those NWPs that authorize discharges of dredged or fill 
material into waters of the United States, the Corps complies with the 
U.S. EPA's regulations at 40 CFR 230.7(b)(3) for assessing cumulative 
impacts for the issuance of general permits. Section 230.7(b)(3) 
requires the permitting authority (e.g., the Corps) to predict 
cumulative effects by evaluating 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. In its cumulative effects analyses for the issuance 
or reissuance of an NWP, the Corps goes further than estimating the 
number of times an NWP may be used to authorize activities during the 
5-year period it is expected to be in effect by estimating the acreage 
of impacts and the acreage of compensatory mitigation required by 
district engineers during that 5-year period. In its analysis of the 
effects or impacts of the proposed issuance or reissuance of the NWPs 
under the Council of Environmental Quality's current NEPA regulations 
at 40 CFR 1508.1(g), the Corps also estimates the impacts that are 
reasonably foreseeable and have a reasonably close causal relationship 
to the proposed action during the 5-year period the NWP is expected to 
be in effect.
    These analyses of effects and their associated estimates of 
authorized activities, authorized impacts to jurisdictional waters and 
wetlands, and compensatory mitigation required by district engineers, 
include NWP activities that require PCNs and NWP activities that do not 
require PCNs. The Corps disagrees that an independent evaluation of 
these approaches to cumulative effects is necessary, or that a peer-
reviewed scientific analysis or a scientific support document should be 
prepared. The Corps follows existing federal regulations for assessing 
cumulative effects. In its evaluations of individual and cumulative 
adverse environmental effects of activities authorized by NWPs, the 
Corps considers reasonably foreseeable effects or impacts, especially 
those effects or impacts that are directly or indirectly caused by the 
activity authorized under the Corps' permitting authorities under 
Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the 
Clean Water Act.
    The NWP program provides a three-tiered approach to ensure 
compliance with Section 404(e) of the Clean Water Act. Those three 
tiers are: (1) the terms and conditions of the NWPs issued by Corps 
Headquarters; (2) the authority of division engineers to modify, 
suspend, or revoke NWPs on a regional basis; and (3) the authority of 
district engineers to modify, suspend, or revoke NWPs on a case-by-case 
basis. Section 404(e) of the Clean Water Act does not specify how broad 
or narrow a category of activity must be in order to be covered by a 
general permit. Therefore, that section of the Clean Water Act gives 
the Corps the discretion to identify categories of activities for the 
issuance of NWPs. The Corps interprets broadly the requirement for 
general permits to authorize categories of activities that are similar 
in nature, to provide program

[[Page 2752]]

efficiency, to keep the number of NWPs manageable, and to facilitate 
implementation by the Corps and project proponents that need to obtain 
Department of the Army (DA) authorization for activities that have no 
more than minimal adverse environmental effects.
    While the Corps recognizes that many NWP activities may be 
components of larger overall projects, the Corps' authorities under the 
NWP program are limited to discharges of dredged or fill material into 
waters of the United States that are regulated under Section 404 of the 
Clean Water Act, and structures and work in navigable waters that are 
regulated under Section 10 of the Rivers and Harbors Act of 1899. The 
Corps does not regulate other components of those larger overall 
projects, such as activities that occur in upland areas. In many cases, 
the NWPs are authorizing minor features that may be part of those 
larger overall projects but that still does not bring those larger 
upland features into the Corps' jurisdiction.
    Division engineers can impose regional conditions on the NWPs to 
protect rivers and streams inhabited by anadromous fish, including 
salmon. For those salmonids that are listed as endangered or threatened 
under the Endangered Species Act (ESA), general condition 18 requires 
PCNs for all NWP activities proposed to be undertaken by non-federal 
permittees that might affect those listed species or their designated 
critical habitat (or proposed species or proposed critical habitat), or 
that occur in their designated or proposed critical habitat. If a 
proposed NWP activity may adversely affect essential fish habitat, the 
district engineer will conduct essential fish habitat consultation with 
the NMFS. District engineers have the discretion to require 
compensatory mitigation to offset stream losses caused by NWP 
activities. After conducting ESA section 7 consultation or essential 
fish habitat consultation, the district engineer may determine that 
stream compensatory mitigation is necessary to ensure that the NWP 
activity results in no more than minimal individual and cumulative 
adverse environmental effects. A division engineer has the authority to 
modify, suspend, or revoke one or more NWPs in a geographic region if 
he or she determines that the use of that NWP or NWPs will result in 
more than minimal cumulative adverse environmental effects.
    One commenter said the NWPs should not authorize activities that 
result in adverse environmental impacts. One commenter stated that the 
terms and conditions of the NWPs should not be changed to be less 
protective of the environment. Several commenters said that public 
notices should be issued for NWP PCNs to disclose proposed NWP 
activities and increase public participation. A number of commenters 
suggested that NWPs should require no net loss of aquatic resources. A 
number of commenters asked why the proposed NWPs use the term ``no more 
than minimal adverse environmental effects'' instead of ``no more than 
minimal adverse effects on the aquatic environment.''
    Section 404(e) of the Clean Water Act recognizes that activities 
authorized by general permits, including NWPs, will result in adverse 
environmental impacts, but limits those adverse impacts so that they 
can only be no more than minimal. The Corps has adopted terms and 
conditions for the NWPs to be sufficiently protective of the aquatic 
environment while allowing activities that result in no more than 
minimal adverse environmental effects to be conducted.
    Requiring public notices for PCNs would be contrary to the purpose 
of the general permit program established through section 404(e) of the 
Clean Water Act, for a streamlined authorization process for activities 
that result in no more than minimal individual and cumulative adverse 
environmental effects. In addition, it is unlikely that there would be 
any meaningful public comment submitted to Corps districts in response 
to public notices for the minor activities authorized by these NWPs 
that would warrant the reduction in permitting efficiency providing 
such a comment period would cause. Compensatory mitigation can only be 
required by the district engineer after he or she reviews the PCN and 
determines that compensatory mitigation is necessary to comply with the 
``no more than minimal adverse environmental effects'' requirement for 
NWPs (see 33 CFR 330.1(e)(3)). There is no federal statute or 
regulation that requires ``no net loss'' of aquatic resources. The ``no 
overall net loss'' goal for wetlands articulated in the 1990 U.S. EPA-
Army Memorandum of Agreement for mitigation for Clean Water Act section 
404 permits states that the section 404 permit program will contribute 
to that national goal. The 1990 Memorandum of Agreement only applies to 
standard individual permits, not to general permits.
    The NWP program provides valuable protection to the Nation's 
aquatic resources by establishing incentives to avoid and minimize 
losses of jurisdictional waters and wetlands in order to qualify for 
the streamlined NWP authorizations. A large majority of fills in 
jurisdictional waters and wetlands authorized by general permits and 
individual permits are less than \1/10\-acre (see Figure 5.1 in the 
Regulatory Impact Analysis for this final rule, which is available in 
the www.regulations.gov docket (COE-2020-0002)). The 16 NWPs use the 
term ``no more than minimal adverse environmental effects'' to be 
consistent with the text of Section 404(e) of the Clean Water Act and 
33 CFR 322.2(f)(1) for Section 10 of the Rivers and Harbors Act of 
1899. When making no more than minimal adverse environmental effects 
determinations for proposed NWP activities, the district engineer 
considers the adverse effects to the aquatic environment and any other 
factor of the public interest (e.g., 33 CFR 330.1(d)). The district 
engineer also applies the 10 criteria listed in paragraph 2 of Section 
D, District Engineer's Decision. The use of the term ``no more than 
minimal adverse environmental effects'' does not expand the Corps' 
scope of analysis. The Corps' control and responsibility remains 
limited to the activities it has the authority to regulate, and the 
effects to the environment caused by those activities.
    Several commenters said that the proposed NWPs are not sufficiently 
protective of freshwater mussels. One commenter stated that the NWPs 
should be modified to provide additional protections to wilderness 
areas. Several commenters identified specific areas of the country 
where they were concerned that the use of the NWPs would authorize 
activities with adverse environmental impacts. Many commenters said 
that the NWPs have increased coastal communities' vulnerability to 
future flood events by accelerating wetland alteration following 
hurricanes. One commenter stated that the NWPs should be revoked in 
areas included under the Safe Drinking Water Act, such as public water 
systems source water areas. One commenter said that all NWPs should be 
subject to an acreage limit of \1/10\-acre.
    Impacts to freshwater mussels that are listed as endangered or 
threatened under the ESA are addressed through general condition 18 and 
the subsequent ESA section 7 consultations that occur when district 
engineers review PCNs and determine that a proposed NWP activity may 
affect listed mussels. Where there are concerns about the use of NWPs 
in wilderness areas and other specific waterbodies or geographic areas 
of the United States, division engineers can add regional conditions to 
the NWPs to restrict or prohibit their use in those areas. The Corps 
does not have the legal authority to address the

[[Page 2753]]

vulnerability of coastal communities to future flood events or the loss 
of wetlands in coastal areas due to erosion, subsidence, and sea level 
rise. Public water systems source water areas are generally watersheds, 
and the Corps does not have the authority to regulate activities in 
uplands in these watersheds that may affect water supplies for 
communities. For those NWP activities that require PCNs, district 
engineers can consider effects to water supplies caused by regulated 
activities, as one of the Corps' public interest review factors (i.e., 
water supply and conservation at 33 CFR 320.4(m)) that can be a basis 
for exercising discretionary authority. The Corps believes that the \1/
2\-acre limit for the NWPs, the PCN review process, and the ability of 
division engineers to modify, suspend, or revoke the NWPs on a regional 
or case-specific basis is sufficient for ensuring that the NWPs that 
have the \1/2\-acre limit authorize only those activities that result 
in no more than minimal individual and cumulative adverse environmental 
effects.
    One commenter stated that implementing NWPs under the Navigable 
Waters Protection Rule (NWPR) will result in more than minimal impacts 
and not account for areas that were jurisdictional but are not under 
current rule. Many commenters said that the NWPs should include 
language clarifying that not all ditches constructed in adjacent 
wetlands are jurisdictional. Many commenters stated that the discussion 
of wetland jurisdiction in the NWPs should mirror that in the NWPR. 
Many commenters asserted that there are inconsistencies between the 
proposed NWPs and the NWPR. Several commenters said that the 
terminology in the NWPs should be consistent with the NWPR, especially 
the terms ``stream,'' ``tributary,'' and ``ephemeral.''
    The NWPs are used to authorize activities in waters and wetlands 
that are jurisdictional under the Corps' permitting authorities: 
Section 404 of the Clean Water Act and Section 10 of the Rivers and 
Harbors Act of 1899. If a project proponent wants to discharge dredged 
or fill material into a waterbody that is not subject to Clean Water 
Act jurisdiction under the NWPR, then DA authorization under an NWP or 
any other type of Corps permit is not required for that proposed 
discharge. The Corps declines to add language to this final rule 
regarding the jurisdictional status of ditches under the Clean Water 
Act because that jurisdictional status is more appropriately addressed 
through application of the provisions of the NWPR at 33 CFR part 328. 
Many of the NWPs can be used to authorize discharges of dredged or fill 
material into numerous wetland types that are subject to Clean Water 
Act jurisdiction under the NWPR. There are no inconsistencies between 
the proposed NWPs and the NWPR. The NWPs can be used to authorize 
specific activities in waters and wetlands that are subject to Clean 
Water Act jurisdiction under the NWPR. Some of the NWPs specifically 
authorize discharges of dredged or fill material into streams, so the 
Corps declines to replace the term ``stream'' with ``tributary.'' Under 
the NWPR, ephemeral features, including ephemeral streams are excluded 
from Clean Water Act jurisdiction.
    One commenter requested that the Corps issue a new NWP with no PCN 
requirements that authorizes emergency projects such as repair of 
significant leaks from canals, tunnels, and other features, culvert 
repair and replacement, critical pump plant repairs, and small scale 
urgent natural disaster mitigation projects. One commenter suggested 
that the Corps issue a new NWP to authorize natural disaster mitigation 
projects (e.g., fire or flood repairs or mitigation projects) with an 
acreage limit of \1/10\-acre. One commenter stated that the Corps 
should issue a new NWP to authorize aggregate mining activities, 
instead of NWP 44. One commenter said that the Corps should prioritize 
NWP verifications for time-sensitive maintenance and emergency work. 
One commenter stated that the proposal should include a list of 
typically exempted activities, such as ditch maintenance. One commenter 
said that that the NWPs should include a general condition to limit the 
spread of invasive/noxious species.
    The Corps declines to issue a new NWP to authorize the repair of 
leaks from canals, tunnels, and other features because NWP 3 can be 
used to authorize discharges of dredged or fill material into waters of 
the United States or structures or work in navigable waters of the 
United States to repair leaking structures or fills. The Corps also 
declines to issue a new NWP to authorize natural disaster mitigation 
projects. Some of these activities are already authorized by NWP 37, 
emergency watershed protection and rehabilitation activities. Some of 
these activities can also be authorized through the Corps' emergency 
permitting procedures at 33 CFR 325.2(e)(4). Nationwide permit 44 
authorizes aggregate mining activities, so it is not necessary to issue 
another NWP to authorize those activities. District engineers currently 
have the authority to prioritize authorization of time-sensitive 
maintenance and emergency work, including the use of the emergency 
permitting procedures at 33 CFR 325.2(e)(4). Certain NWPs include notes 
that point to exemptions that may be related to authorized activities. 
The Corps declines to add a general condition to the NWPs to require 
permittees to take actions to limit the spread of invasive or noxious 
species because such a condition would not be reasonably enforceable 
and invasive or noxious species can spread through natural mechanisms 
outside the control of permittees. The Corps' regulations at 33 CFR 
325.4(a) requires permit conditions to be directly related to the 
impacts of the proposal, appropriate to the scope and degree of those 
impacts, and reasonably enforceable.
(1) Status of Existing Permits
    In response to the 2020 Proposal, the Corps received comments 
concerning the status of existing NWP authorizations and how the 
issuance of the final rule may affect those existing authorizations. 
The Corps also invited public comment on changing the expiration date 
for the 2017 NWPs to avoid having two sets of NWPs in effect at the 
same time.
    Many commenters stated that current NWPs should expire on their 
original expiration date (i.e., March 18, 2022). Several commenters 
expressed support for the 2017 NWPs expiring the day before the new 
NWPs become effective in order to provide certainty and continuity 
without imposing burdens on permittees, provided that all activities 
authorized by the 2017 NWPs remain approved regardless of whether those 
activities meet the requirements of the new NWPs. These commenters also 
wanted to avoid having differing sets of NWPs in effect at the same 
time.
    Many commenters stated that the Corps proposed grandfathering 
procedure would cause uncertainty and disruption to those who are 
relying on the expiration date of the 2017 NWPs and the 12-month 
grandfathering period. A few commenters said that the grandfathering 
process and applicability was unclear. One commenter stated that 
previously verified activities should be allowed to continue under the 
2017 NWPs unless the new NWPs are more restrictive. One commenter 
stated that if the NWPs issued in the final rule replaces the 2017 NWPs 
and the NWPs issued in the final rule go into effect before the 2017 
NWPs were originally scheduled to expire on March 18, 2022, the Corps 
should notify all permittees who submitted PCNs or received NWP

[[Page 2754]]

verification letters under the 2017 NWPs.
    The Corps acknowledges that that these changes to the NWPs may 
cause uncertainty and disruption for some project proponents who have 
received NWP verifications from the Corps. However, the Corps believes 
this disruption will be limited because the activities affected by the 
changes to the 12 existing NWPs are likely to continue to qualify for 
NWP authorization. Further, project proponents can work with Corps 
districts to efficiently obtain NWP verifications under the reissued 
NWPs. The information previously submitted to Corps districts via PCNs 
can be used to provide NWP verifications for many of the activities 
that will be authorized by the new NWPs for different types of utility 
line activities that were previously authorized by NWP 12. It is 
impractical to require the Corps districts to reach out to all 
permittees who received NWP verifications under the 2017 NWPs that are 
reissued in this final rule because of the number of verified 
activities. Once an NWP verification has been provided there is no 
obligation for a permittee to undertake the work that has been 
permitted; therefore, there it is impractical for the Corps to follow-
up on every verification to ascertain if the work has been completed 
and/or whether the project proponent still intends to proceed with the 
activity authorized under the NWP.
    One commenter asked what would happen to activities approved under 
the 2017 NWPs that would start construction prior to March 18, 2022, 
but after the implementation dated of the new NWPs. One commenter 
stated that activities that no longer qualify under the new NWPs but 
were verified under the 2017 NWPs should have 18 months to complete the 
authorized activity. One commenter questioned whether projects verified 
under the 2017 NWPs would still be valid as verified or would they be 
in non-compliance and require re-authorization either by NWP or by 
individual permit.
    If a project proponent received an NWP verification under one of 
the 2017 NWPs, and the activity continues to be authorized by one of 
the existing NWPs that was reissued, that activity continues to be 
authorized by the 2017 NWP until it expires on March 18, 2022, unless 
the district engineer specified a different expiration date in the NWP 
verification letter (see 33 CFR 330.6(a)(3)(ii)). In contrast to the 
grandfathering provision at 33 CFR 330.6(b), the grandfathering 
provided by section 330.6(a)(3)(ii) is not dependent on when the 
project proponent commences construction. If the activity is not 
authorized by the reissued NWP, then the project proponent has 12 
months to complete the authorized activity after the 16 final NWPs go 
into effect as long as the project proponent has commenced construction 
or is under contract to commence construction before the new expiration 
date for the twelve 2017 NWPs that are reissued in this final rule (see 
33 CFR 330.6(b)). The Corps' regulations at 33 CFR 330.6(b) specify a 
12-month grandfathering period for activities that no longer qualify 
for authorization under the reissued NWP if the activity has commenced 
or is under contract to commence prior to the expiration of the NWP. To 
change that 12-month period to 18 months would require rulemaking to 
amend the regulation. The validity of the prior NWP authorization would 
depend on whether the activity continues to be authorized by any of the 
16 NWPs issued in this final rule, and whether any of the 
grandfathering provisions in 33 CFR 330.6 apply.
    One commenter said that based on section 330.6(b) permittees should 
have until March 18, 2023 to complete projects authorized under the 
2017 NWPs as long as they are under construction or contract to 
commence construction. One commenter stated that special emphasis 
should be placed on NWP 12 if it is split into three NWPs, to ensure 
that activities previously authorized under the 2017 NWP 12 continue to 
be permitted through the date specified in the verification letter. One 
commenter stated that the Corps should allow for a reasonable 
transition between existing activities authorized by an NWP and the new 
NWPs, for up to one year.
    As discussed above, electric utility line and telecommunications 
activities and utility line activities for water and other substances 
continue to be authorized by the 2017 NWP 12 for up to 12 months as 
long as the project proponent has commenced construction or is under 
contract to commence construction before NWPs 57 and 58 go into effect. 
Given the anticipated effective date of this final rule, the 12-month 
grandfathering provision is likely to end close to March 18, 2022. The 
Corps believes that the current regulations provide a reasonable 
transition from the 2017 NWPs to the 16 NWPs issued in this final rule.
(2) Pre-Construction Notification Requirements
    A few commenters stated they are supportive of the reduction of the 
number of PCN thresholds under various NWPs. A few commenters said they 
are supportive of the removal of the 300 linear foot PCN threshold. 
Many commenters stated that they are opposed to reducing the number of 
PCN thresholds for the NWPs because they believe these PCN thresholds 
are necessary to ensure that the activities authorized by these NWPs 
have no more than minimal adverse environmental effects. A few 
commenters said that the lack of PCNs does not meet the national no-
net-loss of aquatic resources goal because these losses are not being 
mitigated. A few commenters stated their opposition to the removal of 
the 300 linear foot PCN thresholds. Several commenters said that they 
are opposed to federal agencies not having to submit PCNs because it is 
contrary to the Clean Water Act.
    The changes to the PCN thresholds for the NWPs are discussed in the 
sections of the final rule that apply to each NWP. With the removal of 
the 300 linear foot limit for losses of stream bed, the Corps has also 
removed the ability of district engineers to waive that 300 linear foot 
limit on a case-by-case basis after reviewing PCNs. Activities can be 
authorized by NWPs with no compensatory mitigation requirements as long 
as those activities result in no more than minimal individual and 
cumulative adverse environmental effects. In FY 2018, approximately 11 
percent of activities verified by district engineers as qualifying for 
NWP authorization required compensatory mitigation. There is no 
requirement in law or regulation for no net loss of aquatic resources. 
The requirement for what can be authorized by an NWP is that 
established by Section 404(e) of the Clean Water Act requiring 
activities authorized by NWPs to cause only minimal individual and 
cumulative adverse environmental effects. As discussed in Section II.D, 
the Corps is retaining PCN requirements for federal agencies that use 
the NWPs to authorize their activities.
    A few commenters said that PCNs should be required for all NWP 
activities to ensure the authorized activities are not affecting the 
environment adversely and to ensure the permittee is avoiding and 
minimizing impacts to the maximum extent practicable. One commenter 
stated that a PCN should be required to ensure compliance with Section 
106 of the National Historic Preservation Act. One commenter said that 
the timing of the review process for a PCN is not identified in the 
proposed rule for any of the NWPs.
    The Corps establishes PCN thresholds for those NWP activities that 
have the potential to cause more than minimal

[[Page 2755]]

adverse environmental effects, to provide activity-specific review and 
allow district engineers to exercise discretionary authority and 
require individual permits for activities that will have more than 
minimal adverse environmental effects. General condition 20 establishes 
PCN requirements for proposed NWP activities that have the potential to 
cause effects to historic properties that are undertaken by non-federal 
permittees. The timing of the PCN review process is provided in general 
condition 32.
    One commenter stated that the Corps undertakes many actions under 
its permitting authorities for which the tribes and villages are not 
notified. One commenter asked how the Corps ensures no more than 
minimal adverse environmental effects if a default NWP authorization 
occurs after 45 days has passed after the district engineer receives a 
PCN. One commenter asked for clarification as to how the Corps ensures 
compliance for activities that do not require PCNs. One commenter 
requested that Corps Headquarters clarify to each of the Corps 
districts that it is up to the permittee to determine whether a PCN is 
required or not.
    In conjunction with the rulemaking process for the issuance of 
these NWPs, Corps districts have been conducting consultation and 
coordination with tribes to identify regional conditions and 
coordination procedures to ensure compliance with general condition 17, 
concerning tribal rights. Activities that qualify for the default 
authorization that occurs 45-days after the district engineer receives 
a complete PCN must comply with all conditions of the NWP, including 
the general conditions and any applicable regional conditions imposed 
by the division engineer. The permittee is responsible for reading the 
NWPs and all of their conditions to determine whether he or she is 
required to submit a PCN before proceeding with an authorized activity.
    One commenter said that for linear projects that are considered 
``single and complete,'' where some crossings do not require PCNs, the 
permittee should not have to divulge the non-PCN crossing information 
to the Corps because the permittee is not required to provide the same 
level of documentation for non-PCN crossings, and the project proponent 
should be free to move forward with the non-PCN crossings. One 
commenter encouraged the Corps to implement a nationwide tracking and 
monitoring system for NWPs with PCN requirements to share information 
with cooperating resource agencies so that informed decisions can be 
made regarding changes to the NWP program.
    The information on the non-PCN crossings associated with a linear 
project is necessary so that the district engineer can consider all 
crossings of waters of the United States that require DA authorization 
when making his or her determination that the proposed NWP activities 
will result in no more than minimal cumulative adverse environmental 
effects. The information required by paragraphs (b)(4)(i) and (ii) of 
general condition 32 does not change these non-PCN crossings into those 
requiring PCNs. The Corps tracks all NWP verifications issued for 
activities that require PCNs and for activities reported to Corps 
districts through voluntary PCNs where the permittee seeks written 
verification even though he or she is not required to do so.
(3) Climate Change
    Many commenters said that the Corps should consider climate change 
during the reissuance of these NWPs. One commenter stated that the 
Corps failed to analyze climate change, the risk of which will be 
exacerbated by the issuance of the NWPs. Some of these commenters 
stated that the Corps should consider increased energy consumption as a 
foreseeable indirect effect of the Corps' decisions for these NWPs. 
Several commenters asserted that the proposed changes to the NWPs will 
have significant impacts on the environment, including climate change. 
One commenter said that the cumulative impacts of stream and wetland 
losses from NWP activities must be considered in the context of the 
changing climate. Several commenters stated that the proposed NWPs help 
support the nation's investment of its infrastructure, including 
changes to infrastructure to address global climate change.
    The Corps has considered climate change during the reissuance of 
the NWPs, and each of the national decision documents includes a 
discussion of climate change. Although some activities authorized by 
various NWPs may be associated with energy production, distribution, 
and use, the Corps does not have the authority to regulate or control 
the production, distribution, or combustion of hydrocarbons and other 
materials are sources of carbon dioxide and other greenhouse gases that 
contribute to global climate change. Permittees may use equipment 
during the construction of the NWP activity that emits carbon dioxide 
and other greenhouse gases, but those emissions occur during the 
construction period for the authorized activity and have an 
insignificant contribution to cumulative greenhouse gas emissions in 
the region. The activities authorized by NWPs may result in permanent 
or temporary impacts to wetlands and streams, and the discharges of 
dredged or fill material into waters of the United States and 
structures and work in navigable waters of the United States are only a 
subset of the variety of human activities that change the quantity and 
quality of wetlands, streams, and other aquatic resources. Those other 
human activities are discussed in section 4.0 of the national decision 
documents for these NWPs. Some activities authorized by the NWPs, such 
as utility line activities, bank stabilization activities, living 
shorelines, and aquatic resource restoration activities contribute to 
adaptation to climate change.

C. Comments on Proposed Actions Under Executive Order 13921, Promoting 
American Seafood Competitiveness and Economic Growth

    In response to the 2020 Proposal, the Corps received comments on 
its proposed actions under Executive Order 13921, Promoting American 
Seafood Competitiveness and Economic Growth. The comments on proposed 
NWPs A and B for seaweed mariculture activities and finfish mariculture 
activities, respectively, are discussed in Section II.G of this final 
rule. In response to the section of the 2020 Proposal on E.O. 13921, 
the Corps received a few comments on aquaculture in other waters of the 
United States, but those commenters seemed to think that the 
mariculture NWPs might also authorize aquaculture activities in those 
other waters (e.g., freshwater lakes, ponds, and wetlands). The new 
NWPs 55 (seaweed mariculture activities) and 56 (finfish mariculture 
activities) limit those activities to estuarine and marine waters. 
These new NWPs also authorize multi-trophic mariculture activities.

D. Comments on the 2018 Legislative Outline for Rebuilding 
Infrastructure in America

    In the 2020 Proposal, the Corps requested comment on whether to 
modify the NWPs that require PCNs to limit the PCN requirement to non-
federal permittees. The Corps requested 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.
    After considering the comments received in response to the proposal 
based on the 2018 Legislative Outline

[[Page 2756]]

for Rebuilding Infrastructure in America, for the final NWPs the Corps 
decided to continue to subject both federal permittees and non-federal 
permittees to the same PCN requirements. Overall, the comments received 
in response to this aspect of the proposed rule did not support a 
reasoned and defensible rational for establishing different PCN 
requirements for federal and non-federal entities that use the NWPs to 
authorized activities that require DA authorization under Section 404 
of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 
1899. The comments the Corps received did not provide a substantive 
basis for establishing different PCN requirements for federal 
permittees and non-federal permittees, or establishing that federal 
permittees generally have a better record than non-federal permittees 
for complying with the NWPs and complying with related laws such as the 
Endangered Species Act and the National Historic Preservation Act. 
While the Corps would retain its enforcement authorities under the 
proposal, continuing to require federal agencies to submit PCNs is a 
more efficient means of ensuring that the NWPs authorize only those 
activities that result in no more than minimal individual and 
cumulative adverse environmental effects.
    Many commenters opposed the proposal to remove PCN requirements for 
federal permittees that want to use the NWPs to authorize their 
activities, because it would apply different PCN requirements and 
standards to federal versus non-federal permittees. Some of these 
commenters said this change may result in inadvertent violations. Some 
of these commenters stated that applying different PCN requirements for 
federal and non-federal permittees has no rational basis, and PCN 
requirements should be based on the regulated activity, not who 
undertakes the regulated activity.
    After reviewing the comments received in response to this aspect of 
the proposal, the Corps agrees that there is no substantive basis for 
establishing different PCN requirements for federal and non-federal 
permittees. The Corps is thus retaining the existing PCN requirements 
for federal permittees.
    Many commenters questioned whether federal agencies employ 
environmental experts qualified to review the projects before 
submitting the PCNs to the Corps and ensure that those federal agencies 
comply with applicable laws, regulations, and policies. Some these 
commenters said that expertise is inconsistent in terms of presence and 
depth among different federal agencies. They stated that staff at Corps 
districts are the best equipped with the technical knowledge and 
familiarity to administer the program and provide compliance oversight.
    The Corps agrees that knowledge regarding environmental laws and 
regulations, and experience in preparing environmental documentation to 
demonstrate compliance with environmental laws, varies among people as 
a whole, and is not dependent on whether they work for a federal 
government agency. As discussed in the 2020 Proposal, many non-federal 
permittees seek the assistance of environmental consultants to help 
them obtaining DA authorization through the NWP authorization process.
    Many commenters pointed out that PCNs allow the NWP program to meet 
the goal of no more than minimal individual and cumulative adverse 
impacts to the environment. Many of them said that exempting activities 
undertaken by federal agencies would reduce the ability of the Corps to 
track the cumulative effects of the NWP program. Many commenters 
expressed concerns with the Corps not assessing compensatory mitigation 
for federal permittees. They said there would be no mechanism for 
oversight and assurance that mitigation is completed and legally 
binding. Some of these commenters stated that federal permittees would 
have no incentive to avoid and minimize impacts and it is a clear 
conflict of interest for federal agencies, as they are incentivized to 
ensure their projects are permitted with as little cost as possible.
    The Corps is continuing to require PCNs from federal permittees, so 
there will be no change in the number of PCNs. District engineers will 
still review PCNs and require compensatory mitigation and other forms 
of mitigation when necessary to ensure that NWP activities result in no 
more than minimal individual and cumulative adverse environmental 
effects.
    Regarding the proposed definition of non-federal permittee, several 
commenters asked about the circumstances under which a non-federal 
permittee would be considered a federal permittee, and whether federal 
funding or some other federal nexus involving a local partner would be 
a factor. Some commenters inquired whether a state or local agency who 
has been delegated NEPA authority be considered a non-federal 
permittee. Several commenters said that there would need to be a 
clearer definition to help identify federal permittees who would no 
longer have to submit PCNs for proposed NWP activities. Because the 
Corps is retaining PCN requirements for federal agencies, it declines 
to speculate on how it would have implemented the proposal.
    Several commenters stated that delegation of the section 404 
permitting program to another federal agency is not likely to be 
legally permissible and might expose the Corps to litigation. Some of 
these commenters said that case law suggests that such delegation of a 
federal agency's statutory authority is not allowed, especially in the 
absence of memorandum of agreement between agencies. Not requiring PCNs 
from federal permittees for NWP activities is not be a delegation of 
the section 404 permitting program. The Corps continues to implement 
the NWP program and take actions necessary ensure that NWP activities 
comply with the terms and conditions of those authorizations, including 
potential actions identified in its enforcement regulations at 33 part 
CFR 326.
    Several commenters did not support the inclusion of state 
departments of transportation (DOTs) that have been assigned NEPA 
responsibilities in the category of federal permittees that would not 
have to submit PCNs for proposed NWP activities. Some of these 
commenters said that state DOTs may forgo internal mitigation programs 
if PCNs were no longer required and district engineers would not have 
the ability to impose mitigation requirements on NWP activities through 
conditions added to the NWP authorization. Some commenters said that 
long-term linear transportation projects are some of the biggest 
contributors of turbidity in the nation's waterbodies and can have 
permanent impacts to streams and wetlands. Some DOTs already have 
funding agreements with the Corps in most states to provide 
supplemental staff that are required to implement impartial decision-
making and are overseen and reviewed by non-funded regulators to ensure 
transparency and fairness. A few commenters said that if these critical 
safeguards be removed, DOTs will not be impartial or unbiased, and 
could undermine the environmental protections provided by the PCN 
process. Since the Corps is not changing the PCN requirements for 
federal permittees, it declines to speculate on how it would have 
implemented the proposed definition of ``non-federal permittee'' and 
other aspects of the proposal.
    A few commenters stated that removing PCN requirements for federal 
permittees could limit the ability of states to ensure that state water 
quality standards are being met under Section

[[Page 2757]]

401 of the Clean Water Act. If PCNs are not required, the regulatory 
scope of water quality protection shifts from pre-impact permitting 
review to more resource intensive field compliance, creating a burden 
on the regulatory entities responsible for protection of water quality. 
Pre-construction notifications ensure that NWP activities are 
consistent with water quality standards, water quality management 
plans/continuing planning process, total daily maximum loads, and anti-
degradation policy.
    The PCN requirements do not affect the requirements of Section 401 
of the Clean Water Act. If a certifying agency does not issue water 
quality certification for the issuance of an NWP that does not require 
pre-construction notification, the project proponent is still required 
to obtain an activity-specific water quality certification or waiver 
for the proposed discharge.
    A few commenters stated that the further an agency's focus is from 
natural resource management, the input from state fish and wildlife 
agencies is more critical. These commenters said that the participation 
of state natural resource agencies in the PCN review process helps 
ensure potential impacts to state trust resources are considered, and 
ensures public trust property is not taken without compensation. The 
Corps does not coordinate PCNs with state natural resource agencies, 
except for a few exceptions. Those exceptions are identified in 
paragraph (d) of general condition 32.
    Several commenters pointed out that both federal and state projects 
are causes of some of the nation's largest wetland losses. These 
commenters said that if PCN requirements are removed, there will be no 
way to assess the impacts of these large-scale projects and it would 
result in huge aquatic resource losses. Several commenters stated that 
few federal agencies have the level of experience in working with and 
consulting tribes and said that PCNs should continue to be required in 
order to provide communication between the potentially impacted tribe, 
the Corps, and the federal agency regarding any potential impacts to 
tribal lands and resources. Since the Corps is retaining PCN 
requirements for federal permittees, these concerns have been 
addressed.
    A commenter said that the preamble to the proposed rule explains 
that the PCN process also provides a database to inform renewal of 
NWPs. A couple of commenters stating that the Corps' assumption that 
non-federal entities, such as private entities, non-profits and even 
state governments do not possess the same or higher expertise than the 
federal government is arbitrary and unfair. One commenter stated that 
there has been an erosion of positions within agencies along with the 
required expertise for such environmental reviews. Since the Corps is 
retaining PCN requirements for federal permittees, there is no need to 
speculate on how it would have implemented the proposal.
    A couple of commenters said that Section 313 of the Clean Water Act 
states in no uncertain terms that all federal agencies ``shall be 
subject to, and comply with, all federal, state, interstate, and local 
requirements respecting the control and abatement of water pollution in 
the same manner, and to the same extent, as any nongovernmental 
entity.'' A couple of commenters stated that removal of the PCN 
requirements for federal permittees would make it difficult for states 
to identify violations and impossible for the Corps to ensure that the 
conditions of the permits are being property implemented, especially 
since recent changes to the EPA's regulations for Clean Water Act 
Section 401 water quality certifications, which preclude certifying 
authorities from monitoring and enforcing conditions of permitted 
activities. Since the Corps is retaining PCN requirements for federal 
permittees, there is no need to respond to these comments.
    One commenter requested clarification regarding use of the phrase 
``NEPA responsibility for all federal highway project in the state'', 
and asked whether the Corps intended to only provide federal permittee 
status to those NEPA assignment states who accept all federal highway 
projects in the state. One commenter stated that state transportation 
agencies would gain efficiency by elimination of PCNs for many small 
projects. A few commenters supported the proposal and believe it will 
streamline review and approval of permitting while allowing the Corps 
to focus on individual permitting needs. Several commenters supported 
the proposed definition of ``non-federal permittee'' including the 
inclusion of state DOTs. The Corps is not adopting the proposed 
definition of ``non-federal permittee'' so it is not necessary to 
address the comments on the proposed definition.
    One commenter supports the PCN process and encourages the Corps to 
work with state agencies for additional options such as reducing 
comment periods to reduce overall time constraints associated with 
Corps permitting. Several commenters suggested that there should be a 
certification process through which individuals receive training by the 
Corps and demonstrate that they have sufficient knowledge to preserve 
the intent of the NWPs. They said the Corps should develop a set of 
criteria that each entity needs to meet to demonstrate proficiency to 
allow the entity to be exempt from submitting PCNs for proposed NWP 
activities.
    The Corps does not solicit comments from state agencies on proposed 
NWP activities, except for certain NWP activities identified in 
paragraph (d) of general condition 32. The Corps does support the 
development of a certification process for potential users of the NWPs. 
Certain NWPs do not require the submission of PCNs but for those that 
do, district engineers will continue to review and render decisions on 
those actions.
    One commenter suggested that the Corps exempt private companies 
that are undertaking projects in conjunction with, or in response to, 
federal projects. One commenter stated that the Corps should clarify 
whether states, or entities acting with or on behalf of states, would 
be exempt from the requirement to submit PCNs when operating under the 
Surface Transportation Block Grant Program, which allows states to 
implement road projects and other projects using federal money with 
some amount of regulatory oversight by the Federal Highways 
Administration. A couple commenters suggested that if the Corps does 
not require PCNs for activities undertaken federal permittees, the PCN 
requirements for all applicants could be included as regional 
conditions to the NWPs. The Corps is retaining the PCN requirements for 
federal permittees, therefore it declines to speculate on how it would 
have implemented the proposal.
    One commenter suggested modifying the PCN exemption to only 
encompass federal, state, or local agencies that have established their 
credentials for application of the NWP program. One commenter suggested 
an exemption from PCN requirements for federal permittees when pre-
construction notification is required solely as a result of federal 
consultation thresholds noted in the NWP general conditions. One 
commenter suggested there would be a benefit in including a statement 
clarifying that state transportation agencies with NEPA delegation are 
the federal leads in terms of ESA Section 7 and NHPA 106 compliance. 
One commenter stated that most DOTs strive for consistency and 
implement NEPA requirements on all projects, which ensures compliance 
with federal regulations and allows previously non-

[[Page 2758]]

federal aid projects to become federal aid projects when additional 
federal funds become available. One commenter suggested that if this 
proposal is enacted, the Corps should provide specific standards for 
professional qualifications similar to 36 CFR part 61, Appendix A. The 
Corps is retaining the PCN requirements for federal permittees, so it 
declines to speculate on how it would implement the proposal.
    One commenter stated that to the extent there is a perception of 
delay caused through federal administrative shortfalls and backlogs, a 
greater level of funding for Corps staff and offices would be a better 
investment in reducing perceived delays. This commenter said that 
exchanging one federal staff funding shortfall for another agency with 
less expertise would not produce a net gain in permitting efficiency 
while complying with the duty to authorize only those impacts that will 
have minimal adverse effects on the environment. One commenter 
suggested that the Corps evaluate whether a PCN requirement should be 
based on qualifications rather than the federal status of a permittee. 
This commenter said that an audit process could be implemented to 
verify past and continued quality of the applicant's work. One 
commenter suggested the Corps focus on how to improve staff training 
and the mechanics of the PCN process so that it is completed in a 
reliable, transparent, and effective manner within the designated time 
frames. The Corps is retaining the PCN requirements for federal 
permittees, so these concerns have been addressed.

E. Comments on 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 
environment and are not contrary to the public interest.
    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 (WQC) and Coastal Zone Management Act (CZMA) 
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 finalization of the issued, reissued, or modified NWPs.
    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 that a specific condition in a water quality 
certification issued for the issuance of an NWP does not comply with 40 
CFR 121.7(d)(2). If the district engineer makes such a determination, 
then he or she will consider that condition waived under 40 CFR 
121.9(b) after written notice is provided to EPA and the certifying 
authority consistent with 40 CFR 121.9(c). For more information on 
compliance with Section 401 of the CWA, refer to Section III.G.
    For CZMA consistency concurrences issued by a state for the 
issuance of an NWP, 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, all district engineers issue local 
public notices to advertise the availability of the proposed rule in 
the Federal Register 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)).
    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 to solicit public comment 
on those proposed regional conditions, usually for a 45-day comment 
period. Those public notices also solicit 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 generally issued shortly after 
Corps Headquarters publishes the proposed NWPs in the Federal Register.
    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) for each 
NWP. Each supplemental document will evaluate a specific 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

[[Page 2759]]

Corps district, especially in cases where the geographic area of 
responsibility for the Corps district covers an entire state. The 
supplemental documents may cover a state when there is more than one 
Corps district in the state, and the lead Corps district for that state 
is responsible for preparing the supplemental documents. 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 
on its website announcing the final Corps regional conditions and when 
those regional conditions go into effect (see 33 CFR 330.5(c)(1)(v)). 
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 
formal role in the development and approval of Corps' regional 
conditions by division engineers. However, 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 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.
    When a state, authorized tribe, or EPA issues a WQC for the 
issuance of an NWP and that WQC includes conditions, those conditions 
become conditions of the NWP authorization, unless one or more 
conditions is waived because they do not meet the criteria at 40 CFR 
121.7(d)(2). The processes for states, approved tribes, and EPA to 
issue WQCs for the issuance of the NWPs, are separate from the Corps' 
regional conditioning process under 33 CFR 330.5(c), and are governed 
by state, tribal, or EPA, regulations. The Corps' current regulations 
for water quality certification for the NWPs are found at 33 CFR 
330.4(c), and those regulations provide a process for WQC conditions 
becoming conditions of the NWPs when WQCs are issued for the NWPs 
before the NWPs are issued by Corps Headquarters.
    When a state issues a general CZMA consistency concurrence with 
conditions for an NWP, those conditions become CZMA regional conditions 
if, 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 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 
Department of Commerce regulations.
    When the final WQCs and CZMA consistency concurrences are issued, 
District and division engineers will review those WQCs and CZMA 
consistency concurrences and determine which conditions become 
conditions for the final NWPs. Division engineers will then 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. The Corps will 
post copies of the district public notices announcing the final Corps 
regional conditions and final WQC/CZMA conditions in the 
regulations.gov docket (docket number COE-2020-0002), under 
``Supporting and Related Material.''
    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 publicly available. To 
further improve the nationwide transparency of the regional 
conditioning process, the Corps is considering revising the regulations 
governing the regional conditioning process at 33 CFR 330.5(c). 
Specifically, 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. Even though such 
changes were outside the scope of this action, the Corps solicited 
public comment on whether to implement this or a similar requirement 
relating to the regional conditioning process and any factors we should 
consider in a future rulemaking. While the comments relate to matters 
that were outside the scope of this action, the Corps appreciates the 
helpful suggestions it received from the public. The Corps will 
consider them as we continue to examine whether changes may be 
necessary to the regulations governing the regional conditioning 
process.
    Several commenters said that regional conditions are excessive and/
or unnecessary. Several commenters requested that Corps Headquarters 
review and concur with regional conditions before they are finalized. A 
few commenters said that regional conditions may be appropriate in some 
cases in specific areas of the country. A few commenters said that 
rationale and justification for regional conditions should be made 
available to the public. A few commenters recommended that Corps 
Headquarters provide detailed

[[Page 2760]]

guidance to district offices regarding how to develop regional 
conditions. A few commenters said that Corps districts are inconsistent 
on how they create regional conditions. A couple of commenters said 
that current regional conditions should not change. One commenter said 
that regional conditions should be specific to watersheds or ecoregions 
and not differ between districts.
    The Corps believes that regional conditions are necessary to tailor 
the NWPs on a regional basis to ensure that the NWPs authorize only 
those activities that result in no more than minimal individual and 
cumulative adverse environmental effects. Under the Corps' current 
regulations at 33 CFR 330.5(c), division engineers have the authority 
to add regional conditions to the NWPs and Corps Headquarters has no 
role in that approval process. The supplemental documents division 
engineers prepare for adding regional conditions to the NWPs require 
consideration of the comments received on the district's public notices 
on the proposed regional conditions and a statement of findings showing 
how substantive comments were considered by the division engineer (see 
33 CFR 330.5(c)(1)(iii)). Regional conditions do not need to be 
consistent across districts, among divisions, or nationally because 
they are intended to address specific regional issues or concerns for 
the aquatic environment or any of the Corps' public interest review 
factors. If regional conditions are specific to watersheds, differences 
in regional conditions among districts are inevitable because different 
watersheds are likely to have different resource concerns and different 
factors affecting what adverse environmental effects might be 
considered more than minimal.
    One commenter stated that Corps districts should be able to develop 
and identify appropriate regional conditions. One commenter said that 
the proposed changes to regional conditions will remove coordination 
processes with state partners. One commenter remarked that the proposed 
changes will result in a disproportionate impact to floodplains and 
flood-prone areas. One commenter said that the regional conditions for 
NWPs 12, C, and D should be the same in each region. One commenter 
stated that there is inconsistency between whether or not Corps 
districts consider oil and gas natural pipelines as utility lines in 
regional conditions.
    Corps districts identify regional conditions, and make 
recommendations to division engineers. The approval authority for 
regional conditions lies with the division engineer (see 33 CFR 
330.5(c)). Regional conditions can provide for coordination with state 
partners, and that coordination may be removed as regional conditions 
are considered for a new set of NWPs. The Corps does not have the 
authority to regulate floodplains and flood-prone areas per se. The 
Corps has the authority to regulate discharges of dredged or fill 
material into waters of the United States, and those waters and 
proposed discharges may be located in floodplains or flood-prone areas. 
Having identical regional conditions for NWPs that authorize utility 
line activities would be contrary to the intent of regional conditions, 
which is to address regional differences in aquatic resources and 
ensure that the NWPs authorize only those activities that result in no 
more than minimal individual and cumulative adverse environmental 
effects. Oil and natural gas pipelines are a type of utility line and 
regional conditions are intended to address specific resource concerns.
    One commenter said that regional conditions should include 
programmatic compliance with other federal laws. One commenter stated 
that regional conditions should be used to require in-kind mitigation 
and adopt impact and mitigation thresholds or associated methodologies. 
One commenter said that regional conditions should be developed to 
provide additional protection for species of concern and cultural/
historical sites. One commenter asserted that regional conditions 
should be developed to require tribal consultation for every permit. 
One commenter said that regional conditions should prohibit work during 
spawning period for fish of cultural concern or which would jeopardize 
wild rice beds.
    Regional conditions may be helpful in ensuing programmatic 
compliance with other federal laws. Regional conditions can also be 
used to specify mitigation requirements for the NWPs. Regional 
conditions can help provide protection for listed species, historic 
properties, and cultural resources, often by adding PCN requirements to 
help ensure that required consultations for those resources are 
undertaken. Decisions on whether and how to consult with tribes on 
proposed NWP activities are made on a case-by-case basis by district 
engineers. Regional conditions may add time-of-year restrictions on 
authorized activities to ensure that those activities have no more than 
minimal adverse effects on fish spawning or rice beds.
    Several commenters requested greater transparency in the process of 
establishing regional conditions, saying that public notices, 
rationales for regional conditions, and comments received on proposed 
regional conditions should be available on separate dockets at 
www.regulations.gov. Several commenters requested revisions to 
governing regulations to require posting of any proposed additions of, 
changes to, or revocations of regional conditions in separate dockets 
on www.regulations.gov. Several commenters requested that the Corps 
create and maintain a single, national website where all proposed and 
final regional conditions can be viewed. The Corps will consider these 
comments when it prepares the next rulemaking for the issuance of NWPs.
    A few commenters said that public notice processes for regional 
conditions should be consistent between districts. A few commenters 
stated that districts are inconsistent and limit comment by requiring 
subscriptions to respective mailing lists rather than publishing 
notices in the Federal Register or on www.regulations.gov. One 
commenter said that public notices for regional conditions should be 
published in the Federal Register. Two commenters asked for the same 
level of written justification for adoption of regional conditions that 
is required to reissue or modify the NWPs. One commenter said that 
publication of these documents on separate web pages or dockets is 
redundant and unnecessary. One commenter stated that that comments 
received on regional conditions should be posted to a web page. One 
commenter stated that the Corps analyses for regional conditions do not 
satisfy statutory requirements. Two commenters said that it is 
difficult to find public notices or regional conditions on district web 
pages.
    The public notice process for regional conditions is consistent 
among all Corps districts, because the public notice process is 
described in the Corps' regulations at 33 CFR 330.5(c)(1). The current 
regulations governing the regional conditioning process relies on 
public notices, and does not include provisions requiring the 
publication of notices in the Federal Register. During the next 
rulemaking process for the NWPs, the Corps will decide whether to use 
www.regulations.gov for managing and posting public comments received 
on proposed regional conditions. Each Corps district is responsible for 
managing its own web pages, and regional conditions apply to a 
particular Corps district, so it is appropriate for Corps districts to 
post public notices for regional conditions proposed for their 
districts on their web pages.

[[Page 2761]]

F. Comments on Proposed Removal of the 300 Linear Foot Limit for Losses 
of Stream Bed

    In the proposed rule, the Corps proposed to remove the 300 linear 
foot for losses of stream bed from NWPs 21 (Surface Coal Mining 
Activities), 29 (Residential Developments), 39 (Commercial and 
Institutional Developments), 40 (Agricultural Activities), 42 
(Recreational Facilities), 43 (Stormwater Management Facilities), 44 
(Mining Activities), 50 (Underground Coal Mining Activities), 51 (Land-
Based Renewable Energy Generation Facilities), and 52 (Water-Based 
Renewable Energy Generation Pilot Projects). All of these NWPs have a 
\1/2\-acre limit for losses of non-tidal waters of the United States, 
including non-tidal wetlands and non-tidal streams. With the exception 
of NWPs 43 and 51, these NWPs require pre-construction notification for 
all activities. Nationwide permit 43 does not require PCNs for 
maintenance of existing stormwater management facilities, as long as 
those maintenance activities are limited to restoring the original 
design capacities of the stormwater management facility or pollutant 
reduction green infrastructure feature. Nationwide permit 51 does not 
require PCNs for activities that result in the loss of \1/10\-acre or 
less of waters of the United States. Therefore, district engineers will 
review all proposed activities for these on a case-by-case basis, 
except for the NWP 43 and 51 activities identified above. When 
reviewing these PCNs, district engineers apply the 10 criteria in 
paragraph 2 of Section D, District Engineer's Decision, to determine 
whether the proposed activities will result in no more than minimal 
individual and cumulative adverse environmental effects.
    In the proposed rule, the Corps presented a number of reasons for 
these proposed changes to NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 
52. The Corps' rationale comprises four categories of considerations: 
(1) 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; (2) 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., jurisdictional wetlands, streams, ponds, and other non-
tidal waters); (3) 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 jurisdictional wetlands, 
streams, and other types of non-tidal jurisdictional waters, and NWP 
authorization for losses of jurisdictional stream bed that have no more 
than minimal individual and cumulative adverse environmental effects; 
and (4) using acres or square feet (i.e., an area-based metric) 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.
    After reviewing the comments received in response to the proposed 
rule, for the reasons discussed below the Corps has decided to remove 
the 300 linear foot limit for losses of stream bed from the 10 NWPs 
listed above. The comments received in response to the proposed rule 
are summarized below. The Corps' responses to those comments are also 
provided along with the comment summaries.
    Retaining the \1/2\-acre limit for losses of non-tidal 
jurisdictional waters and wetlands in these 10 NWPs while removing the 
300 linear foot limit for losses of stream bed will help further 
Congressional intent with respect to Section 404(e) of the Clean Water 
Act when that provision was enacted into law in 1977. Section 404(e) 
authorizes the Corps to issue, after notice and opportunity for public 
hearing, general permits on a state, regional, or nationwide basis for 
any category of activities involving discharges of dredged or fill 
material if the Corps determines that the activities in such category 
are similar in nature, will cause only minimal adverse environmental 
effects when performed separately, and will have only minimal 
cumulative adverse effect on the environment. Section 404(e) does not 
prescribe any particular approaches for ensuring that activities 
authorized by general permits result in no more than minimal individual 
and cumulative adverse environmental effects, thus the Corps developed 
the PCN process and provided division and district engineers with the 
authority to modify, suspend, or revoke NWP authorizations on a 
regional or activity-specific basis after the NWPs are issued by Corps 
Headquarters. General permits provide a process for authorizing, with 
minimal paperwork and delays, activities that have no more than minimal 
individual and cumulative adverse environmental effects. General 
permits are an important tool for the Corps managing its personnel and 
workload so that it can focus its efforts on evaluating permit 
applications for proposed activities that have the potential to cause 
more than minimal adverse environmental effects.
    Removing the 300 linear foot limit for losses of stream bed under 
these 10 NWPs provides equivalent quantitative limits for all 
categories of non-tidal jurisdictional waters, including non-tidal 
``tributaries,'' ``lakes, ponds, and impoundments of jurisdictional 
waters,'' and ``adjacent wetlands'' (see 33 CFR 328.3(a)). These non-
tidal waters will continue to be subjected to the \1/2\-acre limit for 
losses of non-tidal waters. Except for NWPs 43 and 51, these NWPs 
require PCNs for all authorized activities, and district engineers will 
review these PCNs to determine which activities can be authorized by an 
NWP and which activities should require individual permits. When 
reviewing a PCN, the district engineer has the authority to exercise 
discretionary authority to modify, suspend, or revoke the NWP 
authorization (see 33 CFR 330.1(d)). When a district engineer reviews a 
PCN, and if she or he determines that the proposed activity would have 
more than minimal individual or cumulative net adverse effects on the 
environment or otherwise may be contrary to the public interest, he or 
she will either modify the NWP authorization to reduce or eliminate 
those adverse effects, or instruct the prospective permittee to apply 
for a regional general permit or an individual permit (Sec.  330.1(d)). 
To determine whether a proposed NWP activity will result in no more 
than minimal individual and cumulative adverse environmental effects, 
the district engineer will apply the 10 criteria in paragraph 2 of 
Section D, District Engineer's decision.
    Those ten criteria 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 an 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

[[Page 2762]]

NWP activity (e.g., partial or complete loss);
    (8) the duration of the adverse effects (temporary or permanent);
    (9) the importance of the aquatic resource functions to the region 
(e.g., watershed or ecoregion); and
    (10) mitigation required by the district engineer.

If an appropriate functional assessment method is available and 
practicable to use, that assessment method may be used by the district 
engineer to help determine whether the proposed activity will result in 
no more than minimal adverse environmental effects.
    The removal of the 300 linear foot limit for losses of stream bed 
will help increase administrative efficiency by providing a mechanism 
to authorize, through the NWP Program activities that result in the 
loss of greater than 300 linear feet of jurisdictional stream bed, but 
less than \1/2\-acre of non-tidal jurisdictional waters. Under the 2017 
NWPs, filling or excavating more than 300 linear feet of a perennial 
stream bed requires an individual permit even under circumstances where 
the loss of the stream bed would result in no more than minimal 
individual and cumulative adverse environmental effects. Under this 
final rule, district engineers would review PCNs for proposed losses of 
jurisdictional stream bed (plus any other losses of non-tidal waters of 
the United States) that are less than \1/2\-acre and determine whether 
those proposed activities can be authorized by one of these 10 NWPs. 
If, for a particular PCN, the district engineer determines that the 
individual and cumulative adverse environmental effects would be more 
than minimal, he or she will exercise discretionary authority and 
require an individual permit. This approach provides administrative 
efficiency by providing a mechanism for district engineers to 
distinguish which proposed activities should be authorized by an NWP 
versus which activities should require individual permits with a public 
notice and comment process and activity-specific evaluations under 
NEPA, the public interest review, and the Clean Water Act section 
404(b)(1) Guidelines.
    This approach also adds efficiency in terms of reducing processing 
times and paperwork for proposed activities that have no more than 
minimal adverse environmental effects and that are likely to generate 
few, if any, public or agency comments in response to a public notice 
for an individual permit application. When more activities that result 
in no more than minimal adverse environmental effects can be authorized 
by an NWP, there can be more staff and other resources for Corps 
districts to devote to undertaking other tasks, such as the review and 
approval of mitigation banks and in-lieu fee programs and overseeing 
their operation, conducting compliance actions to ensure that 
authorized activities are being conducted in accordance with the terms 
and conditions of their DA authorizations, and conducting approved and 
preliminary jurisdictional determinations that help project proponents 
plan and design their proposed projects to avoid and minimize impacts 
to jurisdictional waters and wetlands.
    Another benefit of removing the 300 linear foot limit for losses of 
jurisdictional stream bed and shifting the quantification of losses of 
jurisdictional stream bed towards the \1/2\-acre limit for losses of 
non-tidal waters of the United States is more accurate accounting of 
the impacts of activities authorized by these 10 NWPs. The discharges 
of dredged or fill material authorized by these NWPs occur over an area 
of a river or stream bed and also may include impacts to other aquatic 
resources such as wetlands or open water areas (e.g., lakes or ponds). 
The discharge to a river or stream has a length and a width, and the 
width can vary depending on the physical characteristics of the impact 
area, the type of activity being conducted (e.g., bank stabilization, 
channel excavation, channel realignment), and other factors. To be 
regulated under Section 404 of the Clean Water Act, a discharge of 
dredged material involves any addition, including redeposit other than 
incidental fallback, of dredged material, including excavated material, 
into waters of the United States that is incidental to any activity, 
including mechanized land clearing, ditching, channelization, or other 
excavation (see 33 CFR 323.2(d)(1)(iii)). A regulated discharge of fill 
material involves the addition of fill material into waters of the 
United States that has the effect of either replacing any portion of a 
water of the United States with dry land or changing the bottom 
elevation of any portion of a water of the United States (see 33 CFR 
323.3(e) and (f)). The direct impacts of these activities are most 
accurately quantified on an area basis, not a linear basis, to inform a 
district engineer's decision on whether a proposed activity should be 
or is authorized by an NWP and to track cumulative impacts.
    Accurate quantification of stream bed losses authorized by an NWP 
is an important component of determining whether a proposed NWP 
activity will result in no more than minimal individual adverse 
environmental effects. (See item 1 above from paragraph 2 of Section D, 
District Engineer's Decision: Understanding ``the direct and indirect 
effects caused by the NWP activity.'') Accurate quantification of 
stream bed losses is also important for tracking cumulative impacts of 
activities authorized by an NWP, both on a national and regional basis, 
and for determining whether a particular NWP activity will contribute 
to more than minimal cumulative adverse environmental effects. (See 
item 2 of paragraph 2 of the District Engineer's Decision: ``The 
cumulative adverse environmental effects caused by activities 
authorized by an NWP and whether those cumulative adverse environmental 
effects are no more than minimal.'')
    As discussed in the 2020 Proposal (85 FR 57316), discharges of 
dredged or fill material into jurisdictional streams can cause losses 
of stream bed along only a portion of the stream bed (e.g., bank 
stabilization projects that involve discharging fill along the edge of 
the stream, with no fill in the rest of the stream bed) or across the 
entire stream bed (e.g., excavating the stream bed to mine aggregates) 
along a stream reach. A wide variety of activities involving filling or 
excavating stream bed may be authorized by these NWPs, such as bank 
stabilization, channel realignment, culvert installation or 
replacement, stream channel restoration, the installation of grade 
control structures (e.g., rock), fills for footings for bridges, 
livestock crossings, utility line crossings, and temporary fills for 
construction and access. Quantifying losses of stream bed in linear 
feet does not distinguish between filling or excavation activities that 
occur only in a portion of the stream bed along an ordinary high water 
mark versus filling or excavation activities that occur in the entire 
stream bed, from ordinary high water mark to ordinary high water mark.
    Accurate quantification of losses of stream bed and losses of other 
types of jurisdictional waters and wetlands is also important for 
monitoring and evaluating the cumulative adverse environmental effects 
caused by NWP activities. In response to the 2020 Proposal, numerous 
commenters criticized the Corps' assessment of cumulative effects for 
the NWPs. An essential step in conducting a cumulative effects analysis 
for an NWP is estimating how many times that NWP may be used during the 
period the NWP is in effect, the quantity of jurisdictional waters and 
wetlands that may be lost or

[[Page 2763]]

directly altered by the activities authorized by that NWP, whether 
those losses or alterations are permanent or temporary, and what, if 
any compensatory mitigation is being used to offset those losses. The 
Corps provides those estimates in its national decision documents, and 
those estimates are more robust if they use a common metric, so that it 
is possible to calculate total losses and offsets during the period the 
NWP is in effect.
    Division engineers have discretionary authority to modify, suspend, 
or revoke NWP authorizations on a regional basis (33 CFR 330.5(c)) to 
help ensure that the NWPs are only used to authorize activities that 
have no more than minimal individual and cumulative adverse 
environmental effects. For example, if a Corps district determines, in 
a particular watershed, county, Corps district, or other geographic 
region, that cumulative losses of stream bed authorized by NWPs may be 
approaching a level that might exceed the ``no more than minimal 
cumulative adverse environmental effects'' threshold, the Corps 
district can request that the division engineer modify, suspend, or 
revoke the relevant NWP authorizations in that region. The division 
engineer can add regional conditions to the appropriate NWPs to 
restrict or prohibit their use in particular categories of waters, or 
suspend or revoke the NWP authorization so that those NWP(s) can no 
longer be used to authorize regulated activities in that geographic 
region. The division engineer's authority to modify, suspend, or revoke 
NWP authorizations on a regional basis can also be used to sort out 
which activities can be authorized by an NWP versus which activities 
should require individual permits.
    District engineers have discretionary authority to modify, suspend, 
or revoke NWP authorizations on a case-specific basis (see 33 CFR 
330.5(d)) to help ensure that NWPs are only used to authorize specific 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. A district engineer can add conditions 
to an NWP authorization to reduce potential adverse environmental 
effects that might be caused by a proposed NWP activity, such as 
mitigation requirements to avoid or minimize direct and indirect 
effects caused by that activity. One example is a time of year 
restriction to prevent discharges of dredged or fill material from 
occurring during spawning seasons for fish or other aquatic organisms. 
Another example of a permit conditions to help reduce adverse 
environmental effects caused by an NWP activity might be to require the 
use of certain best management practices. A district engineer might 
also add permit conditions to the NWP authorization to require 
compensatory mitigation to offset losses of waters of the United States 
caused by the NWP activity.
    As the Corps implements this final rule, it will continue to rely 
on these administrative tools that have long been used with these 10 
NWPs to help ensure that authorized activities will result in no more 
than minimal individual and cumulative adverse environmental effects. 
Those tools are the \1/2\-acre limit for losses of non-tidal waters of 
the United States, the pre-construction notification requirements and 
associated activity-specific review by district engineers, the regional 
conditions that can be added by division engineers, and the activity-
specific conditions that can be added by district engineers when 
reviewing individual PCNs.
    The proposal was made in accordance with the recommendations in the 
report issued by the Office of the Assistant Secretary of the Army 
(Civil Works) in response to E.O. 13783 on ways to streamline the NWPs. 
In the proposed rule, the Corps invited public comment 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 (general condition 23), and other tools to comply 
with the statutory and regulatory requirement that activities 
authorized by an NWP must result in no more than minimal individual and 
cumulative adverse environmental effects. The Corps also invited 
comment on whether there are situations where quantifying losses of 
stream bed in linear feet might 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. In the proposed rule, the 
Corps asked commenters to provide information that would help 
illustrate or explain how and under what circumstance using a linear 
foot measure to quantify losses of stream bed would be more accurate 
than using square feet or acres to quantify the amount of authorized 
impacts.
    The Corps also invited comment on the legal, regulatory, policy, or 
scientific bases for imposing different numeric limits on 
jurisdictional stream bed losses versus losses of non-tidal 
jurisdictional wetlands or other types of non-tidal jurisdictional 
waters. Commenters were 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.
    The Corps also requested 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 
the proposed 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 Strahler (1957) method, and the mean stream widths identified by 
Downing et al. (2012). If a proposed NWP activity would result in the 
loss of jurisdictional stream bed plus other types of waters of the 
United States, such as non-tidal jurisdictional wetlands, the losses of 
waters of the United States would be quantified in acres and subjected 
to the \1/2\-acre limit. In the preamble to the proposed rule, the 
Corps provided a table for the hybrid approach (see 85 FR 57321). A 
critical component of effectively applying the 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. 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 jurisdictional stream bed and other types 
of waters of the United States, such as non-tidal jurisdictional 
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.
    In conjunction with the proposal to remove the 300 linear foot 
limit for losses of stream bed, the Corps proposed 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 federal

[[Page 2764]]

district 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 features, including ephemeral streams, are categorically 
excluded from jurisdiction under the Clean Water Act (see 33 CFR 
328.3(b)(3)). 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 III.C, for more discussion on the 
potential impact of the Navigable Water Protection Rule on the NWPs.
    In addition, the Corps proposed 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 needed 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.'' See 33 CFR 328.3(b)(3). 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.
    Many commenters opposed the removal of the 300 linear foot limit 
for losses of stream bed. Many commenters supported the proposed 
change, stating that calculating losses of stream bed in acres is a 
more accurate measure of those losses since acreage takes both the 
length and width of the stream channel into account when determining 
the amount of stream bed filled or excavated by an NWP activity. 
Several commenters in favor of the proposed change expressed concern 
with how this change would affect mitigation banks and credit 
calculations for future and past permits. Several commenters believed 
this change would continue to ensure that the activities authorized by 
these NWPs would result in no more than minimal impacts.
    As discussed above, the Corps is removing the 300 linear foot limit 
for losses of stream bed from NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, 
and 52 for the reasons discussed in this final rule to increase the 
efficiency of the NWP program, utilize a metric that more accurately 
reflects the amount of impact, and to allow NWP authorization of losses 
of stream bed where district engineers determine that those losses 
would have no more than minimal adverse environmental effects after 
reviewing PCNs. Quantifying losses of stream bed in acres or square 
feet will be more accurate, provide a more substantial and defensible 
basis for decision-making by district engineers on PCNs for these 
activities, and provide more accurate data for the Corps to track 
cumulative impacts of the activities authorized by these NWPs. The 
removal of the 300 linear foot limit will not affect the ability of 
district engineers to require compensatory mitigation or other forms of 
mitigation for losses of stream bed. In addition, it should not have a 
substantial effect on mitigation banks that have already been approved 
and mitigation banks that may be approved in the future. Depending on 
how existing mitigation banks quantify the credits they produce, there 
may have to be some technical changes in how credit transactions occur 
between mitigation bank sponsors and permittees, to determine the 
appropriate number of stream credits that are needed to offset a 
permitted loss of stream bed.
    A few commenters supported the removal of the 300 linear foot limit 
because the district engineer retains the ability to exercise 
discretionary authority to require individual permits if the adverse 
environmental effects caused by a proposed activity would be more than 
minimal. These commenters also said they support the removal of the 300 
linear foot limit as long as Corps divisions and districts can continue 
to develop and use regional conditions in districts that have specific 
resource concerns.
    The PCN process is an administrative tool that helps ensure that 
activities authorized by NWPs cause no more than minimal individual and 
cumulative adverse environmental effects, by providing activity-
specific review of these activities by district engineers before they 
are authorized by an NWP. The \1/2\-acre limit is another tool that 
helps ensure that activities authorized by these NWPs have no more than 
minimal adverse environmental effects. In geographic areas where there 
are concerns about cumulative losses of headwater streams and the 
functions they provide, division engineers can add regional conditions 
to these NWPs to reduce the acreage limit from \1/2\-acre to a lower 
acreage limit, such as \1/4\-acre or \1/10\-acre. In addition, division 
engineers can add regional conditions to these NWPs to lower the 
threshold for requiring stream compensatory mitigation from \3/100\-
acre to a different acreage threshold.
    Many commenters expressed concerns with removing the 300-linear 
foot limit on loss of stream bed for these NWPs, stating that this 
change would allow much larger impacts to smaller stream channels since 
they typically have smaller widths and therefore a permittee could 
impact a much longer length of stream before reaching the \1/2\-acre 
limit. Many commenters said that a linear foot measurement was more 
appropriate for calculating stream impacts and losses than an acreage-
based system because streams are fundamentally linear features in the 
landscape. Many commenters stated that the Corps has not provided any 
scientific rational or reasoning behind this change and even the 
scientific studies cited by the Corps were not interpreted 
appropriately.
    As discussed above, the Corps will rely on other, existing 
protective mechanisms within the NWPs to ensure that the activities 
authorized by these NWPs will result in no more than minimal individual 
and cumulative adverse environmental effects. Those tools include the 
\1/2\-acre limit, the PCN requirements for these NWPs, and the ability 
of division and district engineers to further condition or restrict the 
applicability of an NWP in situations where they have concerns for the 
aquatic environment under the Clean Water Act section 404(b)(1) 
Guidelines or for any factor of the public interest (see 33 CFR 
330.1(d)). While rivers and streams have a strong linear component, 
they also vary substantially in width. Discharges of dredged or fill 
material into waters of the United States that cause losses of waters 
of United States through the filling or excavation of stream beds occur 
over an area, and using acres or square feet to quantify losses of 
stream bed is more informative to determinations of minimal effects and

[[Page 2765]]

accurate in data accounting than using linear feet. The potential 
losses of stream functions, and whether those losses are more than 
minimal, can be addressed through the PCN review process. When 
determining whether a proposed NWP activity will result in no more than 
minimal individual and cumulative adverse environmental effects, 
district engineers will apply the 10 criteria in paragraph 2 of Section 
D, District Engineer's Decision. Decisions regarding quantitative 
limits for the NWPs are administrative decisions because the legal 
threshold for general permits (``no more than minimal individual and 
cumulative adverse environmental effects'') is a subjective threshold. 
Applying this subjective threshold to complex ecological systems 
requires a district engineer to exercise his or her judgment as to 
whether that threshold is crossed for particular NWP activity.
    Another tool that the Corps added to this final rule to help ensure 
that the activities authorized by these NWPs will result in no more 
than minimal individual and cumulative adverse environmental effects is 
the addition of a \3/100\-acre threshold for stream compensatory 
mitigation in paragraph (d) of the mitigation general condition 
(general condition 23). The \1/10\-acre wetland mitigation threshold in 
general condition 23 has been effective in providing incentives for 
project proponents to reduce wetland losses well below the \1/2\-acre 
limit to avoid the costs of providing wetland compensatory mitigation. 
As shown in figure 5.1 of the Regulatory Impact Analysis for this final 
rule, more than 80 percent of losses of waters of the United States 
verified by district engineers in fiscal year 2018 as qualifying for 
NWP authorization were less than \1/10\-acre. The losses of waters of 
the United States in figure 5.1 include losses of stream bed, which 
were quantified in acres. The Corps anticipates that the \3/100\-acre 
stream compensatory mitigation threshold will also be an effective 
incentive to permittees to reduce losses of stream bed to avoid the 
costs of providing stream compensatory mitigation to offset losses of 
greater than \3/100\-acre of stream bed. For NWP activities that 
require PCNs, district engineers continue to have discretion to require 
stream compensatory mitigation for losses of stream bed above or below 
the \3/100\-acre threshold in paragraph (d) of general condition 23.
    Several commenters also questioned the Corps' use of the study by 
Downing et al. (2012), which examined stream channels all over the 
world, stating that stream channels may be narrower in the United 
States (citing an average width in the United States of 2.6 feet). 
Several commenters stated support of a hybrid approach in lieu of an 
acreage calculation, but were concerned about the variability of stream 
order classifications and the availability of tools to Corps districts 
to implement that approach in an effective and defensible manner. One 
of these commenters noted that LiDAR is not available in all areas of 
the country. Many commenters opposed the proposed `hybrid approach' in 
the preamble in which stream impact limits would vary by stream order 
by applying a mean stream width. Some of these commenters asserted that 
a linear foot metric is still likely a more accurate and easier method 
since determining stream order is highly varied along with determining 
a stream width.
    The Corps acknowledges that the study by Downing et al. (2012) does 
not fully represent the variability in stream dimensions. One of the 
purposes of using the information in that study was to demonstrate how 
a linear foot limit for losses of stream bed results in disparate 
differences in the amount of stream bed that can be filled or excavated 
under an NWP depending on where an affected stream reach is located in 
a tributary network (i.e., a headwater stream versus a stream segment 
located further downstream in a watershed). In a study of headwater 
streams in North America and New Zealand, using field surveys of 
headwater streams instead of the published data and satellite imagery 
used by Downing et al. (2012), Allen et al. (2018) found a typical 
width of 1.05 feet for headwater streams. The Corps agrees that the 
hybrid approach proposed in the preamble to the 2020 Proposal would not 
be an efficient or effective approach to establishing quantitative 
limits for these 10 NWPs. There is not sufficiently accurate mapping of 
headwater streams in the United States to implement such a hybrid 
approach, and the hybrid approach would not take into account regional 
variability in stream geomorphology. The Corps does not agree that a 
linear foot metric is easier or more accurate than an acreage-based 
metric. The area of stream bed filled or excavated as a result of an 
NWP activity is already calculated by the Corps to record impacts to 
aquatic resources, and it represents the amount of stream bed lost as a 
result the discharges of dredged or fill material regulated under 
Section 404 of the Clean Water Act.
    Many commenters also questioned how stream width was to be measured 
(ordinary high water mark to ordinary high water mark versus stream 
bed/bottom) which could also produce variability in how an acreage 
limit would be applied. Many commenters recognized that the measures 
for small and large streams should be different but until a more 
appropriate metric is developed, acreage should not be used in lieu of 
linear feet since it would be inappropriate to adopt a measure that 
better represents larger stream systems while the overwhelming majority 
of impacts occur to smaller streams and are therefore better 
represented for the time being by a linear foot measurement.
    Stream width should be measured from ordinary high water mark to 
ordinary high water mark, perpendicular to the longitudinal direction 
of the stream channel. That is consistent with the definition of 
``stream bed'' in Section F of the NWPs. Commenters did not suggest a 
more accurate method for quantifying impacts to small and large streams 
in their comments. Establishing different metrics for small versus 
large streams also presents challenges in terms of consistently 
determining what constitutes a small stream versus a large stream, 
which has the potential for being an arbitrary distinction and would 
add another layer of complexity to the NWP program.
    Many commenters noted that smaller stream channels provide 
important ecological functions and values and they provided numerous 
references to scientific studies that document the importance of these 
stream channels as linear systems in the landscape. Some of these 
commenters said impacts to small stream channels were more severe and/
or permanent (e.g., complete losses by filling entire stream reaches) 
and noted that small streams are more susceptible to fragmentation 
impacts, are harder to restore/mitigate, and have compounding effects 
to downstream waters when impacts are cumulative and more than minimal. 
Many commenters noted that, in general, disproportionate impacts 
already occur to these smaller order stream channels because it is 
easier from an engineering standpoint and ultimately less costly to 
impact them versus larger order stream channels, and that removing the 
300 linear foot limit would provide even less incentive to avoid and 
minimize impacts to these important resources.
    The ecological functions of smaller stream channels are to be 
considered by district engineers when they review PCNs for proposed 
activities involving filling or excavating stream beds. When evaluating 
PCNs, district engineers consider the 10 criteria in paragraph 2

[[Page 2766]]

or Section D, District Engineer's Decision. Those criteria include: 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, and the importance of the 
aquatic resource functions to the region. Division engineers can add 
regional conditions to the NWPs to impose lower acreage limits or other 
restrictions to address concerns about potential losses of smaller 
stream channels and the functions they provide, including cumulative 
impacts to those smaller stream channels. The Corps acknowledges that, 
because of their size, smaller stream channels may be more susceptible 
to proposed development activities and other activities involving 
discharges of dredged or fill material into waters of the United 
States. Project proponents are less likely to fill larger stream 
channels because of the water that flows towards those larger stream 
channels, but other activities such as bank stabilization, excavation 
activities in the stream bed, and realigning stream channels may be 
authorized by these NWPs. Removing the 300 linear foot limit and 
relying on the \1/2\-acre limit and PCN review process to identify 
activities that require individual permits helps the Corps implement 
its permit program more effectively, to efficiently authorize 
activities with no more than minimal adverse environmental effects via 
NWP, and focusing more of its resources on evaluating individual permit 
applications for activities that are likely have more substantial 
environmental impacts.
    Many commenters said that this change would allow more than minimal 
impacts because of the disproportionate length of impacts to headwater 
streams that would be allowed now under the NWP program, which is said 
to be counter to and inconsistent with the goal and purpose of the NWP 
program. Many commenters questioned how the Corps could reconcile and 
justify this change based on the long-standing history of the 300-
linear foot limit for losses of stream bed in the NWP program. Many 
commenters stated that individual permits should be required for 
proposed impacts to more than 300 linear feet of stream bed, to allow 
for the public and federal, state, and local resource agencies to 
comment on proposals to fill or excavate several thousand feet of 
stream bed.
    The Corps will be relying on other, existing protective mechanisms 
within the NWPs to ensure that these NWPs authorize only those 
activities that have no more than minimal adverse environmental 
effects. The NWP program has changed over time as new information is 
considered and alternative ways of implementing the program are 
identified to further the program's objective of regulating, ``with 
little, if any, delay or paperwork certain activities having minimal 
impacts'' (33 CFR 330.1(b)). The removal of the 300 linear foot limit, 
continued application of the \1/2\-acre limit, plus the ability of 
division and district engineers to exercise their discretionary 
authority to modify, suspend, or revoke NWP authorizations on a 
regional or case-by-case basis, respectively, will ensure that 
activities that would cause more than minimal adverse environmental 
effects will be evaluated through the individual permit process.
    Many commenters expressed concern about other changes within this 
proposal, when combined with the removal of the 300 linear feet limit 
would eliminate agency coordination with federal and state resource 
agencies under paragraph (d) of general condition 32. One commenter 
said that when reviewing the number of individual permits issued versus 
activities authorized under NWPs that even with what the commenter 
considers the more stringent 300-linear foot limit in place there is no 
justifiable need for reducing regulatory burden since the number of 
individual permits is so small compared to NWP verifications and this 
change would likely not result in any significant decrease in number of 
individual permits or regulatory burden.
    For the 10 NWPs that had the 300 linear foot limit for losses of 
stream bed, the agency coordination process in paragraph (d) of general 
condition 32 was limited to requests for waivers of the 300 linear foot 
limit for losses of intermittent and ephemeral stream bed. Ephemeral 
streams are not waters of the United States (see 33 CFR 328.3(b)(3)) 
and therefore not subject to jurisdiction under Section 404 of the 
Clean Water Act. In its Regulatory Impact Analyses for the proposed and 
final rules, the Corps acknowledges that the removal of the 300 linear 
foot limit is likely to result in a modest increase in NWP 
authorizations (174 per year), and a commensurate decrease in the 
number of activities that require individual permits. However, a modest 
reduction in the number of individual permits that must be processed 
each year can help improve administration of the Corps Regulatory 
Program and allow the Corps to devote more time and resources to 
working with project proponents to reduce the environmental impacts of 
activities that have the potential to result in more substantial 
impacts to jurisdictional wetlands and waters.
    Many commenters said that the proposed \1/10\-acre mitigation 
threshold for losses of stream bed was not an adequate tool for 
ensuring no more than minimal adverse environmental effects based on 
the disproportionately large amount of impacts to smaller headwater 
streams that would need to occur before compensatory mitigation was 
required. Many commenters expressed concern about the potential for 
increased likelihood for out-of-kind mitigation being provided to 
offset headwater stream impacts if mitigation is based on an acreage or 
other area-based metric for losses of stream bed. These commenters said 
that out-of-kind mitigation would likely increase because it would be 
the only option available to permittees due to fewer stream credits 
being generated and available as mitigation bankers and other 
mitigation providers adapt to this change and the uncertainty in the 
market that this change might create.
    The comments received on the proposed \1/10\-acre threshold for 
stream mitigation are discussed in the section of this preamble that 
discusses the comments received on general condition 23. In response to 
those comments, the Corps reduced the threshold for stream mitigation 
from \1/10\-acre to \3/100\-acre. As explained in the discussion of 
general condition 23 below, this change in the stream mitigation 
threshold aligns with current practice for stream mitigation 
requirements in the NWP program, and the recommendations for the stream 
mitigation threshold provided by commenters. The Corps uses a watershed 
approach for compensatory mitigation (see 33 CFR 332.3(c)). The goal of 
a watershed approach is to maintain and improve the quality and 
quantity of aquatic resources within watersheds through strategic 
selection of compensatory mitigation sites (see 33 CFR 332.3(c)(1)). A 
watershed approach considers how the types and locations of 
compensatory mitigation projects will provide the desired aquatic 
resource functions, and will continue to function over time in a 
changing landscape (33 CFR 332.3(c)(2)(i)), and may involve the use of 
out-of-kind mitigation.
    Under a watershed approach, other approaches to stream restoration 
may be used to generate stream credits besides headwater stream channel 
reconfiguration projects. These other approaches may include process-
based

[[Page 2767]]

stream restoration activities such as dam removal, culvert 
replacements, levee setbacks or removals, riparian area restoration, 
allowing beavers to construct dams to aggrade incised channels, or 
installing structures that mimic beaver dams to aggrade incised 
channels (Beechie et al. 2010) to generate compensatory mitigation 
credits for activities authorized by these NWPs. The use of beaver dams 
or structures to aggrade incised stream channels may result in wetland/
stream complexes for which an area-based credit metric may be more 
appropriate than a linear foot-based metric. Focusing on restoring 
stream functions can be more ecologically successful in improving 
stream functions than form-based restoration approaches such as channel 
reconfiguration that have had questionable success in restoring 
degraded streams (Palmer et al. 2014). The stream credits generated by 
channel reconfiguration projects in headwater streams can be quantified 
in linear feet or acres, because the Corps' compensatory mitigation 
regulations do not mandate a specific approach for quantifying stream 
credits. Section 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. The preamble to 
the 2008 mitigation rule states that ``district engineers retain the 
discretion to quantify stream impacts and required compensatory 
mitigation in terms of area or other appropriate units of measure'' (73 
FR 19633).
    The Corps received many comments and questions about how these 
changes would likely negatively affect long-standing stream mitigation 
accounting and the mitigation banking industry in general. These 
commenters said that a linear foot metric has always been used for 
stream assessment methodologies and the basis for mitigation accounting 
systems, and many commenters stated that changing this metric would be 
unnecessarily burdensome and costly to stream restoration professionals 
and likely result in fewer stream restoration projects. One commenter 
stated that the proposed change would not increase mitigation 
opportunities in larger or higher order stream channels as proposed 
since the restoration of larger streams is more complex than smaller 
streams and is dependent on many variables to include funding 
availability, site selection, engineering and design considerations, 
mitigation requirements associated with the project, market incentives, 
and the inability to control future impacts in the headwaters which can 
jeopardize the larger stream restoration project.
    As stated in the previous paragraphs, the Corps' regulations do not 
require use of a linear foot metric for stream assessment methodologies 
or for quantifying stream impacts or compensatory mitigation credits. 
The removal of the 300 linear foot limit for losses of stream bed and 
the changes to general condition 23 are likely to benefit the 
mitigation banking industry by providing more opportunities for stream 
restoration projects that can generate stream credits to offset losses 
of stream bed authorized by the NWPs and other types of DA permits. The 
Corps acknowledges that some efforts will need to be made to address 
differences in accounting systems, but mitigation providers including 
mitigation bank sponsors and in-lieu fee program sponsors should be 
able to estimate the amount of stream credits quantified in linear feet 
that are needed to offset an specific acreage of stream bed lost as the 
result of an NWP activity. The district engineer can assist in these 
determinations to ensure that the amount of stream mitigation credits 
is roughly proportional to the authorized losses of stream bed.
    Several commenters said that establishing a stream compensatory 
mitigation threshold of \1/10\-acre would allow approximately 1,675 
linear feet of a first order stream channel with a 2.6-foot wide 
channel to be impacted under these NWPs before any compensatory 
mitigation would be required, which does not meet the Corps' mandated 
goal of no net loss to aquatic resources and would cause more than 
minimal effects to these aquatic resources.
    In response to public comment, the Corps has modified paragraph (d) 
of general condition 23 to change the proposed \1/10\-acre threshold 
for stream mitigation to \3/100\-acre to make the threshold more 
consistent with current practice and the recommendations made by 
commenters. The reasons for changing the proposed \1/10\-acre stream 
mitigation threshold to \3/100\-acre are provided in the discussion of 
general condition 23 below. There is no mandated goal of no net less to 
aquatic resources in any law or regulation that applies to the Corps' 
NWP Program. Compensatory mitigation, including stream compensatory 
mitigation, is required for NWP activities on a case-by-case basis to 
ensure that the authorized activities result in no more than minimal 
adverse environmental effects. District engineers determine when 
compensatory mitigation is required for NWP activities. In prior 
versions of the NWPs, the Corps had no threshold for requiring 
compensatory mitigation for losses of stream bed, so those commenters 
were referring to district practices. Corps districts determined on an 
activity-specific basis when stream mitigation is necessary for 
specific NWP activities.
    One commenter asserted that based on ORM2 data analyzed for stream 
channel impacts, that the proposed \1/10\-acre stream compensatory 
mitigation threshold would result in the loss of an additional 130,000 
linear feet of headwater streams in which no mitigation would be 
provided. Several commenters expressed concerns about how this change 
would affect current mitigation banks that were in the process of being 
approved and inquired whether all previously executed mitigation 
banking instruments would need modification to continue to operate and 
sell credits to permittees. One commenter said that the proper 
regulatory tool to rectify the disparity between stream impacts versus 
stream mitigation would be the 2008 mitigation rule and requiring 
higher mitigation ratios and not revision of these NWPs.
    The 2017 NWPs and prior NWPs had no threshold for requiring stream 
mitigation for NWP activities. The proposed addition of the \1/10\-acre 
stream mitigation threshold in paragraph (d) of general condition 23 is 
a new threshold. That threshold has been reduced to \3/100\-acre in 
response to many commenters that provided calculations to support the 
reduction. Many commenters did not take into account the ability of 
district engineers to require stream compensatory mitigation for losses 
of stream bed less than the acreage threshold specified in paragraph 
(d) of general condition 23. This is similar in practice to the \1/10\-
acre wetland mitigation threshold in paragraph (c) of general condition 
23, where district engineers also have had the authority to require 
wetland compensatory mitigation for wetland losses less than \1/10\-
acre.
    Several commenters recommended delaying these changes to allow for 
more time to study potential effects and one commenter requested that 
due to the potential for significant environmental effects, an 
environmental impact statement should be prepared for this propose 
change. One commenter said that the Corps already converts stream loss/
impacts to acreage in their Regulatory Program database (ORM2) for 
accounting purposes and asked would the change from linear feet to 
acreage even be needed in the first place. Several commenters said that 
the current 300-linear foot threshold was

[[Page 2768]]

too high and should be even further reduced.
    The Corps is only removing a quantitative limit from these 10 NWPs, 
and is not changing stream compensatory mitigation requirements aside 
from establishing an acreage threshold in paragraph (d) of general 
condition 23 that is generally consistent with current agency practice. 
Under the waiver provision in the 2017 version of these 10 NWPs, 
district engineers could waive the 300 linear foot limit for losses of 
intermittent and ephemeral stream beds, but the loss of stream bed 
could not exceed \1/2\-acre. Therefore, it has been a long-standing 
practice in the NWP program to quantify of losses of stream bed in 
acres. The removal of the 300 linear foot limit and the change to 
general condition 23 does not require an environmental impact 
statement. As one commenter recognized, the Corps tracks losses of 
stream bed in its ORM2 database in acres.
    Several commenters seemed to misunderstand the PCN requirements of 
these NWPs and believed that the proposed changes implied that no 
notification would be required for any losses of waters of the United 
States less than \1/10\-acre for any of these NWPs and that the \1/10\-
acre mitigation threshold was the same as the PCN threshold. This 
misunderstanding resulted in many comments concerned about the Corps 
not even knowing what impacts are occurring if PCN thresholds are not 
triggering activity-specific review of these activities by district 
engineers, and stated that this change would allow activities with more 
than minimal adverse environmental effects to occur. Several commenters 
said that the rulemaking process for the NWPs in cases where the Corps 
does not review PCNs the authorization is automatically issued in some 
cases with no mitigation proposed. These commenters stated that not 
requiring PCNs could cause more than minimal impacts.
    The \1/10\-acre stream mitigation threshold proposed in paragraph 
(d) of general condition 23 is not the same as the \1/10\-acre PCN 
threshold in NWP 51. If activities are authorized by NWPs without the 
requirement to submit PCNs, then compensatory mitigation is not 
required for those NWP activities, because compensatory mitigation 
requirements must be imposed by district engineers by adding conditions 
to the NWP authorization. However, it should be noted that all 
activities authorized by these 10 NWPs require PCNs, except for certain 
activities authorized by NWPs 43 and 51. Nationwide permit 43 does not 
require PCNs for the maintenance of stormwater management facilities. 
Nationwide permit 51 does not require PCNs for the loss of \1/10\-acre 
or less of waters of the United States.
    Many commenters said that the removal of the 300 linear foot limit 
would result in a loss of critical habitat for many aquatic species 
listed under the Endangered Species Act which have cultural and 
economic importance to tribes. One commenter stated that the removal of 
the 300 linear foot limit could result in long reaches of streams 
channels upstream of tribal lands being developed which could cause, 
without any notification to the affected tribes, downstream changes to 
tribal lands in terms of stream flow, water quality, subsistence of 
water use, or cultural water use. Several commenters asked how the 
tools that the Corps mentioned in the proposed rule as safeguards, such 
as the PCN review process, regional conditions, activity-specific 
permit conditions, and use of discretionary authority, prevent more 
than minimal adverse environmental effects. Several commenters oppose 
the proposed removal of the 300 linear foot limit because it could 
essentially be a `tipping point' for a headwater stream system, and 
that there would be no way to recover the functions and values lost to 
that system because of approval of large impacts to streams.
    The removal of the 300 linear foot limit does not affect how 
compliance with Section 7 of the ESA is conducted for the NWPs. If the 
district engineer reviews a PCN for a proposed activity authorized by 
NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, or 52, and determines that 
activity may affect listed species or designated critical habitat, she 
or he will conduct section 7 consultation with the U.S. FWS or NMFS as 
appropriate. Activities authorized by these NWPs must also comply with 
general condition 17, tribal rights. During the rulemaking process for 
these NWPs, Corps districts have been consulting or coordinating with 
tribes to identify regional conditions and coordination procedures to 
help ensure compliance with general condition 17. As discussed in the 
proposed rule, the PCN review process, regional conditions, and 
activity-specific conditions have been used successfully for years to 
ensure that activities authorized by the NWPs result in no more than 
minimal adverse environmental effects. Tipping points are difficult to 
identify, and if they can be identified, they are likely to vary from 
watershed to watershed.
    One commenter said that headwater streams warrant more protection 
because of their relative importance in providing habitat, hydrologic, 
and water quality benefits to downstream waters, and said that 
replacing a linear metric with an area-based metric will reduce 
protection of headwater streams. This commenter stated that most 
nutrient and hydrologic inputs to streams occur along the borders of 
riparian zones and streams, so impacts to streams should be quantified 
in linear feet. In addition, this commenter noted that the longer total 
stream length and higher nitrogen removal efficiency of lower order 
streams is the main reason stream length is so important to water 
quality and why headwater streams are much more important to water 
quality functions in stream networks than are higher order streams. 
This commenter said that headwater streams are being lost at high 
rates, and that more losses of these streams will result in increases 
of eutrophication of downstream waters, more downstream flooding, and 
more transportation of pollutants to downstream waters. This commenter 
stated that using area as a quantitative limit for both headwater 
streams and higher order rivers will decrease protection and diminish 
the ecological importance of headwater streams. This commenter 
concluded that the current linear foot limit is appropriate for streams 
because they are linear systems that interact with their landscapes 
along linear borders.
    The Corps believes that an appropriate level of protection can be 
provided to headwater streams through the \1/2\-acre limit, the PCN 
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. When reviewing PCNs, district engineers will apply 
the 10 criteria identified in paragraph 2 of Section D, District 
Engineer's Decision. In regions where there are concerns that the use 
of the NWPs may result in more than minimal cumulative adverse effects 
to headwater streams and the functions they provide, division engineers 
can add regional conditions to these NWPs to establish an acreage limit 
lower than \1/2\-acre or revoke one or more of these NWPs. Headwater 
streams are not provided any special status under the Corps' 
regulations or the U.S. EPA's Clean Water Act Section 404(b)(1) 
Guidelines. The only streams that are special aquatic sites under the 
404(b)(1) Guidelines are riffle and pool complexes (see 40 CFR 230.45), 
and many headwater streams are not riffle and pool complexes.
    For the reasons provided above, the Corps has removed the 300 
linear foot limit from NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52.

[[Page 2769]]

G. Response to Comments on Specific Nationwide Permits

(1) NWP 12. Oil or Natural Gas Pipeline Activities
    The Corps proposed to modify this NWP to limit it to oil or natural 
gas pipeline activities, and issue two new NWPs to authorize electric 
utility line and telecommunications activities (proposed new NWP C, now 
designated as NWP 57) and utility line activities for water and other 
substances (proposed new NWP D, now designated as NWP 58). The Corps 
also invited public comment on national construction standards and best 
management practices that could be incorporated into the text of NWP 12 
to help ensure that this NWP authorizes only those activities (i.e., 
discharges of dredged or fill material into waters of the United States 
and/or structures or work in navigable waters of the United States) 
that result in no more than minimal individual and cumulative adverse 
environmental effects.
General Comments
    Some commenters expressed their support for dividing NWP 12 into 
three separate NWPs while some commenters objected to that aspect of 
the proposed rule. Many commenters stated that the Corps should reissue 
NWP 12 in its current form. One commenter said that the 2017 NWP 12 
contains sufficient PCN thresholds and conditions to provide 
appropriate environmental protections. One commenter objected to the 
proposed modifications to NWP 12 made in response to E.O. 13783, 
Promoting Energy Independence and Economic Growth, stating that these 
changes would make it easier for oil and gas pipeline activities to 
occur at the expense of the environment. Several commenters said that 
the Corps should limit the number of activities authorized by this NWP 
because continuing to authorize these activities contributes to 
cumulative effects to natural resources.
    After reviewing the comments received in response to proposed NWPs 
12, C, and D, the Corps is finalizing and issuing these NWPs. 
Nationwide permit 12 authorizes oil or natural gas pipeline activities, 
NWP 57 authorizes electric utility line and telecommunications 
activities, and NWP 58 authorizes utility line activities for water and 
other substances. These NWPs are issued to fulfill the objective of the 
NWP program, which is to authorize, with little, if any, delay or 
paperwork certain activities having no more than minimal impacts (33 
CFR 330.1(b)). The proposed modifications to NWP 12 were made, in part, 
to respond to the direction provided by E.O. 13738, which is to revise 
existing regulations that ``unduly burden the development of domestic 
energy resources beyond the degree necessary to protect the public 
interest or otherwise comply with the law.'' In this NWP, the Corps has 
retained the terms and conditions that are necessary to ensure that the 
activities authorized by this NWP result in no more than minimal 
individual and cumulative adverse environmental effects. The Corps 
acknowledges that the use of the NWPs to authorize activities during 
the 5-year period the NWP is in effect results in some cumulative 
adverse environmental effects, but the limits, PCN requirements, 
general conditions, and the ability of division and district engineers 
to modify, suspend, and revoke NWP authorizations all help to ensure 
that this NWP causes no more than minimal cumulative adverse 
environmental effects at the national, regional, and site scales.
    A few commenters stated that the proposed NWP 12 would result in 
reduced opportunities for the Corps and for the public to evaluate the 
impacts of oil and natural gas pipeline activities on water resources 
and the environment in general. One of these commenters said that the 
Corps should provide additional opportunities for public involvement. 
One commenter stated that public participation opportunities during the 
NWP permitting process are sufficient; and expanding the existing 
requirements at the district level would cause unwarranted delays in 
permitting. One commenter suggested that the Corps should notify the 
public of proposed NWP 12 activities. A few commenters said that 
pipelines can cause significant direct and indirect impacts to fish and 
wildlife habitat and water quality associated with an increase in 
watershed runoff.
    The public is provided an opportunity to comment on the Corps' 
proposal to issue, reissue, or modify an NWP when Corps Headquarters 
publishes its proposed rule in the Federal Register to start the public 
comment period. However, after an NWP is issued, there is no public 
comment process for specific NWP activities. If, for a proposed oil or 
natural gas pipeline activity, the district engineer exercises 
discretionary authority and requires an individual permit for that 
activity, the public will have an opportunity to provide comments in 
response to the public notice issued by the Corps district. When 
reviewing PCNs for proposed oil or natural gas pipeline activities, 
district engineers consider the potential direct and indirect impacts 
on fish and wildlife habitat and water quality, as well as other public 
interest review factors identified in 33 CFR 320.4(a)(1).
    One commenter said that natural gas pipeline activities authorized 
by NWP 12 comply with industry standards that are protective of the 
environment and public safety. One commenter stated that pipelines 
provide a safe, reliable, efficient, and cost-effective way to move 
bulk liquids, particularly over long distances, and that the U.S. 
Department of Transportation's Pipeline and Hazardous Materials Safety 
Administration concurs with that statement. The Corps acknowledges 
these comments.
    One commenter said that while oil or natural gas pipelines may be 
regulated by other agencies, the Corps is not relieved of its 
obligation to conduct a NEPA analysis for leaks or spills. A few 
commenters stated that the Corps must consider in its NEPA review the 
impacts that could result from authorizing a pipeline that would carry 
toxic material, including leaks or spills, and that the draft decision 
document doesn't take the required ``hard look''.
    In the national decision document for the issuance of this NWP, the 
Corps discusses leaks or spills that may occur during the construction 
and/or operation of oil or natural gas pipelines. The Corps does not 
have the authority to take actions to prevent or control potential 
leaks or spills that may occur during the construction or operation of 
oil or natural gas pipelines. Since the Corps does not regulate the 
release of oil, natural gas, or products derived from oil or natural 
gas, it is not required to perform a detailed analysis of the effects 
of those possible future leaks or spills because those leaks or spills 
are not an effect of the Corps' proposed action (see the definition of 
``effects or impacts'' at 40 CFR 1508.1(g)).
    One commenter stated that pipeline abandonment issues in NWP 12 
should be treated consistently across the districts and recommended 
that the NWP 12 terms should provide this consistency. A few commenters 
said that NWP 12 should continue to authorize emergency installation, 
replacement or repair of utility lines. One commenter requested that 
the Corps clarify the types of time-sensitive activities, including 
integrity digs, that are authorized under NWPs 12 and 3. One commenter 
requested clarification of the scope of maintenance activities under 
NWP 12. One commenter said that the Corps should facilitate the 
construction, repair, and/or replacement of climate resilient 
underground linear infrastructure to support climate

[[Page 2770]]

adaptive and resilient energy systems through the issuance of general 
permits.
    Corps districts have discretion to determine on a case-by-case 
basis how to address pipeline abandonment activities. Nationwide permit 
12 can be used to authorize emergency installation, replacement or 
repair of utility lines. The reduction of the number of PCN thresholds 
for this NWP may facilitate the implementation of these emergency 
activities by reducing delays in securing NWP authorization. The Corps 
does not believe that it is necessary add text to the NWP to 
specifically address integrity digs, because discharges of dredged or 
fill material into waters of the United States for integrity digs can 
be considered part of maintenance, which is included in the first 
sentence of this NWP. The activities authorized by this NWP can 
contribute to the construction, repair, and/or replacement of climate 
resilient underground linear infrastructure to support climate adaptive 
and resilient energy systems.
    One commenter stated that the Corps should ensure that activities 
authorized by NWP 12 do not commence construction in uplands in 
protected critical habitats until the ESA section 7 consultation 
process has been completed. A few commenters indicated concern that 
cumulative impacts are not adequately considered in the decision 
document for NWP 12. A few commenters asserted that the scope of the 
cumulative impacts has proven to be more than minimal. One of these 
commenters stated that the draft decision document for NWP 12 already 
acknowledges that the cumulative impacts are more than minimal. A few 
commenters said that the Corps should consider the cumulative upstream 
and downstream impacts of its actions regarding oil and natural gas 
pipelines, including climate impacts. A few commenters expressed 
concern for potential effects on drinking water and aquifers. One 
commenter expressed a general concern for waterways affected by NWP 12 
activities.
    The Corps does not have the authority to prevent project proponents 
from conducting activities in uplands before they receive NWP 
verifications from district engineers in response to PCNs. The national 
decision documents issued by Corps Headquarters address cumulative 
impacts in accordance with the Clean Water Act Section 404(b)(1) 
Guidelines at 40 CFR 230.7 for the issuance of general permits. The 
Council on Environmental Quality's NEPA regulation at 40 CFR 
1508.1(g)(3) repealed the 1978 definition of ``cumulative impact,'' so 
under the current NEPA regulations the cumulative effects analysis for 
an NWP is similar to the approach the Corps uses under 40 CFR 
230.7(b)(3): Estimating the number of times the NWP is anticipated to 
be used during the 5-year period it will be in effect, the authorized 
impacts to jurisdictional waters and wetlands, and the compensatory 
mitigation required to offset losses of jurisdictional waters and 
wetlands. Those impacts, and the compensatory mitigation, are evaluated 
against the current environmental setting (i.e., the affected 
environment), which includes the past and present effects of human 
activities and natural events that have shaped the current 
environmental setting. The Corps does not have the authority to 
regulate the operation of any oil or natural gas pipeline, or the 
emissions that result from combustion of oil or natural gas, or from 
the industrial processes that derive other products from oil or natural 
gas. Therefore, under the current NEPA regulations, the Corps is not 
required to evaluate those upstream and downstream impacts, including 
potential impacts on the planet's climate. The national decision 
document for this NWP considers effects on water supply and 
conservation as part of the public interest review. When reviewing 
PCNs, district engineers will evaluate the effects of proposed NWP 
activities on waterways.
Activities Authorized by NWP 12
    One commenter said that the first sentence of NWP 12 should be 
revised as follows: ``Activities required for the construction, 
replacement, maintenance, repair and removal of oil, natural gas and 
gaseous fuel pipelines and utility lines and associated facilities in 
waters of the United States, provided the activity does not result in 
the loss of greater than \1/2\-acre of waters of the United States for 
each single and complete project.'' The Corps declines to make this 
change because it is covered by the definition of ``oil or natural gas 
pipeline'' provided in the second paragraph of this NWP.
    Oil or natural gas pipelines. One commenter stated that if the 
Corps moves forward with limiting NWP 12 to oil or natural gas pipeline 
activities, it should also delete the phrase ``including outfall and 
intake structures'' because oil and natural gas pipelines and 
distribution systems do not contain water outfall or water intake pipe 
structures. The Corps has made this change to the second paragraph of 
this NWP.
    A few commenters said that the terms ``oil'', ``gas'', and 
``natural gas'', and ``petrochemicals'' are vague and overbroad for the 
purposes of determining compliance with the proposed NWPs and can have 
various meanings, and that any proposed changes should be subjected to 
notice and comment procedures. A few commenters stated that terms 
associated with the proposed NWP 12 that require clarification include 
``utility lines,'' since pipeline activities authorized by NWP 12 might 
be both pipelines and utility lines; ``other substances,'' because gas 
and petrochemicals can be found in many types of infrastructure and 
industrial products; and ``gas'' and ``natural gas,'' because liquified 
petroleum gas is not a natural gas.
    The Corps has made changes to the definition of ``oil or natural 
gas pipeline'' to take into account the wide variety of products that 
may be derived from oil or natural gas and transported in these 
pipelines. In response to comments received in response to the 2020 
Proposal, and to provide additional clarity on the types of products 
that may be transported by oil or natural gas pipelines versus utility 
line activities that may be authorized by NWP 58, the Corps has 
replaced the term ``petrochemical products'' with the phrase ``products 
derived from oil or natural gas, such as gasoline, jet fuel, diesel 
fuel. heating oil, petrochemical feedstocks, waxes, lubricating oils, 
and asphalt.'' The revised definition was developed using information 
from the U.S. Energy Administration.\2\
---------------------------------------------------------------------------

    \2\ https://www.eia.gov/energyexplained/oil-and-petroleum-products/ (accessed November 4, 2020).
---------------------------------------------------------------------------

    A few commenters said that the proposed definition of ``oil or 
natural gas pipeline'' for the proposed NWP 12 is inadequate and 
inconsistent with the definitions in the Oil Pollution Act. One 
commenter suggested the Corps add ``and derivatives'' after 
`petrochemical products' for clarity. One commenter suggested removal 
of the phrase ``for any purpose'' from the proposed definition of ``oil 
or natural gas pipeline'' because it creates uncertainty about what 
activities may actually be authorized by the NWP.
    The Corps developed its own definition because this NWP also 
authorizes regulated activities associated with natural gas pipelines 
and products derived from oil or natural gas. The Corps has deleted 
``for any purpose'' because NWP 12 is now limited to oil or natural gas 
pipeline activities.
    One commenter stated that the existing NWP 12 uses the category

[[Page 2771]]

``utility lines'' which is still used in proposed NWPs C and D, but the 
proposed NWP 12 uses the new term ``oil and natural gas pipelines'' 
which causes conflicting redundancies with various aspects of the 
proposed NWPs 12, C, and D. One commenter said that many of natural gas 
pipe construction and repair projects that will need NWP authorization 
involve pipelines that will be used to transport geologic natural gas 
as well as other lower carbon gaseous fuels such as renewable natural 
gas, hydrogen, and power-to-gas methanated hydrogen. This commenter 
said that to avoid confusion and streamline the process for these 
projects, the Corps should not split off any buried pipe-based utility 
lines into the proposed new NWP D. One commenter remarked that the 
Corps should clarify that NWP 12 is available for underground pipelines 
and utility lines whether they carry geologic natural gas or a blend 
with lower-carbon gaseous fuels.
    Nationwide permits 12, 57, 58 authorize activities for different 
types of utility lines, so there will be some redundancies because of 
similarities among these different types of utility lines, but there 
are also some differences, which result in different text in each of 
these NWPs. Nationwide permit 12 authorizes oil or natural gas pipeline 
activities that may carry different types of natural gas. Nationwide 
permit 58 can be used to authorize pipeline activities that require DA 
authorization and are used to convey hydrogen, methanated hydrogen, or 
carbon dioxide.
    Oil or natural gas pipeline substations. One commenter said that 
the paragraph on substations in the proposed NWP 12 should be revised 
to state that it authorizes construction, maintenance, replacement or 
expansion work in a non-tidal jurisdictional water for an oil or 
natural gas or gaseous fuel custody transfer station, boosting station, 
compression station or metering and/or pressure regulating station. One 
commenter said that if the Corps issues proposed new NWP C, then the 
references to ``substations'' should be removed from NWP 12 and 
replaced with boosting or compressor stations and natural gas metering 
and pressure regulating station. This commenter also recommended 
revising the fourth paragraph in the proposed NWP 12 to state that it 
authorizes construction, maintenance, replacement or expansion work in 
a non-tidal jurisdictional water for an oil or natural gas or gaseous 
fuel custody transfer station, boosting station, compression station or 
metering and/or pressure regulating station. One commenter noted that 
the term ``natural gas pipeline substation'' is used in the proposed 
language for the proposed NWP 12 and requested clarification regarding 
how above-ground natural gas facilities including district regulators 
and gate stations fit into NWP 12.
    The Corps has modified this paragraph to provide examples of 
substations associated with oil or natural gas pipelines. This NWP can 
be used to authorize discharges of dredged or fill material into waters 
of the United States for above-ground natural gas facilities including 
district regulators and gate stations.
    Access roads. One commenter said that only temporary access roads 
should be authorized by NWP 12, and that permanent access roads are 
more appropriately authorized under NWP 14. The Corps disagrees, and is 
retaining the NWP authorization for permanent access roads, because 
access roads are associated with utility lines are not usually 
available for public use.
    One commenter said that the proposal to add the word ``over'' to 
activities that are routed in or under navigable waters subject to 
Section 10 of the Rivers and Harbors Act of 1899 is unnecessary as 
structures routed over section 10 waters would be considered bridges 
and be regulated under Section 9 of the Rivers and Harbors Act of 1899. 
The Corps has modified the second sentence of the seventh paragraph of 
this NWP by adding the word ``may'' because there may be circumstances 
where section 10 authorization is required for oil or natural gas 
pipelines routed over navigable waters of the United States.
    A few commenters stated that the Corps does not have jurisdiction 
over inadvertent returns, leaks, or spills. One commenter said that NWP 
12 should continue to authorize the remediation of inadvertent returns 
of fluids during drilling operations without additional changes. A few 
commenters stated that the Corps has not sufficiently evaluated the 
risks, impacts, and mitigation measures associated with inadvertent 
returns of drilling fluid. A few commenters expressed appreciation for 
the clarification in the decision document that the Corps' jurisdiction 
is limited to authorizing temporary structures, fills, and work 
necessary for the remediation of inadvertent returns of drilling fluids 
through sub-soil fissures or fractures that might occur during 
horizontal directional drilling.
    The Corps does not have jurisdiction over inadvertent returns, 
leaks, or spills that may occur during horizontal directional drilling 
to install or replace oil or natural gas pipelines. The eighth 
paragraph of this NWP 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. The 
purpose of this paragraph is to provide authorization for regulated 
activities that are necessary to remediate inadvertent returns of 
drilling fluids to reduce adverse environmental effects that might be 
caused by releases of drilling fluids to the surrounding environment.
    One commenter expressed support for retaining the clarification 
that NWP 12 authorizes temporary mats for moving equipment. A few 
commenters said that the Corps should stop considering temporary mats/
panels as a regulated activity or clarify that they are not to be 
considered as a ``loss of waters'' for the purposes of PCN requirements 
because of their temporary effects. One commenter requested 
clarification that activities resulting in the loss of greater than \1/
10\-acre of waters of the United States require a PCN to the Corps, but 
temporary discharges do not count toward that \1/10\-acre PCN 
threshold.
    The determination as to whether the use of timber mats in waters of 
the United States for oil or natural gas pipeline activities 
constitutes a discharge of dredged or fill material into waters of the 
United States should be made by district engineers after evaluating 
site-specific and activity-specific circumstances. Any discharge of 
dredged or fill material into waters of the United States that results 
in a loss of greater than \1/10\-acre of waters of the United States 
requires pre-construction notification. As explained in the definition 
of ``loss of waters of the United States,'' waters of the United States 
temporarily filled, flooded, excavated, or drained, but restored pre-
construction contours and elevations after construction, are not 
included in the measurement of loss of waters of the United States.
    One commenter said there is inconsistency in the text of NWP 12 
because it states that there must be no change in pre-construction 
contours of waters of the United States, but NWP 12 also authorizes 
losses of waters of the United States. This commenter recommended 
revising the text of NWP 12 to state that ``there must be no change in 
pre-construction contours which results in permanent loss of waters of 
the United States.'' One commenter stated that the Corps should adopt a 
strict interpretation of the

[[Page 2772]]

amount of ``temporary fill'' authorized by this NWP for the purposes of 
assessing cumulative impacts and should also consider the timing and 
duration of temporary fills, including temporary mats. This commenter 
indicated that permitted temporary fills generally occur in stages and 
not all at the same time.
    Some activities authorized by NWP 12 (e.g., the construction of 
substations and permanent access roads) result in permanent fills while 
other authorized activities, such as the placement of temporary fills, 
require restoration to pre-construction elevations. Temporary fills do 
not contribute to cumulative impacts because they are removed upon 
completion of the work and the permittee is required to restore the 
affected area to pre-construction elevations. The Corps acknowledges 
that temporary fills may occur during different stages of construction, 
maintenance, repair, or removal of an oil or natural gas pipeline 
activity.
Pre-Construction Notification Thresholds
    Many commenters opposed reducing the number of PCN thresholds in 
this NWP. Several commenters suggested that reducing the PCN 
requirement would result in the NWP authorizing activities that have 
more than minimal adverse environmental effects, including cumulative 
effects. Many of these commenters suggested retaining the existing PCN 
thresholds. One of these commenters requested further clarification 
regarding which activities would no longer require PCNs. A few of these 
commenters stated that maintaining the status quo creates greater 
regulatory certainty to the industry. Many commenters said that 
reducing the PCN thresholds for this NWP undermines the Corps' ability 
to ensure that authorized activities NWPs will result in no more than 
minimal individual and cumulative adverse environmental effects, and 
reduces the opportunity for the Corps to require individual permits 
when adverse environmental effects would be more than minimal. One 
commenter remarked that the proposed reduction in PCN thresholds would 
cause increased harm to rivers, streams, and wetlands.
    The Corps proposed to retain those PCN thresholds associated with 
NWP 12 activities that result in losses of waters of the United States 
or have potential effects on navigation. To reduce regulatory burdens 
in response to E.O. 13783, the Corps proposed to remove a number of PCN 
thresholds because of the requirement in the NWP to restore temporary 
impacts to pre-construction elevations or because they are already 
addressed by another PCN threshold. If a proposed NWP 12 activity does 
not trigger any of the three PCN thresholds in the text of the NWP, or 
a PCN threshold in the text of one of the NWP general conditions (e.g., 
general condition 18, endangered species and general condition 20, 
historic properties), then pre-construction notification is not 
required for the proposed activity unless a division engineer has 
imposed a regional condition to require PCNs in a particular geographic 
region. Division engineers can add regional conditions to add PCN 
thresholds that were removed from the text of NWP 12, if he or she 
determines the PCN threshold is necessary to ensure that the NWP 
authorizes only those activities that have no more than minimal adverse 
environmental effects. Adverse effects to rivers, streams, and wetlands 
are generally caused by the discharges of dredged or fill material or 
structures or work authorized by this NWP, not by the presence or 
absence of a PCN threshold.
    Many commenters expressed support for proposed reduction in PCN 
thresholds for NWP 12 and the associated reduced administrative burden 
that reduction would provide. One commenter voiced support for the 
reduction in PCN requirements as it would reduce the potential for 
infrastructure litigation and encourage private investment. One 
commenter stated that PCN thresholds should be removed when they are 
duplicative or burdensome. One commenter said that if the PCN 
requirements to be removed are truly redundant it would pose no 
additional burden on the regulated public.
    The Corps acknowledges these comments, and the Corps' intent with 
these changes is to reduce burdens on the regulated public and focus 
the PCN thresholds on those activities that have some potential to 
cause more than minimal adverse environmental effects. For these 
activities, district engineers should be given the opportunity to 
evaluate these activities on a case-by-case basis.
    Many commenters stated that the PCN process incentivizes permittees 
to avoid, minimize, and compensate for impacts to aquatic resources in 
order to reduce permitting delays. Some of these commenters said that 
the reduced PCN requirements would result in violations to general 
condition 23, mitigation. One commenter stated that the remaining PCN 
thresholds and the other NWP 12 terms and conditions reasonably limit 
the adverse environmental effects of the activities authorized by NWP 
12. One commenter said that the Corps should encourage the districts to 
refrain from adding PCN thresholds to this NWP, specifically through 
regional conditions. A few commenters expressed concern that the 
reduction of PCN thresholds will likely be subject to litigation. One 
commenter suggested that any resulting litigation could cause 
uncertainties for the industries that rely on the NWP program.
    The NWPs provide incentives for project proponents to reduce 
impacts to waters of the United States to obtain DA authorization in 
less time than is required under the individual permit process. 
Reducing the number of PCNs does not violate general condition 23. The 
NWPs authorize activities that have no more than minimal individual and 
cumulative adverse environmental effects, and it is not necessary to 
require compensatory mitigation for every NWP activity. The PCN 
thresholds themselves do not limit adverse environmental effects; the 
adverse environmental effects caused by regulated activities authorized 
by an NWP are limited by the constraints in the text of the NWP (e.g., 
the \1/2\-acre limit, requirements to restore temporary impacts to pre-
construction elevations) and in the NWP general conditions. Division 
engineers have the authority to add regional conditions to replace the 
PCN thresholds that were in prior versions of NWP 12, if those division 
engineers determine that adding those PCN thresholds is necessary to 
ensure that the NWP only authorizes those activities that result in no 
more than minimal individual and cumulative adverse environmental 
effects. While potential litigation risk is a consideration when 
contemplating changes, other factors such as administrative efficiency, 
reduction of regulatory burdens, and other approaches for maintaining 
environmental protections are other considerations that the Corps 
considers as well.
    A few commenters stated that the proposed reduction in PCN 
thresholds could expedite permit processing time and preclude a 
thorough review by the Corps. One commenter said that reducing the 
number of PCN thresholds would allow for the potential for spills near 
stream beds. One commenter opposed the simplified PCN requirements, 
stating that the proposal does not improve inter-agency coordination or 
reduce impacts on the environment. One commenter said that PCNs should 
be required for all NWP 12 activities. One commenter stated that the 
Corps fails to show how compliance with Clean Water Act Section 404(e)

[[Page 2773]]

would be achieved without a process to track all NWP activities.
    The reduction in PCN thresholds allows Corps districts to shift 
their resources towards evaluating proposed activities that require DA 
authorization that have the potential for greater adverse environmental 
effects. Reducing the number of PCN thresholds will not alter the 
potential for spills to occur near stream beds because spills are 
accidents and not planned activities that the Corps would evaluate as 
part of a PCN. The reduction in the number of PCN thresholds in NWP 12 
does not alter any agency coordination procedures because agency 
coordination is not required for any NWP 12 activities. It is not 
necessary to require PCNs for all NWP 12 activities, because many of 
the activities authorized by NWP 12 result in only temporary impacts to 
aquatic resources. The Corps does not have to track all NWP activities 
to comply with Section 404(e) of the Clean Water Act. Since the 
inception of the NWP program in 1977, many of the NWPs have not require 
pre-construction notification, thus the changes that are being 
finalized are not a departure from the Corps practice or procedures.
    A few commenters said that reducing the PCN requirement does not 
comply with the Corps' mandate under ESA section 7 to ensure 
consultation occurs when necessary. One commenter said that PCN should 
be required for all maintenance activities in waters of the United 
States, especially if the waters contain ESA-listed species. A few 
commenters opposed reducing the number of PCN thresholds for NWP 12 
because the PCN process allows state natural resource agencies to 
provide expertise in determining the effect of projects on state 
resources, affected species, and their habitat. A few commenters stated 
the reduced number of PCN thresholds would not comply with the NHPA. 
One commenter said that the proposed reduction in PCN thresholds could 
have potential impacts to cultural resources and affect the protection 
of historic properties. Several commenters said that the proposed 
reduction of PCN thresholds poses risks of significant impacts to 
tribal rights and treaty-reserved resources.
    General condition 18 addresses compliance with section 7 of the 
ESA. Under paragraph (c) of general condition 18, 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 even if a PCN is not otherwise 
required. This includes maintenance activities that might affect listed 
species or designated critical habitat. None of the activities 
authorized by NWP 12 require coordination with state natural resource 
agencies, and the PCN thresholds that have been removed from NWP 12 did 
not require that coordination.
    General condition 20 addresses compliance with section 106 of the 
NHPA. Under paragraph (c) of general condition 20, 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 even if a PCN is not otherwise required. The reduction in 
PCN thresholds for NWP 12 does not change the PCN requirement in 
general condition 20. During the process for issuing these NWPs, Corps 
districts have been consulting or coordinating with tribes to identify 
regional conditions or coordination procedures to ensure that 
activities authorized by NWP 12 and other NWPs do not have substantial 
adverse effects on tribal rights and, as appropriate, treaty reserved 
resources. Division engineers can add PCN requirements to address 
tribal concerns as appropriate.
    One commenter objected to the lack of a PCN threshold based on 
pipeline diameter. One commenter requested that the Corps provide 
additional information regarding the outcomes of PCN reviews under the 
current NWPs and an explanation for how environmental protection would 
be maintained without the PCN review process. One commenter stated that 
the Corps should clearly identify the information required by all 
applicants to support the analysis of temporal and cumulative impacts 
and recommended separate analyses for all impacts to waters of the 
United States within the total impact limitation of \1/2\-acre.
    Pre-construction notification thresholds are established for 
activities that have the potential to result in more than minimal 
adverse environmental effects, and pipeline diameter has not been 
demonstrated to have potential to be a useful PCN threshold. During 
their reviews of PCNs, district engineers document their conclusions as 
to whether the proposed activity will result in no more than minimal 
adverse environmental effects, or whether it is necessary to exercise 
discretionary authority and require an individual permit for the 
proposed activity. This documentation includes the district engineer's 
consideration of cumulative effects.
    In the paragraphs below, the Corps discusses each of the five PCN 
thresholds it proposed to remove to simplify the PCN requirements for 
this NWP. The Corps discusses the comments received and provides 
responses to those comments. In the paragraphs that follow, the Corps 
uses the term ``utility line'' because it proposed the same PCN 
thresholds for NWP 12 and proposed new NWPs C and D (now designated as 
NWPs 57 and 58, respectively in this final rule). Also discussed below 
is the Corps' proposal to add a new PCN threshold to NWP 12 for new oil 
or natural gas pipelines greater than 250 miles in length.
    (i) The activity involves mechanized land clearing in a forested 
wetland for the utility line right-of-way. Many commenters said that 
allowing mechanized land clearing through forested wetlands without 
requiring PCNs will cause more than minimal adverse environmental 
effects and recommended that this PCN threshold requirement be 
retained. Many commenters said that PCNs should be required for 
mechanized land clearing associated with NWP 12 to prevent the loss of 
wetland resources, functions and services, including water quality, 
erosion control, and flood mitigation. A few commenters suggested a 
maximum acreage for forest clearing activities without a PCN associated 
with NWP 12. One commenter stated that the PCN threshold should be 
modified to require PCNs for ``loss or permanent conversion.''
    If construction of an oil or natural gas pipeline involves 
mechanized land clearing in a forested wetland for the right-of-way for 
that pipeline, the installation of the pipeline must cause no change in 
pre-construction contours of waters of the United States. Any temporary 
fills must be removed upon completion of construction, and the affected 
areas restored to pre-construction elevations. If there are any 
permanent fills associated with the mechanized land clearing of a 
forested wetland, and the loss of waters of the United States is 
greater than \1/10\ acre, a PCN is required. In areas where temporary 
fills occur, the wetlands in the right-of-way will remain, although 
there may be a conversion in wetland type. Those wetlands will continue 
to perform wetland functions, including hydrologic functions, 
biogeochemical cycling, and habitat functions, but there may be some 
changes to those functions and the degree to which the wetlands perform 
those functions. Division

[[Page 2774]]

engineers can impose regional conditions to require PCNs for mechanized 
land-clearing in a forested wetland, and they can add regional 
conditions to impose an acreage limit on impacts resulting from 
mechanized land-clearing of forested wetlands.
    Many commenters said that PCNs should be required for mechanized 
land clearing in forested wetlands to allow district engineers to 
consider avoidance, minimization, and the need for compensatory 
mitigation, as compliance with the 404(b)(1) guidelines, and further 
recommended retention of this PCN threshold. One of these commenters 
stated that temporary impacts should also be considered. Many 
commenters expressed concern that mechanized land clearing in forested 
wetlands would result in the long-term and/or permanent conversion of 
these areas to emergent and scrub-shrub wetlands, and further indicated 
that these scrub-shrub and emergent wetlands do not provide the same 
degree of ecological functions and services or provide the same values. 
Several of these commenters asserted that this conversion in wetland 
type causes more than minimal adverse effects to the environment.
    Paragraph (a) of general condition 23 requires project proponents 
to design and construct their NWP activities to avoid and minimize 
temporary and permanent adverse effects to waters of the United States 
to the maximum extent practicable at the project site (i.e., on site). 
Division engineers can add regional conditions to this NWP to require 
PCNs and compensatory mitigation for mechanized land-clearing of 
forested wetlands. Activities that are authorized by NWPs do not 
require activity-specific evaluation under the 404(b)(1) Guidelines 
(see 40 CFR 230.5(b)). Emergent and scrub-shrub wetlands perform valued 
wetland functions, even though those functions differ to some degree 
from the functions performed by forested wetlands.
    A few commenters stated that clearing of forested wetlands can 
impact wetland hydrology and soils through rutting and soil compaction 
by machinery. Many commenters stated that a review of pre- and post-
construction hydrogeomorphic method assessments demonstrates 
significant permanent impacts to forested wetlands resulting from 
mechanized land clearing and temporary discharges. Several commenters 
said that forested wetlands along the Gulf Coast provide vital stopover 
areas for migratory birds and that the proposed removal of this PCN 
threshold would be most profound along the Gulf Coast where pipelines 
are regularly constructed through forested wetlands.
    The text of this NWP that applies to the construction of the 
pipeline requires that there is no change in pre-construction contours 
of waters of the United States. If there are permanent impacts to 
certain features of these forested wetlands, those impacts are caused 
by the activities authorized by NWP 12, not the presence or absence of 
any PCN threshold. Soil compaction can be caused by a variety of 
activities other than discharges of dredged or fill material. If the 
activity results in a loss of greater than \1/10\-acre of waters of the 
United States, then the project proponent is required to submit a PCN. 
For those Corps districts in the Gulf Coast, division engineers add 
regional conditions to require PCNs for mechanized land-clearing 
activities in forested wetlands.
    Several commenters said that the Corps does not cite any sources 
for stating that mechanized land clearing in forested wetlands usually 
results in only temporary impacts. A few commenters stated that the 
Corps has not provided any scientific rationale demonstrating that loss 
of forested wetland would not result in more than minimal adverse 
environmental effects. A few commenters said that the consensus in the 
scientific literature contradicts the Corps' assertion, with multiple 
studies and practices indicating that mechanized clearing results in 
irreversible and permanent alteration of forested wetland's functions. 
One commenter cited paragraph (i) of general condition 23 which allows 
district engineers to require mitigation for the permanent conversion 
of wetland types to offset losses of specific functions. One commenter 
said that the functions of forested wetlands have been estimated by the 
Corps to have a value of $10,401 per acre per year. A few commenters 
stated that mechanized land clearing can result in sediment disturbance 
and potential water quality impacts in wetland areas. A few commenters 
stated that removing the PCN requirement for mechanized land clearing 
in forested wetlands would make NWP 12 vulnerable to litigation.
    The text of NWP 12 requires temporary impacts to be restored after 
the pipeline is constructed. If the construction of the pipeline 
results in the loss of greater than \1/10\-acre of waters of the United 
States, then the project proponent is required to submit a PCN to the 
Corps. The removal of the PCN threshold is an administrative decision 
to improve regulatory efficiency, reduce redundancy, and focus the 
district engineer's evaluation efforts on proposed activities that have 
the potential to result in more than minimal adverse environmental 
effects. If mechanized land-clearing causes irreversible and permanent 
alteration of forested wetland's functions, it is because of the 
physical effects of the discharge of dredged or fill material into 
waters of the United States and the periodic maintenance in the 
pipeline right-of-way that causes those changes in wetland functions. 
The Corps regulates the former, but does not regulate the mowing and 
cutting of vegetation to maintain the plant community in the pipeline 
right-of-way as herbaceous vegetation or scrub-shrub vegetation. 
Paragraph (i) of general condition 23 is retained in these NWPs, so for 
those NWP 12 activities that require PCNs, district engineers can 
require compensatory mitigation to offset permanent losses of certain 
wetland functions.
    One commenter stated that impacts to forested wetlands are 
permanent or semi-permanent and should not be considered temporary. One 
commenter suggested the cumulative effects of forested wetland 
conversion cannot be tracked without a PCN requirement. One commenter 
stated that the removal of the PCN for mechanized land clearing in 
forested wetlands is a change with implications for market growth of 
the ecological restoration industry. One commenter stated that 
mechanized land clearing can increase non-point source pollution in a 
water of the United States and can increase nutrient loading in first 
and second order streams. One commenter said that mechanized land 
clearing in forested wetlands is associated with an increase in the 
spread of invasive species.
    Forested wetlands that have been converted to herbaceous or scrub-
shrub wetlands continue to function as wetlands. Therefore, from a 
wetland perspective, the impacts caused by the below-ground 
installation of the pipeline are temporary as long as temporary fills 
are removed and the affected area is restored to pre-construction 
elevations. Although the wetland type has changed as a result of the 
activity, district engineers can require compensatory mitigation to 
offset losses of specific wetland functions for those NWP 12 activities 
that require PCNs. If the permittee wants to conduct mechanized land 
clearing of a forested wetland for an oil or natural gas pipeline 
right-of-way, he or she must restore the disturbed soils so that there 
is no change in pre-construction contours of waters of the United 
States in that right-of-way. If there will be permanent changes in pre-

[[Page 2775]]

construction contours in waters of the United States, and the area of 
those permanent changes will exceed \1/10\-acre, then a PCN is 
required. Permanent adverse effects can be addressed through the PCN 
review process. Where appropriate to ensure minimal adverse effects on 
the environment in a particular region, division engineers can add 
regional conditions to require PCNs for mechanized land clearing in a 
forested wetland right-of-way.
    (ii) The utility line in waters of the United States, excluding 
overhead lines, exceeds 500 feet. One commenter stated that the 500 
linear foot PCN threshold should be maintained since the \1/10\-acre 
threshold only covers losses of waters of the United States and 
retaining it would allow the district engineer to evaluate the site-
specific conditions and make an informed decision. One commenter said 
that removal of the 500 linear foot PCN threshold limits the Corps 
ability to review projects that will affect habitat, ecosystems, and 
the environment on tribal lands and within tribal usual and accustomed 
areas that cross state lines and international borders and further 
indicated that this would constitute a violation of the United States 
and trust and responsibility and obligation to protect treaty 
resources.
    The \1/10\-acre PCN threshold for losses of waters of the United 
States provides an opportunity for district engineers to evaluate site-
specific conditions and determine whether the proposed oil or natural 
gas pipeline activities are authorized by NWP 12. The \1/10\-acre PCN 
threshold also provides district engineers with the opportunity to 
assess potential effects on habitat, ecosystems, environmental 
conditions on tribal lands, and tribal usual and accustomed areas. 
District engineers can work with tribes to develop coordination 
procedures to help protect treaty resources. In addition, activities 
authorized by NWP 12 must comply with general condition 17, tribal 
rights.
    One commenter said that if this PCN threshold is removed, the Corps 
cannot evaluate the impacts of temporary losses or determine if 
specific restoration or mitigation measures are necessary, or if an 
individual permit would be necessary. One commenter said that the 
proposal to remove the 500 linear foot PCN threshold should be 
coterminous with other section 404 permitting requirements, but since 
this justification does not apply in all situations it is 
inappropriate. An example cited by this commenter is utility lines 
directionally drilled under wetlands.
    Temporary impacts should not normally require PCNs because the 
aquatic resources and the functions they provide should recover after 
the temporary fills are removed and the affected area restored to pre-
construction elevations. The removal of the 500 linear foot PCN 
threshold improves the Corps' efficiency in administering the section 
404 program. Further, it is consistent with section 404 permitting 
requirements, because the Corps determines which activities should 
require PCNs to trigger review on a case-by-case basis.
    (iii) The utility line is placed within a jurisdictional area 
(i.e., water of the United States), and it runs parallel to or along 
the stream bed that is within that jurisdictional area. One commenter 
stated that installing pipelines that run parallel to a watercourse can 
have significant impacts on hydrogeomorphology of the watercourse and 
lead to substantial erosion and degradation. A few commenters 
recommended retention of the requirement for a PCN when the proposed 
activity would run parallel to and within a stream bed, citing the 
potential for those activities to downgrade aquatic resource functions.
    As discussed in the 2020 Proposal (85 FR 57326), the Corps proposed 
to remove this PCN threshold because the text of NWP 12 requires 
restoration of these temporary impacts. The third paragraph of NWP 12 
addresses the requirements for trenching and backfilling underground 
oil or natural gas pipelines to ensure those impacts are temporary and 
do not result in a loss of waters of the United States. The ninth 
paragraph of NWP 12 also addresses the requirements for restoring 
temporary fills, so that those fills do not result in losses of 
jurisdictional waters and wetlands. Further, in Corps districts where 
the construction of oil or natural gas pipelines in jurisdictional 
waters and wetlands parallel to a stream channel have the potential to 
cause more than minimal individual and cumulative adverse environmental 
effects, division engineers may add regional conditions to NWP 12 to 
require PCNs for these activities.
    (iv) Permanent access roads are constructed above grade in waters 
of the United States for a distance of more than 500 linear feet. 
Several commenters said that the PCN requirement for permanent access 
roads should be retained to ensure NWP 12 activities not authorize more 
than minimal adverse effects. One commenter opposed the removal of the 
PCN threshold for associated access roads and culvert-related 
activities so that district engineers can evaluate potential impacts to 
fish passage.
    The PCN threshold for losses of greater than \1/10\-acre of waters 
of the United States applies to permanent access roads, and that PCN 
threshold is sufficient for providing district engineers with the 
opportunity to review those activities to determine if they qualify for 
NWP authorization. The Corps is removing this PCN threshold for above-
grade permanent access roads because it is redundant with the \1/10\-
acre PCN threshold. Concerns about potential impacts to fish passage 
are addressed by NWP general condition 2. General condition 2 states 
that no NWP 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. Furthermore, 
general condition 2 requires all permanent and temporary crossings of 
waterbodies to be suitably culverted, bridged, or otherwise designed 
and constructed to maintain low flows to sustain the movement of those 
aquatic species.
    (v) Permanent access roads are constructed in waters of the United 
States with impervious materials. A few commenters suggested a maximum 
length for impervious surfaces without a PCN associated with NWP 12. 
The current PCN requirement for losses of waters of the United States 
greater than \1/10\-acre is sufficient to trigger activity-specific 
review for permanent access roads constructed with impervious 
materials, to allow district engineers to determine whether a 
particular proposed access road will result in no more than minimal 
adverse environmental effects.
Proposed Addition of a PCN Threshold for New Oil or Natural Gas 
Pipeline Activities Greater Than 250 Miles in Length
    Many commenters objected to the proposed PCN threshold for new oil 
or natural gas pipelines that are greater than 250 miles in length, 
stating that it is arbitrary and capricious, and indicated that there 
is no reasonable basis for the 250-mile threshold. One commenter 
expressed support for the addition of the 250-mile pipeline length PCN 
requirement. One of the commenters said that this PCN threshold is 
inconsistent with other PCN thresholds. Many commenters objected to 
removing the current PCN thresholds and replacing them with the 250-
mile PCN threshold. One commenter expressed support for the proposal to 
require that PCNs include information on all discharges associated with 
a pipeline, including those that

[[Page 2776]]

would not otherwise require a PCN. One commenter stated that the phrase 
``associated with an overall project'' was unclear and undefined.
    As discussed in the 2020 Proposal, this PCN threshold is being 
added for new oil or natural gas pipelines to provide district 
engineers the opportunity to review all crossings of waters of the 
United States for new 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 
(see 85 FR 57327). Given the concerns expressed by numerous commenters 
regarding the potential cumulative adverse environmental effects that 
may be caused by NWP 12 activities, this is not an arbitrary or 
capricious addition to the PCN requirements for NWP 12. This new PCN 
threshold is not a replacement for the PCN thresholds the Corps is 
removing from NWP 12. It is a new PCN threshold to address stakeholder 
concerns about cumulative effects. The phrase ``associated with an 
overall project'' refers to the entire oil or natural gas pipeline that 
is greater than 250 miles in length.
    Several commenters supported a scope or length-based PCN threshold 
but suggested that the Corps adopt more protective PCN thresholds in 
place of the proposed 250-mile threshold. One of these commenters said 
that significant cumulative environmental impacts are likely to occur 
at a much lower length. One of these commenters suggested changing the 
distance in this PCN threshold to 25 miles, while another commenter 
suggested 75 miles, and a third commenter suggested a 5-mile threshold. 
One commenter said that the Corps should require PCNs for any proposed 
oil or natural gas pipeline activity resulting in five or more 
crossings.
    The Corps believes that this new PCN threshold, plus the other two 
PCN thresholds in NWP 12 (i.e., activities requiring section 10 
authorization, and discharges resulting in the loss of greater than \1/
10\-acre of waters of the United States), are sufficiently protective 
of the aquatic environment by providing information to district 
engineers to conduct case-specific reviews of proposed NWP 12 
activities that have the potential to result in more than minimal 
individual and cumulative adverse environmental effects. In furtherance 
of the Corps' review of cumulative effects, paragraph (b)(4) of NWP 
general condition 32 requires PCNs for proposed NWP activities for 
linear projects to include 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 Corps finds that a length of 250 miles 
is both a good indicator of potential cumulative effects of an oil or 
natural gas pipeline while minimizing the potential for inconsistent 
implementation of the PCN requirement across districts. Although the 
Corps agrees that using a threshold of five or more crossings is based 
on a numerical impact, it could be more challenging to implement since 
there may be proposed oil or natural gas pipeline activities where 
there are five or more crossings and none of those crossings require 
PCNs.
    One commenter suggested replacing the PCN threshold for new oil or 
natural pipeline activities with lengths of greater than 250 miles with 
a PCN requirement for oil or natural gas pipeline activities that cross 
state or district boundaries. Several commenters objected to the 
proposed 250-mile PCN threshold, but some of these commenters said that 
the acreage PCN threshold is sufficient to ensure no more than minimal 
adverse environmental effects. A few commenters remarked that the 
length of a pipeline is not a predictor of its crossings of waters of 
the United States or environmental impacts and that this PCN threshold 
has no link to the Corps' regulatory authority. A few commenters stated 
that the 250-mile PCN threshold is inconsistent with the other proposed 
utility line activity permits as they do not contain that PCN 
threshold. One commenter objected to the 250-mile PCN threshold because 
it is limited to new oil or natural gas pipelines (i.e., the material 
to be transported after the pipeline is constructed).
    As discussed above, the purpose of this new PCN threshold is to 
provide information to district engineers to facilitate their review of 
the cumulative effects that may be caused by new long-distance oil or 
natural gas pipelines that have waterbody crossings that require NWP 12 
authorization. These new long-distance oil or natural gas pipelines may 
be constructed within a single state or Corps district. The Corps 
agrees that the number of aquatic resources and their distribution in 
the landscape is variable, and therefore the number of crossings of 
waters of the United States is similarly variable. However, the Corps 
finds that a length of 250 miles is both a good indicator of potential 
cumulative effects of an oil or natural gas pipeline while minimizing 
the potential for inconsistent implementation of the PCN requirement 
across districts. In addition, some oil or natural gas pipeline 
crossings may not require DA authorization because they are installed 
through horizontal directional drilling, do not involve a waterbody 
subject to Section 10 of the Rivers and Harbors Act, and do not involve 
discharges of dredged or fill material into waters of the United 
States. The Corps does not believe that this PCN threshold is necessary 
for new NWPs 57 and 58 because long-distance electric utility lines are 
often constructed as overhead utility lines and utility lines for water 
and other substances (e.g., potable water, wastewater, sewage) are 
often constructed to serve local communities and thus are likely to be 
shorter in overall length.
    One commenter stated that the Corps' Regulatory Impact Analysis for 
the proposed rule is flawed because it assumes the new 250-mile PCN 
requirement would result in no additional PCNs. One commenter said that 
if the Corps does move forward with a 250-mile PCN threshold for new 
oil or natural gas pipeline activities that applicants be allowed to 
provide the PCNs based on desktop data as some areas may not be 
accessible for field surveys if the project is in the development 
stage. One commenter stated that the 250-mile PCN threshold would 
result in the majority of pipeline projects being constructed without 
review and would result in damage to historic properties. One commenter 
said that the 250-mile threshold has no scientific or technical basis.
    The new 250-mile PCN requirement is unlikely to require more PCNs 
for NWP 12 activities because the likelihood of a new oil or natural 
gas pipeline greater than 250 miles in length not having any crossings 
of waters of the United States that require PCNs under the other PCN 
thresholds is extremely small. In addition, the requirement to provide 
in the PCN the locations and proposed impacts for all crossings of 
waters of the United States that require DA authorization, including 
those crossings authorized by an NWP would not otherwise require 
preconstruction notification, does not trigger a requirement for the 
project proponent to submit full PCNs for those other non-PCN crossings 
of waters of the United States. This portion of the new PCN requirement 
is nearly identical to an existing requirement in paragraphs (b)(4)(i) 
and (ii) of general condition 32. Paragraph (b)(4)(i) requires the 
project proponent to include in the PCN any

[[Page 2777]]

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 DA authorization but do not require 
pre-construction notification.
    Furthermore, paragraph (b)(4)(ii) of general condition 32 currently 
requires project proponents to include in PCNs for linear projects 
where one or more single and complete crossings require pre-
construction notification, the quantity of anticipated losses of 
wetlands, other special aquatic sites, and other waters for each single 
and complete crossing of those waters and wetlands. This quantification 
also must include those single and complete crossings authorized by an 
NWP not requiring PCNs. The only additional information required by the 
250-mile PCN threshold is the location of all non-PCN crossings. The 
Regulatory Impact Analysis for this final rule has been updated to 
identify this new PCN threshold as a change. The lack of discussion of 
the proposed 250-mile PCN threshold in the Regulatory Impact Analysis 
for the proposed rule was an error. When a project proponent develops a 
proposal for a new oil or natural gas pipeline, some degree of 
environmental analysis and review is needed to determine whether there 
are any crossings of waters of the United States that require DA 
authorization, and whether any of those crossings require PCNs. The new 
PCN threshold should not impose any additional burdens on the regulated 
public. New oil or natural gas pipelines must comply with general 
condition 20 for historic properties as do all activities authorized by 
an NWP.
    One commenter objected to the proposed 250-mile PCN threshold, and 
limiting it to the installation of new oil or natural gas pipelines 
(versus conducting repair or maintenance activities) along the majority 
of the distance of the overall project length, stating that a PCN 
requirement should be triggered even if short distances of the pipeline 
are being replaced. A few commenters stated that the proposed 250-mile 
PCN threshold is counter to, and could undermine, the Corps' 
longstanding definition of a single and complete linear project, and 
would allow district engineers to require individual permits because of 
the length of pipeline and cumulative impacts regardless of the 
independent utility of the separate and distant crossings.
    The maintenance of existing oil or natural gas pipelines is likely 
to have fewer adverse environmental effects than the construction of 
new oil or natural gas pipelines, because those maintenance activities 
occur to existing pipelines for which some degree of adverse 
environmental effects has already occurred and a current environmental 
setting that includes the existing pipeline. The 250-mile PCN threshold 
does not undermine the Corps' definition of single and complete linear 
project because each separate and distant crossing of waters of the 
United States can continue to be authorized by an NWP. If one crossing 
of waters of the United States for an oil or natural gas pipeline 
requires an individual permit, then 33 CFR 330.6(d) applies and the 
district engineer will determine which activities require individual 
permits and which activities can be authorized by an NWP. Section 
330.6(d) of the Corps' NWP regulations, as well as Note 2 of NWP 12, 
remain in effect. Section 330.6(d) and Note 2 maintain the Corps' long-
standing process regarding the use of NWPs and individual permits to 
authorize linear projects such as oil or natural gas pipelines.
    One commenter stated that the 250-mile PCN threshold would 
discourage pipeline developers from avoiding and minimizing impacts to 
waters of the United States, and from planning longer routes to avoid 
sensitive resources. One commenter said that the 250-mile PCN threshold 
will add an unnecessary layer of uncertainty and litigation risk. One 
commenter stated that a 250-mile PCN threshold would authorize 
potentially significant pipeline activities without any district or 
division review. One commenter stated that oil or natural gas pipelines 
greater than 250 miles in length are so large they are bound to cause 
more than minimal effects and should not be approved under an NWP. One 
commenter stated that the length of the utility line should not be used 
as a PCN threshold; environmental conditions and impacts should be used 
instead.
    Regardless of the addition of the 250-mile PCN threshold, pipeline 
developers are still required to comply with paragraph (a) of NWP 
general condition 23, which requires project proponents to avoid and 
minimize losses of waters of the United States on the project site, 
including permanent and temporary losses of those resources. The 
purpose of the new PCN threshold is to add a mechanism to provide 
information for the district engineer's cumulative effects 
determination and the district engineer's decision on whether to issue 
NWP verifications for the proposed crossings of waters of the United 
States. The information on all of the crossings will inform whether or 
not the cumulative adverse environmental effects of all crossings are 
or are not more than minimal. This PCN threshold also provides the 
district engineer to require an individual permit for the proposed oil 
or natural gas pipeline activities when he or she determines the 
cumulative adverse environmental effects of the proposed crossings of 
waters of the United States are more than minimal. This may help reduce 
litigation risk. The 250-mile PCN threshold provides information for 
the district engineer's review, who also uses information on current 
environmental conditions and potential impacts of the proposed NWP 
activities to determine whether NWP authorization is appropriate for 
these NWP 12 activities. Division engineers do not have a role in 
reviewing NWP PCNs.
Other Provisions of NWP 12
    One commenter said that Note 2 should be reissued with no changes, 
as it clarifies concepts such as ``single and complete project,'' 
``single and complete non-linear project,'' ``independent utility,'' 
and the interaction of the NWPs with individual permits. The Corps has 
reissued Note 2 with no changes. Note 2 differs from the 250-mile PCN 
threshold in that an individual permit is required for the proposed oil 
or natural gas pipeline if one or more crossings of waters of the 
United States does not qualify for NWP authorization. Under the 250-
mile PCN threshold, an individual permit is required if the district 
engineer determines the cumulative adverse environmental effects of all 
crossings of waters of the United States that require DA authorization 
will result in more than minimal cumulative adverse environmental 
effects.
    A few commenters objected to authorizing separate and distant 
crossings as single and complete projects. These commenters believe 
that the practice causes more than minimal cumulative adverse effects. 
A few commenters expressed opposition to allowing multiple ``single and 
complete'' project authorizations of the same pipeline to be authorized 
by the NWP 12, stating that it would be more appropriate to consider 
the entire pipeline as a single and complete project. One of these 
commenters said that more individual permits should be required for 
these activities.
    The authorization of separate and distant crossings of waters of 
the United States as single and complete projects for the purposes of 
NWP authorization is a long-standing practice consistent with the 
Corps' regulations at 33 CFR 330.2(i).

[[Page 2778]]

    One commenter expressed concern with the cumulative effects 
analyses for multiple single and complete crossings and the inability 
to account for NWP activities that do not require PCNs. One commenter 
said that the proposed reissuance of NWP 12 is arbitrary and capricious 
and in violation of the Clean Water Act because it allows unlawful 
piecemealing of large pipelines and other linear projects to avoid 
individual permit review. One commenter stated that an entire pipeline 
project should be subject to NEPA review, including a cumulative review 
of all impacts to waters of the United States.
    Paragraph (b)(4) of NWP general condition 32 requires project 
proponents to include in PCNs 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 DA authorization but do not require pre-construction 
notification. This information is used by district engineers to 
determine whether the proposed activity will result in no more than 
minimal individual and cumulative adverse environmental effects.
    Activities authorized by NWP 12 are not subject to additional NEPA 
review, because Corps Headquarters fulfills the requirements of NEPA 
when it finalizes the national decision document for the issuance or 
reissuance of the NWP. The national decision document includes an 
assessment of effects of the Corps proposed action (i.e., the issuance 
or reissuance of the NWPs) in accordance with the Council on 
Environmental Quality's definition of ``effects or impacts'' at 40 CFR 
1508.1(g) in their NEPA regulations. This analysis of effects or 
impacts under NEPA includes the projected use of the NWP over the 5-
year period it is expected to be in effect. For an NWP that authorizes 
discharges of dredged or fill material into waters of the United 
States, the national decision document also includes a cumulative 
impact analysis conducted in accordance with 40 CFR 230.7(b)(3).
    One commenter stated that acreage limits and thresholds should 
remain constant with separate consideration at each single and complete 
crossing of waters of the United States authorized by NWP 12. One 
commenter said that each crossing should require a separate permit. One 
commenter expressed concern that the phrase ``separate and distant'' is 
not defined and would not prevent a pipeline from being used multiple 
times in close proximity and/or on the same waterbody under NWP 12. 
Another commenter said that no additional definition of ``separate and 
distant'' is necessary. One commenter stated that the Corps should 
impose an overall limit on cumulative effects allowed for a project 
with multiple ``single and complete'' crossings.
    Nationwide permit 12 has a \1/2\-acre limit for each single and 
complete project. As discussed above, and in 33 CFR 330.2(i), each 
separate and distant crossing of waters of the United States may 
qualify for a separate NWP authorization. The Corps declines to define 
the phrase ``separate and distant'' because what constitutes separate 
and distant crossings can vary across the country because of 
differences in the distribution of waters and wetlands in the 
landscape, local hydrologic conditions, local geologic conditions, and 
other factors. What constitutes separate and distant crossings is more 
appropriately determined by district engineers on a case-by-case basis. 
When reviewing a PCN, the district engineer considers the cumulative 
effects of all crossings of waters of the United States for the oil or 
natural gas pipeline activity, and applies the 10 criteria listed in 
paragraph 2 of Section D, District Engineer's Decision.
    One commenter said that Note 4 should refer to the General Bridge 
Act of 1946 instead of Section 9 of the Rivers and Harbors Act of 1899. 
The Corps has made this change to Note 4.
    With respect to Note 5 of this NWP, a few commenters requested that 
the Corps provide clarification and examples of exempted utility line 
activities under Section 404(f) of the Clean Water Act. One commenter 
suggested that the Corps provide examples of utility line activities 
that do not qualify for the exemption. In accordance with the 1989 
Memorandum of Agreement Between the Department of the Army and the U.S. 
EPA Concerning the Determination of the Section 404 Program and the 
Application of the Exemptions under Section 404(f) of the Clean Water 
Act, the U.S. EPA has the authority to determine which activities are 
eligible for the Clean Water Act section 404(f) exemptions.
Comments on Proposal To Issue Separate NWPs for Different Utility Line 
Sectors
    Many commenters expressed support for dividing oil and natural gas 
pipeline activities from other types of utility line activities. 
Several commenters acknowledged that the three types of utility lines 
are of varying sizes and lengths, constructed with different methods, 
and have different relative impacts to streams and wetlands. One 
commenter said that the proposed division of NWP 12 into three separate 
NWPs ensures that the activities authorized by these NWPs are 
substantially similar in nature and will further ensure that each of 
the NWPs will have no more than minimal adverse effects on the 
environment. One commenter stated that permitting utility line 
activities through three separate NWPs helps reduce litigation risk for 
some types of utility line activities.
    The Corps acknowledges that issuing three separate NWPs for 
different types of utility lines helps ensure that the categories of 
activities authorized by these NWP are substantially similar in nature 
and that they will result in no more than minimal individual and 
cumulative adverse environmental effects. The issuance of three NWPs 
for different categories of utility line activities may also help 
reduce regulatory uncertainty for electric utility line operators, 
telecommunications companies, state, tribal, and local water 
authorities, and other entities that construct, maintain, and operate 
these utility lines. It may also provide diversity and stability to the 
NWP program and allow Corps districts to continue to authorize 
categories of utility line activities by an NWP in the event that one 
of the three NWPs is invalidated or stayed by a federal court. Most of 
the past litigation on NWP 12 has been for oil or natural gas 
pipelines, not electric and telecommunications lines or utility lines 
that convey potable water, wastewater, sewage and other such 
substances. Issuing separate NWPs for electric utility line and 
telecommunications activities and for utility lines for water and other 
substances will help provide some degree of regulatory certainty for 
the entities that construct and maintain those types of utility lines. 
These separate NWPs will also benefit the people who rely on electric 
utility lines and telecommunication lines and utility lines for water 
and other substances to deliver energy, information, entertainment, 
potable water, and other goods and services. The public will also 
benefit from the removal of sewage and wastewater to protect public 
health and the environment.
    A few commenters requested that if NWP 12 is divided that the Corps 
be clear that all provisions relating to substations, foundations, and 
access roads, and as well as provisions on inadvertent returns of 
drilling fluids, temporary structures and fills (including use of 
temporary mats), and accompanying notes, remain with the

[[Page 2779]]

same legal effect and with no additional restrictions. The Corps has 
written these three NWPs in a consistent manner to provide a similar 
framework for authorizing regulated activities associated with utility 
lines, utility line substations, access roads, actions to remediate 
inadvertent returns, and the authorization of temporary impacts for 
construction and other activities.
    One commenter suggested that the Corps issue separate NWPs for 
utility lines based on the distinction as to whether they are overhead 
utility lines, such as electric and telecommunication lines, or 
underground utility lines. One commenter requested that the Corps 
change the proposed NWP 12 to authorize ``underground pipeline or 
utility line related activities.'' Several commenters said that buried 
linear utility lines have substantially similar environmental effects 
on waters of the United States. One commenter indicated there is 
variability and no reasonable justification for dividing the NWPs based 
on above-ground and below-ground activity types. A few commenters said 
that the construction of oil, natural gas, water, and other utilities 
typically require more ground and vegetation disturbance than the 
construction methods for electrical utility lines. These commenters 
also stated that electrical utility lines have more flexibility to 
avoid aquatic resources, and that discharges of dredged or fill 
material associated with electric utility lines typically have a 
smaller footprint than they do for other in-ground utility lines. One 
commenter said that the Corps should keep all buried, underground 
utility lines in NWP 12, rather than create a new NWP for utility line 
activities for water and other substances, because best management 
practices for protecting waters from trenching or boring for pipes are 
similar in nature regardless of the product to be carried in the pipe.
    After reviewing the public comments, the Corps determined that 
issuing separate NWPs for oil or natural gas pipeline activities, 
electric utility line and telecommunications activities, and utility 
line activities for water and other substances would be the best 
approach for reducing regulatory uncertainty for different utility line 
sectors.
    One commenter suggested that the Corps further distinguish between 
natural gas and petroleum liquids in recognition of the differences in 
environmental consequences of potential leaks. One commenter 
recommended that the Corps further distinguish between large interstate 
natural gas pipelines and smaller intrastate natural pipelines and 
service lines.
    The Corps does not have the authority to address the environmental 
consequences of leaks from oil or natural gas pipelines. Those 
environmental consequences are more appropriately addressed by federal, 
state, and local government agencies that have the legal authority to 
require operators of oil or natural gas pipelines to take actions in 
response to leaks.
    Many commenters objected to the proposed separation of NWP 12 into 
three NWPs and requested that the 2017 NWP 12 be retained in its 
historic form. Many of these commenters said that the Corps should 
focus its concerns on the environmental impacts of the authorized 
activities rather than the type of material transported by various 
utility lines. Several commenters objected to the proposed division of 
the NWP 12 activities indicating that it would cause additional 
complications to permitting utility line activities rather than 
streamlining the process. One commenter remarked that there are no 
substantive differences between the three proposed NWPs and therefore 
issuing separate NWPs is unnecessary. Several commenters said that 
issuing three separate utility line NWPs will increase litigation risk 
and uncertainty for the regulated public.
    As discussed above, the Corps believes that separating NWP 12 into 
three different NWPs to authorize utility line activities for different 
utility line sectors will help enhance regulatory certainty for utility 
line sectors that are not a frequent target for litigation because of 
the lower degree of concern about the potential direct and indirect 
environmental impacts of the substances those utility line sectors 
carry (e.g., electricity, potable water, wastewater). As with any 
change in the NWP program, prospective permittees will experience some 
challenges associated with those changes, but over time they will 
adjust to those changes and can realize the benefits of those changes. 
Prior versions of NWP 12 have been subjected to litigation, so the 
issuance of three separate NWPs for utility line activities is likely 
to pose no greater litigation risk than prior versions of NWP 12.
    One commenter said that the Corps only analyzed differences but not 
similarities among these different types of utility lines. A few 
commenters said that the proposed division of NWP 12 activities is an 
abrupt and unjustified departure from the long-standing view that 
utility lines are activities that are substantially similar. One of 
these commenters said that the proposed change is a departure from the 
NWPs that were first promulgated in 1977. A few commenters said that a 
general permit should encompass activities that are similar in nature 
consistent with Section 404(e) of the Clean Water Act.
    When proposing to issue new NWPs for activities that were 
authorized by a previous NWP, discussing the differences among those 
NWPs and the associated categories of activities is an important part 
of explaining the proposed action. The changes are being proposed 
through the normal rulemaking process, and are being made in response 
to events that have raised concerns about potential increases in 
regulatory uncertainty for specific categories of regulated entities. 
When the NWPs were first issued in 1977, there were 15 NWPs. When the 
NWPs were last issued in December 2016, there were 52 NWPs. The number 
of NWPs has increased substantially over time in response to changes in 
the Corps Regulatory Program, litigation, studies, and other factors. 
The three utility line NWPs being issued in this final rule represent 
categories that are similar in nature (i.e., oil/natural gas; 
electricity, including communications carried by electricity; and 
water, wastewater, sewage, stormwater, and other substances). Section 
404(e) of the Clean Water Act does not specify how broad or narrow 
categories of activities authorized by NWPs and other general permits 
must be. The Corps has substantial discretion to identify categories of 
activities that are appropriate for NWPs and other general permits.
    One commenter noted that the Corps' response to public comments for 
the 2017 NWPs rejected the idea that utility line activities are not 
substantially similar, stating that the Corps explained that the agency 
interprets the `categories of activities that are similar in nature' 
requirement broadly to keep the NWP program manageable in terms of the 
number of NWPs. A few commenters said that the history of the NWPs 
indicates that there is no prior precedent in past NWP rulemaking for 
arbitrarily dividing NWPs that are intended to cover categories of 
activities that are similar in nature. One of these commenters further 
indicated that the mining NWPs (21, 44, 49, and 50) and the development 
NWPs (29 and 39) are not analogous as their development came about 
differently, indicating that they largely had to do with the end of NWP 
26.
    As discussed above, Section 404(e) of the Clean Water Act gives the 
Corps substantial discretion in how broad or narrow to define 
categories of activities

[[Page 2780]]

for general permit authorization. The proposal to issue three separate 
NWPs for utility line activities instead of reissuing NWP to authorize 
all utility line activities was made, in part, in response to concerns 
about regulatory uncertainty for various utility line sectors. The 
proposal is also an opportunity to tailor the NWPs so that they will 
authorize activities that have no more than minimal individual and 
cumulative adverse environmental effects by making targeted changes to 
the text of each of these NWPs, as appropriate.
    This proposal is consistent with prior NWP rulemaking efforts, in 
which the Corps issued new NWPs to authorize categories of activities 
with numerous similarities in the text of the NWP, including acreage 
limits and other limits, PCN thresholds, and categories of waters in 
which those NWPs may be used to authorize discharges of dredged or fill 
material into waters of the United States. For example, in 2007 the 
Corps issued two new NWPs to authorize discharges of dredged or fill 
material into waters of the United States for coal mining activities 
(see 72 FR 11092). The Corps issued NWP 49 for coal remining activities 
and NWP 50 for underground coal mining activities. These two coal 
mining NWPs were issued even though the Corps had issued and reissued 
NWP 21 for surface coal mining activities over time since NWP 21 was 
first issued in 1982 (47 FR 31794).
    In 2000, the Corps issued five new NWPs and modified six existing 
NWPs to replace NWP 26, which authorized discharges of dredged or fill 
material into headwaters and isolated waters (65 FR 12818). Four of the 
new NWPs (NWP 39 for residential, commercial, and institutional 
developments; NWP 40 for agricultural activities; NWP 42 for 
recreational facilities; and NWP 43 for stormwater management 
facilities) authorized discharges of dredged or fill material into non-
tidal waters of the United States, excluding non-tidal wetlands 
adjacent to tidal waters. Each of these NWPs had a \1/2\-acre limit for 
losses of non-tidal waters of the United States. The categories of 
activities established for these four NWPs were based on the 
operational purposes they served, which the Corps does not have the 
authority to regulate. Those operational purposes included providing 
places for people to live, work, learn, and produce goods and services 
(NWP 39); agriculture activities, including farm buildings (NWP 40); 
recreational facilities and associated features (NWP 42); and 
stormwater management facilities (NWP 43).
    Similar to these NWPs, the three NWPs the Corps is issuing to 
authorize various sectors of utility line activities are differentiated 
by the substances those utility lines carry, despite the Corps' lack of 
authority to regulate the substances being conveyed by those utility 
lines. If Congress had intended the categories of general permits 
issued under Section 404(e) of the Clean Water Act to be based on the 
activity the Corps regulates (i.e., discharges of dredged or fill 
material into waters of the United States), it would not have written 
the text of section 404(e) to refer to ``any category of activity 
involving discharges of dredged or fill material.'' The text of section 
404(e) clearly allows the Corps to issue any number of NWPs that 
authorize discharges of dredged or fill material into waters of the 
United States. Furthermore, those categories can be based on how the 
authorized activity will be used after the project proponent has 
completed the construction activities associated with the discharges of 
dredged or fill material into waters of the United States, and how 
people will use the completed activities even though the Corps 
generally has no authority to regulate how the constructed facilities 
are operated. These principles apply to the three NWPs the Corps is 
issuing for these three utility line sectors.
    One commenter said that the proposed changes to NWP 12 and the 
proposed issuance of separate NWPs for other types of utility lines are 
not consistent with congressional intent to reduce administrative 
burdens and the Administration's policy on infrastructure development 
and maintenance. This commenter cited Executive Order 13777, 
``Enforcing the Regulatory Reform Agenda'' (February 24, 2017), 
Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth'' (March 28, 2017), and the 2018 ``Legislative Outline for 
Rebuilding Infrastructure in America.''
    The Corps believes that this issuance of these three NWPs (NWPs 12, 
57, and 58) are consistent with priorities for infrastructure 
development because they will help reduce regulatory uncertainty and 
burdens on the regulated public. The issuance of these NWPs will not 
cause any increases in the number of activities authorized by an NWP or 
the number of activities requiring individual permits. The three NWPs 
are consistent in general structure, but they have some differences 
because of the different types of substances those utility lines convey 
and how those utility lines are designed and constructed.
    Several commenters stated that the proposed division of NWP 12 
activities into separate NWPs discourages the beneficial and common 
practice of joint trenching and the use of utility corridors where 
various types of utilities are co-located, and further indicated that 
these features should be permissible under NWP 12 as a single and 
complete project. Several commenters said that the proposal to issue 
three separate NWPs would increase costs and delays associated with 
energy infrastructure projects. A few commenters stated that the 
division of NWP 12 into three NWPs would increase the number of permits 
needed by some applicants. One commenter cited NWP general condition 28 
as a reason not to divide NWP 12 into three different NWPs for 
different types of utility lines.
    The issuance of these three NWPs will not discourage joint 
trenching and the use of utility corridors for multiple utility lines. 
For example, if a project proponent proposes to construct a water line 
next to an oil or natural gas pipeline, the provisions of NWP general 
condition 28, use of multiple NWPs, would apply. For each crossing of a 
separate and distant waterbody, both NWP 58 and 12 could be used, as 
long as the loss of waters of the United States at each single and 
complete project does not exceed \1/2\-acre. The issuance of these 
three NWPs will not cause increased costs and delays for energy 
infrastructure projects, except for a relatively brief period of time 
as the transition from the 2017 NWPs to the 2021 NWPs occurs. The Corps 
acknowledges that there will be some increases in the number of permits 
that project proponents will need to obtain, but those permits will 
generally be used concurrently, and consistent with general condition 
28. The use of multiple NWPs to authorize single and complete projects 
is a longstanding practice in the NWP program.
    A few commenters said that the when the Corps considers whether to 
make changes to an established and well-functioning NWP program, it 
should be conscious of how changes to the framework for permitting 
utility lines will affect the investment community, and in turn the 
country's ability to continue to deliver competitively-priced energy 
from diverse sources to U.S. consumers and other end-users, and to 
further domestic energy independence. A few commenters remarked that 
pipeline and other infrastructure operators need regulatory certainty 
to build, maintain, and upgrade pipelines and other utility 
infrastructure. One commenter expressed support for the Corps' efforts 
to improve the NWP

[[Page 2781]]

program, but cautioned the Corps to avoid changes that could introduce 
inefficiencies. A few commenters said that the proposed division of NWP 
12 into three separate NWPs would likely introduce unnecessary strain 
on agency resources, delays in the permit reviews, regulatory 
inconsistency in the permitting process. One commenter objected to 
dividing the NWP 12 into three separate NWPs because they are very 
similar and can be more easily tracked and understood as one category.
    The Corps acknowledges that there will be some challenges and 
opportunities with these changes to the NWP program, but it should also 
be noted that the NWP program changes each time the Corps goes through 
the rulemaking process to issue or reissue the NWPs and that 
adjustments need to be made under the new NWPs. The issuance of NWP 57 
will help support renewable energy generation facilities and the 
transfer of electricity from those generation facilities to 
residential, commercial, industrial, and other users. The NWPs will 
continue to provide regulatory certainty for pipelines and other types 
of utility lines. None of these three NWPs require agency coordination, 
so other federal agencies should not be adversely affected by the 
splitting of NWP 12 into three separate NWPs.
    One commenter said that if the Corps were to move forward with the 
division of the NWP 12 activities it must take into consideration the 
differences between distribution and transmission pipelines as the 
physical characteristics of the pipelines inherent in these different 
uses may have a larger effect on waters of the United States than the 
material being transported. A few commenters suggested that if NWP 12 
were reissued without change, over time the use of NWP 12 would shift 
from oil and gas pipelines to other utility sectors to account for new 
investment in more secure and resilient utility systems, and that a 
two-year period is an inadequate sampling for this decision making 
effort.
    The Corps does not agree that is necessary to address differences 
between distribution and transmission pipelines. These NWPs authorize 
utility lines of various sizes, and the Corps focuses its analysis of 
potential adverse environmental effects or impacts that are caused by 
the activities that are directly related to the Corps' regulatory 
authority (i.e., discharges of dredged or fill material into waters of 
the United States regulated under Section 404 of the Clean Water Act 
and structures and work in navigable waters of the United States 
regulated under Section 10 of the Rivers and Harbors Act of 1899). The 
Corps does not believe it is useful to engage in speculation about 
potential future trends in the number of oil or natural gas pipelines 
versus the number of electric utility lines and telecommunications 
lines versus the number of utility lines carrying water and other 
substances. The Corps estimated the potential permitting changes using 
data on NWP verifications issued between March 19, 2017, and March 19, 
2019, which provides a robust sample size.
    One commenter said that that, according to the Congressional 
Research Service, the Corps does not have a centralized database or 
other information on the number of individual permits it issues for 
pipeline and utility line projects, nor does it have a database on the 
utility line activities that are authorized by NWP 12, and that any 
attempt by the Corps to draw out a reasoned, data-driven basis for 
dividing NWP 12 into three separate NWPs is premature at this time.
    The Corps does have a centralized database that tracks NWP 
verifications issued, regional general permit verifications issued, and 
individual permits issued, including the types of activities authorized 
by those general permits and individual permits. From that data, the 
Corps was able to estimate the number of NWP activities that were 
likely associated with oil or natural gas pipelines, electric and 
telecommunications lines, and utility lines for water and other 
substances.
    One commenter stated that dividing the NWP 12 would add complexity 
to ESA and NHPA compliance. One commenter said that the Corps 
appropriately recognizes that the techniques used to construct water 
and electric utility lines have fewer impacts to waters of the United 
States than other uses of NWP 12 involving transport of petrochemicals. 
The issuance of these three NWPs will not add complexity to ESA or NHPA 
compliance because they must comply with the same NWP general 
conditions, including general condition 18, endangered species, and 
general condition 20, historic properties. A single compliance process 
under either law can serve multiple NWPs for those activities that may 
use NWP 12 and 58, for example.
    A few commenters stated that there is no logical grouping to be 
found for dividing the proposed NWP activities based on pipe diameter, 
size, and any associated ground disturbances. A few commenters said 
that the Corps' information on diameter and pipeline lengths are based 
upon incomplete generalizations that do not withstand scrutiny. One 
commenter stated that justification for dividing NWP 12 cannot be based 
upon the diameter of the pipeline or conduit. One commenter remarked 
that the size of the pipe may determine a minimum width of a trench but 
that some smaller pipelines may require larger trenches depending on 
the circumstance and that this is not a valid criterion for separating 
the NWPs. One commenter said that the Corps failed to make a persuasive 
case that length of a utility line would be a determining factor when 
considering ground disturbances and division of the NWP activities. One 
commenter said that with respect to the Corps' jurisdiction under 
Section 10 of the Rivers and Harbors Act of 1899, it is the presence of 
a pipeline that affects navigation, not the substance it contains.
    The discussion in the preamble to the 2020 Proposal regarding the 
differences among the three utility line sectors that were the basis 
for the modified NWP 12 and the proposed new NWP C and D was intended 
to demonstrate that there are some differences among those sectors. The 
final NWPs are based on sectors, not construction techniques or sizes 
of the utility lines. The text of the three NWPs makes no references to 
the diameters or length of the utility lines. The Corps agrees that for 
utility lines that cross navigable waters of the United States and 
require section 10 authorization, the Corps focuses its evaluation on 
potential effects on navigation, not the substance being conveyed by 
the utility line.
    A few commenters said that the Corps' jurisdiction as related to 
these NWPs is limited to its statutory authorities under Section 404 of 
the Clean Water Act and Section 10 of the Rivers and Harbors Act of 
1899. One commenter expressed concern that the proposed issuance of 
separate NWPs could lead the Corps to consider factors outside of its 
statutory authority. A few commenters stated that consideration of the 
type of substances that can be conveyed by a utility constitutes 
overreach of the Corps' statutory jurisdiction. These commenters went 
on to reference statements from the Corps that it does not regulate the 
operation of oil and natural gas pipelines, but that the Corps 
regulates discharges of dredged or fill material into waters of the 
United States associated with their construction.
    The Corps recognizes that under these three NWPs the Corps' 
statutory authority is limited to Section 404 of the Clean Water Act 
and Section 10 of the Rivers and Harbors Act. However, for these three 
NWPs and many of the other NWPs, the categories of activities 
authorized by those NWPs relate to how

[[Page 2782]]

the constructed activities will be used (e.g., residences for NWP 29, 
recreational facilities for NWP 42, land-based renewable energy 
generation for NWP 51), even though the Corps does not have the 
authority to regulate the operation of the constructed structure or 
fill. As discussed above, the text of section 404(e) recognizes that 
the Secretary could issue any number of general permits, including 
NWPs, for any number of categories of activities involving discharges 
of dredged or fill material into waters of the United States.
    A few commenters said that the terms used to describe the 
applicability of NWP 12 cause ambiguous situations with respect to 
which substances would qualify as oil, gas, or petrochemicals and to 
which NWP would apply. These commenters also indicated confusion 
associated with common situations where petrochemical products are 
added to non-petroleum products prior to transport and generally 
suggested the source of the material to be transported has little or no 
bearing on the methods for construction, maintenance, repair or 
replacement of the pipeline on the best management practices needed to 
protect waters of the United States.
    The Corps has attempted to provide more clarity regarding the 
differentiation of utility line sectors that would fall under NWPs 12, 
57, or 58. The Corps recognizes that there may be situations where a 
prospective permittee may be unsure which NWP applies. The prospective 
permittee could coordinate with the appropriate Corps district to get 
assistance in identify which NWP would be most appropriate for a 
particular project. If the project proponent is contemplating 
constructing different types of utility lines for a particular project, 
multiple NWPs could be used as long as the project proponent complies 
with NWP general condition 28, which addresses use of multiple NWPs for 
a single and complete project.
General Comments on Best Management Practices
    A few commenters supported the incorporation of specific best 
management practices (BMPs) for the utility line NWPs. A few commenters 
said that adding additional BMPs or standards to this NWP would result 
in redundant requirements to manage on these projects without providing 
additional benefits. A few commenters said that division engineers can 
tailor standards to meet region-specific needs and issue additional 
regional conditions with their discretionary authority. One commenter 
stated that the BMPs for protecting water features during trenching, 
boring, or sleeving construction methods for installing, replacing, or 
maintaining pipes at stream or wetland crossings are similar in nature, 
regardless of what product will travel in the pipeline once 
construction is completed. One commenter stated that the three 
categories of utility lines under proposed NWPs 12, C, and D, would 
authorize sufficiently similar activities and require the same or 
similar environmental provisions in order to meet the no more than 
minimal impacts requirement under section 404(e) of the Clean Water 
Act. One commenter said that because of the overarching federal 
regulatory regime, NWP 12 and its general conditions, regional 
conditions added by division engineers, and applicable state 
requirements there are no additional BMPs that could be practically or 
lawfully added to NWP 12.
    The Corps agrees that there are no national best management 
practices to add to NWPs 12, 57, and 58. As discussed below, a few 
commenters submitted suggestions for best management practices. The 
Corps has considered those best management practices, and has concluded 
that best management practices are more appropriately addressed as 
regional conditions added to the NWPs by division engineers or 
activity-specific conditions added NWP authorizations by district 
engineers.
    A few commenters said that imposing additional best management 
practice requirements would risk conflict or redundancy with other 
applicable regulations. A few commenters suggested that the if the 
Corps were to become aware of best management practices to add to NWP 
12 then it should conduct a subsequent notice and comment procedure for 
these BMPs as none were specifically proposed. A few commenters 
indicated that a 60-day notice is inadequate for stakeholders and 
agencies to compile BMPs and best available science for the invitation 
to comment. One commenter recommended that the Corps maintain the 
existing NWPs and instead conduct an extensive outreach campaign to 
stakeholders to determine BMPs for the utility line NWPs. One commenter 
said that when developing industry specific standards and BMPs, the 
duration and location of temporary fill impacts across a project site 
should be taken into consideration. One commenter requested that the 
Corps provide examples the types of construction methods for access 
roads that are considered to minimize adverse effects to waters of the 
United States as noted in several NWPs.
    The Corps has decided not to add any best management practices to 
NWPs 12, 57, and 58. After reviewing the BMPs suggested by commenters, 
the Corps determined that the text of these NWPs already include some 
common BMPs, such as requiring the top 6 to 12 inches of the trench to 
normally be backfilled with topsoil from the trench, constructing the 
trench so that it does not drain waters of the United States through a 
French drain effect, or stabilizing exposed slopes and stream banks 
immediately after completion of construction of the stream crossing.
Comments on Best Management Practices for NWP 12
    One commenter said that impacts from work on natural gas pipelines 
and gas utility lines are minimal and temporary, and BMPs under the 
existing NWP 12 protect waters of the United States. One commenter 
stated that if the Corps decides to impose any BMPs on interstate 
natural gas pipelines they must not conflict with the FERC's Plan and 
Procedures. Several commenters stated that The U.S. Department of 
Transportation (DOT) Pipeline and Hazardous Materials Safety 
Administration (PHMSA) Office of Pipeline Safety imposes stringent 
pipeline safety regulations under 49 CFR part 192 on natural gas 
interstate transmission pipelines and gas utility intra-state natural 
gas transmission and distribution utility lines. One commenter stated 
that the 2017 NWP 12 provides adequate environmental protections under 
Section 404 of the Clean Water Act and Section 10 of the Rivers and 
Harbors Act of 1899, and that no additional industry-specific standards 
or BMPs should be added to the NWPs as national enforceable terms. One 
commenter stated that pipeline rights-of-way should be maintained in 
herbaceous condition within 10-feet centered on the pipeline. One 
commenter stated that applicants should have to produce containment and 
clean up contingency plans as BMPs for all of the utility line permits. 
One commenter said that a trench should not be constructed or 
backfilled in a matter that would redirect shallow groundwater flow 
paths, to avoid altering vegetative communities or flow in streams 
downslope of the trenches. One commenter said that appropriate measures 
should be taken to maintain water quality conditions downstream of the 
site.
    As discussed above, the Corps is not adding any BMPs to the text of 
NWPs

[[Page 2783]]

12, 57, and 58 that were not in the proposed texts of these NWPs.
    Best management practices recommendations. One commenter said that 
a list of BMP manuals that support oil and gas pipeline development and 
maintenance activities in Appendix G of the document titled 
``Considering Best Practices for Managing Pipeline Permitting.'' 
Several of these documents are excellent resources for best management 
practices related to impacts to wetlands and streams. One commenter 
recommended the following BMPs for NWP 12:
     All excavations should be backfilled with the excavated 
material after installation of the appropriate structures.
     Side-cast spoil material from trench excavation should be 
placed on the side of the trench opposite streams and wetlands.
     Spoil material from trench excavation should be placed on 
the side of the trench to be reused as backfill with the A-horizon 
placed back in its original position.
     Excess spoil material must be removed to an approved 
upland disposal site.
     Stream banks at crossings must be restored after 
construction has been completed.
     Disturbed stream banks can be restored by planting woody 
vegetation and by using bioengineering techniques for stream bank 
stabilization.
     Right-of-ways through and adjacent to streams and through 
forested wetlands should be maintained in low growing, woody vegetation 
to minimize erosion and sedimentation. Maintenance of this right-of-way 
should be conducted with mowing rather than with chemicals to reduce 
the potential for contamination and negative impacts on aquatic 
resources.
     If chemicals are used, a 50-foot buffer on either side of 
the stream crossing should be established in order to retain the 
riparian vegetation while reducing the amount of chemical runoff into 
the aquatic environment.
     Any open trench must be temporarily fenced to reduce the 
likelihood of wildlife becoming trapped and must include a ramped 
section which would allow wildlife to escape.
     A full visual inspection of every open trench section must 
be made daily to identify any trapped wildlife in need of rescue.
    One commenter provided an example list of industry BMPs, but 
indicated that should the Corps chose to incorporate them in the text 
of NWP 12 and the other utility NWPs, it must understand that all BMPs 
are not appropriate to all circumstances. This commenter provided the 
following list of BMPs:
     Requiring, where appropriate, a plan to address the 
prevention, containment, and cleanup of sediment or other materials 
caused by inadvertent returns of drilling fluids.
     Requiring notification to the Corps and implementation of 
a remediation plan in the event of an inadvertent return of drilling 
fluids.
     Siting poles and tower foundations outside of surface 
waters where practicable.
     Visually marking waters of the United States near work 
areas.
     Using techniques that minimize rutting and damage to 
wetlands, such as installing mats prior to placing or driving equipment 
over wetlands or streams for temporary access or using wide-track 
equipment.
     Establishing stockpiling/work areas outside of surface 
waters.
     Construction monitoring during routine inspection and 
maintenance activities to avoid unauthorized discharges into surface 
waters.
    A few commenters suggested modifying the text of NWP 12 to 
encourage the use of directional drilling. One commenter said that when 
horizontal directional drilling (HDD) is not possible, the flume method 
should be the required method for use of the NWP 12 over the dam-and-
pump or open-cut stream crossing methods in order to minimize impacts 
to aquatic resources. One commenter suggested when HDD is used the 
permittee should erect sediment control measures between the drill site 
and nearby sensitive resources to prevent drilling mud releases from 
reaching sensitive resources, conduct regular on-site briefings for 
personnel to identify and locate sensitive resources, and maintain 
response equipment on-site or in an accessible location and in good 
working-order. One commenter suggested that HDD contractors should be 
required to employ a full-time, qualified on-site mud engineer to 
continuously monitor the drilling fluid circulation and returns as a 
preventative measure.
    The Corps declines to add text to NWPs 12, 57, and 58 to encourage 
horizontal directional drilling. The use of horizontal directional 
drilling is more appropriately determined on a case-by-case basis. The 
Corps lacks the authority to require HDD contractors to employ a full-
time, qualified on-site mud engineer to monitor drilling fluid 
circulation and potential inadvertent returns of drilling fluid.
    One commenter said that Congress did not intend the NWP program to 
be used to streamline the authorization of major infrastructure 
projects and that each water crossing for major pipeline projects that 
transport highly toxic and dangerous materials should require 
individual permit reviews. A few commenters stated that environmental 
impact statements should be required for oil or natural gas pipelines. 
One commenter said that a programmatic ESA consultation should be 
completed for this NWP. One commenter stated that the construction and 
operation of oil and gas pipelines pose significant risk to protected 
species and should require individual permits. Another commenter said 
that the Corps must determine the environmental safety of HDD at a 
particular location and associated mitigation measures. One commenter 
suggested a definition for ``stand-alone project'' to require that all 
the crossings within major watersheds are evaluated together as single 
and complete since the cumulative impacts would be to one system.
    Section 404(e) of the Clean Water Act provides the Corps with the 
authority to issue NWPs to authorize categories of activities involving 
discharges of dredged or fill material into waters of the United States 
to streamline the authorization process for these activities, as long 
as they result in no more than minimal individual and cumulative 
adverse environmental effects. Section 404(e) does not prohibit the 
issuance of general permits for utility lines and other infrastructure 
projects. As many commenters recognized, the Corps does not have the 
discretion to control the types of substances conveyed by oil or 
natural gas pipelines or other types of utility lines. Compliance with 
the Endangered Species Act is discussed in Section III.D of this final 
rule: Compliance with Relevant Statutes. The Corps declines to add a 
definition of ``stand-alone project'' because cumulative impacts are 
already evaluated by district engineers over appropriate geographic 
regions, such as watersheds, Corps districts, states, etc.
    A few commenters stated that NWP 12 should be revised to consider 
the protection of tribal treaty rights. One commenter said that the 
Corps should conduct tribal consultation for the reissuance of the NWP 
12. One commenter suggested the Corps adopt a policy of early 
consultation with Indian Tribes and other actors on these types of 
projects, above the timeline required by the NHPA section 106 process 
to allow the Corps to preemptively address concerns and avoid delays, 
litigation, and other increased costs. One commenter said that the 
draft NWP 12 decision document fails to address the

[[Page 2784]]

high correlation of pipeline construction projects with rates of 
missing and murdered Indigenous women and children and indicated that 
the Corps had not consulted the tribes on the matter. One commenter 
stated that there are a variety of utility lines that have direct, 
indirect, and cumulative impacts on treaty reserved resources and that 
the proposed changes require additional review to fully understand the 
extent of potential resource impacts. One commenter requested the Corps 
continue to require PCNs in Washington State to adequately protect 
treaty resources.
    Tribal treaty rights are addressed through NWP general condition 17 
for all NWPs, including NWP 12. Consultation with tribes on the 
proposed NWPs is discussed in Section V of this final rule 
(Administrative Requirements), in the section for E.O. 13175. The draft 
decision document does not discuss pipeline construction projects and 
missing and murdered people because that issue is more appropriately 
addressed by local, state, tribal, and federal law enforcement 
officials. Concerns about potential impacts to treaty resources in 
Washington State are more appropriately addressed through regional 
conditions, which can add PCN requirements to this NWP, where 
appropriate.
    This NWP is reissued with the modifications discussed above.
(2) NWP 21. Surface Coal Mining Activities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed (discussed above in Section II.F), 
remove the reference to integrated permit processing procedures, and 
remove the requirement for the permittee to obtain written verification 
from the district engineer so that the 45-day PCN review period would 
apply to this NWP as it does to other NWPs with \1/2\-acre limits for 
losses of waters of the United States. Comments received on the 
proposed removal of the 300 linear foot limit for losses of stream bed 
are summarized in Section II.F of this final rule, and in that section 
the Corps provided responses to those comments.
    Many commenters opposed removing the provision that requires a 
written verification from the district engineer before commencing the 
authorized activity, instead of allowing a default authorization to 
occur if the Corps does not respond to a complete PCN within 45 days. 
Several commenters expressed support for the default authorization to 
occur if the district engineer does not respond to the PCN within 45 
days. Many commenters opposed removal of the PCN requirements from this 
NWP. One commenter said that in order to further expedite permitting 
for a coal mining project, no PCNs should be required.
    The Corps removed the requirement for the permittee to obtain 
written authorization before commencing the activity to be consistent 
with the other NWPs that have a \1/2\-acre limit for discharges of 
dredged or fill material into non-tidal waters of the United States 
(e.g., NWPs 29, 39, 40, 42, 43, 44, 51, and 52). The Corps did not 
propose to remove any PCN requirements from this NWP. All activities 
authorized by this NWP require PCNs.
    One commenter stated support for the language regarding integrated 
permitting processing procedure language. One commenter requested 
addition of text to the NWP stating that no work can begin until 
formally approved by the U.S. Department of Interior or the state, and 
final approval is not necessary before submitting a PCN to the district 
engineer. One commenter said that NWP 21 should be expanded to include 
a requirement for federal and state agency coordination when pitcher 
plant bog wetlands, bald cypress, and/or tupelo swamps are impacted. 
This commenter also stated that this NWP should not authorize 
discharges of dredged or fill material into these types of wetlands.
    The Corps removed the language referencing integrated permit 
processing procedures, since those procedures have never been developed 
for this NWP since that text was added to the NWP in 2007 (see 72 FR 
11184). Project proponents may be required to obtain separate 
authorizations from the Department of Interior's Office of Surface 
mining or the state, but those authorizations are a separate process 
from the Corps' NWP authorization process. Authorization by an NWP does 
not obviate the need to obtain other federal, state, or local permits, 
approvals, or authorizations required by law. (See item 2 in Section E, 
Further Information.) Division engineers can add regional conditions to 
this NWP to restrict or prohibit discharges of dredged or fill material 
into certain wetland types if those discharges are likely to result in 
more than minimal individual and cumulative adverse environmental 
effects. District engineers can also exercise discretionary authority 
to modify, suspend, or revoke an NWP after reviewing the PCN, to ensure 
that the NWP authorizes only those activities that result in no more 
than minimal individual and cumulative adverse environmental effects.
    Several commenters said that NWP 21 should be revoked because the 
adverse effects of surface coal mining on the environment are 
significant. One commenter objected to the removal of stream mitigation 
requirements. One commenter said that the applicant should be required 
to ensure that toxic substances are not released back into the water 
column through re-exposure from dredge activities. Several commenters 
said that the proposed changes to this NWP unlawfully put the interests 
of the regulated public above the Corps statutory mandate to protect 
the environment.
    The activities authorized by this NWP cannot result in the loss of 
greater than \1/2\-acre of non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters. In addition, all 
activities authorized by this NWP require PCNs. The \1/2\-acre limit, 
the PCN requirements, and the ability of division and district 
engineers to modify, suspend, or revoke this NWP on a regional or 
activity-specific basis ensure that the activities authorized by this 
NWP result in no more than minimal adverse environmental effects. The 
Corps did not propose to remove any stream mitigation requirements from 
this NWP. Despite the changes to this NWP, these activities are 
reviewed by district engineers on a case-by-case basis since all 
activities require PCNs.
    This NWP is reissued as proposed.
(3) NWP 29. Residential Developments
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed. The Corps also proposed to remove the 
ability for district engineers to waive the 300 linear foot limit for 
losses of intermittent and ephemeral stream bed. Comments received on 
the proposed removal of the 300 linear foot limit for losses of stream 
bed are summarized in Section II.F of this final rule, and in that 
section the Corps provided responses to those comments.
    One commenter said that this NWP should clarify that the acreage 
limits are applied cumulatively for both the original construction and 
any subsequent expansion of the development. One commenter stated that 
this NWP should not be issued to developments proposed in channel 
migration zones and floodplains where projects can directly and 
indirectly impact essential fish habitat, critical habitat, and 
habitats occupied by federally threatened or endangered species. One 
commenter said that as a result of climate change, residential

[[Page 2785]]

developments have increased the public safety risk. One commenter asked 
if projects occurring in floodplains and authorized by this NWP are 
consistent with the 2008 biological opinion on the Federal Emergency 
Management Agency's National Flood Insurance Program.
    This NWP includes a subdivision provision, which states that for 
residential subdivisions, the aggregate total loss of waters of the 
United States authorized by this NWP cannot exceed \1/2\-acre, 
including any loss of waters of the United States associated with the 
development of individual subdivision lots. Activities authorized by 
this NWP must comply with general condition 10, fills within 100-year 
floodplains. If the district engineer reviews the PCN and determines 
that the proposed activity may adversely affect essential fish habitat, 
he or she will initiate essential fish habitat consultation with the 
NMFS. If the district engineer reviews the PCN and determines the 
proposed activity may affect ESA-listed species or designated critical 
habitat, she or he will initiate section 7 consultation with the U.S. 
FWS and/or NMFS as appropriate (see general condition 18). Potential 
public safety risks associated with residential developments are more 
appropriately addressed by local or state land use planning and zoning 
agencies. The 2008 biological opinion on the Federal Emergency 
Management Agency's National Flood Insurance Program only applies to 
that program. It does not directly apply to the Corps' NWP program.
    One commenter said that authorizing residential developments with 
golf courses results in devastating impacts on the environment through 
habitat loss and fragmentation, nutrient loading that causes algal 
blooms, and the use of pesticides/herbicides, which must be considered 
under an environmental impact statement, and therefore, should require 
an individual permit. One commenter stated that a \1/2\-acre loss of 
waters of the United States is not minimal and that any loss over \1/
10\-acre should require compensatory mitigation. One commenter said 
that compensatory mitigation should be required for all unavoidable 
impacts to wetlands and streams authorized by this NWP. One commenter 
said that if the Corps does not require compensatory mitigation under 
NWP 29, the adverse environmental effects are more than minimal. One 
commenter said that the reliance on compensatory wetland mitigation 
often leads to a net loss of wetland functions and values and that NWPs 
like NWP 29 could lead to the loss of thousands of acres of wetlands.
    The Corps regulates discharges of dredged or fill material into 
waters of the United States, and this NWP limits those discharges to 
non-tidal waters of the United States. If the proposed NWP 29 activity 
includes the construction of a golf course, the district engineer will 
review the PCN and determine whether the proposed activity qualifies 
for NWP authorization. The Corps does not have the authority to 
regulate the use of pesticides or herbicides, and therefore is not 
required to consider the potential use of pesticides or herbicides when 
reviewing PCNs for proposed activities. Nutrient loading can be the 
result of non-point source pollution. Nutrient loading may also result 
from discharges of certain substances from point sources regulated 
under Section 402 of the Clean Water Act, which is administered by 
states with approved programs or the U.S. EPA. General condition 23 
requires compensatory mitigation for all wetland losses greater than 
\1/10\-acre that require PCNs, unless the district engineer determines 
that some other form of mitigation would be more environmentally 
appropriate. Wetland compensatory mitigation projects required for 
activities authorized by the NWPs must comply with the Corps' 
regulations at 33 CFR part 332, which require monitoring and other 
actions to ensure that the required compensatory mitigation offsets the 
permitted wetland losses.
    One commenter said the array of wetland and water types that 
authorized under NWP 29 and lost are varied and that the Corps cannot 
determine environmental effects are minimal when they are speculative 
and unquantifiable. One commenter stated that the cumulative impacts of 
authorizing large residential driveways in waters of the United States 
threatens nearshore benthic habitat that is important to salmonids. One 
commenter said that it is unclear how permit authorizations are 
coordinated with local agencies to ensure the appropriate use of NWP 29 
and that local protections should apply to the permit.
    All activities authorized by this NWP require PCNs. Therefore, 
district engineers review all proposed activities and determine whether 
those activities qualify for NWP authorization. When reviewing PCNs, 
district engineers consider cumulative adverse environmental effects 
caused by activities authorized by an NWP and whether those cumulative 
adverse effects are no more than minimal (see paragraph 2 of Section D, 
District Engineer's Decision). If the proposed NWP activity may affect 
ESA-listed species, including list salmon species, the district 
engineer conducts ESA section 7 consultation with the U.S. FWS or NMFS, 
as appropriate. Nationwide permit 29 authorizations are not coordinated 
with local agencies. As stated in Section E, Further Information, the 
NWPs do not obviate the need to obtain other federal, state, or local 
permits, approvals, or authorizations required by law.
    This NWP is reissued as proposed.
(4) NWP 39. Commercial and Institutional Developments
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed. The Corps also proposed to remove the 
ability for district engineers to waive the 300 linear foot limit for 
losses of intermittent and ephemeral stream bed. Comments received on 
the proposed removal of the 300 linear foot limit for losses of stream 
bed are summarized in Section II.F of this final rule, and in that 
section the Corps provided responses to those comments.
    Several commenters recommended establishing tailored PCN thresholds 
for NWP that are similar to the PCN thresholds in NWP 12, NWP 14, and 
NWP 51, which only require PCN for losses of waters of the United 
States greater than \1/10\-acre. Due to the current requirement for 
PCNs for all NWP 39 activities, this NWP is underutilized and 
increasing the PCN threshold to \1/10\-acre would incentivize project 
proponents to reduce impacts. A couple of commenters said that 
compensatory mitigation should be required for all unavoidable impacts 
to streams, wetlands, and special aquatic sites authorized by NWP 39. 
One commenter stated that commercial developments have the potential to 
cause significant environmental harm through habitat loss and 
fragmentation and should be assessed in environmental impact statements 
and through programmatic ESA section 7 consultations. One commenter 
said that commercial developments constructed in channel migration 
zones and floodplains, areas occupied or critical to salmon 
populations, should be required to obtain individual permits.
    The Corps believes that this NWP should continue to require PCNs 
for all activities, so that district engineers can review all proposed 
commercial and institutional developments involving discharges of 
dredged or fill material into waters of the United States and determine 
which proposed activities can be authorized by NWP 39 and which 
proposed activities should require individual permits. The streamlined 
authorization process

[[Page 2786]]

provided by NWP 39 continues to incentivize project proponents to 
reduce losses of waters of the United States to qualify for NWP 
authorization instead of having to obtain individual permits for those 
activities, and the increased time and paperwork needed to secure those 
individual permits. When evaluating PCNs, district engineers determine 
whether proposed NWP 39 activities should require compensatory 
mitigation or other forms of mitigation to ensure that those activities 
result in no more than minimal adverse environmental effects. 
Compensatory mitigation requirements are determined on a case-by-case 
basis by district engineers. If the district engineer determines a 
proposed NWP 39 activity will result in more than minimal adverse 
environmental effects after considering mitigation proposed by the 
permit applicant, he or she will exercise discretionary authority and 
require an individual permit for the proposed activity. During the 
individual permit process, the district engineer will determine whether 
NEPA compliance will be achieved through the preparation of an 
environmental impact statement or environmental assessment, unless the 
proposed activity qualifies for a categorical exclusion. The district 
engineer will also evaluate the PCN to determine if the proposed 
activity may affect listed species or designated critical habitat, and 
thus require ESA section 7 consultation with the U.S. FWS or NMFS, as 
appropriate. Activities authorized by this NWP must comply with general 
condition 10, fills in 100-year floodplains.
    This NWP is reissued as proposed.
(5) NWP 40. Agricultural Activities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed. The Corps also proposed to remove the 
ability for district engineers to waive the 300 linear foot limit for 
losses of intermittent and ephemeral stream bed. Comments received on 
the proposed removal of the 300 linear foot limit for losses of stream 
bed are summarized in Section II.F of this final rule, and in that 
section the Corps provided responses to those comments.
    One commenter stated that losses of waters and wetlands up to \1/
2\-acre are not minimal. One commenter said that any impacts greater 
than \1/10\-acre should require compensatory mitigation. Another 
commenter said that this NWP and other NWPs does not adequately address 
cumulative impacts and these activities should require individual 
permits. One commenter requested that the Corps require best management 
practices to prevent and reduce non-point source pollution associated 
with agricultural activities. One commenter said that all agricultural 
activities authorized by this NWP should go through an alternatives 
analysis for channelization or dam construction to support fish passage 
and healthy stream systems. One commenter stated that the authorization 
of some activities under this NWP, such as levees, is inconsistent with 
Federal Emergency Management Agency flood requirements or policies. One 
commenter said that allowing these impacts under current watershed 
conditions and salmon population status is excessive.
    All activities authorized by this NWP require PCNs. District 
engineers will review each proposed activity and determine which 
activities will result in no more than minimal individual and 
cumulative adverse environmental effects and are authorized by this NWP 
and which activities do not qualify for NWP authorization and should 
require individual permits. During their reviews of PCNs, district 
engineers consider cumulative impacts caused by activities authorized 
by this NWP (see paragraph 2 of Section D, District Engineer's 
Decision). The Corps lacks the authority to require agricultural 
producers to implement best management practices to control non-point 
source pollution. The NWPs do not require alternatives analyses since 
they can only authorize activities that have no more than minimal 
adverse environmental effects. If a project proponent is considering 
channelizing a stream or constructing a dam, the district engineer will 
review the PCN and determine whether the proposed activity will result 
in no more than minimal adverse environmental effects. Activities 
authorized by this NWP must comply with general condition 10, fills in 
100-year floodplains. The Corps does not have the discretion to enforce 
flood requirements or policies adopted by the Federal Emergency 
Management Agency. If the district engineer determines that a proposed 
NWP 40 activity may affect salmon listed under the ESA, he or she will 
conduct ESA section 7 consultation with the U.S. FWS or NMFS, as 
appropriate, before issuing an NWP verification letter.
    This NWP is reissued as proposed.
(6) NWP 42. Recreational Facilities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed. The Corps also proposed to remove the 
ability for district engineers to waive the 300 linear foot limit for 
losses of intermittent and ephemeral stream bed. Comments received on 
the proposed removal of the 300 linear foot limit for losses of stream 
bed are summarized in Section II.F of this final rule, and in that 
section the Corps provided responses to those comments.
    One commenter said that large recreational facilities (golf 
courses) or non-passive recreational facilities should require 
individual permits in non-tidal waters and stream channels, in channel 
migration zones, and waters used or in the historic range of listed 
species, or that directly or indirectly impact critical or essential 
fish habitat. Allowing these impacts under current watershed conditions 
and salmon population status is excessive.
    This NWP requires PCNs for all proposed activities. District 
engineers will review all PCNs to determine whether the discharges of 
dredged or fill material into waters of the United States to construct 
or expand recreational facilities will result in no more than minimal 
adverse environmental effects. If the district engineer determines a 
proposed activity may affect ESA-listed species or designated critical 
habitat, she or he will conduct ESA section 7 consultation with the 
U.S. FWS or NMFS, as appropriate, prior to issuing the NWP verification 
or deciding whether to exercise discretionary authority to require an 
individual permit. If the district engineer reviews the PCN and 
determines the proposed activity may adversely affect essential fish 
habitat, he or she will conduct essential fish habitat consultation 
with the NMFS.
    This NWP is reissued as proposed.
(7) NWP 43. Stormwater Management Facilities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed. The Corps also proposed to remove the 
ability for district engineers to waive the 300 linear foot limit for 
losses of intermittent and ephemeral stream bed. Comments received on 
the proposed removal of the 300 linear foot limit for losses of stream 
bed are summarized in Section II.F of this final rule, and in that 
section the Corps provided responses to those comments. In the first 
paragraph of this NWP, the Corps also proposed to add the phrase ``such 
as features needed'' before ``to meet reduction targets established 
under Total Maximum Daily Loads set under the Clean Water Act.''
    One commenter supported adding the phrase ``such as features 
needed'' to the first paragraph to clarify that green infrastructure 
type of features are not just to reduce total maximum daily loads. 
Several commenters said that this

[[Page 2787]]

NWP should be reissued with no changes except for a clarifying 
provision related to green infrastructure as states and municipalities 
may require or allow green infrastructure projects to meet water 
quality criteria, designated uses, and compliance with post-
construction stormwater requirements regardless of whether a total 
maximum daily load applies to the receiving water.
    The Corps has added the phrase ``such as features needed'' to this 
NWP. The Corps agrees that states and municipalities may require, under 
their authorities, the construction and implementation of green 
infrastructure projects to meet water quality criteria, designated 
uses, and compliance with post-construction stormwater requirements. If 
the construction and maintenance of those green infrastructure projects 
involves discharges of dredged or fill material into waters of the 
United States, this NWP can be used to authorize those activities.
    One commenter said that for new stormwater management facilities, 
best management practices are required as a general matter to prevent 
non-point source pollution during and after construction activities. 
One commenter stated that allowing the loss of \1/2\-acre of non-tidal 
waters under current watershed conditions and salmon population status 
is excessive. This commenter said that these facilities should not be 
located in wetlands or intermittent or ephemeral streams adjacent to 
perennial streams that are occupied by salmon, especially ESA-listed 
species. This commenter asserted that these actions should require 
individual permits when located in channel migration zones, or 
floodplains, wetlands, and essential fish habitat.
    Measures undertaken to prevent non-point source pollution during 
and after construction activities may be required by state or local 
governments, or by other federal agencies. The Corps does not have the 
authority to regulate non-point source pollution that may reach waters 
and wetlands. Except for certain maintenance activities, all activities 
authorized by this NWP require pre-construction notification to the 
district engineer. For those activities that require PCNs, the district 
engineer will evaluate potential impacts to salmon, and if the salmon 
include ESA-listed species, the district engineer will determine if the 
proposed activity may affect listed salmon, and engage in ESA section 7 
consultation with the U.S. FWS or NMFS as appropriate. Activities 
authorized by this NWP must comply with general condition 10, fills in 
100-year floodplains. If, during the review of a PCN, the district 
engineer determines the proposed activity may adversely affect 
essential fish habitat, she or he will initiate essential fish habitat 
consultation with the NMFS.
    This NWP is reissued as proposed.
(8) NWP 44. Mining Activities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed. The Corps also proposed to remove the 
ability for district engineers to waive the 300 linear foot limit for 
losses of intermittent and ephemeral stream bed. Comments received on 
the proposed removal of the 300 linear foot limit for losses of stream 
bed are summarized in Section II.F of this final rule, and in that 
section the Corps provided responses to those comments. In addition, 
the Corps proposed to modify paragraph (b) of this NWP to apply the \1/
2\-acre limit to work in non-tidal navigable waters of the United 
States (i.e., section 10 waters).
    One commenter said the Corps should not reissue NWP 44 because it 
is in violation of Section 404(e) of the Clean Water Act. A few 
commenters stated that NWP 44 poses a risk of significant direct and 
cumulative harm and these activities should be authorized by individual 
permits, not an NWP. One commenter recommended requiring applicants 
ensure that toxic substances are not released back into waters through 
re-exposure from dredging.
    All activities authorized by this NWP require PCNs. District 
engineers will review PCNs for proposed activities to ensure that those 
activities will result in no more than minimal individual and 
cumulative adverse environmental effects, and therefore comply with 
section 404(e) of the Clean Water Act.
    One commenter said that the Corps should allow use NWP 44 in tidal 
waters to reduce cost and time associated with obtaining individual 
permits. One commenter expressed support for including activities in 
non-tidal section 10 waters. One commenter stated that the addition of 
activities in non-tidal section 10 waters needs clarification. This 
commenter said this may be a new requirement that is not currently 
regulated and thus may impact industrial mineral mining.
    Mining activities in tidal waters have potential for causing more 
than minimal individual and cumulative effects, and from a national 
perspective should be evaluated under the individual permit process. 
However, district engineers can develop and issue regional general 
permits to authorize mining activities in tidal waters in areas where 
these activities usually result in no more than minimal adverse 
environmental effects. The Corps is retaining the proposed 
clarification in paragraph (b) of this NWP, with respect to the NWP 
authorizing work in non-tidal navigable waters of the United States 
(i.e., section 10 waters). The clarification regarding work in section 
10 waters was added because the Corps' definition of ``work'' at 33 CFR 
322.2(c) for the purposes of Section 10 of the Rivers and Harbors Act 
of 1899 includes ``without limitation, any dredging or disposal of 
dredged material, excavation, filling, or other modification of a 
navigable water of the United States.''
    One commenter said that this NWP should not authorize activities in 
waters inhabited by salmon. A few commenters stated that the Corps must 
consider the numerous proposals for sulfide-ore copper mining in 
Minnesota and Wisconsin in light of unique lake-land system that is 
highly susceptible to mining caused pollution and degradation.
    All activities authorized by this NWP require pre-construction 
notification. District engineers will review PCNs for proposed 
activities and determine whether they may affect ESA-listed species or 
designated critical habitat. If the district engineer determines a 
proposed NWP 44 activity may affect listed species or designated 
critical habitat, he or she will conduct ESA section 7 consultation 
with the U.S. FWS or NMFS as appropriate. Proposals for mining 
activities in Minnesota and Wisconsin are evaluated by the Corps' St. 
Paul District.
    This NWP is reissued as proposed.
(9) NWP 48. Commercial Shellfish Mariculture Activities
    The Corps proposed a number of modifications to this NWP. The Corps 
proposed 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). The Corps also proposed to remove the 
\1/2\-acre limit for new activities that have direct effects on 
submerged aquatic vegetation in project areas that that have not been 
used for commercial shellfish aquaculture activities during the past 
100 years. In addition to the proposed removal of that \1/2\-acre 
limit, the Corps proposed to remove the definition of ``new commercial 
shellfish aquaculture operation'' that was adopted in 2017. Also, the 
Corps proposed to remove both PCN thresholds for this NWP, as well as 
the paragraph that identifies the additional information that 
permittees must submit with their NWP 48 PCNs.

[[Page 2788]]

    The Corps changed 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). 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, mussels, and 
scallops are examples of bivalve molluscs (bivalves). Since aquaculture 
activities in the United States include both water-based and land-based 
activities, we use the term ``mariculture'' in NWPs 48, 55 (seaweed 
mariculture activities), and 56 (finfish mariculture activities) to 
make it clear 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), the Corps 
has made substantial revisions to the national decision document for 
NWP 48. The revisions addressed, to the extent appropriate, issues 
identified in the district court's decision. A copy of the final 
national decision document is available in the docket at 
www.regulations.gov (COE-2020-0002).
    The national decision document for the 2021 NWP 48 provides a more 
thorough discussion of the direct and indirect impacts caused by 
commercial shellfish mariculture activities. The national decision 
document also uses a broader set of scientific literature to support 
that discussion of potential effects to various resources and the human 
environment. The national decision document does not focus solely on 
oyster mariculture; rather, it also discusses mariculture activities 
for other bivalve species, such as clams, mussels, and scallops. The 
national decision document presents 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 national decision document provides a more thorough discussion 
of how the Corps applies its two permitting authorities to commercial 
shellfish mariculture activities (i.e., Section 10 of the Rivers and 
Harbors Act of 1899 and Section 404 of the Clean Water Act). It 
discusses the types of activities regulated under those authorities and 
their potential environmental consequences. In addition, the national 
decision document provides a more rigorous analysis to support a 
finding, at a national level, that the NWP would authorize only those 
commercial shellfish mariculture activities that have no more than 
minimal individual and cumulative adverse environmental effects. The 
national decision document explains that division engineers retain the 
authority to modify, suspend, or revoke NWP 48 on a regional basis (see 
33 CFR 330.5(c)). It further discusses the authority of district 
engineers to modify, suspend, or revoke NWP 48 on a case-by-case basis 
(see 33 CFR 330.5(d)) if impacts of an activity proposed for 
authorization using NWP 48 has more than a minimal adverse effect on 
the environment. A copy of the national decision document for the 2021 
NWP 48 is available in the www.regulations.gov docket for this 
rulemaking action (docket number COE-2020-0002).
    Commercial shellfish mariculture activities involve the production 
of bivalves such as oysters, mussels, clams, and scallops. These 
activities occur in marine and estuarine coastal waters of the United 
States. As discussed above, the Corps regulates commercial shellfish 
mariculture activities under two of its permitting authorities: 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. Under Section 404 of the Clean Water Act, the Corps regulates 
discharges of dredged or fill material into waters of the United 
States.
    Nationwide permit 48 authorizes structures or work in navigable 
waters of the United States for commercial shellfish mariculture 
activities when DA permits are required by Section 10 the Rivers and 
Harbors Act of 1899. The Corps' regulations for Section 10 of the 
Rivers and Harbors Act of 1899 in 33 CFR part 322 define the term 
``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.'' [33 
CFR 322.2(b)] Commercial shellfish mariculture activities usually 
involve structures such as cages, racks, nets, pilings, lines, trays, 
tubes, ropes, and bouchots (i.e., piles wrapped in rope for cultivating 
mussels) placed in navigable waters to cultivate bivalves.
    Oysters may be cultivated using structures such as cages, trays, 
racks, bags, and lines. Oyster mariculture may be conducted through on-
bottom or off-bottom techniques (NRC 2010). Clams are generally 
cultivated through on-bottom techniques because the commercially 
produced species are infaunal organisms that grow in the substrate of 
waterbodies (NRC 2010). Clam mariculture may involve the use of 
structures such as tubes and anti-predator netting. Mussels may be 
cultivated by attaching mussel brood stock or seed to ropes, which are 
suspended in the water column from a floating raft. Mussels may also be 
grown on ropes attached to pilings (bouchots) (McKindsey et al. 2011), 
or in cages, trays, or racks. Mussels may also be cultivated through 
on-bottom or off-bottom culture methods (NRC 2010). For example, 
mussels may be grown on ropes suspended in the water column from a 
raft, or via bottom culture. Scallops may be attached to ropes via 
monofilament lines tied through a small hole drilled into the shell 
(Robinson et al. 2016), a technique called ``ear hanging.''
    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. 
Department of the Army authorization is required under Section 10 of 
the Rivers and Harbors Act of 1899 for all structures and/or work in or 
affecting navigable waters of the United States, except for activities 
identified in section 322.4 of the Corps' section 10 regulations (see 
33 CFR 322.3). The exceptions in section 322.4 are limited to: (a) 
Activities that were commenced or completed shoreward of established 
federal harbor lines before May 27, 1970; and (b) wharves and piers 
construct in any waterbody, located entirely within one state where the 
waterbody is a navigable water of the United States solely on the basis 
of its historical use to transport interstate commerce. None of these 
exceptions apply to structures or work for commercial shellfish 
mariculture activities. In the Corps' section 10 regulations, there is 
no de minimis exception from the requirement to obtain DA authorization 
for structures and work in navigable waters of the

[[Page 2789]]

United States. Any structure or work that alters or obstructs navigable 
waters of the United States requires section 10 authorization from the 
Corps. With respect to structures used for shellfish mariculture 
activities, those structures require section 10 authorization because 
they alter navigable waters of the United States even though there 
might be circumstances where they might not obstruct navigation.
    Commercial shellfish mariculture 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 of the Clean Water Act. 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.
    The Corps' section 10 regulations define the term ``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.'' [33 CFR 322.2(c)] Under this NWP, the 
section 10 authorization applies to discharges of dredged or fill 
material into waters of the United States that are also navigable 
waters under Section 10 of the Rivers and Harbors Act of 1899. 
Commercial shellfish mariculture activities often involve work that 
requires authorization under Section 10 of the Rivers and Harbors Act, 
such as harvesting and bed preparation activities. Bed preparation 
activities may include tilling or harrowing activities, or the 
placement of shell or gravel to provide substrate suitable for the 
establishment and growth of bivalves via bottom culture.
    Commercial shellfish mariculture activities that only require 
authorization under Section 10 of the Rivers and Harbors Act of 1899 
are evaluated under the Corps' public interest review process at 33 CFR 
320.4. The Clean Water Act Section 404(b)(1) Guidelines issued by the 
U.S. EPA do not apply to activities authorized by the Corps under its 
section 10 authority because those guidelines only apply to activities 
that require authorization under Section 404 of the Clean Water Act. 
The 404(b)(1) Guidelines do not apply to section 10 activities that may 
directly or indirectly impact special aquatic sites such as vegetated 
shallows (i.e., submerged aquatic vegetation).
    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 goals of the Clean Water Act is to promote water quality 
that supports the propagation of fish and shellfish, in addition to 
other uses of waters of the United States.
    The Clean Water Act regulates discharges of pollutants into waters 
of the United States. See 33 U.S.C. 1311(a). Section 502(6) of the 
Clean Water Act defines the term ``pollutant'' as meaning ``dredged 
spoil, solid waste, incinerator residue, sewage, garbage, sewage 
sludge, munitions, chemical wastes, biological materials, radioactive 
materials, heat, wrecked or discarded equipment, rock, sand, cellar 
dirt and industrial, municipal, and agricultural waste discharged into 
water.'' Section 502(12) of the Clean Water Act defines the terms 
``discharge of a pollutant'' and ``discharge of pollutants'' as 
meaning: Any addition of any pollutant to navigable waters from any 
point source, or any addition of any pollutant to the waters of the 
contiguous zone or the ocean from any point source other than a vessel 
or other floating craft.
    Point source discharges of pollutants are regulated under Sections 
402 and 404 of the Clean Water Act. Under Section 402 of the Clean 
Water Act, the U.S. EPA authorized state agencies to regulate a variety 
of pollutants that may be discharged into waters of the United States 
via a point source. Under Section 404 of the Clean Water Act, the Corps 
regulates discharges of dredged or fill material into waters of the 
United States. Discharges of dredged or fill material into waters of 
the United States that require section 404 permits must comply with the 
Clean Water Act section 404(b)(1) Guidelines issued by the U.S. EPA at 
40 CFR part 230.
    The term ``pollutant'' does not include the placement of shellfish 
seed or bivalves at various stages of growth into jurisdictional 
waters, or the waste products (e.g., feces or pseudofeces, ammonium) 
excreted by bivalves. In Association to Protect Hammersley, Eld, and 
Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007 (9th Cir. 2002), the 
court concluded that Congress did not intend that living bivalves and 
the natural chemicals and particulate biological matter they release 
through normal physiological processes, or the shells that might be 
separated from living bivalves from time to time, be considered 
pollutants under the Clean Water Act. In other words, bivalve shells 
and natural waste products excreted by living bivalves are not 
``biological materials'' under the Clean Water Act's definition of 
``pollutant'' because shells and natural waste products come from the 
natural growth and development of bivalves and not from a 
transformative human process.
    The EPA's National Summary of State Information, water quality 
assessment and total maximum daily load (TMDL) information,\3\ provides 
information on the causes of impairment and probable sources of 
impairment for the Nation's waters, including bays, estuaries, coastal 
shorelines, ocean waters, and near coastal waters where commercial 
shellfish mariculture activities may occur. Twenty-eight causes of 
impairment were identified for bays and estuaries. The top 10 causes of 
impairment for bays and estuaries are: Polychlorinated biphenyls, 
nutrients, mercury, turbidity, dioxins, toxic organics, metals (other 
than mercury), pesticides, pathogens, and organic enrichment/oxygen 
depletion. For bays and estuaries, the top 10 sources of impairment for 
bay and estuaries are: Legacy/historic pollutants, urban-related 
runoff/stormwater, unknown sources, atmospheric deposition, municipal 
discharges/sewage, unspecific non-point sources, other sources, 
natural/wildlife, agriculture, and industrial.
---------------------------------------------------------------------------

    \3\ https://iaspub.epa.gov/waters10/attains_nation_cy.control 
(accessed November 27, 2020).
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    Coastal shorelines were impaired by 16 identified causes, the top 
10 of which are: Mercury, pathogens, turbidity, organic enrichment/
oxygen depletion, pH/acidity/caustic conditions, nutrients, oil and 
grease, temperature, cause unknown--impaired biota, and algal growth. 
The top 10 sources of impairment of coastal shorelines are municipal 
discharges/sewage, urban-related runoff/stormwater, ``unknown,'' 
recreational boating and marinas, hydromodification, industrial, 
unspecified non-point source, agriculture, legacy/historic pollutants, 
and land application/waste sites/tanks.
    Ocean and near coastal waters were impaired by 17 identified 
causes, the

[[Page 2790]]

top 10 of which are: Mercury, organic enrichment/oxygen depletion, 
pathogens, metals (other than mercury), pesticides, turbidity, nuisance 
exotic species, total toxics, pH/acidity/caustic conditions, and 
polychlorinated biphenyls. The top 10 sources of impairment of ocean 
and near coastal waters are: Atmospheric deposition, unknown sources, 
unspecified non-point sources, other sources, recreation and tourism 
(non-boating), recreational boating and marinas, urban-related runoff/
stormwater, hydromodification, municipal discharges/sewage, and 
construction.
    None of the top 10 sources of impairment of these categories of 
waters are directly related to commercial shellfish mariculture 
activities. Commercial shellfish mariculture activities require clean 
water to produce bivalve shellfish for human consumption. Further, the 
ability of bivalves to improve water quality is well understood and 
their presence in an aquatic ecosystem is considered to be beneficial 
(e.g., NRC 2010).
    Mariculture activities can be classified as extensive or intensive. 
For extensive mariculture, young organisms are allowed to grow 
naturally using resources (food, inorganic nutrients) available in 
marine and estuarine waters until they are harvested (Diana et al. 
2009). In intensive mariculture, the young organisms are provided feed 
to promote their growth before they are harvested. Bivalve shellfish 
mariculture and seaweed mariculture are examples of extensive 
mariculture, and for such activities there is no addition of materials 
(e.g., nutrients) through a point source that might trigger a permit 
requirement. However, in some cases a pesticide might be applied in 
waters where bivalve shellfish mariculture occurs (NRC 2010, Simenstad 
and Fresh 1995). The application of pesticides is not regulated by the 
Corps under Section 404 of the Clean Water Act, but it may be regulated 
by EPA or approved states under Section 402 of the Clean Water Act. As 
discussed in the previous paragraph, the bivalves themselves that are 
seeded in the waterbody, or are added to the waterbody after a limited 
grow out period in a nursery facility located on-shore or elsewhere, 
does not trigger a permit requirement the Clean Water Act because those 
living organisms are not considered to be pollutants under the Act.
    Nationwide permit 48 also authorizes discharges of dredged or fill 
material into waters of the United States. The Corps' regulations 
define ``dredged material'' as ``material that is excavated or dredged 
from waters of the United States.'' [33 CFR 323.2(c)] The term 
``discharge of dredged material'' is defined at 33 CFR 323.2(d)(1) as 
meaning ``any addition of dredged material into, including redeposit of 
dredged material other than incidental fallback within, the waters of 
the United States.'' The term ``discharge of dredged material'' 
includes, but is not limited to: (1) The addition of dredged material 
to a specified discharge site located in waters of the United States; 
(2) the runoff or overflow from a contained land or water disposal 
area; and (3) any addition, including redeposit other than incidental 
fallback, of dredged material, including excavated material, into 
waters of the United States which is incidental to any activity, 
including mechanized landclearing, ditching, channelization, or other 
excavation. [33 CFR 323.2(d)(1)] Some activities associated with 
commercial shellfish mariculture may result in a discharge of dredged 
material under the third instance identified above (i.e., redeposit of 
dredged material other than incidental fallback).
    Some commercial shellfish mariculture activities involve mechanical 
or hydraulic harvesting techniques that may or may not result in 
discharges of dredged material that require authorization under Section 
404 of the Clean Water Act. If the bivalve harvesting activity would 
result in only incidental fallback of dredged material into the 
waterbody, a section 404 permit would not be required. (However, a 
section 10 permit would be required as ``work'' in navigable waters). A 
section 404 permit would be required for a mechanical or hydraulic 
harvesting activity if that activity results in a regulated discharge 
of dredged material by having more than incidental fallback. Some 
harvesting activities associated with commercial shellfish mariculture 
operations may result in the redeposit of dredged material other than 
incidental fallback within the waters of the United States. For 
example, dredge harvesting activities may remove sediment along with 
the bivalves. If the removed sediment is deposited back into the 
waterbody in a different location, and is more than incidental 
fallback, then the harvesting activity may be determined by the 
district engineer to result in a discharge of dredged material that 
requires section 404 authorization. On the other hand, if the sediment 
removed while harvesting the bivalves is redeposited in the same 
location, then it may be considered to be incidental fallback, and not 
require section 404 authorization.
    The Corps' regulations at 33 CFR 323.2(e)(1) define ``fill 
material'' as meaning ``material placed in waters of the United States 
where the material has the effect of: (1) Replacing any portion of a 
water of the United States with dry land; or (2) changing the bottom 
elevation of any portion of a water of the United States. Examples of 
fill material include: ``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.'' [33 CFR 
323.2(e)(2)] ``Fill material'' does not include trash or garbage (see 
33 CFR 323.2(e)(3)). Discharges of trash or garbage may be regulated 
under other federal, state, or local laws and regulations. Fill 
material does not include the placement or release of living organisms, 
such as bivalve larvae and juvenile bivalves, into waters of the United 
States.
    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. Bivalve 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.
    On-bottom bivalve shellfish mariculture activities may involve 
placing fill material such as shell or gravel to provide suitable 
substrate for bivalve larvae to attach to and grow on the bottom of the 
waterbody. These fill activities may require section 404 authorization. 
The placement of structures that are used for commercial

[[Page 2791]]

shellfish mariculture activities, such as cages, bags, racks, tubes, 
and netting, does not result in discharges of dredged or fill material 
into waters of the United States and therefore do not require 
authorization under Section 404 of the Clean Water Act. As discussed 
above, the placement of cages, bags, racks, tubes, lines, and netting 
and other structures in navigable waters of the United States for the 
purposes of commercial shellfish mariculture activities is regulated 
under Section 10 of the Rivers and Harbors Act of 1899 because they can 
be potential obstructions to navigation.
    In the 2020 Proposal, the Corps proposed to remove the \1/2\-acre 
limit for new commercial shellfish mariculture activities that directly 
affect submerged aquatic vegetation. The Corps also proposed to remove 
the definition of ``new commercial shellfish mariculture activities.''
    Many commenters said that the \1/2\-acre limit for direct impacts 
to submerged aquatic vegetation for new commercial shellfish 
mariculture activities should be retained because removal of the \1/2\-
acre could cause significant and permanent losses of submerged aquatic 
vegetation. One commenter said that allowing new commercial shellfish 
mariculture activities to directly affect more than \1/2\-acre of 
submerged aquatic vegetation would result in more than minimal adverse 
environmental effects. A couple of commenters stated that the removal 
of the \1/2\-acre limit for impacts to submerged aquatic vegetation 
conflicts with submerged aquatic vegetation goals and restoration 
efforts in different states. These commenters said that many federal, 
state, and local agencies are working throughout the country to recover 
lost submerged aquatic vegetation habitat in support of water quality 
and ecosystem goals. Removal of the \1/2\-acre limit would undermine 
the investments and progress made to date to recover these important 
habitats.
    The Corps is removing the \1/2\-acre limit for new commercial 
shellfish mariculture activities that directly affect submerged aquatic 
vegetation in the project area. In place of the \1/2\-acre limit, the 
Corps is substituting a PCN requirement for new and existing commercial 
shellfish mariculture activities that directly affect more than \1/2\-
acre of submerged aquatic vegetation. This new PCN requirement 
accompanies the removal of the definition of ``new commercial shellfish 
aquaculture operation'' and will provide activity-specific review of 
all commercial shellfish mariculture activities that directly affect 
more than \1/2\-acre of submerged aquatic vegetation. In response to a 
PCN, the district engineer can add conditions to the NWP authorization 
to require mitigation, such as best management practices or other 
mitigation measures, to ensure that the individual and cumulative 
adverse environmental effects are no more than minimal.
    Under the 2017 NWP 48, the \1/2\-acre limit only applied to new 
commercial shellfish mariculture activities. After a new commercial 
shellfish mariculture activities was authorized by the Corps, the \1/
2\-acre limit no longer applied to the existing commercial shellfish 
mariculture activity. In this regard, it was less protective than the 
NWP 48 in this final rule, which would apply a PCN requirement to 
existing operations seeking reauthorization. The removal of the \1/2\-
acre limit in this final rule does not affect the authority of other 
federal agencies or tribal, state, or local governments to adopt and 
implement protection programs for submerged aquatic vegetation under 
their authorities.
    Submerged aquatic vegetation does not have any special status under 
the Corps' regulations for implementing Section 10 of the Rivers and 
Harbors Act of 1899, which is the statute that applies to most 
commercial shellfish mariculture activities. Submerged aquatic 
vegetation is covered by a number of the Corps' public interest review 
factors such as conservation, general environmental conditions, fish 
and wildlife values, and wetlands. While vegetated shallows are special 
aquatic sites under the Clean Water Act Section 404(b)(1) Guidelines, 
the Guidelines do not prohibit discharges of dredged or fill material 
into vegetated shallows. A smaller proportion of commercial shellfish 
mariculture activities trigger the permit requirements of Section 404 
of the Clean Water Act because many commercial shellfish mariculture 
activities do not involve discharges of dredged or fill material into 
waters of the United States. Impacts to submerged aquatic vegetation 
caused by commercial shellfish mariculture activities may also be 
addressed through Endangered Species Act Section 7 consultations for 
proposed NWP 48 activities that district engineers determine ``may 
affect'' listed species or designated critical habitat, including 
critical habitat for which submerged aquatic vegetation is a physical 
or biological feature. Impacts to submerged aquatic vegetation may also 
be addressed through the essential fish habitat consultation process 
when the district engineer determines a proposed NWP 48 activity may 
adversely affect essential fish habitat, which may include submerged 
aquatic vegetation beds.
    Several commenters recommended that the Corps propose a revised 
threshold for seagrass impacts based on biological reference points. 
These commenters said that this is particularly important in regions 
where additional provisions to protect seagrasses are not in place and 
state laws do not impose additional restrictions on eelgrass. One 
commenter stated that the Corps seeks to remove an impact limitation 
that would otherwise incentivize responsible siting of mariculture 
operations and minimization of impacts to submerged aquatic vegetation.
    The Corps declines to impose an additional threshold for seagrass 
impacts based on biological reference points because it would be 
impractical to establish such biological reference points at a national 
level for activities requiring authorization under section 10 of the 
Rivers and Harbors Act of 1899 and section 404 of the Clean Water Act. 
The threshold to require a PCN for new and existing commercial 
mariculture operations that impact more than \1/2\-acre of submerged 
aquatic vegetation is sufficient for the purposes of ensuring that a 
project will have no more than a minimal individual or cumulative 
adverse environmental impact. If a state decides not to take measures 
to regulate activities in submerged aquatic vegetation within its own 
waters, it does not create a legal or regulatory requirement for the 
Corps to address such situations. The requirements of NWP 48 will 
continue to provide incentives for commercial shellfish mariculture 
operators to plan and design their activities to qualify for NWP 
authorization. As discussed above there are other applicable laws that 
can address impacts to submerged aquatic vegetation in conjunction with 
the Corps' NWP authorization. In addition, where necessary based on the 
characteristics of the regional ecosystem, division engineers can add 
regional conditions to NWP 48 to help ensure that activities authorized 
by this NWP result in no more than minimal individual and cumulative 
adverse environmental effects.
    Several commenters supported removing the 2017 definition of ``new 
operation'' as it is not relevant to a specific date or timeline. One 
commenter stated that the Corps has not been able to justify why one 
set of rules should apply to existing commercial shellfish mariculture 
operators and another set of rules should apply to everyone else, 
including new commercial shellfish mariculture

[[Page 2792]]

operators. This commenter said that if there is a conservation 
justification for protecting eelgrass and other submerged aquatic 
vegetation, then limitations on impacts to submerged aquatic vegetation 
should apply to everyone. One commenter said that removal of this 
definition failed to identify what it would be replaced with and stated 
that there needs a definition for new commercial shellfish mariculture 
activities but it must not conflict with tribal treaty reserved rights 
to take shellfish.
    The Corps has removed the definition of ``new commercial shellfish 
aquaculture operation'' from this NWP. The new \1/2\-acre PCN threshold 
will apply to both new and existing commercial shellfish mariculture 
activities. All activities authorized by NWP 48 must comply with 
general condition 17, tribal rights.
    One commenter said that the removing the distinction for new 
operations, with the \1/2\-acre limit, will result in more impacts. 
This commenter asserted that the Corps does little to justify the 
proposed removal of the \1/2\-acre limit, given that it added this 
limit three years ago to ensure impacts from NWP 48 would be no more 
than minimal. One commenter recommended adding the following definition 
for an ongoing or existing activity: Existing commercial shellfish 
aquaculture should be defined as the area under cultivation when NWP 48 
was first issued in 2007 or where an operator can document that an area 
is part of a regular rotation of cultivation.
    The \1/2\-acre limit for new commercial shellfish mariculture 
activities was added to NWP 48 in 2012 (see 77 FR 10280). The \1/2\-
acre limit only applied to new commercial shellfish activities, and 
does not apply when those on-going activities are authorized when NWP 
48 is reissued after the current NWP expires. There is no need to add a 
definition of on-going commercial shellfish mariculture activities, 
because both new and existing activities are treated the same under 
this reissued NWP.
    One commenter stated that the Corps should identify a clear spatial 
delineation of what constitutes a waterbody to aid in decision-making 
and allow the public to determine the scope of this action. One 
commenter noted that the provision for ``project area'' could be 
subject to two differing interpretations. First, it could refer to that 
area where some entity or agreement specifically authorizes the 
operator to conduct commercial shellfish aquaculture. Second, it could 
be read as being that area where a legally binding agreement 
establishes an enforceable property interest for the operator. This 
commenter recommended revising the term ``project area'' to read as 
follows: ``The project area is an area in which the operator conducts 
commercial shellfish aquaculture activities, as authorized by a lease 
or permit or other legally binding agreement.''
    The geographic scope for an NWP 48 activity is the project area, 
and the term project area is defined in the text of the NWP. The Corps 
did not change the definition of project area, and it covers both 
situations identified by the commenter. It is not necessary to and the 
Corps declines to define, at a national level, what constitutes a 
waterbody for the purposes of NWP 48. District engineers can identify 
the geographic extent of waterbodies for the purposes of NWP 48 
activities.
    In the 2020 Proposal, the Corps proposed to remove the pre-
construction notification thresholds for this NWP because most of the 
direct and indirect impacts caused by the activities authorized by this 
NWP under its permitting authorities (i.e., Section 10 of the Rivers 
and Harbors Act of 1899 and, when applicable, Section of the Clean 
Water Act) are temporary impacts. As discussed in the proposed rule, 
NWP 48 activities may require PCNs because of the requirements of 
paragraph (c) of NWP general condition 18, endangered species. Under 
paragraph (c) of general condition 18, pre-construction notification is 
required for non-federal permittees when any listed species or 
designated critical habitat might be affected by the proposed NWP 
activity or is in the vicinity of the proposed NWP activity, or if the 
proposed NWP activity is located in designated critical habitat. In 
some areas of the country, commercial shellfish mariculture activities 
are located in waters inhabited by listed species and designated 
critical habitat. Division engineers may also add regional conditions 
to this NWP to require PCNs for some or all proposed NWP 48 activities.
    Several commenters expressed concern of the removal of the PCN 
thresholds for new or existing shellfish mariculture activities. These 
commenters said the removal of the PCN thresholds will result in fewer 
chances to account for regional differences in submerged aquatic 
vegetation communities and it will make tracking of individual and 
cumulative environmental impacts more difficult. One commenter said 
that the Corps should require PCNs for all shellfish cultivation 
operations across the country and evaluate sediment enrichment at 
individual cultivation sites.
    After evaluating the comments received in response to the proposed 
changes to the notification requirements of this NWP, the Corps 
determined that pre-construction notification should be required for 
proposed activities that directly affect more than \1/2\-acre of 
submerged aquatic vegetation. The Corps has added a new PCN requirement 
to NWP 48 to require pre-construction notification for all NWP 48 
activities that directly affect more than \1/2\-acre of submerged 
aquatic vegetation. The new PCN threshold will provide district 
engineers the opportunity to review all new and existing commercial 
shellfish mariculture activities that directly affect more than \1/2\-
acre of submerged aquatic vegetation. The Corps does not agree that 
PCNs should be required for all shellfish mariculture activities 
because of potential impacts caused by temporary suspension of sediment 
during harvesting activities or discharges of dredged material that may 
occur during dredge harvesting activities utilizing hydraulic dredging 
equipment. The impacts caused by the suspended sediment or discharged 
sediment are temporary because the sediment will settle to the bottom 
of the waterbody after a period of time. That period of time may depend 
on local currents and other factors but is generally understood to be 
relatively short (Newell et al. 1998) and not ecologically relevant, 
especially in shallow waters where wave actions frequently cause 
sediment to be suspended in the water column.
    Direct effects of commercial shellfish mariculture activities on 
submerged aquatic vegetation include the placement of structures such 
as racks, bags, and cages on the bottom of a waterbody inhabited by 
submerged aquatic vegetation. Direct effects of commercial shellfish 
mariculture activities also include harvesting activities, including 
mechanical and hydraulic dredging and harvesting by hand. Shading of 
submerged aquatic vegetation by off-bottom bivalve mariculture 
structures, such as floating racks, bags, and cages, is an indirect 
effect that would not trigger this PCN requirement. Changes in water 
flows caused by the use of long lines for bivalve mariculture 
cultivation, where slowed water flows cause sediment to fall out of 
suspension and accumulate on the bottom of the waterbody is another 
example of a potential indirect effect that would not trigger this PCN 
requirement. These direct and indirect effects would be caused by 
structures or

[[Page 2793]]

work regulated under Section 10 of the Rivers and Harbors Act of 1899.
    Direct effects also include discharges of dredged or fill material 
on the bottom of a waterbody inhabited by submerged aquatic vegetation 
for on-bottom culture methods, such as the placement of shell or gravel 
to provide substrate for the bivalves to attach to and grow. Discharges 
of dredged or fill material into waters of the United States may 
smother submerged aquatic vegetation, which is a direct effect of those 
activities. During harvesting activities that include regulated 
discharges of dredged or fill material, there are likely to be direct 
effects to submerged aquatic vegetation if those activities occur in 
seagrass beds. These direct effects would trigger the PCN requirement 
if they directly affect more than \1/2\-acre of submerged aquatic 
vegetation An example of an indirect effect that might be caused by a 
discharge of dredged or fill material into waters of the United States 
for commercial shellfish mariculture activities might be a turbidity 
plume that reaches areas beyond the discharge site, as suspended 
sediment is transported by water currents away from that discharge 
site. This indirect effect would not trigger the PCN requirement.
    This pre-construction notification requirement will provide 
district engineers the opportunity to evaluate each proposed activity 
that will directly affect more than \1/2\-acre of submerged aquatic 
vegetation and determine whether that activity qualifies for NWP 48 
authorization. In response to a pre-construction notification, the 
district engineer may require mitigation (e.g., on-site avoidance and 
minimization) to ensure that the authorized activity complies with the 
no more than minimal adverse environmental effects requirement for the 
NWPs (see paragraph (a) of NWP general condition 23, mitigation).
    The Corps has removed the additional information requirements for 
PCNs from the text of NWP 48 because the information requirements of 
NWP general condition 32 cover the information needed for this new PCN 
requirement. The information requirements for NWP PCNs are listed in 
paragraph (b) of NWP general condition 32, pre-construction 
notification. Paragraph (b)(5) of NWP general condition 32 requires the 
PCN to include a delineation of wetlands, other special aquatic sites 
(including vegetated shallows, or submerged aquatic vegetation), and 
other waters.
    One commenter supported the removal of the PCN requirements because 
in many instances bivalve populations have been overharvested or in 
some cases attacked by diseases or poor water quality. This commenter 
said that regulation of these activities should not impede the ability 
to reinvigorate these species and growing them for food production. One 
commenter supported of removal of the PCN threshold for commercial 
shellfish mariculture for activities that include a species that has 
never been cultivated in the waterbody as long as the NWP continues to 
prohibit the cultivation of a nonindigenous species unless that species 
has been previously cultivated in the waterbody, and prohibit the 
cultivation of an aquatic nuisance species as defined in the 
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990. One 
commenter said that state natural resource agencies should be notified 
for NWP 48 activities that seek to stock a species that has never been 
cultivated in a waterbody, and applicable state permits be obtained 
before the NWP 48 authorization becomes effective for a particular 
commercial shellfish mariculture activity.
    The addition of the PCN requirement for commercial shellfish 
mariculture activities that directly affect more than \1/2\-acre of 
submerged aquatic vegetation should not pose impediments on food 
production or efforts to reinvigorate these species in waters whether 
they have been overharvested. The Corps has also removed the PCN 
threshold for indigenous species that have never been cultivated in the 
waterbody. While the Corps has removed the PCN threshold, it has 
modified the NWP to prohibit the cultivation of a nonindigenous species 
unless that species has been previously cultivated in the waterbody. 
State natural resources agencies can reach out to Corps districts to 
request coordination on proposals to cultivate indigenous species that 
have never been cultivated in the waterbody.
    Several commenters stated the PCN requirements should not be 
removed because tribes require notice and collaboration with the Corps 
in order to protect their treaty fishing rights. These commenters said 
that even temporary impacts to eelgrass could result in consequences to 
tribe's treaty-reserved fish populations and the habitat they rely on. 
In addition, these commenters stated that removal of the PCN thresholds 
poses significant problems to assuring protection of salmon, nearshore 
habitat, and treaty shellfish gathering rights. One commenter 
recommended adding a PCN requirement for all activities within the U.S. 
v. Washington (Boldt) case area.
    During the process for issuing and reissuing these NWPs, Corps 
districts have been consulting and coordinating with tribes. Corps 
districts and tribes can establish coordination procedures to help 
ensure that NWP 48 activities comply with general condition 17, tribal 
rights. Division engineers can also add regional conditions to this 
NWP, where appropriate based on the characteristics of the regional 
ecosystem, to ensure that the activities authorized by this NWP cause 
no more than minimal adverse environmental effects to specific 
resources, including tribal trust resources.
    One commenter expressed support for the proposed reissuance of NWP 
48. One commenter expressed support for the reissuance of NWP 48 
because this NWP could significantly reduce the barriers to entry for 
emerging mariculture industries, and reduce the timeframes and costs 
associated with obtaining DA authorization for such activities. One 
commenter said that the conditions in the text of NWP 48 and NWP A 
should be consistent and preferably combined into one NWP for 
cultivating shellfish and seaweeds. One commenter stated that small 
businesses are supportive of the proposed changes to NWP 48, but 
acknowledged that there may be unfavorable litigation outcomes if the 
changes are finalized. However, these businesses are concerned that 
small businesses nationwide could be subject to unfavorable litigation 
outcomes where the environmental analysis and justification for this 
rulemaking is not sound.
    Nationwide permit 48 provides a streamlined authorization process 
for commercial shellfish mariculture activities that result in no more 
than minimal adverse environmental effects, and should help reduce 
regulatory burdens for the mariculture industry. The text of NWPs 48 
and A (now designated as NWP 55) has some similarities, as well as some 
differences. Some of those differences are due to NWP 55 activities 
potentially occurring in a broader range of waters, including deeper 
coastal waters more distance from the shoreline and federal waters over 
the outer continental shelf. Commercial shellfish mariculture 
activities typically occur in coastal waters new the shoreline. The 
national decision document for this NWP has been revised to address the 
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

[[Page 2794]]

Corps of Engineers et al. (Case No. C17-1209RSL),
    Several commenters stated that the Corps should not reissue NWP 48, 
and if the Corps decides to reissue NWP 48 it should improve its review 
of PCNs and require documentation of compliance with specific design 
and operational standards. A few commenters said that the Corps should 
not reissue NWP 48 as proposed for the same reasons that NWP was found 
by the United States District Court, Western District of Washington at 
Seattle to be in non-compliance with National Environmental Policy Act 
and the Clean Water Act. One commenter said that regional general 
permits should be issued in Washington State, for specific water bodies 
and for particular types of shellfish aquaculture.
    Nationwide permit 48 authorizes a variety of commercial shellfish 
mariculture activities under Section 10 of the Rivers and Harbors Act 
of 1899 and Section 404 of the Clean Water Act, and a number of 
different structures can be used to cultivate bivalve molluscs. Project 
proponents are responsible for designing their projects and for those 
activities that require pre-construction notification, district 
engineers evaluate the direct, indirect, and cumulative adverse 
environmental effects caused by the proposed NWP activity. In the 
national decision document, the Corps has revised its NEPA analysis and 
its Clean Water Act Section 404(b)(1) Guidelines analysis. Regional 
general permits can be issued by district engineers to authorize these 
activities. Regional general permits can be effective in addressing 
regional approaches to commercial shellfish mariculture activities and 
the potential adverse environmental effects those activities may cause.
    One commenter noted that a lack of clarity in the proposed rule may 
lead to permitting delays and uncertainty, both of which have negative 
effects on small businesses. A couple commenters said that with regards 
to shellfish mariculture there needs to be more support from all levels 
of government to consider first and foremost a food production activity 
now and in the future to address our seafood deficit and food security 
for our nation. One commenter recommended that the Corps utilize 
information in Endangered Species Act and essential fish habitat 
consultation documents issued in Washington State to support the 
reissuance of NWP and address environmental issues of concern under the 
Clean Water Act, the Rivers and Harbors Act of 1899, and the National 
Environmental Policy Act.
    The reissued NWP 48 will provide a streamlined authorization 
process for commercial shellfish mariculture activities that cause no 
more than minimal individual and cumulative adverse environmental 
effects. Commercial shellfish mariculture activities may also be 
regulated by tribal, state, and local governments. The consultation 
documents issued by the U.S. FWS and NMFS in Washington State are 
applicable only to Washington State, and this NWP authorizes commercial 
shellfish mariculture activities across the country.
    One commenter observed that at the national level, Congress passed 
the National Aquaculture Act of 1980 in response to findings that the 
nation has potential for significant aquaculture growth, but that this 
growth is inhibited by many scientific, economic, legal, and production 
factors. In support of the proposed reissuance of NWP 48, one commenter 
cited the National Shellfish Initiative's goal of increasing 
populations of bivalve shellfish in our nation's coastal waters--
including oysters, clams, and mussels--through commercial production 
and conservation activities. One commenter stated that the NWP 48 
should require notification to the U.S. Coast Guard.
    The reissuance of NWP 48 helps support the growth of the 
aquaculture industry in the United States by reducing regulatory 
burdens on growers and providing a streamlined authorization process 
under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 
of the Clean Water Act. The activities authorized by this NWP will also 
help increase the numbers of bivalves in the Nation's coastal waters, 
and the ecological functions and services those bivalve molluscs 
provide, especially in coast waters where bivalve shellfish populations 
have significantly declined as a result of overharvesting. The project 
proponent is responsible for securing any licenses or permits from the 
U.S. Coast Guard, and complying with U.S. Coast Guard requirements that 
may apply to structures used for commercial shellfish mariculture 
activities.
    Several commenters supported changing the name of NWP 48 from 
``commercial shellfish aquaculture activities'' to ``commercial 
shellfish mariculture activities.'' One commenter suggested adding 
modifying terms to ``aquaculture'' such as ``marine,'' ``coastal 
marine,'' or ``offshore'' to improve specificity and clarity. One 
commenter suggested clarifying that the terms ``mariculture'' and 
``aquaculture'' can be used interchangeably. A couple of commenters 
objected to changing ``aquaculture'' to ``mariculture'' in the title 
and text of NWP 48. They suggested using the term ``marine 
aquaculture'' to more closely align with the terms used by industry. 
One said that using the term ``mariculture'' may result in an 
unintended consequence of confusing or invalidating local and regional 
policy and regulations. One commenter stated the term ``commercial 
shellfish aquaculture'' is not defined and recommended defining that 
term in a manner that does not conflict with tribes' treaty-secured 
rights to take shellfish. One commenter stated that term ``shellfish'' 
is not explicitly defined, and recommended adding a definition to 
clarify whether that term includes lobsters and conches or only 
bivalves.
    The Corps is retaining the use of the term ``mariculture'' in this 
NWP. Use of the term ``mariculture'' in NWP 48, as well as NWPs 55 and 
56, will not invalidate any local or regional policies or regulations. 
The use of the term mariculture is intended to provide clarity, to 
ensure that project proponents do not attempt to use NWP 48 to 
authorize the production of other species considered to be 
``shellfish'' (e.g., shrimp, crawfish) in land-based facilities and 
ponds. The term ``mariculture'' refers to the cultivation of species 
for food production, and should not interfere with a tribe's taking of 
shellfish from coastal waters. The Corps has modified the first 
paragraph of this NWP to clarify that the term ``shellfish'' refers to 
bivalve molluscs such as oysters, clams, mussels, and scallops.
    Several commenters said that the Corps' proposal fails to properly 
consider that the impacts authorized by NWP 48 violate the Clean Water 
Act and the Endangered Species Act. These commenters stated that the 
impacts of commercial shellfish mariculture activities should be 
evaluated through environmental impact statements and through formal 
programmatic ESA consultations. One commenter stated that the Corps has 
failed to provide adequate documentary support or substantive evidence 
for its conclusions that permit terms and conditions would be 
sufficient to ensure that environmental effects would be minimal and 
not significant. One commenter asserted that the proposed NWP 48 
violates the Section 404(e) of the Clean Water Act because it allows 
unlimited impacts.
    Activities authorized by NWP 48 must comply with general condition 
18, endangered species. Some Corps districts have developed 
programmatic ESA section 7 consultations that cover commercial 
shellfish mariculture

[[Page 2795]]

activities. Activities authorized by NWP 48 do not require additional 
NEPA compliance, since the Corps fulfills the requirements of NEPA when 
it issues its national decision document for the reissuance of that 
NWP, because that decision document includes and environmental 
assessment with a finding of no significant impact. Section 404(e) of 
the Clean Water Act does not require NWPs to have quantified acreage or 
other limits to ensure that authorized activities result in no more 
than minimal individual and cumulative adverse effects. Commenters have 
not provided any substantive evidence to support their opinions that 
all activities authorized by NWP 48 result in more than minimal adverse 
environmental effects and should not be authorized by an NWP. The Corps 
has issued a number of NWPs that do not have quantitative limits, such 
as NWP 27 (Aquatic Habitat Restoration, Enhancement, and Establishment 
Activities), NWP 31 (Maintenance of Existing Flood Control Facilities), 
and NWP 38 (Cleanup of Hazardous and Toxic Waste).
    Several commenters said that NWP 48 activities contribute to 
degradation of waters of the United States by adversely affecting water 
quality, eelgrass, salmon, birds, herring, and flatfish and causing 
adverse effects from the introduction of plastics. One commenter 
recommended prohibiting commercial shellfish mariculture activities in 
or near marine protected areas or sensitive areas, such as essential 
fish habitat. This commenter said that the NWP should prohibit the use 
of plastic equipment or inputs such as pesticides, herbicides, or 
pharmaceuticals. This commenter also said that NWP 48 activities should 
require extensive documentation of compliance with design and operation 
standards, with routine reporting. In addition, this commenter stated 
that permitted activities should incorporate more rigorous operation, 
emergency response, and pollution standards, with swift and severe 
consequences for non-compliance, including revocation of permits.
    The potential environmental effects caused by commercial shellfish 
mariculture activities are discussed in the national decision document 
for NWP 48. The Corps acknowledges that commercial shellfish 
mariculture activities may have negative, positive, and neutral effects 
on various environmental components, including various species. It is 
generally understood that the presence of bivalves in an aquatic 
ecosystem is beneficial. Some commenters point out various adverse 
environmental effects caused by commercial shellfish mariculture 
activities, but other acknowledge the studies and observations that 
identify beneficial environmental effects caused by commercial 
shellfish mariculture activities. If a proposed commercial shellfish 
mariculture activity may adversely affect essential fish habitat as a 
result of activity subject to the Corps' legal authority, the district 
engineer will conduct essential fish habitat consultation with the 
NMFS, and incorporate as appropriate, essential fish habitat 
conservation recommendations into the NWP authorization as permit 
conditions.
    The Corps does not have the legal authority to regulate the use of 
pesticides, herbicides, or pharmaceuticals that may be associated with 
commercial shellfish mariculture activities. General condition 6 
requires the use of suitable material for activities authorized by 
NWPs. Plastics materials may be used for commercial shellfish 
mariculture activities and it is the responsibility of the permittee to 
ensure that structures that may be made with plastics (e.g., tubes for 
geoducks, anti-predator netting) are properly maintained (see general 
condition 14). The Corps has no authority to regulate plastics that may 
wash away from a commercial shellfish mariculture activity. The Corps 
does not regulate the placement of trash or garbage into waters of the 
United States (see 33 CFR 323.2(e)(3)). Section 13 of the Rivers and 
Harbors Act of 1899 (i.e., the Refuse Act) has been superseded by 
Section 402 of the Clean Water Act (see 33 CFR 320.2(d)).
    One commenter requested that the Corps change NWP 48 to remove any 
unintended competitive edge for wild harvest fisheries, both in terms 
of allowable gear and harvesting requirements. One commenter stated 
that they investigated direct and indirect effects of individual bottom 
cages on eelgrass, and found that at the current level of mariculture 
activity, short-term cultivation of oysters has a minimal effect on 
eelgrass growth, water quality, and sediment characteristics. However, 
if the cultivation activity expands in terms of gear and/or individual 
operations, it may result in measurable effects.
    The Corps lacks the authority to prevent competition between 
commercial shellfish mariculture operators and fishers that harvest 
wild populations of bivalves. The Corps appreciates the information 
regarding the direct and indirect effects of bottom cages for oyster 
mariculture on eelgrass. The Corps is finalizing a new PCN threshold 
for commercial shellfish mariculture activities directly affecting more 
than \1/2\-acre of submerged aquatic vegetation to ensure the effects 
noted by the commenter are evaluated by district engineers.
    One commenter said that commercial shellfish mariculture activities 
have minimal adverse impacts, and they can have beneficial effects on 
habitat and water quality, and there is an extensive scientific 
literature that supports the identification of these benefits. This 
commenter discussed the structured habitat provided by commercial 
shellfish mariculture activities that is used by numerous species for 
refuge, foraging, and predator avoidance, thereby increasing species 
richness, abundance, and biodiversity. This commenter also said that 
bivalves ingest and filter suspended materials in the water column, 
sequestering excess nutrients as protein in their tissue. This 
commenter also remarked that upon harvesting these bivalve molluscs, 
nutrients are removed from the marine ecosystem, which improves water 
quality. This commenter also noted that commercial shellfish 
mariculture activities can also help to transfer the load of suspended 
materials from the water column to the benthos through a phenomenon 
known as benthic-pelagic coupling. In addition, this commenter said 
that by providing structured habitat, improving water quality, and 
helping to transfer the load of suspended materials from the water 
column to the benthos, shellfish can help mitigate adverse impacts 
caused by several different types of human activities and developments. 
This commenter stated that for these reasons, shellfish are 
increasingly being utilized in environmental restoration projects 
across the United States. The Corps acknowledges these comments on the 
beneficial effects of commercial shellfish mariculture activities on 
coastal waters. These beneficial effects have informed the Corps' 
decision to reissue NWP 48 as discussed because it will have no more 
than a minimal individual or cumulative adverse environmental effects.
    One commenter said that impacts from geoduck farms are 
insignificant (no more than minimal) for: Forage fish spawning areas; 
consumption of forage fish larvae; juvenile salmon; waves, currents, 
and sediment transport; microplastics; marine debris; impact to the 
benthic community; cumulative impacts; recreation and navigation; 
marine mammals; birds; farm preparation; predator protection netting; 
harvest activities; density, genetics, diseases, and parasites; and 
property values. This commenter remarked that

[[Page 2796]]

the disturbances caused by commercial shellfish mariculture activities 
are within the range of natural variation experienced by benthic 
communities in Puget Sound. This commenter also stated that differences 
in the structure of mobile macrofauna communities between planted areas 
with geoduck tubes and nets and nearby reference beaches do not persist 
after the geoduck tubes and nets removed during the grow-out culture 
phase. In addition, this commenter said that nutrients released from a 
typical commercial geoduck operation are low and localized effects are 
likely to be negligible. Finally, this commenter stated that geoduck 
aquaculture practices do not make culture sites unsuitable for later 
colonization by eelgrass. The Corps acknowledges these comments on the 
beneficial effects of geoduck mariculture activities on coastal waters. 
These beneficial effects have informed the Corps' decision to reissue 
NWP 48 as discussed because it will have no more than a minimal 
individual or cumulative adverse environmental effects.
    One commenter said that commercial shellfish mariculture activities 
have minimal impacts on birds, including foraging, noise, and the 
potential for net entanglement. This commenter noted that birds forage 
within mariculture operations, and feed on organisms growing on 
mariculture equipment, and the shellfish being produced. This commenter 
stated that noise associated with commercial shellfish mariculture 
activities could result in temporary displacement of birds from the 
immediate area, but this is a temporary impact to overall bird 
populations. Lastly, this commenter asserted that while predator 
exclusion net entanglement is a possibility for birds, it is likely to 
be rare and unlikely to result in significant effects to marine bird 
and bald eagle populations utilizing these areas. The Corps 
acknowledges these comments on the effects of commercial shellfish 
mariculture activities on birds, which have informed the Corps' 
decision to reissue NWP 48 as discussed because it will have no more 
than a minimal individual or cumulative adverse environmental effects.
    One commenter objected to a statement in the proposed rule 
regarding the placement of shell or gravel on the bottom of the 
waterbody for on-bottom cultivation of bivalves. The proposed rule 
stated that this is a permanent impact. This commenter said that the 
placement of gravel or shell on the bottom of the waterbody causes 
temporary changes, which is why shellfish farmers frequently need to 
place gravel or shell in the same area from time to time. According to 
this commenter, this temporary change has beneficial impacts to species 
presence and diversity, according to a programmatic biological opinion 
issued by the NMFS for commercial shellfish mariculture activities in 
Washington State. This commenter said that placement of shell or gravel 
on the bottom of the waterbody shifts the benthic community from 
polychaetes to amphipods and copepods, which are important prey items 
for juvenile salmon. This commenter requested that the Corps correct or 
clarify this statement to recognize that the placement of shell or 
gravel causes temporary, localized changes to the marine environment, 
and these changes are beneficial.
    If the commercial shellfish mariculture operator places shell or 
gravel on the bottom of the waterbody, and does not remove the shell or 
gravel, then it is a permanent impact. When an NWP authorizes a 
temporary impact, the structure or fill has to be removed after that 
structure or fill is no longer needed. For a temporarily filled area, 
after the fill is removed several NWPs require the project proponent to 
restore the affected area to pre-construction elevations. The Corps 
acknowledges that a permanent fill may have positive, negative, or 
neutral environmental effects. For example, the permanent fill may be 
dispersed by flowing water and transported in the waterbody so that it 
becomes part of the benthic habitat in that waterbody. That permanent 
fill may provide habitat for certain aquatic organisms.
    Several commenters said they agreed that 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. Regardless of that whether 
the placement of shellfish seed is done for commercial aquaculture, 
habitat restoration, or fisheries enhancement, it should not require a 
section 404 permit unless there is significant placement of materials 
for reefs/hummocks in quantities adequate to alter the depth profile 
and alter the bottom topography. Several commenters noted that while 
depositing shell with spat already attached is considered seed and 
regulated ``work'' under Section 10 of the Rivers and Harbors Act of 
1899, the proposed NWP 48 is also defining this as fill regulated under 
Section 404 of the Clean Water Act. They stated that requiring section 
404 authorization is an additional unnecessary burden and these 
activities do not result in adverse environmental impacts and in 
actuality have positive impacts to water quality. This method is unlike 
a restoration project where oyster shell is deposited in large enough 
quantities to create reefs and foster a permanent non-transient 
population. This commenter requested that the Corps make a distinction 
between two different activities: Sparsely placing shell on the bottom 
of the waterbody to catch larvae and hummock building and restoration 
efforts.
    In the 2020 Proposal, the Corps did not state that shellfish 
seeding activities require authorization under Section 404 of the Clean 
Water Act. In addition, the Corps did not state that shellfish seeding 
requires authorization under Section 10 of the Rivers and Harbors Act 
of 1899. The placement of shell in a waterbody to construct reefs or 
hummocks for bivalves to settle on and grow requires Clean Water Act 
section 404 authorization because it raises the bottom elevation of the 
waterbody and is a discharge of fill material, as that term is defined 
at 33 CFR 323.2(e). That activity also requires authorization under 
Section 10 of the Rivers and Harbors Act of 1899 as a structure (e.g., 
a reef) under 33 CFR 322.2(b) or work under 33 CFR 322.2(c).
    One commenter said that placing single shellfish seeds on beds 
without containment structures is not regulated under Section 10 of the 
Rivers and Harbors Act of 1899. This commenter asserted that this 
activity is not subject to regulation under section 10 because it does 
not involve the use of structures, nor does it constitute work that 
alters or modifies the navigable capacity of the waters. Juvenile clams 
bury a few inches into the sediment and are essentially imperceptible, 
and single-set oysters lie on the bottom of the substrate without 
meaningfully altering the elevation of the seabed. This commenter said 
that the placement and grow-out of single set clams and oysters 
therefore does not require approval under Section 10 of the Rivers and 
Harbors Act of 1899. This commenter noted that section 10 authorization 
is required for activities that alter the bottom elevation of waters in 
a manner to impact their navigable capacity, and that shellfish seeding 
does not alter the bottom elevation.
    In the proposed rule at 85 FR 57334, the Corps stated that 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 and that these activities may require section 404 
authorization. The proposed rule did not state that depositing shell 
with spat attached to

[[Page 2797]]

the shell is considered fill material for the purposes of NWP 48. 
Discharging shell without bivalve larvae (i.e., spat) into a waterbody 
for the purposes of enhancing benthic habitat to attract bivalve 
shellfish larvae may require section 404 authorization if it meets the 
Corps' definition of ``fill material'' and ``discharge of fill 
material'' at 33 CFR 323.2(e) and (f). Under 33 CFR 323.2(f), the term 
``discharge of fill material'' means the addition of fill material into 
waters of the United States. The term ``discharge of fill material'' 
does not include plowing, cultivating, seeding and harvesting for the 
production of food, fiber, and forest products (33 CFR 323.2(f)), so 
shellfish seeding is not considered a ``discharge of fill material.'' 
If the placement of gravel or shell on the bottom of the waterbody to 
enhance the substrate of the waterbody to attract shellfish larvae is 
not removed upon completion of the shellfish cultivation activity, it 
is considered a permanent fill even though it may increase the habitat 
value for bivalves, crustaceans, and other aquatic organisms.
    A few commenters said that predator nets, and low-profile cages to 
protect bottom planted seeds should not be considered navigation 
hazards subject to permitting requirements unless they create a 
vertical profile of greater than 25% of the water depth. One commenter 
agreed with the Corps' statements in the proposed rule that most 
commercial shellfish mariculture activities do not involve discharges 
of dredged or fill material that require Clean Water Act section 404 
authorization. This commenter noted that placing living bivalve 
shellfish (e.g., clam seed and oyster cultch) in the intertidal zone 
during bottom-culture activities and their natural by-products are not 
pollutants, citing the Association to Protect Hammersley, Eld, and 
Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007 (9th Cir. 2002). One 
commenter stated that the proposal accurately states that some 
commercial bivalve shellfish mariculture activities are regulated under 
section 10 because they include structures such as racks, cages, bags, 
lines, nets, and tubes, when those structures are placed in navigable 
waters. This commenter also said that dredging, excavation, and filling 
activities would also require section 10 authorization, although these 
activities are relatively rare.
    The placement of predator nets and low-profile cages in navigable 
waters of the United States requires authorization under Section 10 of 
the Rivers and Harbors Act because those nets and cages are considered 
structures under 33 CFR 322.2(b) and may be obstructions to navigation. 
The Corps maintains its views that most commercial shellfish 
mariculture activities are regulated solely under Section 10 of the 
Rivers and Harbors Act of 1899, and a relatively small percentage are 
also regulated under Section 404 of the Clean Water Act because they 
involve discharges of dredged or fill material into waters of the 
United States. The Corps agrees that the placement of living bivalves 
into waters of the United States does not result in a discharge of a 
pollutant that requires authorization under Section 404 of the Clean 
Water Act.
    One commenter said that bivalve shellfish harvesting activities do 
not bring commercial shellfish farming within the regulatory reach of 
Clean Water Act Section 404. In order for there to be a discharge 
regulated under Section 404 of the Clean Water Act, there must be an 
addition of a pollutant to a water of the United States, and that the 
harvesting commercial shellfish does not involve an ``addition'' for 
purposes of the Clean Water Act section 404. This commenter also stated 
that harvesting shellfish constitutes a ``net withdrawal'' of material 
from the water, not an ``addition.'' This commenter requested that the 
Corps clarify in the final rule that these commercial shellfish farming 
activities do not involve discharges of dredged or fill material and 
hence do not require Clean Water Act Section 404 authorization.
    The Corps does not agree that all bivalve shellfish harvesting 
activities do not require authorization under Section 404 of the Clean 
Water Act. There may be circumstances where a bivalve shellfish 
harvesting activity results in a regulable discharge that requires 
section 404 authorization. Those circumstances depend on how the 
harvesting activity is conducted, and whether a particular harvesting 
activity results in an addition of dredged material into, including 
redeposit of dredged material other than incidental fallback within, 
the waters of the United States. District engineers apply the 
definitions of ``dredged material'' and ``discharge of dredged 
material'' at 33 CFR 323.2(c) and (d), respectively to determine 
whether a discharge requiring section 404 authorization has occurred. 
The Corps agrees that bivalve shellfish harvesting activities do not 
normally involve discharges of fill material, as that term is defined 
at 33 CFR 323.2(f).
    One commenter said that aquaculture is not exempt from CWA 
permitting under Section 404(f) of the Clean Water Act. This commenter 
said that adding gravel or shell to bags also triggers a section 404 
permit requirement even if the bags themselves do not qualify as fill 
material. Even for activities that do not directly result in discharge 
of dredge or fill material, the Corps must document secondary effects, 
and has the authority to impose conditions reasonably related to the 
purpose of section 404 permits. Another commenter stated that 
established shellfish farms are exempt from regulation under the Clean 
Water Act's farming exemption, and that the reissued NWP 48 should 
state that established commercial shellfish farming activities do not 
require CWA Section 404 permits. This commenter said that even if some 
shellfish farming activities include discharges of dredged or fill 
material, established shellfish farms are exempt from regulation under 
section 404(f), which exempts normal farming activities from the 
requirement to obtain permits under Section 402 and 404 of the Act.
    Whether shellfish mariculture qualifies for a section 404(f) 
exemption is beyond the scope of this rulemaking. The authority for 
determining whether a particular activity, such as commercial shellfish 
mariculture activities, is eligible for the Clean Water Act Section 
404(f) exemptions lies with the U.S. EPA. See the 1989 Memorandum of 
Agreement Between the Department of the Army and the U.S. EPA 
Concerning the Determination of the Section 404 Program and the 
Application of the Exemptions under Section 404(f) of the Clean Water 
Act.
    One commenter stated that advanced authorization of the broad suite 
of commercial shellfish mariculture activities afforded by the NWP 48 
is impracticable because the blanket authorization cannot take into 
account important details regarding local ecological conditions at the 
growing site and specific information about the shellfish cultivation 
techniques. This commenter recommended that initial authorization 
should be made on a case-by-case basis and should be subject to ongoing 
monitoring and periodic review.
    Section 404(e) of the Clean Water Act does not specify how broadly 
or narrowly the Corps has to identify any category of activities for 
the issuance of a general permit, including the NWPs. Section 404(e) 
only requires that the activities in that category are similar in 
nature. Likewise, under the Corps' definition of general permit in its 
section 10 regulations at 33 CFR 322.2(f), there are no standards 
regarding how broad or narrow the category has to be. Therefore, the 
Corps has substantial discretion to determine the categories of 
activities to be

[[Page 2798]]

authorized by the NWPs. Nationwide permits are issued by Corps 
Headquarters to authorize categories of activities across the country, 
and there is substantial variation in aquatic resources and the 
functions they provide, as well as the degree to which they perform 
those functions. Nationwide permits require pre-construction 
notification for certain activities so that district engineers can 
assess proposed activities in the context of local ecological 
conditions and make a case-by-case determination as to whether proposed 
activities qualify for NWP authorization.
    Some commenters mentioned that the scientific literature cited in 
the proposed rule concerned studies of eelgrass located in Washington 
State. These commenters stated that despite its broad distribution 
along the Pacific and Atlantic coasts, eelgrass is a poor choice for a 
model species to develop a national standard from a regional dataset. 
One genus should not dictate policy on an entire suite of functionally, 
taxonomically, and geographically distinct species. These commenters 
went on to say that while the individual and cumulative impacts to 
eelgrass meadows in Washington may be temporary, it could be 
irreversible in areas where environmental conditions are more impaired 
and submerged aquatic vegetation meadows are declining in areas such as 
New England, the mid-Atlantic coast, the East coast of Florida, the 
Gulf of Mexico, and California.
    For the 2020 Proposal, the Corps considered scientific literature 
in coastal ecosystems located nationwide. The Corps also discussed 
submerged aquatic vegetation in general terms, and only made specific 
references to eelgrass when a particular study examined eelgrass. After 
the reissuance of NWP 48 in 2017, the Corps reviewed a broader range of 
scientific literature on the interactions between commercial bivalve 
shellfish mariculture activities and submerged aquatic vegetation, and 
found that while some permanent impacts to submerged aquatic vegetation 
may occur, the impacts are often temporary and submerged aquatic 
vegetation co-exists with bivalve mariculture activities. The Corps 
examined scientific literature from studies that occurred in other 
areas of the United States (e.g., Chesapeake Bay), not just Washington 
State.
    One commenter recommended that the Corps require mitigation for 
impacts to submerged aquatic vegetation at a ratio of at least 1.2:1 
(mitigation area to impact area). One commenter said that when the 
functional value of eelgrass and shellfish are combined, and the 
seascape matrix of habitats are considered, it is possible that a 
broader ecosystem perspective would find benefits from the presence of 
aquaculture. This commenter also stated that commercial shellfish 
farming activities have minimal negative to beneficial impacts on 
eelgrass and supports the Corps' proposal to reissue NWP 48. One 
commenter remarked that interactions between seagrasses and shellfish 
mariculture must separately be addressed during Endangered Species Act 
and Essential Fish Habitat consultations for authorizations for 
shellfish farming activities in Washington State.
    Compensatory mitigation requirements for activities authorized by 
the NWPs are more appropriately determined by district engineers on a 
case-by-case basis after reviewing PCNs. If the district engineer 
reviews a PCN and determines the proposed activity will result in more 
than minimal adverse environmental effects, he or she will notify the 
applicant and provide an opportunity to the applicant to submit a 
mitigation proposal (see 33 CFR 330.1(e)(3)). If, after reviewing the 
mitigation proposal, the district engineer determines the adverse 
environmental effects of the proposed activity will be no more than 
minimal, she or he will issue an NWP verification with permit 
conditions that require implementation of the mitigation. The Corps 
acknowledges that, when viewed from a seascape perspective, a district 
engineer may determine that the proposed shellfish mariculture will 
provide ecological benefits that should be factored in the district 
engineer's decision regarding whether the proposed activity will result 
in no more than minimal adverse environmental effects. If the district 
engineer reviews a PCN for a proposed NWP 48 activity and determines 
the proposed activity may affect listed species or designated critical 
habitat, he or she will conduct ESA section 7 consultation with the 
U.S. FWS and/or NMFS and that section 7 consultation may address 
potential impacts to seagrasses. If the district engineer reviews a PCN 
for a proposed NWP 48 activity and determines the proposed activity may 
adversely affect essential fish habitat, he or she will conduct 
essential fish habitat consultation with the NMFS and the NMFS may 
provide the district engineer with essential fish habitat conservation 
recommendations that may address potential impacts to seagrasses.
    Several commenters stated while shellfish mariculture can provide 
ecosystem services, some of which are similar to seagrasses and other 
benthic communities, there is no meaningful effort to discuss the 
numerous studies regarding impacts of a variety of aquaculture 
practices on submerged aquatic vegetation. Allowing commercial 
shellfish activities in new areas that have extensive beds of submerged 
aquatic vegetation could impact critical habitat for ESA-listed 
species. A couple commenters stated that tribes in the Puget Sound 
region have a unique interest in assuring that both salmon and 
shellfish are allowed to flourish. Consultation between Corps 
districts, tribes, federal, and state agencies are the appropriate 
entities to determine how best to protect submerged aquatic vegetation. 
A couple of commenters said that submerged aquatic vegetation is a 
critical resource requiring protection and removal of that protection 
from NWP 48 could create conflicts with other federal or state agencies 
such as NOAA Fisheries. These commenters asserted that some states, 
recognizing the need to protect these high-quality habitats have 
prohibited the siting of new mariculture leases in areas where surveys 
indicate the presence submerged aquatic vegetation in any one of the 
past five years.
    In the 2020 proposal and the draft decision document for NWP 48, 
the Corps provided a substantial discussion of the positive and 
negative impacts that commercial shellfish mariculture activities may 
have on seagrasses and other benthic organisms. Some of these impacts 
may be a result of activities under the Corps' legal authorities; 
however, bivalve shellfish mariculture activities may have impacts that 
are beyond the scope of the Corps' legal authorities. Under general 
condition 18, non-federal permittees must submit a pre-construction 
notification to the district engineer if any listed species or 
designated critical habitat (or species proposed for listing) might be 
affected or is in the vicinity of the activity, or if the activity is 
located in designated or proposed 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 (see paragraph (c) of general condition 18, endangered 
species). During the rulemaking process, district engineers have 
conducted consultation or coordination with tribes to identify regional 
conditions or coordination procedures that could be used to protect 
tribal trust resources and comply with general condition 17. Other 
federal agencies, as well as states, can develop regulations and 
policies to protect

[[Page 2799]]

submerged aquatic vegetation under their authorities.
    A couple of commenters stated that the Corps thinks it is important 
to protect submerged aquatic vegetation in other contexts, but not 
under NWP 48. These commenters said that the Clean Water Act 
regulations provide for protection of special aquatic sites, which 
include ``vegetated shallows'' and that submerged aquatic vegetation 
beds are considered vegetated shallows. One commenter said that while 
the Corps states that all activities and structures must avoid 
submerged aquatic vegetation, but it doesn't apply that principle to 
commercial shellfish mariculture activities.
    While the Clean Water Act Section 404(b)(1) Guidelines provide a 
greater degree of protection to vegetated shallows (submersed aquatic 
vegetation) as special aquatic sites compared to aquatic resources that 
are not special aquatic sites, the Guidelines do not prohibit 
discharges of dredged or fill material into vegetated shallows (i.e., 
submerged aquatic vegetation beds). The 404(b)(1) Guidelines only apply 
to discharges of dredged or fill material. They do not apply to 
activities authorized under Section 10 of the Rivers and Harbors Act of 
1899.
    One commenter stated that submerged aquatic vegetation beds provide 
numerous ecosystem services including improving water quality, 
providing nursery habitat for commercial and recreationally significant 
fish and invertebrates, buffering shorelines from erosion, and 
sequestering carbon. Because of these additional functions performed by 
submerged aquatic vegetation, this commenter said that bivalve 
shellfish mariculture cages do not do any of these things and cannot be 
considered functionally equivalent habitat to submerged aquatic 
vegetation.
    As discussed in the 2020 Proposal and the national decision 
document for NWP 48, it is the bivalves that perform a number of the 
same ecological functions as submerged aquatic vegetation, not the 
structures in which these bivalves are grown. However, commercial 
shellfish mariculture structures do provide structural habitat for a 
wide variety of aquatic organisms, including substrate for organisms to 
attach to, and some aquatic organisms feed on the attached organisms. 
Structures used for commercial shellfish mariculture activities can 
slow the movement of water, and help reduce erosion of nearby 
shorelines. These impacts would be considered during the review of a 
PCN for a new or existing shellfish mariculture activity.
    One commenter noted that the argument that shellfish aquaculture 
activities only temporarily impact submerged aquatic vegetation is not 
accurate because leases issued for shellfish aquaculture vary in 
duration but are generally 5-20 years to ensure any investment in the 
enterprise is worthwhile. This commenter said that the word 
``temporary'' is a highly relative and generally misleading descriptor.
    It is not the duration of the lease for shellfish mariculture 
activities that determines whether commercial shellfish mariculture 
activities have temporary impacts on submerged aquatic vegetation. 
Commercial shellfish mariculture operators might not cultivate bivalve 
shellfish continuously during the period the lease is in effect. The 
operator may let some areas within a leased area to go fallow for a 
period of time, to reduce adverse effects to the benthic community. The 
Corps agrees that the term ``temporary'' is a relative term, but 
disagrees that it is misleading. What constitutes a temporary impact 
depends in part on how much time it takes an organism or an ecosystem 
to recover from a disturbance, and how resilient and resistant the 
species or ecosystems are to disturbances. Coastal waters are highly 
dynamic environments subjected to periodic disturbances, both natural 
and man-made.
    Several commenters concurred with the Corps' view that commercial 
shellfish mariculture activities typically only has temporary impacts 
on submerged aquatic vegetation and these plants can sustain a healthy 
coexistence. A few commenters noted that mechanical harvesting has been 
found to not negatively impact native eelgrass and may even enhance it. 
One commenter stated that the positive ecosystem services (e.g., better 
water quality, habitat creation, and ecosystem studies) provided by 
bivalve shellfish mariculture activities outweigh the temporary nature 
of any perceived negative impacts. The habitat created by shellfish 
aquaculture increases species richness and diversity of both benthic 
and epibenthic organisms. This three-dimensional habitat is utilized by 
many commercially valuable species, such as Dungeness crab and 
flatfishes. The Corps acknowledges these comments. These beneficial 
effects have informed the Corps' decision to reissue NWP 48 as 
discussed because it will have no more than a minimal individual or 
cumulative adverse environmental effects.
    One commenter noted that farming methods such as bottom culture 
propagation tends to focus on the cultivation of larger older shellfish 
with large time intervals between harvests, which results in short term 
impacts at harvest with long periods for recovery and result in no 
permanent losses of submerged aquatic vegetation. This commenter said 
that the persistence of eelgrass along the coast demonstrates that 
shellfish mariculture and eelgrass can coexist and have for over a 
century. Furthermore, commercial shellfish mariculture operators have 
long understood the best way to propagate eelgrass is to plant oysters, 
which creates optimal habitat allowing eelgrass to expand due to 
decreased current over the tide flats. This commenter also said that 
the bivalve shellfish, as filter feeders, remove large amounts of 
waterborne nutrients resulting in cleaner water which facilitates 
photosynthesis, expanding habitable ranges of eelgrass. The Corps 
acknowledges these comments. These beneficial effects have informed the 
Corps' decision to reissue NWP 48 as discussed because it will have no 
more than a minimal individual or cumulative adverse environmental 
effects.
    Several commenters recommended revising the definition of 
mechanical harvest so that they are not classified as ``dredge or 
fill'' activities because it is too broad and lumps many methods 
together and lacks clarity. These commenters said that mechanical 
harvesting by dragging a metal basket along the tide flats to gently 
tumble harvestable oysters does not result in a discharge of dredge or 
fill material and should be exempt from section 404 jurisdiction. 
Furthermore, these commenters said that these activities do not create 
ditches, channels, or substantially redeposit excavated soil material 
and none of the harvest tools are designed to remove large quantities 
of material to improve the navigability of waters. These commenters 
said that the sediment that may be disturbed during harvest should be 
considered as incidental fallback under 33 CFR 323.2(d)(1).
    Mechanical harvesting activities generally do not result in 
discharges of fill material, as that term is defined at 33 CFR 
323.2(f). However, mechanical harvesting activities may result in 
discharges of dredged material, depending on how they are conducted. 
The term ``discharge of dredged material'' is defined at 33 CFR 
323.2(d) to include the ``addition of dredged material into, including 
redeposit of dredged material other than incidental fallback within, 
the waters of the United States.'' Some mechanical harvesting

[[Page 2800]]

activities may result in incidental fallback and not require section 
404 authorization while other mechanical harvesting activities may 
result in additions of dredged material into waters of the United 
States that are not incidental fallback, and therefore require section 
404 authorization. Mechanical and hydraulic harvesting activities that 
redeposit sediment in a different area of the bottom of the waterbody 
that the area from which the sediment was removed is considered a 
``discharge of dredged material'' and therefore requires section 404 
authorization. These discharges of dredged material into waters of the 
United States are authorized by NWP 48.
    A commenter noted that in the statement ``mechanical harvesting can 
include grading, tilling, and dredging the substrate of the waterbody'' 
that the term ``grading'' does not describe shellfish culture methods. 
A couple of commenters suggested that shellfish mariculture harvest 
activities should be regulated like wild-harvest shellfisheries (e.g., 
as they are regulated in NWP 4). This commenter said that both wild and 
cultured shellfish are state-managed resources, with the exception of 
many tidelands in Washington, and should not require additional 
oversight and regulation by federal authorities. This commenter also 
stated that harvesting activities do not involve structures and do not 
impact navigation in a way that should trigger regulation under the 
Section 10 of the Rivers and Harbors Act of 1899.
    Mechanical harvesting activities may move sediment in a waterbody 
in a manner that is not considered incidental fallback. These 
activities would require section 404 authorization under the Corps' 
definition of ``discharge of dredged material.'' Nationwide permit 4 
authorizes discharges of dredged or fill material associated with fish 
and wildlife harvesting, enhancement, and attraction devices and 
activities, including clam and oyster digging. The Corps has 
jurisdictional authority in Washington State for activities regulated 
under Section 10 of the Rivers and Harbors Act of 1899 and Section 404 
of the Clean Water Act. Mechanical harvesting activities generally meet 
the definition of ``work'' at 33 CFR 322.2(c) for the purposes of 
Section 10 of the Rivers and Harbors Act of 1899, and are authorized by 
NWP 48.
    One commenter requested that the Corps add a statement in the final 
rule that acknowledges that the accumulation of sediment around 
shellfish farming gear may be considered beneficial in certain 
environments, as well as provision of year-round durable, structured 
three-dimensional habitat. The Corps declines to add the requested 
statement because the potential benefits would need to be determined on 
a case-by-case basis, and the durability of those sediment 
accumulations is influenced because water movements that could cause 
that sediment to be re-suspended in the water column.
    One commenter said that the Corps must comply with ESA Section 7 
and the Magnuson-Stevens Act prior to issuing NWP 48. A few commenters 
stated that in all areas where submerged aquatic vegetation exists, it 
is designated essential fish habitat under the Magnuson-Stevens Fishery 
Conservation and Management Act. These commenters said that removal of 
the \1/2\-acre limit for direct impacts to submerged aquatic vegetation 
fails to acknowledge submerged aquatic vegetation as essential fish 
habitat and the need for consultation with NMFS for activities that may 
adversely affect essential fish habitat. These commenters asserted that 
the Corps must consult on a nationwide programmatic basis because 
essential fish habitat is adversely affected by shellfish mariculture 
activities.
    The NWP program's compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act is achieved through EFH consultations between Corps 
districts and NMFS regional offices. This approach continues the EFH 
Conservation Recommendations provided by NMFS Headquarters to Corps 
Headquarters in 1999 for the NWP program. Corps districts that have EFH 
designated within their geographic areas of responsibility coordinate 
with NMFS regional offices, to the extent necessary, to develop NWP 
regional conditions that conserve EFH and are consistent the NMFS 
regional EFH Conservation Recommendations. If a district engineer 
determines a proposed NWP 48 activity may adversely affect essential 
fish habitat, he or she will conduct EFH consultation with NMFS. Where 
there is a requirement to consult on EFH, consideration of direct 
impacts to submerged aquatic vegetation caused by new and existing 
commercial shellfish mariculture activities would occur regardless of 
the PCN threshold of \1/2\-acre. In response to an EFH assessment 
prepared by the Corps, the NMFS may provide EFH conservation 
recommendations to address potential impacts to submerged aquatic 
vegetation. As discussed in Section III.D of this final rule, the Corps 
has prepared a biological assessment for this rulemaking activity and 
determined that the issuance of the NWPs has no effect on listed 
threatened and endangered species and designated critical habitat, as 
well as species proposed for listing and proposed designated critical 
habitat.
    One commenter stated that significant changes to NWP 48 are not 
appropriate until the national decision document is finalized and 
deemed sufficient. This commenter said the draft decision document 
fails to satisfy the requirements of the National Environmental Policy 
Act and the Clean Water Act, and that it fails to properly acknowledge 
the impacts of mariculture on benthic habitat, fish communities, birds, 
water quality and substrate characteristics. Several commenters stated 
that the proposed revisions to the national decision document for NWP 
48 do not fairly represent the conclusions of authors of the cited 
literature, in some cases omitting relevant information and in others 
misrepresenting study results and conclusions.
    The purpose of the national decision document is to provide 
information for the decision on whether to reissue NWP 48. The national 
decision document discusses the positive and negative impacts of 
commercial shellfish mariculture activities on benthic habitat, fish 
communities, birds, water quality and substrate characteristics. The 
Corps has considered this information and determined that NWP 48 will 
not have more than a minimal individual or cumulative adverse 
environmental effects.
    One commenter said that the Corps describes no studies in its 
decision document to verify its claim that commercially-raised 
shellfish help improve water quality. One commenter noted that the 
Corps acknowledges throughout the environmental consequences, public 
interest, and 404(b)(1) Guidelines Analysis, some negative impacts, but 
then fails to assess them and instead focuses only on positive impacts. 
This commenter said that the impacts from mechanical and hydraulic 
dredging are barely mentioned, with no assessment of their harmful 
impacts to the same degree as the supposed benefits from shellfish 
aquaculture.
    The Corps discusses, in numerous places, the water quality benefits 
of filter-feeding bivalves that are cultivated by commercial shellfish 
mariculture activities. The Corps acknowledges that commercial 
shellfish mariculture activities cause adverse and beneficial

[[Page 2801]]

environmental effects. Throughout the draft and final national decision 
documents, the Corps discusses the negative and positive effects of 
harvesting activities.
    One commenter identified errors in projected use and acreage 
impacted over the 5-year period NWP 48 is anticipated to be in effect. 
This commenter notes that the draft NWP 48 decision document states 
that the Corps estimates this permit will be used approximately 336 
times per year on a national basis, resulting in impacts to 
approximately 13,360 acres of waters of the United States. It then 
states the Corps estimates that approximately 1,680 activities could be 
authorized over a five-year period until the NWP expires, resulting in 
impacts to approximately 40,080 acres. While 1,680 is five times the 
annual use figure (336), five times the annual acreage figure (13,360) 
is 66,800. One commenter requested that the Corps provide documentation 
on the number of permit request over the last 10 years that exceeded 
the \1/2\-acre limit, and of those activities, how many ultimately 
received a permit through regional or individual permit process, and 
what conditions were applied to those applications. One commenter 
stated that the Corps claims to have no duty to use any quantitative 
data, but has issued NWP 48 since 2007 and should be able after all 
these years to provide some quantitative data about loss of seagrasses, 
natural habitats, etc. One commenter recommended that the Corps pursue 
a quantitative analysis of the environmental effects of shellfish 
mariculture for habitat alterations, climate change, invasive species, 
overharvesting and exploitation, and pollution.
    Nationwide permit 48 authorizes structures and work in navigable 
waters of the United States and discharges of dredged or fill material 
into waters of the United States for both existing (on-going) and new 
commercial shellfish mariculture activities. Many of the activities 
authorized by NWP 48 are on-going activities that require 
reauthorization each time the current NWP 48 expires and is replaced by 
a reissued NWP 48. Nationwide permits can be issued for period of no 
more than 5 years (see Section 404(e) of the Clean Water Act). The 
acreage of projected impacts in the national decision document for NWP 
48 includes many on-going commercial shellfish mariculture activities, 
many of which have been in operation for decades. These on-going 
commercial shellfish mariculture activities have been part of the 
current environmental setting for years, and it is the current 
environmental baseline against which the degree of severity of adverse 
environmental effects is assessed to determine eligibility for NWP 
authorization (i.e., whether the individual and cumulative adverse 
environmental effects caused by commercial shellfish mariculture 
activities during the 5-year period the NWP is in effect are no more 
than minimal).
    The Corps has revised the national decision document to correct the 
errors in its estimates of potential use of this NWP and authorized 
impacts. However, it should be noted that these are estimates of 
projected use over the 5-year period the NWP is anticipated to be in 
effect. With respect to the removal of the \1/2\-acre limit for direct 
impacts to submerged aquatic vegetation caused by new commercial 
shellfish mariculture activities, the Corps is only required to provide 
an estimate of the number of activities that might occur during the 
period this NWP is in effect. It is not necessary to provide data on 
how many commercial shellfish mariculture activities were authorized by 
regional general permits or individual permits.
    The Council on Environmental Quality's NEPA regulations at 40 CFR 
parts 1500-1508 do not require quantitative analyses of potential 
environmental impacts. With respect to the 404(b)(1) Guidelines, 40 CFR 
230.7(b)(3) requires cumulative effects to be analyzed by estimating 
the number of discharges expected to occur under the NWP while it is in 
effect. The environmental impacts of authorized activities during the 
period the NWP is in effect is dependent on the current environmental 
settings in which these activities will occur, and quantitative data on 
those current environmental settings is not available. It should also 
be noted that context is important, because these activities are 
occurring in coastal waters that have been altered by human activities 
and natural processes for thousands of years, and continue to be 
impacted by coastal watershed land use, point source pollution, non-
point source pollution, fishing activities, recreation, and other 
disturbances, not just commercial shellfish mariculture activities.
    Several commenters stated it is unclear how mitigation can both be 
unnecessary and something the Corps is relying on to avoid cumulative 
impacts. Further, several commenters stated that the Corps relies 
heavily on mitigation at a district level, but fails to actually 
describe the possible effects (direct, indirect and cumulative) from 
shellfish aquaculture activities or how these unknown mitigation 
measures will actually avoid more than minimal adverse impacts. Any 
individual mitigation measures will only be attached if a permittee is 
required to submit a pre-construction notification, which will likely 
be few and far between.
    For commercial shellfish mariculture activities, the Corps 
generally does not require compensatory mitigation because these 
activities do not cause losses of waters of the United States. 
Paragraph (a) of general condition 23 requires permittees to design 
their projects to avoid and minimize adverse effects, both temporary 
and permanent, to waters of the United State to the maximum extent 
practicable on the project site. Many of the NWP general conditions 
consist of mitigation measures to avoid and minimize impacts. When 
determining whether to require mitigation to ensure that a particular 
NWP activity results in no more than minimal individual and cumulative 
adverse environmental effects, the district engineer will consider the 
direct, indirect, and cumulative effects, as required by paragraph 2 of 
Section D, District Engineer's Decision. If the district engineer 
requires mitigation for an NWP activity, he or she will add conditions 
to the NWP authorization (see 33 CFR 330.1(e)(3)) that are directly 
related to the impacts of the proposal, appropriate to the scope and 
degree of those impacts, and reasonably enforceable (see 33 CFR 
325.4(a)).
    One commenter stated that the Corps said that ``standard and best 
management practices'' can reduce impacts but fails to explain what 
these are and how they will mitigate impacts. One commenter said that 
the Corps claims commercially-reared bivalves improve water quality but 
fails to assess water quality impacts by deferring to district 
engineers and water quality certifications under Clean Water Act 
section 401, but impacts to water quality must be assessed before 
granting NWPs. One commenter said that the Corps fails to discuss the 
context and intensity factors that might indicate that this proposed 
NWP will have a ``significant impact to the human environment'' and 
thus requires an environmental impact statement.
    As stated in the 2020 Proposal, species-specific or regional 
standards and best management practices for commercial shellfish 
mariculture activities may be appropriate as regional conditions 
approved by division engineers (see 85 FR 57331). In the national 
decision document, the Corps has discussed potential impacts to water

[[Page 2802]]

quality as well as potential benefits to water quality that may result 
from commercial shellfish mariculture activities. In addition, the 
Corps has explained that cultivated bivalves are not considered a 
pollutant under the Clean Water Act. After considering the information 
in the national decision document for this NWP, including the potential 
benefits and detriments caused by commercial shellfish mariculture 
activities, there is no evidence that these activities cause a 
significant impact to the human environmental and thus no environmental 
impact statement is required.
    One commenter stated the alternatives analysis is inadequate. The 
commenter asserts that the Corps lists the ``no action'' alternative 
but barely analyzes it, strangely concluding that it would somehow have 
more substantial adverse environmental consequences. The ``national 
modification'' alternative is not an alternative, but the proposed NWP 
48 and the ``regional modification'' is also not an alternative because 
it includes no conditions or changes from the proposed NWP 48.
    The national decision document discusses alternatives. In the 
Council on Environmental Quality's NEPA regulations that were published 
in the Federal Register on July 16, 2020, the preamble to the final 
rule at 85 FR 43323 states that an agency does not need to include a 
detailed discussion of each alternative in an environmental assessment. 
In the national decision document, the Corps briefly discussed the 
environmental consequences of each alternative.
    One commenter said that the Corps should impose monitoring 
requirements that would ensure that NWP terms and conditions, including 
those resulting from subsequent exercises in discretionary authority, 
would be adequately policed. In response, Corps districts can conduct 
compliance inspections for authorized activities, to ensure that those 
activities are conducted in accordance with any conditions added to the 
NWP authorization. The Corps district will take appropriate actions to 
address non-compliance with permit conditions.
    Several commenters approved of the reiteration and clarification 
that the discharge of pesticides is regulated under Section 402 of the 
CWA and not Section 404. They suggested that the final rule clearly 
state that operators may be permitted to use pesticides to control 
agricultural pests and predators instead of just predators. One 
commenter said that the statement regarding commercial shellfish 
mariculture operations using chemicals to control fouling organisms is 
incorrect because chemical use or the potential introduction of toxic 
materials is regulated by the Interstate Shellfish Sanitation 
Conference. One commenter said that commercial shellfish mariculture 
operators may use herbicides to control invasive, noxious weeds on 
commercial clam beds.
    The Corps does not have the authority to control the use of 
pesticides, herbicides, and antifouling agents in commercial shellfish 
mariculture activities. Use of some of these chemicals may be regulated 
under other federal or state laws and regulations administered by other 
agencies.
    One commenter said that while gear sometimes escapes from 
commercial shellfish farms despite growers' best efforts to ensure it 
remains secured, shellfish farmers do not discard equipment into the 
marine environment. This commenter requested that the Corps revise the 
national decision document to make it clear that growers are not 
discarding equipment, but equipment may wash away from the project site 
or move by other mechanisms. This commenter also said that NWP general 
condition 6 addresses the use of trash in the NWP program. One 
commenter said that the use of plastics gear for commercial shellfish 
mariculture activities adds plastic pollution to the ocean and beaches 
through plastic debris and this plastic can break down further into 
microplastics, which can impact wildlife, aesthetics, and food safety.
    The Corps has revised the national decision document to clarify 
that some materials used for commercial shellfish mariculture 
activities may wash away from the project area. General condition 6 
does not address trash or garbage that may be associated with 
commercial shellfish mariculture activities. General condition 6 
prohibits the use of trash as fill material. Trash and garbage are not 
considered fill material for the purposes of section 404 of the Clean 
Water Act (see 33 CFR 323.2(e)(3)).
    This NWP is reissued with the modifications discussed above.
(10) NWP 50. Underground Coal Mining Activities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed, which is discussed above in Section 
II.F. The responses to comments on the proposal to remove the 300 
linear foot limit are provided in Section II.F. In addition, the Corps 
proposed to the reference to integrated permit processing procedures 
and the requirement for written verification from the Corps before 
proceeding with the authorized activities.
    Many commenters stated they are opposed to the default 
authorization if the Corps does not respond to the PCN submittal within 
45 days. Numerous commenters said they support the automatic 
authorization if the Corps project manager does not respond to the 
complete PCN within 45 days. One commenter objected to the removal of 
PCN requirements. A few commenters said that in order to further 
expedite permitting for mining project, no PCN should be required for 
activities authorized by this NWP.
    The Corps removed the requirement for the permittee to obtain 
written authorization before commencing the activity to be consistent 
with the other NWPs that have a \1/2\-acre limit for discharges of 
dredged or fill material into non-tidal waters of the United States 
(e.g., NWPs 29, 39, 40, 42, 43, 44, 51, and 52). The Corps did not 
propose to remove any PCN requirements from this NWP. All activities 
authorized by this NWP require PCNs. The Corps is retaining the PCN 
requirements for this NWP to provide activity-specific review by 
district engineers to ensure that the activities authorized by this NWP 
result in no more than minimal individual and cumulative adverse 
environmental effects.
    A few commenters said that the applicability of this NWP would be 
reduced if the applicant must now include coal preparation and 
processing activities outside of the underground mine site as a single 
and complete project under NWP 50. One commenter stated the Corps 
provided no justification for the deletion of the Note regarding the 
use of NWP 21, coupled with NWP 50, for coal preparation and processing 
activities outside of the underground mine. One commenter expressed 
support for the removal of the integrated permitting process language. 
One commenter stated that NWP should state that the project proponent 
cannot begin the authorized activity until the activity is formally 
approved by the Department of Interior's Office of Surface Mining or 
the state. Several commenters asserted the NWP 50 should be revoked 
because the effects of coal mining are significant to the environment 
and should be evaluated under an individual permit.
    Even if the Note were not removed, single and complete underground 
coal mining activities with coal preparation and processing activities 
outside the underground mine site are subject to general condition 28, 
use of multiple NWPs. If NWP 50 and 21 are combined to authorize a 
single and complete

[[Page 2803]]

project, the activity would be subject to the \1/2\-acre limit. The 
Corps removed the language referencing integrated permit processing 
procedures, since those procedures have never been developed for this 
NWP since that text was added to the NWP in 2007 (see 72 FR 11184).
    Project proponents may be required to obtain separate 
authorizations from the Department of Interior's Office of Surface 
mining or the state, but those authorizations are a separate process 
from the Corps' NWP authorization process. Authorization by an NWP does 
not obviate the need to obtain other federal, state, or local permits, 
approvals, or authorizations required by law. (See item 2 in Section E, 
Further Information.) Division engineers can add regional conditions to 
this NWP to restrict or prohibit discharges of dredged or fill material 
into certain wetland types if those discharges are likely to result in 
more than minimal individual and cumulative adverse environmental 
effects. District engineers can also exercise discretionary authority 
to modify, suspend, or revoke an NWP after reviewing the PCN, to ensure 
that the NWP authorizes only those activities that result in no more 
than minimal individual and cumulative adverse environmental effects.
    This NWP is reissued as proposed.
(11) NWP 51. Land-Based Renewable Energy Generation Facilities
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed, which is discussed above in Section 
II.F. The responses to comments on the proposal to remove the 300 
linear foot limit are provided in Section II.F.
    One commenter expressed support for the PCN threshold for losses of 
greater than \1/10\-acre of waters of the United States and does not 
support requiring PCNs for all activities authorized by this NWP. One 
commenter said that these activities should be prohibited from channel 
migration zones and floodplains because they are likely to directly or 
indirectly affect critical habitat, essential fish habitat, and 
habitats occupied by listed species. This commenter stated that 
structures built in these zones are at heightened risk to flooding and 
future flood dynamics associated with climate change. This commenter 
also said that any impacts over \1/10\-acre should require mitigation.
    The Corps did not propose to change the \1/10\-acre PCN threshold 
for this NWP that was adopted in the 2017 NWP 51. Activities authorized 
by this NWP must comply with general condition 10, fills in 100-year 
floodplains. If the district engineer determines a proposed activity 
may adversely affect essential fish habitat, he or she will conduct 
essential fish habitat consultation with NMFS. If the district engineer 
determines the proposed activity may affect listed species or 
designated critical habitat, she or he will conduct ESA section 7 
consultation with the U.S. FWS and/or NMFS. In accordance with general 
condition 23 and 33 CFR 330.1(e)(3), district engineers determine on a 
case-by-case basis whether specific activities authorized by this NWP 
should require compensatory mitigation or other forms of mitigation to 
ensure the authorized activities result in no more than minimal 
individual and cumulative adverse environmental effects.
    One commenter recommended adding roads constructed to develop, 
maintain, and repair land-based renewable generation facilities to Note 
1. One commenter stated that the NWP 51 makes reference to a 
distribution system as utility lines constructed to transfer the energy 
produced by a land-based renewable energy generation facility, but 
elsewhere in the proposed rule it refers to electrical lines as 
``transmission lines'' which is an undefined term. Two commenters 
suggested revising Note 2 to state that NWPs C and 14 may be used to 
provide DA authorization for the construction, maintenance, repair, and 
removal or utility lines and/or road crossings. This commenter also 
said that the Corps should clarify that the applicant can specify which 
NWP it wants to use for utility lines and/or road crossings.
    Note 1 only addresses electric utility lines used to transfer the 
electrical energy generated by these facilities to a distribution 
system, regional grid, or other facility. Transmission lines are part 
of electrical energy distribution systems to move the electricity from 
generation facilities to end users. Note 1 has been modified to 
specifically refer to electric utility lines because these land-based 
renewable energy generation facilities generate electrical energy. The 
Corps has revised Note 1 to reference NWP 57, which authorizes electric 
utility line and telecommunications activities. Activities authorized 
by NWP 51 are non-linear projects, while electric utility lines used to 
transport the generated electrical energy to end users and others are 
linear projects that are more appropriately authorized by NWP 57. Roads 
that extend to and from the land-based renewable energy generation 
facility are also linear projects, and crossings of waters of the 
United States for these roads are more appropriately authorized by NWP 
14. This NWP is reissued with the modifications discussed above.
(12) NWP 52. Water-Based Renewable Energy Generation Pilot Projects
    The Corps proposed to modify this NWP to remove the 300 linear foot 
limit for losses of stream bed, which is discussed above in Section 
II.F. The responses to comments on the proposal to remove the 300 
linear foot limit are provided in Section II.F.
    Many commenters said that the Corps should modify NWP 52 so that it 
is not limited to pilot projects, because this restriction limits 
project proponent's ability to utilize the NWP to facilitate the 
development of off-shore wind generation projects. These commenters 
said that the impacts are the same regardless of whether a water-based 
renewable energy generation project is a pilot project or a full-scale 
development project, and that the adverse environmental effects caused 
by these activities will be no more than minimal. A couple of 
commenters noted that as off-shore wind energy generation continues to 
grow it will become more crucial that these projects are able to obtain 
Corps authorization in a timely and efficient manner. A couple of 
commenters said that these projects should require individual permits 
and should not be authorized by an NWP.
    The Corps believes that the construction of permanent water-based 
renewable energy generation facilities should be authorized by 
individual permits instead of an NWP because of the potential for 
permanent activities to result in more than minimal adverse 
environmental effects. District engineers can develop regional general 
permits to authorized permanent water-based renewable energy generation 
facilities.
    One commenter stated that the \1/2\-acre limit and the requirement 
for PCNs for all proposed activities should be retained. One commenter 
recommended changing the PCN threshold to require PCNs for losses of 
greater than \1/10\-acre of waters of the United States. A couple of 
commenters said that Note 1 should be revised to reflect authorization 
of transmission lines by NWP C rather than NWP 12.
    The Corps is retaining the \1/2\-acre limit and the requirement 
that all authorized activities require PCNs. The Corps has revised Note 
1 to reference electric utility lines and NWP 57, which authorizes 
electric utility line and telecommunications activities.
    Several commenters stated that these activities should not be 
authorized western Washington State without tribal consent in areas 
with tribal treaty fishing rights. These commenters said

[[Page 2804]]

that allowing floating solar panels up to \1/2\-acre in size in 
navigable waters adds additional obstructions to tribal fisherman 
trying to exercise their fishing rights. One commenter stated that 
floating solar panels, if installed, need proper monitoring 
requirements with the ability to have the projects removed if the 
injuries to fish reach a certain threshold. One commenter said that 
pilot projects for experimental purposes should include a requirement 
for robust information gathering to inform decision makers of 
ecological impacts of these energy generating structures.
    Division engineers can add regional conditions to this NWP to help 
ensure compliance with general condition 17, tribal rights. During this 
rulemaking process, Corps districts have been consulting and 
coordinating with tribes to identify regional conditions and 
coordination procedures to help ensure compliance with general 
condition 17. The Corps disagrees with imposing long-term information 
gathering requirements to monitor the ecological impacts that might be 
caused by these activities. The information in PCNs should be 
sufficient for district engineers to determine whether the adverse 
environmental effects caused by the authorized activities are no more 
than minimal.
    This NWP is reissued with the modifications discussed above.
(13) NWP 55. Seaweed Mariculture Activities
    The Corps proposed this new NWP as NWP A, to authorize structures 
in navigable waters of the United States, including federal waters over 
the outer continental shelf, for seaweed mariculture activities. In the 
first sentence of this NWP, the Corps added ``and estuarine'' to make 
this NWP consistent with proposed new NWP B for finfish mariculture 
activities with respect to the waters in which these two NWPs may be 
used to authorize activities under Section 10 of the Rivers and Harbors 
Act of 1899. The omission of ``and estuarine'' in the proposed NWP A 
was a drafting error.
    The Corps removed the phrase ``and work'' from this NWP because 
this NWP only authorizes structures, and this NWP does not authorize 
any of the operational aspects of seaweed mariculture activities. The 
operation of a seaweed mariculture facility does not constitute 
``work'' as that term is defined at 33 CFR 322.2(c) for the purposes of 
Section 10 of the Rivers and Harbors Act of 1899. Section 322.2(c) 
defines ``work'' as ``any dredging or disposal of dredged material, 
excavation, filling, or other modification of a navigable water of the 
United States.'' After the seaweed mariculture structure is installed, 
subsequent operations to produce seaweed do not physically modify 
navigable waters of the United States in a manner that would be 
considered ``work'' under the Act.
    Several commenters expressed support for the issuance of new NWP A. 
One commenter suggested combining NWPs 48 and A into one NWP instead of 
issuing separate NWPs. One commenter said that issuing NWP A would 
reduce barriers to entry for seaweed mariculture activities. Another 
commenter supported the issuance of NWP A because kelp and seaweed are 
winter crops and would help provide year-round revenue sources for 
coastal commercial communities. A few commenters expressed support for 
NWP A because growth of marine plants improves water quality and 
provides ecosystem services.
    The Corps is keeping NWPs 48 and proposed new NWP A separate 
because NWP 48 activities occur primarily in nearshore waters and NWP A 
can be used to authorize activities in both nearshore waters and 
federal waters on the outer continental shelf. The Corps acknowledges 
the economic benefits of providing an NWP to authorize seaweed 
mariculture activities that result in no more than minimal adverse 
environmental effects, as well as the ecological benefits that may be 
provided by the cultivated seaweeds, such as water quality benefits 
through the assimilation of nutrients and habitat benefits for some 
aquatic species.
    Several commenters said they support the inclusion of multi-trophic 
species production in NWP A. One commenter supported including multi-
trophic species production as long as it is voluntary and not a 
requirement of the NWP. One commenter said that multi-trophic 
activities should not be authorized under an NWP until an industry 
standard has been established. A few commenters stated multi-trophic 
activities should be authorized under by individual permits to provide 
an appropriate level of environmental review. One commenter said PCNs 
including that multi-trophic activities should be coordinated with 
states. A few commenters asserted that the text of NWP A should clarify 
that multi-trophic activities do not include finfish cultivation. One 
commenter stated that multi-trophic species mariculture could attract 
protected species and result in greater risk of entanglement. A few 
commenters said that the NWPs are appropriate only for activities with 
more predictable outcomes and should not be used for experimental 
industries.
    The Corps has retained multi-tropic mariculture activities in this 
NWP, to provide authorization for mariculturists that want to grow 
seaweeds and bivalves on the same structures. Conducting multi-tropic 
mariculture activities is optional, and a grower can choose to only 
cultivate seaweeds. District engineers will review PCNs for proposed 
NWP A activities to ensure that those activities will result in no more 
than minimal individual and cumulative adverse environmental effects. 
If the district engineer reviews a PCN and determines that the adverse 
environmental effects will be more than minimal after considering any 
mitigation proposed by the applicant, he or she will exercise 
discretionary authority and require an individual permit. The Corps 
does not believe it is necessary to require coordination of proposed 
multi-tropic mariculture activities with states, but district engineers 
can informally coordinate PCNs with states if they believe it is 
appropriate to do so. If a mariculturist wants to grow finfish as part 
of a multi-trophic mariculture operation, she or he should use NWP B 
(which, as discussed below, is issued in this final rule as NWP 56), 
which authorizes multi-trophic mariculture activities involving 
finfish, seaweeds, and/or bivalves. There may be some risk of 
entanglement or other forms of adverse impact in lines used for seaweed 
mariculture activities, and that risk will be evaluated by district 
engineers during the PCN review process. If the risk of entanglement 
applies to ESA-listed species, the district engineer will conduct ESA 
section 7 consultation with the U.S. FWS and/or NMFS as appropriate. 
Multi-trophic mariculture activities have been conducted for a number 
of years in other countries (Largo et al. 2016, Troell et al. 2009).
    Several commenters said NWP A should not be issued because these 
activities will result in more than minimal individual or cumulative 
adverse environmental effects. Several commenters stated NWP A should 
not be issued because the long-term cumulative impacts are unknown. 
Many commenters expressed concern with the issuance of an NWP 
authorizing seaweed mariculture activities because of the relative 
unknown impacts and risks associated with these activities. One 
commenter said that the social, economic, and environmental impacts 
from seaweed mariculture are unknown. One commenter said that the 
cumulative impact from the varying scale of aquaculture systems cannot

[[Page 2805]]

sufficiently be addressed under an NWP. Many commenters stated that 
there is not sufficient information available to inform whether NWP A 
would cause no more than minimal impacts. A few commenters said that 
the Corps has not demonstrated that NWP A complies with the Clean Water 
Act Section 404(b)(1) guidelines.
    The Corps has issued this NWP after considering information on its 
relatively small, if not beneficial, impact on marine ecosystems and 
including mechanisms (e.g., PCNs required for all proposed activities) 
to ensure that it authorizes only those seaweed mariculture activities 
that result in minimal individual and cumulative adverse environmental 
effects. In response to a PCN, district engineers will apply the 10 
criteria listed in paragraph 2 of Section D, District Engineer's 
Decision to determine whether the proposed activity can be authorized 
by NWP 55, with or without additional permit conditions. Division 
engineers may modify, suspend, or revoke this NWP on a regional basis 
in accordance with the procedures at 33 CFR 330.5(c). The Clean Water 
Act Section 404(b)(1) Guidelines do not apply to activities authorized 
by this NWP because it only authorizes structures or work in navigable 
waters of the United States under Section 10 of the Rivers and Harbors 
Act of 1899. It does not authorize activities under Section 404 of the 
Clean Water Act.
    Several commenters said that NWP A would impact tribal rights and 
treaty protected fishing grounds. One commenter requested additional 
information and formal government-to-government consultation on 
proposed new NWP A. One commenter objected to the issuance of NWP A 
because it does not include required mitigation measures. One commenter 
stated that mitigation measures should be considered for ESA-listed 
species and tribal cultural and fishing issues. One commenter suggested 
adding minimization measures to NWP A that are currently in place in 
states that are already practicing seaweed mariculture operations.
    Activities authorized by NWP A must comply with general condition 
17, tribal rights. During the rulemaking process for the issuance of 
this NWP, district engineers have been conducting consultation and 
coordination with tribes to identify regional conditions and 
coordination procedures to facilitate compliance with general condition 
17. In response to a PCN, a district engineer can require mitigation 
measures to help ensure that the authorized activity results in only 
minimal individual and cumulative adverse environmental effects. During 
the development of this NWP, the Corps did not identify any mitigation 
measures that should be added to this NWP, other than the general 
conditions that apply to all NWPs. Mitigation measures for ESA-listed 
species are more appropriately identified during the ESA section 7 
consultation process. If states have developed mitigation measures for 
seaweed mariculture activities, division engineers can consider adding 
those mitigation measures as regional conditions to this NWP.
    Several commenters said that NWP A should include a PCN 
requirement. One commenter expressed support for requiring PCNs for new 
seaweed mariculture operations. One commenter said that PCNs should not 
be required if existing permitted bivalve shellfish farms want to add 
seaweed into their operations. One commenter stated that the U.S. Coast 
Guard be notified before issuing an NWP A verification. One commenter 
recommended requiring the PCN to include information identifying the 
proposed location of operations to review competing stakeholder uses. 
One commenter said that all PCNs for these activities must identify all 
gear specifications, production duration, stocking and harvesting 
times, and gear modifications related to avoiding or mitigating 
protected species interactions. Many commenters stated that PCNs for 
NWP A activities should require documentation of compliance with 
specific design and operational standards. One commenter said PCNs 
required for these activities should include information the 
performance of anchoring systems during severe weather events to 
minimize damage or loss. One commenter said that PCNs for these 
activities should state which commercial fisheries activities (wild or 
mariculture) might have the potential to be affected by the proposed 
activity or include a vicinity map indicating the location of the 
proposed activities.
    Proposed new NWP A requires PCNs for all proposed activities. 
Project proponents may be required to notify the U.S. Coast Guard or 
comply with U.S. Coast Guard requirements for marking or lighting these 
structures. It is not the responsibility of the Corps to notify the 
U.S. Coast Guard of these activities. Some Corps districts have 
developed local coordination procedures with the U.S. Coast Guard. 
Paragraph (b)(2) of general condition 32 requires the PCN to include 
the location of the proposed activity. The Corps does not have the 
authority to regulate production duration and stocking and harvesting 
times. If the project proponent wants to modify the seaweed mariculture 
structures that are regulated under Section 10 of the Rivers and 
Harbors Act of 1899, he or she must notify the district engineer to 
request a modification of the NWP verification. Corps district 
regulatory staff do not have the legal authority or technical expertise 
to evaluate design or operational standards, or the structural 
integrity of the seaweed mariculture structures. It is the 
responsibility of the permittee to properly design the seaweed 
mariculture structures and ensure that they are properly maintained in 
accordance with general condition 14, proper maintenance. The Corps 
declines to require the PCN to identify which commercial fisheries 
species might be affected by the proposed seaweed mariculture activity 
because impacts to EFH are already considered when district engineers 
review PCNs and conduct EFH consultation with NMFS when they determine 
proposed NWP activities may adversely affect EFH.
    Many commenters said that seaweed mariculture activities should 
require individual permits. Several of these commenters stated that 
individual permits for these activities are appropriate because the 
public notice process would allow ample coordination with the affected 
public. A few commenters said that there is insufficient industry 
standardization within mariculture systems to issue an NWP for these 
activities and these activities should require individual permits. A 
few commenters said that individual permits should be required for 
these activities to allow proper environmental review and coordination 
with state natural resource agencies.
    The Corps believes that there are seaweed mariculture activities 
requiring authorization under Section 10 of the Rivers and Harbors Act 
of 1899 that will cause only minimal individual and cumulative 
environmental effects (see 33 CFR 322.2(f)) and are appropriate for 
authorization by NWP. If a district engineer reviews a PCN for a 
proposed seaweed mariculture activity and determines that the adverse 
environmental effects will be more than minimal after considering 
mitigation proposed by the applicant, he or she will exercise 
discretionary authority and require and individual permit for the 
proposed activity. In addition, division engineers have the authority 
to modify, suspend, or revoke this NWP on a regional basis in response 
to concerns for the aquatic environment or for any factor of the public 
interest (see 33 CFR 330.1(d)). The development of industry

[[Page 2806]]

standards is not a prerequisite for NWP authorization, and many 
activities that have long been authorized NWP do not have any industry 
standards.
    A few commenters stated that NWP A should require agency 
coordination under paragraph (d) of NWP general condition 32. One 
commenter said that NWP A PCNs should be coordinated with federal and 
state natural resource agencies of adjacent states and that applicable 
state permits must be obtained prior to the Corps issuing an NWP 
verification for seaweed mariculture activities. Many commenters said 
that seaweed mariculture activities should be coordinated with state 
resource agencies and the public.
    The activities authorized by this NWP may require consultation or 
coordination with the U.S. FWS or NMFS. Consultation with the U.S. FWS 
and/or NMFS is required for proposed activities that the district 
engineer determines ``may affect'' listed species or designated 
critical habitat. Essential fish habitat consultation with the NMFS is 
required for any proposed activity that the district engineer 
determines ``may adversely affect'' essential fish habitat. Corps 
districts may develop informal coordination procedures with state 
resource agencies. Activities authorized by NWPs do not involve 
coordination with the public. Coordination with the public is only 
require for activities authorized by standard individual permits.
    One commenter said that seaweed mariculture activities authorized 
by NWP A should be limited to small scale projects. One commenter 
recommended adding a \1/2\-acre limit to this NWP. One commenter stated 
that seaweed mariculture facilities for biofuels production are in the 
range of over 1,000 hectares and issuing an NWP to authorize seaweed 
mariculture activities at that scale would not sufficiently consider 
the environmental risks. One commenter said that the necessary spatial 
arrays required for seaweed mariculture would cause conflicts from 
multiple existing offshore uses.
    The Corps does not agree that this NWP should be limited to small-
scale project or activities less than \1/2\-acre in size. If a project 
proponent submits a PCN for a large-scale seaweed mariculture activity, 
and the district engineer determines the proposed activity will result 
in more than minimal individual and cumulative adverse environmental 
effects, he or she will exercise discretionary authority and require an 
individual permit for the proposed activity. During the evaluation of 
the PCN, the district engineer will evaluate potential conflicts in 
resource uses, in accordance with the public interest review factors 
identified in 33 CFR 320.4(a).
    Many commenters stated that the seaweed species to be grown should 
be the same indigenous genetic stock as found in the waters of the 
proposed seaweed mariculture activity. One commenter said that the 
terms and conditions of the proposed NWP address the introduction of 
non-native species but not the role that mariculture may play in the 
role of further spreading invasive or aquatic nuisance species. One 
commenter stated that NWP A should impose rigorous operation emergency 
response standards. One commenter stated that NWP A should have clear 
requirements for removing derelict structures.
    The Corps has modified this NWP to state that it prohibits the 
cultivation of an aquatic nuisance species as defined in the 
Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 or 
the cultivation of a nonindigenous species unless that species has been 
previously cultivated in the waterbody. Invasive or aquatic nuisance 
species can spread or be introduced into new areas through a variety of 
mechanisms, and the Corps does not have the authority to prevent the 
spread or introduction of those species through those other mechanisms. 
General condition 13 requires, to the maximum extent practicable, the 
removal of temporary structures from navigable waters after their use 
has been discontinued. For permanent structures, the Corps has added a 
provision to this NWP to require the permittee to remove these 
structures from navigable waters of the United States when those 
structures will no longer be used for finfish mariculture activities or 
multi-trophic mariculture activities.
    One commenter recommended requiring the siting of NWP A activities 
at least 200 meters away from corals, seagrass beds, mangroves, 
critical habitat, and migration pathways. A few commenters asserted 
that seaweed mariculture activities are known to impair water quality, 
and special aquatic sites such as coral, seagrass, and mangroves are 
especially susceptible to water quality impacts. A few commenters said 
that seaweed mariculture facilities should not be permitted near 
sensitive habitat areas or near marine protected areas. One Commenter 
remarked that seaweed mariculture activities could result in economic 
impacts to the region where these activities are located by interfering 
with commercial and recreational fishing activities. One commenter said 
that operations of seaweed mariculture activities could result in 
aesthetic impacts to the region. One commenter expressed concerns with 
potential impacts on navigation and public uses of the waterbody that 
may be caused by seaweed mariculture activities. One commenter stated 
that seaweed mariculture facilities should be distant from areas used 
by the public. One commenter said that NWP A should be revised to 
recognize that some state boundaries may extend beyond three nautical 
miles from shore.
    Based on the characteristics of regional ecosystems, division 
engineers can add regional conditions to this NWP to site NWP A 
activities specific distances from aquatic resources or areas that may 
warrant additional protection, such as corals, seagrass beds, 
mangroves, critical habitat, and migration pathways. Seaweed 
mariculture activities cultivate macroalgae that take up nitrogen and 
phosphorous and other nutrients from the water column and generally are 
understood to improve water quality. Organic matter may be sloughed off 
of the cultivated seaweeds, which can provide nutrients for benthic 
communities. The seaweed grown at seaweed mariculture facilities can 
provide economic benefits such as biofuels, food ingredients, and 
pharmaceuticals. When reviewing PCNs, district engineers will evaluate 
potential conflicts in use of navigable waters, such as fishing, 
recreational, and military uses, as well as potential impacts to 
aesthetics in the project area. Activities authorized by this NWP must 
comply with general condition 1, navigation. Navigable waters are 
available for a variety of public uses, as well as various types of 
activities authorized for private use. Activities authorized for 
private use often involve structures that require DA authorization 
under Section 10 of the Rivers and Harbors Act of 1899, which may 
include structures for seaweed mariculture activities. The variability 
in state boundaries for the purposes of identifying the territorial 
seas does not warrant any specific changes to NWP 55.
    One commenter stated that shellfish farming activities are known to 
spread pathogens and the proposed NWP would not sufficiently address 
environmental concerns for offshore systems. A few commenters said 
seaweed mariculture facilities should not be permitted to use 
pesticides, herbicides, or pharmaceuticals. One commenter said that 
existing shellfish mariculture facilities permitted under NWP 48 should 
continue to be

[[Page 2807]]

authorized under NWP 48 rather than authorized by NWP A. One commenter 
stated it would be more appropriate if seaweed was included under NWP 
48 because bivalves are typically the primary cultivated species.
    The Corps does not have the authority to take actions to control 
the spread of pathogens. Pathogens can spread through a variety of 
mechanisms in open systems such as oceans and estuaries. In addition, 
the Corps does not have the authority to regulate the use of 
pesticides, herbicides, and pharmaceuticals that might be used in 
seaweed mariculture activities. In this final rule, the Corps has 
issued separate NWPs for commercial shellfish mariculture activities 
and seaweed mariculture activities. Under NWP A bivalves can be grown 
with seaweeds are part of a multi-tropic mariculture activity.
    A few commenters said that proposed new NWP A would have impacts on 
ESA-listed species and designated critical habitat. One commenter 
stated that ESA Section 7 consultation should be mandatory for all 
seaweed mariculture projects. One commenter said that incidental take 
permits under the ESA should be obtained before district engineers 
issue NWP verifications for these activities. A few commenters said 
that NWP A activities should have severe consequences for non-
compliance, including revocation of the NWP authorization.
    Activities authorized by this NWP must comply with general 
condition 18, endangered species. District engineers will review PCNs 
for proposed seaweed mariculture activities and if the district 
engineer determines the proposed activity may affect listed species or 
designated critical habitat, he or she will conduct ESA section 7 
consultation with the U.S. FWS or NMFS as appropriate. If the district 
engineer initiates section 7 consultation with the U.S. FWS or NMFS, 
the NWP verification cannot be issued until that consultation is 
completed. District engineers will also take appropriate actions to 
address non-compliance with the conditions in NWP A.
    Proposed new NWP A is issued as NWP 55, with the modifications 
discussed above.
(14) NWP 56. Finfish Mariculture Activities
    The Corps proposed this new NWP as NWP B, to authorize structures 
and work in navigable waters of the United States, including federal 
waters over the outer continental shelf, for finfish mariculture 
activities.
    The Corps removed the phrase ``and work'' from this NWP because 
this NWP only authorizes structures, and this NWP does not authorize 
any of the operational aspects of finfish mariculture activities. The 
operation of a finfish mariculture facility does not constitute 
``work'' as that term is defined at 33 CFR 322.2(c) for the purposes of 
Section 10 of the Rivers and Harbors Act of 1899. Section 322.2(c) 
defines ``work'' as ``any dredging or disposal of dredged material, 
excavation, filling, or other modification of a navigable water of the 
United States.'' After the finfish mariculture structure is installed, 
subsequent operations to produce finfish do not physically modify 
navigable waters of the United States in a manner that would be 
considered ``work'' under the Act.
    Some commenters supported the issuance of this NWP and some 
commenters opposed issuance of this NWP. A couple of commenters said 
that this NWP does not authorize activities that are similar in nature. 
Many commenters said that finfish mariculture activities should require 
individual permits to give the public an opportunity to review proposed 
activities. One commenter stated that finfish mariculture activities 
could result in significant cumulative impacts on marine wildlife and 
the environment, which cannot be properly assessed and mitigated. One 
said that finfish mariculture activities in estuarine waters should 
require individual permits because of the high risk of water quality 
impacts, animal escapes, and habitat damage.
    This NWP authorizes structures in navigable waters of the United 
States for finfish mariculture activities. A category of activities for 
an NWP is based on the general characteristics and uses of the 
permitted activity. A category of activities is not based on potential 
configurations of the regulated activities, or the size of those 
activities. Concerns about the size of authorized activities and 
potential adverse environmental effects can be addressed in part by 
addition quantitative limits on the NWP. The Corps believes there are 
finfish mariculture activities that can result in no more than minimal 
individual and cumulative adverse environmental effects and are 
appropriate for NWP authorization. In addition, the NWP regulations at 
33 CFR part 330 include numerous provisions that allow district 
engineers to exercise discretionary authority to require individual 
permits for activities when the determine those activities will cause 
more than minimal adverse environmental effects. Division engineers 
have the authority to modify, suspend, or revoke an NWP on a regional 
basis (see 33 CFR 330.5(c)). District engineers have the authority to 
modify, suspend, or revoke an NWP authorization on a case-by-case basis 
(see 33 CFR 330.5(d)). The potential individual and cumulative adverse 
environmental effects caused by finfish mariculture activities will be 
assessed by district engineers when they review PCNs for proposed 
activities. For some of the adverse environmental effects identified by 
commenters, the Corps lacks the authority to regulate the particular 
activities that are the cause of those effects.
    Several commenters recommended the development and implementation 
of project-specific permit conditions to ensure that authorized 
activities will have no more than minimal individual or cumulative 
adverse environmental effects. Several commenters requested that NWP B 
include conditions limiting the amount of feed, pesticides, herbicides, 
pharmaceuticals that can be released in project waters. A couple of 
commenters suggested NWP B require specific design and operation 
standards, including depth and current velocity guidelines for net pen 
siting class size. A commenter said that the geographic variability of 
aquatic environments and their ecological functions would be 
problematic when characterizing project impacts of finfish mariculture 
activities on a national scale.
    Project-specific conditions are more appropriately identified by 
district engineers when they review PCNs for proposed NWP B activities. 
If a proposed activity is authorized by NWP B, the district engineer 
will add appropriate conditions to the NWP authorization to help ensure 
that the adverse environmental effects are no more than minimal, 
individually and cumulatively. Permit conditions must be directly 
related to the impacts of the proposal, appropriate to the scope and 
degree of those impacts, and reasonably enforceable (see 33 CFR 
325.4(a)). Potential permit conditions addressing finfish mariculture 
operations, such as amount of feed, pesticides, herbicides, 
pharmaceuticals that can be released in project waters are beyond the 
scope of the Corps' legal authority, because the Corps does not have 
the authority regulate discharges of feed, pesticides, herbicides, and 
pharmaceuticals into navigable waters, including federal waters on the 
outer continental shelf. District engineers will review PCNs for 
proposed NWP B activities, which will include information on the design 
and size of the proposed structures. During

[[Page 2808]]

the evaluation of PCNs, district engineers consider the current 
environmental setting and the ecological functions currently being 
provided by aquatic resources in the vicinity of the proposed activity.
    A couple of commenters said that notification to the U.S. Coast 
Guard should be required for all proposed finfish mariculture projects 
to ensure that structures are not placed within restricted zones, 
shipping safety fairways, federal channels, traffic separation schemes 
or within U.S. EPA- or Corps-designated open water dredged material 
disposal areas. The Corps believes it is the project proponent's 
responsibility to notify the U.S. Coast Guard of the proposed activity, 
if such notification is required by law or regulations.
    One commenter stated that the availability of an NWP for finfish 
mariculture activities could be beneficial in promoting the business of 
finfish mariculture in areas where it is currently difficult to gain 
approval. The commenter added that growing seasons should be extended 
to allow for more jobs and tax revenue. One commenter suggested 
adopting location specific terms (freshwater, marine, offshore) and 
dropping the term ``activity'' and instead use ``practice''
    The Corps proposed this NWP to provide authorization under Section 
10 of the Rivers and Harbors Act of 1899 for structures used for 
finfish mariculture activities. Project proponents may be required to 
obtain other federal, state, and local authorizations required by law 
or regulation. This NWP does not have any limitations related to 
growing seasons. The Corps believes it has provided sufficient 
specificity regarding which types of waters this NWP can be used in 
(i.e., marine and estuarine waters), including the use of term 
``mariculture'' instead of the broader term ``aquaculture.'' The Corps' 
authorization is limited to the installation of structures in navigable 
waters of the United States, which is why the term ``activity'' is 
used. The Corps does not regulate the operation of the finfish 
mariculture facility during the production of finfish, and the 
activities associated with production activities such as feeding, 
handling, and administering antibiotics, therapeutics, and other 
chemicals.
    Regarding multi-trophic mariculture projects, one commenter stated 
that the activity is still considered experimental, with potential for 
adverse environmental impacts and a lack of proven success at 
commercial sales, and would therefore not be suitable for authorization 
under a NWP which should only be utilized for projects with predictable 
outcomes. The Corps understands that multi-trophic mariculture 
activities have been practiced in other countries (Largo et al. 2016, 
Troell et al. 2009), so it is not an experimental approach. It is 
intended to cultivate different tropic levels to help reduce nutrient 
loads to surrounding waters.
    Many commenters stated that applicants should be required to 
clarify the species to be farmed as well as provide information on 
broodstock source and quantity. Several commenters said that PCNs 
should include project-specific details regarding configuration, 
structures, techniques, proposed production quantities, densities, 
spacing, and containment systems. One commenter recommended that the 
PCN include a decommissioning plan.
    The Corps has added text to this NWP to prohibit the cultivation of 
aquatic nuisance species as defined in the Nonindigenous Aquatic 
Nuisance Prevention and Control Act of 1990 and the cultivation of 
nonindigenous species unless that species has been previously 
cultivated in the waterbody. The Corps only regulates the structures 
used for finfish mariculture activities, and their configuration in the 
waterbody. The Corps does not have the authority to regulate the 
techniques used to produce finfish, or how many finfish are produced 
over a specific period of time. If the project proponent wants to cease 
using the authorized structures for finfish mariculture activities, 
those structures must be removed. General condition 13 requires, to the 
maximum extent practicable, the removal of temporary structures from 
navigable waters after their use has been discontinued. For permanent 
structures, the Corps has added a provision to this NWP to require the 
permittee to remove these structures from navigable waters of the 
United States when those structures will no longer be used for finfish 
mariculture activities or multi-trophic mariculture activities.
    A few commenters said that all finfish mariculture activities 
should require PCNs so that district engineers can evaluate consistency 
with environmental standards, impacts to navigation, commerce, fishing, 
and other resource use conflicts. One commenter suggested that the 
applicant should be required to disclose in the PCN the intended use of 
acoustic deterrent devices. Many commenters suggested that a higher 
level of detail should be required for finfish mariculture activity 
PCNs. A few commenters said the PCN should include a site analysis 
incorporating available spatial information including depth, wave 
climate, current velocity, substrate type, and proximity to any hard-
bottom habitats. A couple of commenters stated that applicants should 
be required to provide detailed site maps, indicating the project 
location in relation to ecologically important marine/estuarine areas. 
One commenter said that applicants should be required to disclose the 
proposed activity's proximity to other mariculture or commercial 
fishing operations.
    All activities authorized by this NWP require PCNs. The Corps does 
not have the authority to regulate the use of acoustic deterrent 
devices, so it would be inappropriate to require disclosure of the use 
of such devices in PCNs for proposed NWP B activities. The information 
requirements for PCNs in paragraph (b) of general condition 32 are 
intended to provide the information necessary for the district engineer 
to determine whether a proposed activity qualifies for NWP 
authorization without an excessive amount of paperwork. The Corps 
declines to require the suggested information for NWP B PCNs because it 
is not needed to assist the district engineer in the determination of 
NWP eligibility.
    A few commenters said that the PCN should include a detailed 
statement on avoidance and minimization measures regarding the 
following impacts: Attraction and entanglement of wild fish, sharks, 
mammals, and seabirds; effects of chemicals, antifoulants, feed, and 
waste on water quality, habitat, and marine life; physical effects of 
all structures on habitat and marine life; displacement, disruption and 
risks to existing fishing activities; economic impacts to fishing 
industries; and spatial conflicts with other ocean users. A few 
commenters said that the applicant should be required to provide 
prevention, monitoring, and response plans that address escapement of 
cultured adults, progeny, and gametes; release of antimicrobials; 
disease transmission to wild stocks; release of nutrients; chemical 
pollution; structural failures; entanglement of fishing gear and marine 
species; small vessel strikes; and marine debris.
    The Corps does not agree that the suggested information is 
necessary for PCNs for proposed NWP B activities to assist in the 
district engineer's determination regarding whether the proposed 
activity regulated by the Corps (i.e., the placement of structures in 
navigable waters of the United States for finfish mariculture 
activities) is expected to result in no more than

[[Page 2809]]

minimal individual and cumulative adverse environmental effects. Much 
of the suggested information relates to operational aspects of finfish 
mariculture operations, which the Corps does not have the authority to 
regulate or control.
    One commenter stated that under NWP review, there is potential for 
an applicant to begin work within 45-days of submitting a PCN, even if 
the permittee has not received a written response from the district 
engineer. The commenter said that the 45-day default authorization 
should not occur and that the proposed activity cannot proceed until 
the district engineer issues a written verification.
    After the Corps district receives a PCN, the prospective permittee 
cannot 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 
(see paragraph (a) of general condition 32). If the permittee was 
required to notify the Corps pursuant to general condition 18 that 
listed species or designated critical habitat (or species proposed for 
listing) might be affected or are in the vicinity of the activity, the 
permittee cannot begin the activity until receiving written 
notification from the Corps that there is ``no effect'' on listed 
species or that any consultation required under Section 7 of the 
Endangered Species Act has been completed. The Corps declines to add a 
provision to NWP B to require the project proponent to receive written 
authorization from the Corps prior to commencing the authorized 
activity.
    A couple of commenters expressed concern that structure placement 
within estuarine habitats may result in reduced current, velocity, 
altering circulation patterns, and consequently changing substrate 
characteristics. One commenter stated that the addition of artificial 
structures and moorings, and changes to seabed alter topography and 
hydrodynamics. Some commenters voiced concerns regarding the use of 
NWPs for emerging finfish mariculture activities, due to potential 
impacts on water quality, habitat, and wild species, requesting that 
activities in the area be reviewed through the individual permit 
process.
    The Corps acknowledges that structures placed in navigable waters 
may reduce water velocities to some degree and alter sediment transport 
and coastal erosion and deposition processes. District engineers will 
review proposed NWP B activities and determine whether it minimizes the 
impacts where practicable pursuant to general condition 23. Division 
and district engineers have discretionary authority to modify, suspend, 
or revoke NWP authorizations to further condition or restrict the 
applicability of an NWP when they have concerns for any factor of the 
public interest (see 33 CFR 330.1(d)).
    Many commenters said that construction of finfish mariculture 
operations should be prohibited within a specific proximity to marine 
protected areas, submerged aquatic vegetation, reef communities, 
habitats with significant important to existing aquatic communities, 
migration pathways, at specific water depths, and those areas subject 
to chronic oxygen and nitrogen depletion. A few commenters stated that 
finfish mariculture activities should be prohibited from areas 
identified as being prone to hypoxia or otherwise ecologically 
sensitive. Several commenters said that increases in finfish 
mariculture projects would have the potential to damage the commercial 
fishing industry by either decreasing the need for wild fishing or by 
causing adverse impacts to the health and habitat of wild fished 
species. One commenter stated that finfish mariculture could have the 
potential to adversely impact local economies by pushing out 
responsible, small-scale seafood producers and crop growers.
    Several commenters expressed concern with spatial conflicts, 
specifically with fishing, fishery research cruises, and long-term 
ocean monitoring stations which occupy much of state and federal 
waters. Additional potential conflicts identified by commenters 
included gear entanglement, displacement from traditional fishing 
areas, navigational safety, and income loss. Many commenters raised 
concerns about project siting requirements, with one commenter 
suggesting that the Corps should be required to perform a spatial 
siting analysis prior to issuance of an NWP verification to ensure the 
proposed activity does not interfere with existing fisheries 
operations, research projects, or affect federal marine protected 
areas, and essential fish habitat.
    Impacts regarding navigation are localized and therefore it is more 
efficient for district engineers to evaluate potential impacts in their 
review of PCNs. Finfish mariculture operators have, absent any 
potential exceptions, the same rights to use navigable waters as other 
users such as fishers, recreational users, researchers, and commercial 
users as long as they obtain all required federal, state, and local 
authorizations. In addition to the authorization under Section 10 of 
the Rivers and Harbors Act of 1899, finfish mariculture operators may 
be required to obtain other federal, state, or local authorizations. 
The Corps does not have the authority to conduct spatial planning for 
finfish mariculture activities. If the district engineer determines a 
proposed NWP B activity may adversely affect essential fish habitat, he 
or she will conduct essential fish habitat consultation with NMFS. 
Activities in marine protected areas may be require authorizations from 
the federal or state agency that has management responsibilities for 
those areas.
    A couple of commenters stated that structures could cause 
interference with access to treaty protected fishing grounds for tribal 
fisherman. Several commenters said that these activities could impact 
recreational activities by closing off areas of navigable waters that 
would otherwise be used for boating, fishing, tourism, and other water-
related activities. A few commenters stated that finfish mariculture 
activities would close off or privatize areas currently used by the 
commercial fishing industry. One commenter stated that finfish 
mariculture activities could have the potential to adversely impact 
local economies by pushing out responsible, small-scale seafood 
producers and crop growers.
    Activities authorized by NWP B must comply with general condition 
17, tribal rights. District engineers will review PCNs for proposed NWP 
B activities and assess potential impacts to navigation, including 
boating, fishing, tourism, and other water-related activities that use 
those navigable waters. There are a variety of activities (e.g., piers, 
port facilities, marine hydrokinetic devices) authorized by the Corps 
in navigable waters under its section 10 authorities that preclude or 
restrict use by others. The potential economic impacts of finfish 
mariculture activities on local businesses and residents is outside the 
Corps' control and responsibility.
    A couple of commenters said that finfish mariculture activities 
should raise farmed species that live in or adjacent to the body of 
water, to minimize the introduction of disease from species relocated 
from other regions. Another commenter suggested using only species 
native to the ecosystem where the finfish mariculture activity is 
located. One commenter requested the establishment of

[[Page 2810]]

exclusion zones, using assessments that consider not just the immediate 
area, but potential impacts to nearby waters as well. One commenter 
said that by requiring siting of finfish mariculture outside of known 
migratory pathways, predation from wild species may be minimized, 
entanglements may be reduced, and potential fish spills from net/cage 
damage by predatory species may also be reduced. One commenter 
suggested siting finfish mariculture activities in deep, open waters to 
minimize the effects of nutrient and sediment dispersal from the 
project site, which may cause increases in nitrogen and phosphorous 
levels, as well as increases in phytoplankton and algae. Several 
commenters said that finfish mariculture activities should not be 
authorized in estuarine waters to minimize adverse effects to water 
quality. A few commenters stated that the PCN review process does not 
provide for adequate planning and would eliminate project-specific 
public notice and comment period that would facilitate responsible site 
selection.
    The Corps does not have the authority to specify which species are 
cultivated at a finfish mariculture structure authorized by the Corps 
under section 10 of the Rivers and Harbors Act of 1899. In addition, 
the Corps does not have the authority to establish mariculture 
exclusion zones in navigable waters. Siting requirements on finfish 
mariculture activities may be imposed by other federal, state, or local 
government agencies.
    Many commenters expressed concerns regarding potential impacts to 
existing habitat, specifically coral reef systems, mangroves, and 
submerged aquatic vegetation that could be caused by increases in 
nutrient and sediment dispersal from the finfish mariculture operation. 
One commenter said that net pen structures and their associated 
anchoring systems have the potential to increase available habitat, 
supporting biodiversity, similar to engineered artificial reefs. In 
addition, this commenter said that the structures would prevent 
trawling of the benthic ecosystem within the footprint of the facility, 
further protecting species.
    When reviewing PCNs for proposed NWP B activities, district 
engineers will evaluate potential impacts on habitats in the vicinity 
of the proposed finfish mariculture structures. The Corps acknowledges 
that finfish mariculture structures can provide structural habitat that 
benefits some aquatic species, as well as providing some refuge from 
predators and fishers.
    Several commenters expressed concerned with the potential 
entanglement of wild fish and marine mammal species, stating that NWP 
review would not allow for adequate evaluation for potential impacts. 
One commenter discussed the potential for illegal extermination of 
predator species such as sea lions by operators of finfish mariculture 
facilities. A few commenters raised concerns regarding the use of 
acoustic deterrent devices, which they said are not consistently useful 
and have been known to cause deleterious impacts to non-target species. 
Other commenters stated that these activities would have the potential 
to attract and concentrate predators, which may lead to entanglements 
or vessel strikes. One commenter said that risks and impacts to 
protected species are minimized by existing federal requirements for 
operations, including the use of improved technologies and regular 
maintenance, such as line-tightening, which has been shown to prevent 
accidental entanglement. A few commenters stated that this NWP must 
prohibit gear types known to cause harm to marine species. One 
commenter said that finfish mariculture structures should be removed 
from waters during peak seasons for protected species.
    If the district engineer determines that a proposed finfish 
mariculture activities may affect listed species or designated critical 
habitat, he or she will conduct ESA section 7 consultation with the 
U.S. FWS and/or NMFS. The operator of the finfish mariculture facility 
may also need to obtain authorization under the Marine Mammal 
Protection Act. The ESA section 7 consultation may result in permit 
conditions added to the NWP authorization to minimize the risk of 
entanglement of listed species. The Corps does not have the authority 
to regulate the management of predator species at a finfish mariculture 
facility, or the use of acoustic deterrent devices. The use of acoustic 
deterrent devices would be addressed through the ESA section 7 
consultation process and/or the Marine Mammal Protection Act 
authorization process, if applicable.
    One commenter said that finfish mariculture operations should only 
be stocked with eggs, larvae, or juveniles from pen-raised lineages, in 
order to avoid the need for wild capture. Another commenter stated that 
the cultivated species should have the same indigenous genetic stock as 
individuals of the species in the waters where the proposed finfish 
mariculture activity is located. The Corps does not have the authority 
to impose requirements on the stocking of finfish mariculture 
facilities, or which genetic stocks are cultivated.
    Many commenters stated concerns with the potential for accidental 
fish escapements by individual species because the introduction of non-
native species may spread pathogens and parasites to wild species, 
increase competition to at-risk communities, and cause genetic 
degradation among existing fish populations. Several commenters 
discussed the 2017 escape of over 200,000 non-native Atlantic salmon in 
the Puget Sound as a result of finfish mariculture operations, with 
some commenters requesting that these activities require individual 
permits, and other commenters stating that regional conditions should 
be implemented to ensure structural integrity of facility structure and 
prevent escape recurrences. One commenter said that although the Corps 
lacks the authority to regulate finfish escapes, it can require 
structures installed in navigable waters to be constructed to a 
standard where escape risks can be mitigated. One commenter stated that 
applicants should be required to report escape events to the Corps and 
that the Corps should maintain a database to monitor events and better 
prevent them in the future. A few commenters said that a universal 
standard should be developed that specifies requirements for the 
proposed finfish mariculture facilities and related features that would 
meet challenges posed by severe weather, and prevent potential 
escapements.
    The Corps does not have legal authority to regulate the potential 
escapement of cultivated finfish. The Corps acknowledges that finfish 
mariculture activities have the potential to facilitate the spread of 
pathogens and parasites, but the Corps does not have the authority to 
regulate or control those occurrences. General condition 14 requires 
proper maintenance of authorized structures and fills. The project 
proponent is responsible for designing and constructing the finfish 
mariculture structures so that they have an appropriate degree of 
structural integrity. Since the Corps does not have the authority to 
address potential fish escapes, there would be no useful purpose served 
by requiring the operator to report escapes to the Corps, or for the 
Corps to maintain a database to track escape events.
    One commenter said that all mariculture operations should be 
considered point sources under the Clean Water Act and be required to 
obtain discharge permits. This commenter also said that routine disease 
testing and other water quality monitoring should also be mandated. One 
stated that effects to water quality within the local environment from 
other sources would have the potential to

[[Page 2811]]

cause impacts to cultured species and subsequently economic returns of 
the finfish farm, suggesting that maintenance of the facility would be 
in the best interest of the operation and thus encourages management 
operations that support the local environment. Some commenters said 
that finfish mariculture activities can cause changes to benthic 
community composition beneath and adjacent to structures because of 
excess feed, feces, and antifoulant accumulation. A couple of 
commenters stated that finfish mariculture projects should be held to 
the same regional water quality standard as offshore seafood 
processors. Several commenters expressed concern with the ingredients 
utilized in fish feed, which one commenter said often contains toxic 
heavy metals like cadmium and zinc and recommended that feed 
formulation and efficiencies be standardized and managed in order to 
lessen adverse environmental impacts. Another commenter suggested that 
finfish mariculture operators should be required to publish reports 
with the complete traceability of all mariculture feed products. One 
commenter asserted that permittees be required to provide proof that 
the finfish mariculture operations would not contribute to hypoxia in 
receiving waters.
    Some finfish mariculture operations may require authorization under 
Section 402 of the Clean Water Act for discharges from finfish 
mariculture operations. Section 402 of the Clean Water Act is 
administered by the U.S. EPA or states with approved programs. The 
Corps lacks the authority to require disease testing and water quality 
monitoring. Water quality monitoring may be required by states in 
estuaries and the territorial seas. The Corps acknowledges that finfish 
mariculture activities can have effects on benthic communities. The 
Corps does not have the authority to regulate the production of finfish 
after the mariculture facility is constructed.
    Several commenters expressed concerns about the potential effects 
of the use of antimicrobials, pesticides, and anti-foulants, and the 
introduction of excess feed and fish waste in project waters. These 
commenters stated that use of these materials could lead to degradation 
of water quality, risking public health, and increase organic nutrient 
loads leading to eutrophication, causing widespread damage to wildlife. 
A few commenters said that industrial finfish mariculture operations 
may cause adverse impacts to public health, as the antibiotics, 
pesticides, and other chemicals that are heavily used to prevent 
disease and parasites in farmed species could accumulate in fish 
tissues to be consumed by the public. One commenter stated that these 
issues have influenced other countries like Canada, Argentina and 
Denmark, to move away from industrial finfish mariculture.
    The Corps does not have the authority to regulate the use of 
antimicrobials, antibiotics, pesticides, anti-foulants and other 
chemicals, how feed is provided to the cultivated finfish, or the 
composition of that feed and its potential effects on water quality. 
Water quality concerns may be addressed through state or federal water 
quality standards under the Clean Water Act, or state laws.
    A couple of commenters said that ESA section 7 consultation should 
be mandatory for all proposed finfish activities and that all 
applicants should be required to obtain an incidental take permits for 
potential effects to listed species. One commenter stated that NOAA 
would be the appropriate agency to provide expertise in reviewing and 
assigning specific permit terms in regard to site selection, conflicts 
between aquaculture projects, marine resources, other ocean users, and 
wild-capture fisheries. A couple of commenters said that individual 
finfish mariculture projects should be coordinated with state natural 
resource agencies to identify regional and site-specific concerns, 
needs analyses, and project-specific conditions.
    All activities authorized by this NWP require PCNs. If the district 
engineer reviews a PCNs and determines that any proposed activity may 
affect listed species or designated critical habitat, he or she will 
conduct ESA section 7 with the U.S. FWS and/or NMFS as appropriate. 
Incidental take permits are issued under Section 10(a)(1)(B) of the 
ESA, not section 7(a)(2). The Corps declines to add a provision to this 
NWP requiring coordination with state natural resource agency, whose 
legal authorities are highly variable and generally do not apply in 
federal waters.
    One commenter questioned the Corps' reliance on general condition 
23 to minimize project impacts. Another commenter said that all NWP B 
applicants should be required to provide a mitigation plan. Several 
commenters voiced concern over the risk for breakage of anchored 
mooring systems for finfish mariculture structures during significant 
weather events, which increases risks to navigational safety and marine 
debris. Additional concerns regarding marine debris were voiced by 
another commenter, who suggested that operators may dispose of solid 
waste into waters rather than through appropriate methods. One 
commenter recommended requiring agency coordination for proposed NWP B 
activities under paragraph (d) of general condition 32.
    General condition 23 provides the mitigation requirements for the 
NWPs. District engineers can require the project proponent to submit a 
mitigation plan if, after reviewing a PCN, the district engineer 
determines that mitigation is necessary to ensure the authorized 
activity will cause no more than minimal individual and cumulative 
adverse environmental effects. The project proponent is responsible for 
designing and constructing the finfish mariculture facility so that it 
complies with applicable engineering standards, and will maintain 
structural integrity within the appropriate parameters of sea and 
weather conditions, and potential predatory behavior by large 
vertebrates. The Corps does not believe that agency coordination under 
paragraph (d) of this NWP is necessary for these activities.
    One commenter asserted that the draft decision document for NWP B 
did not meet NEPA requirements, stated that it lacked adequate 
discussion on purpose and need, which the public needs for 
consideration of the scope of reasonable alternatives. One commenter 
said that an environmental impact statement should be required for 
approval of NWP B, claiming that the Corps failed to adequately discuss 
how potentially significant impacts will be mitigated below the level 
of significance in the draft decision document. One commenter stated 
the Corps failed to address potential adverse cumulative impacts at a 
regional level where specific locations recently identified by NOAA are 
more likely to be impacted.
    The national decision document for this NWP was revised to address 
the requirements for environmental assessments in the Council on 
Environmental Quality's NEPA regulations that were published in the 
Federal Register as a final rule on July 16, 2020 (85 FR 43304). A 
section on purpose and need was added to the national decision 
document. The Corps made a finding of no significant impact. Therefore, 
an environmental impact statement is not required for the issuance of 
this NWP. The national decision document considers the cumulative 
effects expected to occur as this NWP is used during the 5-year period 
it is anticipated to be in effect, and it is a national analysis since 
the geographic scope of the national decision document is the United 
States. Division engineers consider cumulative effects of NWP 
activities on a regional basis.

[[Page 2812]]

    One commenter stated that the minimal effect determination is 
conclusory, as no quantitative impact limits, general conditions, or 
regional conditions have been specified and the impact section did not 
provide discussion on any foreseeable or unknown impacts. One commenter 
said that the Corps' minimal effects determination should provide 
estimates for the anticipated size of mariculture operations to be 
permitted under NWP B and potential impacts of those operations based 
on known impacts of net pen finfish mariculture.
    The Corps did not provide a minimal effects determination in the 
draft national decision document, so the commenter cannot say that it 
is conclusory. The NWPs are not required to have quantitative impact 
limits, and the proposed NWP general conditions were provided in the 
proposed rule. The regional conditions have not been finalized by 
division engineers. The draft decision document discusses reasonably 
foreseeable impacts. The Corps is not required to consider speculative 
impacts. The Corps did provide estimates of the impacts that may occur 
during the 5-year period this NWP is anticipated to be in effect.
    Proposed NWP B is issued as NWP 56, with the modifications 
discussed above.
(15) NWP 57. Electric Utility Line and Telecommunications Activities
    The Corps proposed this new NWP as NWP C, to authorize discharges 
of dredged or fill material into waters of the United States, and 
structures and work in navigable waters of the United States, for 
electric utility line and telecommunications activities.
    Many commenters expressed support for the proposal to issue a 
separate NWP for electric utility line and telecommunications 
activities. They said that the creation of this new NWP for electric 
utilities represents a tailored approach to regulated industries and 
effectively addresses differences in how the various types of utilities 
are constructed, installed, maintained, and removed. Many commenters 
supported retaining the basic structure of the 2017 NWP 12 for proposed 
new NWP C, as well as continuing the longstanding definition of 
``single and complete'' project, providing authorization for temporary 
structures, fills, and work, and imposing the same acreage limits. One 
commenter supports the Corps' proposal to include the list of 
structures and fills in NWP C, including utility lines, substations, 
foundations for towers poles and anchors, access roads, temporary 
structures, fill, and work for remediation of drilling fluid returns 
from horizontal directional drilling, and temporary structures, fill, 
and work including temporary mats for utility line and 
telecommunications activities.
    The Corps is issuing NWP C to authorize discharges of dredged or 
fill material into waters of the United States and structures and work 
in navigable waters of the United States for electric utility line and 
telecommunications activities. For the text of NWP C, the Corps has 
retained a structure similar to the structure of NWPs 12 and D, and 
there are some differences in the specific text of NWPs 12, C, and D to 
address differences in utility line sectors. The Corps is also 
retaining the regulatory approach for authorizing single and complete 
linear projects, where each separate and distant crossing of waters of 
the United States may be covered by its own NWP authorization. The 
corps is also retaining the \1/2\-acre limit for each separate and 
distant crossing of waters of the United States and for the 
construction, maintenance, or expansion of substations for electric 
utility and telecommunications lines. The Corps is also including the 
authorization of temporary structures and fills, as well as DA 
authorization for remediation activities requiring DA authorization 
that may be needed to address inadvertent returns of drilling fluids, 
consistent with NWPs 12 and D.
    Many commenters stated that they expect court challenges to oil and 
gas pipeline activities to continue, and therefore support the issuance 
of a separate NWP for electric utility line and telecommunications 
activities. By creating a separate NWP for these activities, it is the 
hope of these commenters that these electric infrastructure activities 
will not be disrupted by future NWP 12 litigation.
    The Corps acknowledges that the issuance of NWP C can help reduce 
regulatory uncertainty for entities that construct and maintain 
electric utility lines and telecommunications lines. Past litigation on 
NWP 12, especially for oil or natural gas pipelines, has caused 
concerns about the availability of NWP authorization for electric 
utility lines and telecommunication lines and their ability to serve 
people living in the United States.
    Several commenters noted that proposed NWP C is important as the 
scale of electrical energy generation from renewable energy sources 
increases. These commenters said there will be a need for additional 
electric transmission facilities to convey the electricity from the 
generation facilities to the end users. Several commenters stated that 
proposed NWP C will satisfy Section 404(e) of the Clean Water Act by 
authorizing activities that have no more than minimal adverse 
environmental effects, while continuing to allow for timely and 
efficient authorization of these activities. These commenters said that 
the techniques used to construct, maintain, and repair most electric 
transmission lines generally result in fewer impacts to waters of the 
United States compared to the techniques used to construct other types 
of utility lines. Several commenters requested that the Corps not issue 
proposed NWP C, stating that the activities authorized by this NWP 
would cause significant adverse impacts in violation of Section 404(e) 
of the Clean Water Act. These commenters said individual permits should 
be required for these activities.
    The Corps also appreciates the potential for new NWP C to support 
electric energy generation from renewable energy generation facilities, 
including activities authorized by NWPs 51 and 52. The Corps believes 
that the conditions for NWP C, including the reviews of PCNs for 
certain activities authorized by NWP C and the ability of division and 
district engineers to modify, suspend, and revoke NWP C authorizations, 
will help ensure that activities authorized by NWP C result in no more 
than minimal individual and cumulative adverse environmental effects.
    A few commenters noted that the issuance of NWP C would allow the 
Corps to incorporate industry-specific standards, appropriate regional 
conditions, and best management practices tailored to each utility line 
NWP. A few commenters said that proposed NWP C is important because the 
process of applying for and obtaining an individual permit is time 
consuming, expensive, and subject to regulatory uncertainty. These 
commenters said that increased costs and burdens that result from the 
individual permitting process can affect not only the members, but the 
amount of costs that are passed on to consumers and indirectly borne by 
the rural public. One commenter stated that the availability of NWPs 
authorizing the construction, maintenance, repair, and removal of 
utility lines and associated facilities is essential to the expansion 
of necessary infrastructure to remote areas in the United States.
    In this final rule, the Corps discusses suggestions for best 
management practices and national standards that commenters provided in 
response to the 2020 Proposal. The Corps acknowledges that the issuance 
of NWP C will further the objective of the NWP program,

[[Page 2813]]

which is to regulate with little, if any, delay or paperwork certain 
activities having minimal impacts (33 CFR 330.1(d)).
    One commenter stated that fiber optic lines should be specifically 
added to the definition of electric utility line and telecommunication 
line. One commenter recommended retaining the following provision in 
proposed NWP C: ``there must be no change in pre-construction contours 
of waters of the United States.'' One commenter said that the integrity 
of power lines in their service area could be severely compromised if 
vegetation management must be stopped while they obtain individual 
permits for this necessary and routine activity. Vegetation along 
electric utility rights of way must be maintained to prevent trees or 
other vegetation from bringing down power lines and, during dry 
conditions, preventing power lines from contributing to wildfires.
    The Corps has added fiber optic lines to the definition of electric 
utility line and telecommunication line. The requirement that NWP C 
activities associated with the construction, maintenance, repair, and 
removal of electric utility lines and telecommunications lines result 
in no change in pre-construction contours in waters of the United 
States do not compromise vegetation management because most vegetation 
management is conducted above the soil surface. In situations where 
vegetation management involves the removal of plants and their roots, 
the project proponent can regrade the soil surface so that there are no 
changes in pre-construction contours of waters of the United States, 
including jurisdictional wetlands. The Corps acknowledges that 
vegetation management is important for safe, reliable operation of 
electric utility lines and telecommunications lines, and for managing 
fire risks. However, the Corps does not have the legal authority to 
require vegetation management activities to manage fire risks. State 
and local governments may possess that authority.
    A few commenters recommended removal of the following sentence from 
the preamble to the proposed rule: ``The wooden poles used for overhead 
electric transmission lines can be up to 27 inches in diameter, 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.'' These commenters said that utility poles are specified based on 
class and height, not diameter. In addition, these commenters noted 
that round treated wood utility poles can be greater than 27 inches in 
diameter. Lastly, these commenters said that treated wood utility poles 
can be provided not only as ``round poles'', but also as ``laminated 
rectangular poles.'' These commenters recommended adding the following 
sentence to the final rule: ``The wooden poles used for overhead 
electric transmission lines can be up to 40 inches in diameter or up to 
90 inches on any side for rectangular poles.''
    The Corps cannot remove sentences from documents that have already 
been published in the Federal Register, and it sees no need to remove 
this text because it only served as background information for the 
proposed rule, including the proposal to issue three separate NWPs for 
different sectors of utility line activities. The Corps acknowledges 
that this sentence is incomplete, and appreciates the additional 
clarification provided by the commenter.
    A few commenters noted that, although the preamble recognizes the 
wide array of structure types for utility lines, the language of 
proposed NWP C appears to assume a limited design configuration for 
structures to support aerial transmission lines. These commenters said 
that the requirement for separate footings for each tower leg 
incorrectly suggests that such lines only utilize lattice tower type 
structures with multiple legs per structure, which is not the case. 
Therefore, these commenters recommended that the Corps eliminate this 
language from the final NWP C to accurately reflect the wide array of 
structure types that are used to support aerial utility and 
telecommunication lines. One commenter recommended revising the text as 
follows: ``This NWP authorizes the construction or maintenance of 
foundations for overhead electric utility line or telecommunication 
line structures, towers, poles, and anchors in all waters of the United 
States, provided the foundations are the minimum size necessary.''
    The text of NWP C provides substantial flexibility in authorizing 
discharges of dredged or fill material into waters of the United States 
associated with the installation of structures used to support aerial 
transmission lines. The text of the NWP acknowledges that single poles 
may be used for overhead transmission lines, and there is flexibility 
for authorizing discharges of dredged or fill material into waters of 
the United States for footings that support other types of structures 
used for aerial transmission lines, including lattice tower types 
structures. For foundations for overhead electric utility line or 
telecommunication line towers, poles, and anchors, the Corps is 
retaining the text of the NWP as proposed.
    One commenter supports the Corps' proposal to use the \1/2\-acre 
limit in proposed NWP C. One commenter stated that it remains unclear 
when associated facilities are authorized by multiple NWPs, whether the 
\1/2\-acre limit will be applied to multiple NWPs or if only one NWP 
will be selected to authorize the associated facilities.
    The Corps has retained the \1/2\-acre limit for losses of waters of 
the United States for each single and complete project authorized by 
NWP C. General condition 28 addresses the use of multiple NWPs to 
authorize a single and complete project and that general condition 
applies to utility line crossings that may involve different types of 
utility lines authorized by NWPs 12, C, and/or D, where the acreage 
limit for each single and complete project continues to be \1/2\-acre.
    One commenter objected to the inclusion of substation facilities in 
this NWP, because substations can usually be constructed in uplands. 
One commenter said the proposed text for foundations for overhead 
electric utility line or telecommunications lines towers, poles, and 
anchors should be revised.
    The Corps is retaining substations in this NWP because there are 
likely circumstances where it is not feasible or practicable to site a 
substation in uplands. This NWP provides DA authorization for 
discharges of dredged or fill material into waters of the United States 
for the construction, maintenance, or expansion of electric utility 
line and telecommunications substations as long as the loss of waters 
of the United States does not exceed \1/2\-acre.
    One commenter stated that the Corps should end the practice of 
considering timber and other mats used for temporary access and 
construction as resulting in discharges of dredged or fill material 
into waters of the United States and as part of the filled area for the 
PCN thresholds. Some Corps districts count matting toward the PCN 
threshold for permittees, requiring permittees to submit a PCN if the 
discharge will result in the loss of greater than \1/10\-acre of waters 
of the United States.
    The Corps believes that the decision on whether timber mats or mats 
constructed of other materials that are used during construction, 
maintenance, repair, or removal of electric utility lines and 
telecommunication lines result in discharges of dredged or fill 
material

[[Page 2814]]

into waters of the United States and thus require DA authorization is 
more appropriately made by district engineers on a case-by-case basis. 
Such decisions should be made by district engineers after considering 
the definitions of ``discharge of dredged material'' and ``discharge of 
fill material'' at 33 CFR 323.2(d) and (f). The use of temporary 
matting does not constitute a ``loss of waters of the United States'' 
or count towards the \1/10\-acre PCN threshold for losses of waters of 
the United States as long as the timber matting is removed after 
completion of the authorized work and the affected area restored to 
pre-construction elevations.
    A few commenters stated that applicants should have to produce 
containment and clean up contingency plans as a best management 
practice to address inadvertent returns of drilling fluids during 
horizontal directional drilling activities. The Corps does not have the 
authority to require project proponents to develop containment and 
contingency plans for horizontal directional drilling activities that 
do not involve discharges of dredged or fill material into waters of 
the United State or cross navigable waters and require section 10 
authorization. The NWP authorizes regulated activities that may be 
necessary to remediate inadvertent returns of drilling fluids to 
provide timely responses to such events and help reduce potential 
adverse effects to the aquatic environment that may occur as a result 
of these inadvertent returns.
    Several commenters supported the two PCN thresholds for proposed 
NWP C. They stated that limiting the PCN requirements for this NWP to 
these two PCN thresholds will reduce burdens on the regulated public, 
simplify NWP C, eliminate redundancy, and focus the PCN requirements on 
activities that have a substantive potential to result in more than 
minimal adverse environmental effects. One commenter stated that the 
proposed PCN requirements add an administrative burden to the Corps and 
reduce certainty for projects. Many commenters opposed having only two 
PCN thresholds and requested that NWP C have the same seven PCN 
thresholds as the 2017 NWP 12.
    In the 2020 Proposal the Corps proposed two PCN thresholds for this 
NWP: (1) For activities that require section 10 authorization, and (2) 
for discharges that result in the loss of greater than \1/10\-acre of 
waters of the United States. In response to the proposed rule, the 
Corps received comments recommending the addition of other PCN 
thresholds that were removed from NWP. For summaries of the comments on 
the five PCN thresholds that were in the 2017 NWP 12 but removed from 
the 2021 NWP 12, and the Corps' responses to those comments, interested 
persons should read the section in this final rule on the reissuance of 
NWP 12.
    One commenter supported the proposal to require PCNs for losses of 
greater than \1/10\-acre of waters of the United States. One commenter 
recommended requiring PCNs for mechanized land clearing of forested 
wetlands in the electric utility line right-of-way where greater than 
\1/10\-acre of forested wetland is subjected to mechanized land 
clearing, instead of requiring PCNs for any amount of mechanized land 
clearing in forested wetlands. One commenter asked why activities that 
result in changes in pre-construction contours, but do not result in 
permanent losses of waters of the United States cannot be permitted by 
NWP C while activities that do not result in a change to pre-
construction contours, but result in up to \1/10\-acre of permanent 
loss of waters of the United States can be permitted by this NWP.
    The Corps did not propose to require PCNs for discharges of dredged 
or fill material into waters of the United States associated with 
mechanized land clearing of forested wetlands in the utility line right 
of way. If, for a proposed electric utility line or telecommunications 
line, the applicant proposes to conduct mechanized land clearing of 
forested wetlands in the right-of-way for the electric utility line or 
telecommunications line, a PCN is required if the project proponent 
will be unable to restore the disturbed wetlands to pre-construction 
elevations and the activity involves a discharge of dredged or fill 
material that results in the loss of greater than \1/10\-acre of waters 
of the United States. Nationwide permit C authorizes discharges of 
dredged or fill material into waters of the United States that result 
in permanent losses of waters the United States, as long as that loss 
does not exceed \1/2\-acre for each single and complete project.
    One commenter opposed the requirement to submit a PCN for 
activities that require authorization under Section 10 of the Rivers 
and Harbors Act, regardless of the amount of loss. The Corps has 
retained this PCN threshold so that district engineers have the 
opportunity to review these activities and ensure that the authorized 
activities cause no more than minimal adverse effects to navigation.
    Several commenters objected to allowing multiple segments of the 
same pipeline to qualify for NWP authorization, stating it is a 
violation of Section 404(e) of the Clean Water Act, the National 
Environmental Policy Act, the Endangered Species Act, and other legal 
requirements for rigorous and transparent environmental reviews and 
safeguards. A few commenters noted that while electric and 
telecommunication lines do not pose the same risks of spills and leaks 
as oil and gas pipelines, they still allow for greater than minimal 
impacts by authorizing large electric lines and telecommunications 
lines under the guise of ``single and complete projects.''
    Considering separate and distant crossings of waters of the United 
States to be linear projects that can be authorized by separate NWPs is 
a long-standing practice that has been codified in the Corps 
regulations at 33 CFR 330.2(i) since 1991 (see 56 FR 59110). This 
practice does not violate Section 404(e) of the Clean Water Act, NEPA, 
or the ESA. The Corps complies with NEPA when it issues the national 
decision document for the issuance of an NWP, because that decision 
document includes an environmental assessment. Activities authorized by 
NWP C and other NWPs must comply with general condition 18, endangered 
species. The Corps acknowledges that some spills or leaks may occur 
from equipment associated with electric utility lines and 
telecommunications lines, including equipment at substations, but the 
Corps does not have the authority to regulate such spills or leaks.
    A few commenters stated that is that it is unclear how the Corps 
will evaluate what constitutes a ``project'' under these NWPs for the 
purposes of determining whether a project exceeds the \1/2\-acre limit 
or results in a loss of more than \1/10\-acre in order to trigger the 
requirement for an individual permit. A few commenters requested 
additional details regarding what measures will be used to ensure that 
projects under these NWPs are not improperly divided into smaller 
sections to avoid an individual permit requirement. Several commenters 
state that the ``single and complete project'' concept should not apply 
to the installation of new electric utility line and telecommunication 
activities. Some commenters said a new electric utility line or 
telecommunications line should be subject to analysis under NEPA for 
the entire project, including a cumulative review of all temporary and 
permanent impacts to waters of the United States from the utility line 
crossings, access roads, substations, temporary work pads, etc.
    The Corps has long-standing practice and experience evaluating 
single and

[[Page 2815]]

complete projects when applying the \1/2\-acre limit and the \1/10\-
acre PCN threshold for losses of waters of the United States. District 
engineers have the discretion to determine which regulated activities 
constitute ``single and complete linear projects'' and ``single and 
complete non-linear projects'' in accordance with the Corps' 
regulations and the definitions in Section F of these NWPs. When an NWP 
C activity requires a PCN, paragraph (b)(4)(i) of general condition 32 
requires the applicant to include in the PCN 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. Furthermore, paragraph 
(b)(4)(ii) of general condition 32 requires the applicant to include in 
the PCN 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 NWPs but 
do not require PCNs). The district engineer uses this information to 
evaluate the cumulative adverse environmental effects of the proposed 
linear project. Activities authorized by NWP do not require additional 
NEPA compliance, because the Corps satisfies the requirements of NEPA 
when it issues the national decision documents for the NWPs.
    One commenter stated that a PCN should be required for any new or 
expanded electric utility line project, and there needs to be an 
overall limit in acreage of waters of the United States lost as a 
result of activities authorized by this NWP. A few commenters said that 
proposed NWP C should include the 250-mile PCN threshold proposed for 
NWP 12. These commenters asserted that not adding the 250-mile PCN 
threshold allows for very large projects to be built without a PCN and, 
therefore, bypass other federal requirements that are triggered by the 
section 404 process such as the requirements of Section 7 of the 
Endangered Species Act and Section 106 of the National Historic 
Preservation Act. One commenter asked whether temporary impacts and 
impacts that involve conversion from one wetland type to another (e.g., 
forested wetland to herbaceous) are counted as part of the \1/10\-acre 
PCN notification threshold. These commenters recommended revising the 
definition of ``loss of waters of the United States'' to include 
permanent conversion of wetland types.
    The Corps does not agree that PCNs should be required for any 
expansion of electric utility line projects. The information required 
by paragraphs (b)(4)(i) and (ii) of general condition 32 provides the 
Corps with information similar to the 250-mile PCN threshold that was 
added to NWP 12, but the Corps does not believe that the 250-mile PCN 
threshold is necessary for NWP C because it authorizes projects with 
typically smaller footprints of discharges of dredged or fill material. 
Activities authorized by NWP C must comply with general condition 18, 
endangered species, and general condition 20, historic properties. 
Temporary impacts are not considered a ``loss of waters of the United 
States.'' A permanent conversion of wetland type is generally not 
considered a ``loss of waters of the United States'' because the 
affected area is still a wetland, and vegetation management activities 
such as cutting and mowing vegetation or using herbicides are not 
regulated by the Corps under its permitting authorities.
    One commenter stated that Corps districts should maintain 
consistency with the number of thresholds that trigger the need for a 
PCNs expressed in the proposed rule. This commenter noted that some 
Corps districts have already proposed regional conditions that will 
undercut the changes in the proposed rule. This commenter said that 
differences in PCN thresholds across Corps districts could complicate 
NWP C by increasing confusion and inefficiencies.
    Division engineers have the authority to approve regional 
conditions for this NWP based on the characteristics and other factors 
regarding the ecosystems in their respective regions, including 
regional conditions that add PCN thresholds. Division engineers can add 
regional conditions to replace PCN thresholds that were removed from an 
NWP, if the division engineer determines that PCN threshold is 
necessary to ensure that the activity has no more than minimal or 
cumulative adverse environmental effects. Regional conditions are an 
important mechanism for tailoring the NWP program to address specific 
resource concerns in a particular geographic area.
    Several commenters opposed including Note 2 in NWP C. These 
commenters said that Note 2 is inconsistent with the requirements of 
Section 404(e) of the Clean Water Act and that it would allow 
activities that have more than minimal adverse environmental effects to 
proceed. One commenter said that proposed Note 2 would explicitly allow 
the cobbling together of multiple NWPs to authorize high impact 
pipelines and associated infrastructure that have greater potential for 
harmful spills, leaks, and the discharges that accompany them. As 
discussed above in response to comments on the Corps' definition of 
``single and complete project'' at 33 CFR 330.2(i), Note 2 is consist 
with that regulation and this long-standing practice.
    One commenter recommended clarifying and rephrasing the following 
sentence found in Note 3: ``Aerial electric utility lines or 
telecommunication 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). The Corps believes 
that no additional clarification is necessary for Note 3 because it 
only points to a specific provision of the Corps' regulations to serve 
as a reminder to project proponents that want to construct electric 
utility lines or telecommunications lines over navigable waters of the 
United States.
    A few commenters recommended including the term ``and other 
temporary structures'' in the text of Note 4. These commenters 
suggested changing Note 4 to state that access roads and other 
temporary structures such as work pads, temporary utility poles, and 
pulling and tension pads, used for both construction and maintenance 
may be authorized, provided they meet the terms and conditions of this 
NWP. Note 4 specifically addresses access roads, and the Corps believes 
it would be inappropriate to address other temporary structures in this 
note. Temporary structures are addressed in a separate paragraph in the 
text of NWP C.
    A few commenters recommended that if the Corps includes specific 
best management practices (BMPs) in the final NWP C, it should indicate 
that the BMPs should be implemented ``where appropriate and practical'' 
and recognize that implementation of certain BMPs may not be required 
in all circumstances. These commenters noted that there are a wide 
range of minimization, avoidance, and management measures deployed to 
reduce impacts to aquatic environments, some are unique to the electric 
and telecommunication utility lines. However, it would be difficult to 
include many of these BMPs as national requirements for all uses of NWP 
C because their implementation, while

[[Page 2816]]

frequent, is site-specific and may not be feasible or useful for 
minimizing impacts in all scenarios. A few commenters stated that the 
Corps should not adopt additional national BMPs or other restrictions, 
and said that such practices should be addressed at the regional level 
and tailored to local environments, which will allow for greater 
flexibility. A few commenters said that adding additional BMPs or 
standards to this NWP would result in redundant requirements to manage 
on these projects without providing additional benefits.
    The Corps agrees that BMPs should be implemented where appropriate 
and practical, and that it would be more appropriate and efficient to 
add BMPs to this NWP either through regional conditions added to the 
NWP by division engineers or activity-specific conditions added to the 
NWP by district engineers. During its review of the suggested BMPs, the 
Corps determined that many of these BMPs that are appropriate to apply 
nationwide would not be appropriate for the NWP at a national level, 
but they may be appropriate on a region level. The proposed text of NWP 
includes some BMPs (e.g., requiring no changes in preconstruction 
contours of waters of the United States, requiring the top 6 to 12 
inches of the trench in wetlands to normally be backfilled with topsoil 
from the trench, removal of temporary fills upon completion of the 
work).
    Many commenters said that the placement of temporary matting in 
jurisdictional wetlands should continue to be a BMP for proposed NWP C 
activities to minimize adverse environmental effects. Several 
commenters recommend requiring the use of low-ground pressure 
equipment, such as heavy equipment that has been specially designed to 
spread the weight of the equipment over a larger area, which helps 
avoid permanent impacts by reducing compaction of wetland soils. One 
commenter said that use of wattles (i.e., erosion and sediment control 
devices used to minimize erosion on construction sites) is a general 
accepted practice to reduce water flow velocities and prevent sediment 
from flowing into jurisdictional waters. The Corps believes these BMPs 
are more appropriately applied on a case-by-case or regional basis, in 
consideration of the characteristics of the affected ecosystems, 
instead of a national basis.
    One commenter stated that the Corps should continue to clearly 
outline performance criteria within jurisdictional areas because it 
provides the flexibility needed to facilitate the improvement and 
development of construction practices that could better protect aquatic 
resources. One commenter recommended adding a requirement that 
directional drilling under waters of the United States should be a 
national standard. One commenter suggested the addition of a BMP to 
require district engineers to distribute relevant PCNs to state 
agencies involved in the regulatory oversight or environmental review 
of projects authorized by the new NWP C. With this NWP, the Corps 
outlines certain performance criteria (e.g., removal of temporary 
fills, uses of temporary mats) within jurisdictional waters. The Corps 
believes the recommended BMPs are applied more appropriately and 
effectively on a case-by-case or regional basis instead of a national 
basis.
    One commenter suggested a BMP where the project proponent tries to 
cut only vegetation that exceeds a height of 12 feet and allows all 
low-growing trees and shrubs to remain in place. This commenter said 
that a benefit of this BMP is that it allows roots to remain in place 
providing soil stabilization in and around jurisdictional waters. One 
commenter noted that non[hyphen]mechanized clearing is preferred 
consistent with the Corps' regulations at 33 CFR 323.2(d) along with 
hand clearing, low ground pressure equipment and mats, to minimize and 
avoid additional impacts to the jurisdictional water or wetland beyond 
conversion are significantly minimized or avoided. The Corps believes 
the recommended BMPs are applied more appropriately and effectively on 
a case-by-case or regional basis instead of a national basis.
    One commenter said that vibratory plowing is preferred over 
trenching methods for burying both distribution and fiber optic lines 
because vibratory plowing under most conditions does not create 
incidental addition of material. One commenter recommended requiring 
that material resulting from trench excavation may be temporarily side 
cast into waters of the United States for very short periods of time 
well within the limitation of three months, and is not placed in such a 
manner that it is dispersed by currents or other forces. In addition, 
this commenter suggested requiring side[hyphen]cast material to be 
protected so it does not discharge offsite or into jurisdictional 
waters during rainfall events. The Corps believes the recommended BMPs 
are applied more appropriately and effectively on a case-by-case or 
regional basis instead of a national basis.
    One commenter remarked that while burying utilities is an important 
climate adaptation strategy to address wildfire impacts, such 
activities should be undertaken in an ecologically responsible fashion, 
and recommended prohibiting NWP C activities within or under coastal 
zone waters and wetlands. The Corps does not agree that NWP C 
activities should be prohibited in coastal zone waters and wetlands.
    A few commenters provided the following list of various practices 
its members implement to help ensure that electric utility line 
construction and maintenance activities will have no more than minimal 
adverse environmental impacts:
     Avoiding surface waters when embedding structures 
(footings, poles, etc.), stockpiling materials, and setting up work 
areas. Locating poles and tower foundations outside of surface waters 
to the extent practicable. Where practicable, poles or structures are 
sited in uplands so that the infrastructure ``spans'' and thereby 
avoids the aquatic environment.
     When it is not possible to span an aquatic environment, 
poles or structures are installed in a manner to maintain conductor 
clearance consistent with North American Electric Reliability 
Corporation (``NERC'') and other guidelines to ensure safe and reliable 
operation.
     Installing mats before placing or driving equipment over 
wetlands or streams.
     Constructing roads with pervious materials and limiting 
width and elevation, so long as access is safe.
     Relying on low water crossings and appropriately sized 
culverts.
     Designing site plans to address the prevention, 
containment, and cleanup of sediment or other materials caused by the 
inadvertent returns of drilling fluids when installing electric utility 
lines under streams or other waters via directional drilling.
     Locating stockpile and work areas outside of surface 
waters.
     Performing frequent inspections of environmental and 
safety measures and construction activities.
     Marking waters of the United States near work areas with 
flagging or perimeter fencing
     Deploying mats prior to driving over or placing heavy 
equipment on wetlands.
     Installing stormwater BMPs to prevent erosion of hillsides 
adjacent to construction areas.
     Where practicable, trench material is side casted onto 
uplands or onto filter cloth, mats, or some other semi-permeable 
surface in vegetated wetlands.

[[Page 2817]]

     Site plans are designed to address the prevention, 
containment, and cleanup of sediment or other materials caused by the 
inadvertent returns of drilling fluids when installing electric utility 
lines under streams or other waters via directional drilling. In the 
event of an inadvertent return of drilling fluids, the agency is 
notified, and the remediation plan is implemented.
     Where permanent access is not required, avoidance measures 
are deployed to minimize impacts to jurisdictional waters to the 
maximum extent possible.
     Where permanent roads are required, they are typically 
limited in width and elevation to the minimum necessary for safe access 
and constructed with pervious materials.
     Stockpiles and work areas are generally established 
outside of surface waters.
     Timber mats are typically installed prior to placing or 
driving equipment over wetlands or streams.
     Frequent inspections of environmental and safety measures 
and construction activities are performed. Monitoring during and after 
construction to avoid unauthorized discharges to surface waters.
     Construction personnel, contractors, and personnel who 
operate and maintain the electric utility and telecommunication lines 
are trained to understand and comply with permit requirements and 
conditions.
    Several commenters suggested the following BMPs for proposed NWP C 
based on Avian Powerline Interaction Committee documents. Their 
recommended BMPs include:
     Avian Protection Plan (APP) Guidelines.
     Suggested Practices for Avian Protection on Power Lines.
     Reducing Avian Collisions with Power Lines: State of the 
Art in 2012.
     Region 6 Guidance for Minimizing Effects from Power Line 
Projects Within the Whooping Crane Migration Corridor (available at 
https://puc.sd.gov/commission/dockets/electric/2019/el19-003/memo.pdf.)
    The Corps believes the recommended BMPs are applied more 
appropriately and effectively on a case-by-case or regional basis 
instead of a national basis. The Corps has been administering NWP 12 
since it was first issued in 1977 without extensive BMPs at the 
national level and has found that the current approach with the BMPs 
that are already in the text of the utility line NWPs (i.e., NWPs 12, 
57, and 58) is effective.
    A few commenters stated that the proposed NWP C will allow for 
increased impacts to rivers and wetlands. One commenter said that 
mechanized land clearing in forested and scrub-shrub wetlands for 
utility line installation should not be authorized under NWP C and that 
individual permits should be required for those activities. One 
commenter said that individual permits should be used to authorize the 
entire electric utility line project when one crossing does not meet 
the limits for NWP C. One commenters states that it is not clear how 
temporal and cumulative impacts will be considered when evaluating 
facilities proposed to be authorized by NWP C or by multiple NWPs. A 
few commenters recommend that the Corps adopt a policy of early 
consultation with Indian tribes and other actors on these types of 
projects, above the timeline required by the NHPA section 106 process. 
One commenter recommended that the Corps require prior consent on 
projects impacting tribes.
    The proposed NWP C will not result in increased impacts to rivers 
and wetlands because it has the same limits as the NWP 12 that was 
issued in 2017 and in several prior reissuances of the NWPs. The 
activities authorized by this NWP must comply with 33 CFR 330.6(d), 
which addresses the use of NWPs with individual permits. During the PCN 
review process, district engineers evaluate the individual and 
cumulative effects of the activities authorized by an NWP (see 
paragraph 2 of Section D, District Engineer's Decision). For Corps 
districts consult with tribes when necessary for activities authorized 
by this NWP and other NWPs. Issuance of an NWP verification by a 
district engineer does not require prior consent from tribes.
    Several commenters expressed concern about the impacts that 
electric utility lines may have on migratory avian populations from 
collisions with power lines. These commenters said that the Corps needs 
to analyze the potential harm to bird populations from its permitting 
of utility lines pursuant to this proposed NWP. These commenters said 
that national programmatic ESA section 7 consultation should be 
initiated for the issuance of this NWP, to allow the Services to work 
with the Corps to establish national BMPs. Another commenter stated 
that the Corps should consider voluntarily performing ESA Section 7 
consultation on the issuance of this NWP to provide regulatory 
certainty.
    The national decision document has been revised to discuss 
potential impacts of electric utility lines on migratory birds. General 
condition 19 addresses compliance with the Migratory Bird Treaty Act 
and the Bald and Golden Eagle Protection Act. That general condition 
states that the permittee is responsible for ensuring that the activity 
authorized by an NWP complies with both of these acts, and that the 
permittee is responsible for contacting the appropriate office of the 
U.S. FWS to determine whether any incidental take permits are necessary 
and available under the Migratory Bird Treaty Act or Bald and Golden 
Eagle Protection Act. Compliance with the ESA for this rulemaking is 
discussed in Section III.D of this final rule.
    One commenter emphasized that safety must remain paramount when 
constructing, maintaining, repairing, and replacing above-ground and 
below-ground electrical utility lines. The commenter suggested that the 
Corps reference safety standards as a means of ensuring that electric 
utility activities are conducted safely. One commenter said that the 
proposal also describes the two methods by which underground electric 
transmission cables are installed: Trenching and backfilling or 
horizontal directional drilling. This commenter remarked that members 
may also utilize conventional boring to install electric utility lines, 
and asked that the Corps acknowledge that conventional boring is 
another method used for installation of underground electric 
transmission cables.
    The Corps does not have the authority to require and enforce safety 
standards that apply to the construction, maintenance, repair, and 
replacement of above-ground and below-ground electrical utility lines. 
Safety standards and requirements may be imposed by other federal 
agencies, or state and local government agencies. This NWP authorizes 
activities that may involve directional boring, as long as those 
activities involve discharges of dredged or fill material into waters 
of the United States or cross navigable waters of the United States.
    Proposed new NWP C is issued as NWP 57, with the modifications 
discussed above.
(16) NWP 58. Utility Line Activities for Water and Other Substances
    The Corps proposed this new NWP as NWP D, to discharges of dredged 
or fill material into waters of the United States, and structures and 
work in navigable waters of the United States, for utility line 
activities for water and other substances, such as potable water, 
sewage, stormwater, and wastewater.
    Several commenters stated that they support the issuance of new NWP 
D for water, wastewater, and stormwater utility lines because of the 
national legal

[[Page 2818]]

uncertainty of oil and gas pipeline projects. Many commenters said they 
support the issuance of NWP D because it streamlines the permitting 
process, clarifies the PCN requirements, separates activities based on 
the utility types, and ensures the activities will cause no more than 
minimal adverse environmental effects. Several commenters stated they 
were opposed to the issuance of NWP D and recommend withdrawing NWP D 
because it authorizes activities that cause significant adverse 
impacts, and these activities should require individual permits. These 
commenters stated, that at a minimum, additional PCN requirements 
should be added to the proposed NWP.
    The activities authorized by NWP D will generally result in no more 
than minimal individual and cumulative adverse environmental impacts, 
and certain activities require pre-construction notification to the 
district engineer. District engineers will review PCNs for proposed NWP 
D activities, and may add permit conditions, including mitigation 
requirements, to the NWP authorization to help ensure that the 
authorized activities cause no more than minimal adverse environmental 
effects. District engineers can also exercise discretionary authority 
and suspend or revoke the NWP authorization for proposed activities 
that will result in more than minimal adverse environmental effects. 
The Corps believes that the two PCN thresholds in proposed NWP D will 
provide district engineers with the opportunity to review utility line 
activities for water and other substances that have the potential to 
cause more than minimal adverse environmental effects.
    Several commenters expressed opposition to allowing multiple 
segments as ``single and complete projects'' of the same pipeline 
qualify for NWP authorization because it violates the Clean Water Act's 
minimal impact limitation, the National Environmental Policy Act, the 
Endangered Species Act, and other legal requirements for rigorous and 
transparent environmental reviews and safeguards. In addition, several 
of these commenters stated the authorizing multiple segments as single 
and complete projects does not capture cumulative effects.
    The use of NWPs to authorize separate and distant crossings of 
waters of the United States for utility lines and roads as single and 
complete has been in the Corps' NWP regulations at 33 CFR 330.2(i) 
since 1991. The National Environmental Policy Act is a procedural 
statute that does not prohibit any specific regulatory approaches or 
mandate specific outcomes. Activities authorized by NWP D must comply 
with general condition 18, endangered species. The requirements of 
paragraph (b)(4) of general 32 help ensure that district engineers have 
information regarding the crossings of waters of the United States that 
require PCNs or do not require PCNs, so that the cumulative adverse 
environmental effects can be assessed during the review process.
    Several commenters stated opposition to the removal of the five PCN 
requirements from the 2017 NWP 12 because they believe the Corps will 
no longer receive notice of activities that cause more than minimal 
adverse effects, nor will other federal and state natural resource 
agencies be able to review and provide comments. Many commenters 
opposed the removal of the non-PCN requirements for right-of-way 
mechanized land clearing through forested wetlands because this 
activity causes fragmentation and a loss/conversion of wetland type and 
associated functions. The commenters requested addition of a 
requirement for the submittal of a PCN for land clearing associated 
with utility line rights-of-way within wetlands so that the Corps and 
interested stakeholders can ensure impacts are appropriately avoided 
and mitigated. A few commenters stated that the 500 linear foot PCN 
threshold from the 2017 NWP 12 should be added to NWP D. One commenter 
said that the PCN requirement for temporary access roads should be 
retained. One commenter stated that a PCN should be required when the 
proposed activities would run parallel with a stream bed.
    The removal of the five PCN thresholds from NWP 12 are discussed in 
the preamble discussion of NWP 12 and the same reasoning applies to the 
removal of these PCNs from NWP 58. That preamble discussion includes 
responses to comments, and that discussion will not be repeated in this 
section of the preamble. The Corps declines to add the suggested PCN 
thresholds because this NWP requires restoration of temporary fills to 
pre-construction elevations. If utility line activities associated with 
the suggested PCN thresholds result in a permanent impact that causes 
the loss of greater than \1/10\-acre of waters of the United States, 
then PCNs are required.
    A few commenters said there needs to be an overall acreage limit on 
authorized impacts for this NWP, including a maximum acreage for non-
PCN forest clearing activities, and a maximum length of impervious 
surface roads before a PCN is required. One commenter stated that the 
Corps needs to provide sound, scientific evidence that the removal or 
omission of any of the PCN thresholds from the 2017 NWP 12 would not 
harm river, stream, or wetland hydrologic functions.
    The activities authorized by this NWP are subject to a \1/2\-acre 
limit for each single and complete project. There was no PCN 
requirement for temporary access roads in the 2017 NWP 12 and the Corps 
continues to believe that it is not necessary to ensure no more than a 
minimal individual or cumulative adverse environmental effects. Pre-
construction notification thresholds are established for proposed 
activities requiring DA authorization that have the potential to cause 
more than minimal adverse environmental effects. Pre-construction 
notifications are informed by science and the Corps experience in 
administering the NWP program. In this instance, the Corps has 
determined it can remove the respective PCN requirements without 
risking more than a minimal individual or cumulative adverse 
environmental effects.
    Some commenters said that the reduction of the PCN thresholds will 
simplify NWP D and would not cause a negative impact on the 
environment. One commenter asserted that permanent access roads should 
be authorized under NWP 14, not NWP D. One commenter recommended adding 
a requirement for horizontal directional drilling under waters of the 
United States, as a national standard under NWP D. One commenter 
recommended adding a provision to NWP D requiring containment and clean 
up contingency plans.
    The Corps declines to add a requirement for the use of horizontal 
directional drilling because that technique is not always practical or 
feasible for utility lines that convey water and other substances. The 
use of horizontal directional drilling is more appropriately determined 
on a case-by-case basis after considering the characteristics of the 
proposed utility line activity, including site characteristics. The 
Corps does not have the authority to require containment and cleanup 
contingency plans for the construction, expansion, maintenance, or 
repair of utility line activities for water and other substances.
    One commenter stated that the Corps should define a ``stand-alone 
project'' as a utility line project that includes all crossing within a 
major watershed as evaluated together as single and complete, since the 
cumulative impacts are to one system. The commenter said that an 
alternative approach would be to require a cumulative analysis for all 
proposed NWP D activities. Several

[[Page 2819]]

commenters requested clarification of the status of ongoing, non-oil 
and gas utility projects verified under the 2017 NWP 12, specifically 
whether they will continue to be authorized under the 2017 NWP 12 until 
the March 18, 2022 expiration date, or if they will need to be 
reverified.
    The Corps declines to add a definition of ``stand-alone project'' 
to this NWP. When reviewing PCNs for proposed NWP activities, district 
engineers evaluate the crossings of waters of the United States that 
require PCNs and the information provided on other crossings in 
accordance with paragraph (b)(4) of general condition 32. They will 
determine whether the proposed utility line for water and other 
substances will result in no more than minimal individual and 
cumulative adverse environmental effects. The grandfathering provisions 
for these NWPs, including the transition from 2017 NWP 12 to the 2021 
NWP 12 and new NWPs 57 and 58, is discussed in Section I.D. of this 
final rule.
    A few commenters requested that the Corps broaden the definition of 
the term ``utility line'' so that it includes other types of man-made 
conveyances, such as canals and other linear conveyances that are 
subject to Clean Water Act section 404 jurisdiction and can transport 
water. One commenter requested the addition of specific waterline 
ancillary facilities including, but not limited to pump plants, 
siphons, and tunnels to the text of this NWP. One commenter said that 
the Corps should clarify whether this NWP authorizes utility line 
activities that convey substances that are unclear as to whether they 
included in the definition of ``oil or natural gas pipeline'' in NWP 
12, such as hydrogen and power-to-gas (i.e., hydrogen combined with 
carbon dioxide to create methane, or renewable natural gas). One 
commenter recommended further defining the term ``other substances'' in 
this NWP.
    The Corps declines to add canals and ditches to the activities 
authorized by this NWP. Canals and ditches can be authorized by other 
NWPs, if the construction of those ditches involves discharges of 
dredged or fill material into waters of the United States or structures 
or work under Section 10 of the Rivers and Harbors Act of 1899. 
Substations for utility lines for water and other substances can 
include pump plants and siphons. Tunnels may be authorized if they a 
considered utility lines. Utility lines constructed to convey hydrogen 
or carbon dioxide can authorized by NWP D, but utility line activities 
constructed to convey renewable natural gas should be authorized by NWP 
12. In general, ``other substances'' includes substances not conveyed 
by utility lines authorized by NWPs 12 and 57. The Corps has added 
``products derived from oil or natural gas'' to be consistent with the 
definition of ``oil or natural gas pipeline'' in NWP 12, and to clarify 
that regulated activities associated with pipelines that carry 
substances derived from oil or natural gas should be authorized by NWP 
12, not NWP D.
    One commenter said that Note 4 should refer to the General Bridge 
Act of 1946 instead of Section 9 of the Rivers and Harbors Act of 1899. 
The Corps has made this change to Note 4.
    One commenter requested clarification on how temporal and 
cumulative impacts will be considered when evaluating activities 
authorized by NWP D. This commenter recommended conducting a separate 
analysis for temporal and cumulative impacts on streams, wetlands, and 
other waters. A few commenters recommended changing the provision 
condition that states ``there must be no change in pre-construction 
contours of waters of the United States'' to ``there must be no change 
in pre-construction contours which results in permanent losses of 
waters of the United States.'' One commenter requested clarification on 
the measures the Corps will take to ensure that the activities 
authorized by NWP D are not improperly divided into smaller sections to 
avoid an individual permit.
    Temporal and cumulative impacts will be evaluated using the 10 
criteria identified in paragraph 2 of Section D, District Engineer's 
Decision. The Corps declines to change the text regarding the 
requirement for no changes in pre-construction contours, because that 
has been a BMP that has helped ensure that most utility line activities 
result in temporary impacts. The Corps applies the definitions of 
``single and complete linear project'' to NWP D activities and to other 
NWPs that authorize utility lines to determine which activities can be 
authorized by an NWP and which activities require individual permits. 
The Corps also implements 33 CFR 330.6(d), which addresses the use of 
individual permits with NWPs.
    Several commenters stated that BMPs should be site-specific and 
imposed as special conditions, if necessary, and not standardized in 
the text of NWP D. One commenter said that the inclusion of standards 
and BMPs would likely impede the objective of the NWP program by 
causing delays and increasing paperwork. This commenter asserted that 
attempting to establish national standards could cause conflicting 
requirements between the NWP and Clean Water Act Section 401.
    The Corps agrees that most BMPs are site-specific and should be 
identified for specific utility line activities. Best management 
practices may also vary by region and by aquatic resource type. Best 
management practices that are necessary to ensure that activities 
authorized by NWP D have no more than minimal adverse environmental 
effects are more appropriately identified by district engineers and 
required through activity-specific conditions added to the NWP 
authorization or through the section 401 water quality certification 
process.
    One commenter said that the Corps should adopt a policy of early 
consultation with the tribes and other interested parties for these 
types of projects over and above the NHPA section 106 process to avoid 
litigation, and other costly delays. This commenter also requested the 
Corps require consent on projects impacting tribes. One commenter 
recommended evaluating the direct, indirect, and cumulative effects on 
treaty reserved resources, including anadromous salmonids and their 
habitat to fully understand the potential extent of resource impacts.
    The Corps consults with tribes when necessary to ensure that 
activities authorized by an NWP comply with general condition 17, 
tribal rights. As part of this rulemaking, Corps districts have 
consulted and coordinated with tribes to identify regional conditions 
and coordination processes to ensure protect tribal rights, as well as 
tribal trust resources. Activities authorized by NWPs do not require 
prior consent from tribes.
    One commenter said that the Corps should end the practice of 
counting temporary impacts associated with matting for moving heavy 
machinery over a wetland, as a loss of greater than \1/10\-acre, which 
triggers a requirement to submit a PCN. One commenter stated the Corps 
districts should maintain consistency with the PCN thresholds and 
should not be allowed to add regional conditions to this NWP that 
undercuts the reduction in PCN thresholds in this NWP. This commenter 
said that regional conditions cause confusion and inefficiencies, 
especially if the linear infrastructure crosses into multiple Corps 
districts.
    The determination regarding whether the use of matting during 
utility line activities authorized by NWP D causes a loss of waters of 
the United States that may require a PCN is more appropriately made by 
district engineers on a case-by-case basis. Division engineers can add 
regional conditions to

[[Page 2820]]

this NWP that replace PCN thresholds that were removed, if they 
determine those PCN thresholds are necessary to ensure that this NWP 
authorizes only those activities that have no more than minimal adverse 
environmental effects. Regional conditions are intended to address 
regional differences in aquatic resource functions, so there may be 
some inconsistency that must be dealt with, especially for utility 
lines that run through multiple states or Corps districts.
    One commenter said that water mains are known to exceed the non-oil 
and gas pipeline diameters, identified in the preamble as 3 to 24 
inches, as they may be 6 feet or wider. This commenter stated the Corps 
did not provide a robust analysis of the lengths of the various utility 
line, nor did they provide the total national mileage for these lines, 
as they could be quite long and have similar types of impacts as oil or 
gas pipelines. A few commenters recommended removing natural gas 
pipelines (i.e. residential lines), hydrogen transport lines for clean 
energy solutions, and local, intrastate utility lines operated as an 
independent municipally-owned distribution system from NWP 12, because 
they are typically similar or smaller in size with respect to 
materials, location, installation footprint, and constructed along with 
water and wastewater pipelines.
    The intent of the preamble discussion in the 2020 Proposal 
regarding the proposal to issue separate NWPs for oil or natural gas 
pipelines, electric utility lines and telecommunications lines, and 
utility lines for water and other substances was to illustrate some of 
the differences among those utility line sectors. The discussion of 
pipeline diameters has no relevance to the text of these NWPs, or to 
the conditions that apply to those NWPs. Utility line activities 
authorized by NWP D can be used to convey hydrogen, and for local 
distribution of water, sewage, wastewater, and other substances.
    One commenter expressed concerns regarding the proposed issuance of 
NWP D to authorize utility line activities that carry wastewater. This 
commenter stated that distribution systems for wastewater reuse 
applications should be assumed to carry highly toxic and potentially 
hazardous substances that would degrade soils and groundwater if leaked 
or spilled. One commenter said that allowing activities under NWP D 
within or under coastal zone waters and wetlands will impermissibly 
degrade water quality, which is inconsistent with Section 404(e) of the 
Clean Water Act. One commenter stated that the NWP should be modified 
to require access roads to be built in accordance with local or state 
standards.
    Prior versions of NWP 12 have authorized utility line activities 
that carry wastewater, so this is not a new issue for the NWP program. 
General condition 14 requires proper maintenance of activities 
authorized by NWPs, so utility lines carrying wastewater should 
minimize the potential for leaks and spills. The Corps does not have 
the authority to regulate leaks or spills from utility lines. Leaks and 
spills are more appropriately addressed through federal, state, and 
local laws that are administered by other federal agencies, or state or 
local government agencies. This NWP can be used to authorize utility 
line activities for water and other substances in coastal zones. Local 
and state governments are responsible for ensuring that access roads 
are constructed in accordance with their standards.
    Proposed NWP D is issued as NWP 58 with the modification discussed 
above.

H. Responses to Comments on the Nationwide Permit General Conditions

    GC 1. Navigation. The Corps did not propose any changes to this 
general condition. The Corps did not receive any comments on this 
general condition. The general condition is adopted as proposed.
    GC 2. Aquatic Life Movements. The Corps did not propose any changes 
to this general condition. One commenter noted that some project 
proponents bury the bottom portion of larger culverts to allow fish 
passage and create a natural bottom for habitat. One commenter 
expressed support for the Corps' retention of the existing definition 
given the wide variability of geomorphic and hydrologic settings in 
which NWP activities are conducted. One commenter stated that the 
Corps' preference for bottomless culverts, one-barrel culverts, or 
bridges should be explained. Another commenter said that in the absence 
of special concerns, such as endangered species, there should not be a 
preference for bottomless culverts. One commenter remarked that the 
text of this general condition is insufficient without specific 
monitoring and enforcement protocols to ensure that effects of NWP 
activities on aquatic life movements are no more than minimal.
    The Corps acknowledges that burying the bottom portion of a larger 
culvert and creating a natural bottom for habitat is an acceptable 
approach for complying with this general condition. The Corps 
appreciates the commenter's support for providing flexibility in this 
general condition for addressing variations in the geomorphic and 
hydrologic settings in which NWP activities are conducted. The 
preference for bottomless culverts is based on the ability of 
bottomless culverts to facilitate the continuity of aquatic life 
movements, including during low-flow conditions. The general condition 
does not mandate the use of bottomless culverts. Bottomless culverts 
can be beneficial to a wide variety of aquatic species, not just 
endangered or threatened species. Bottomless culverts can provide 
connectivity for a wide variety of species, including aquatic species 
that provide important ecosystem functions and services, and aquatic 
species that have economic and recreational value. District engineers 
retain the authority to conduct compliance inspections to ensure that 
permittees comply with this general condition. In most circumstances, 
compliance monitoring is sufficient to determine compliance with this 
general condition, instead of requiring monitoring and data collection 
over a period of time.
    The general condition is adopted as proposed.
    GC 3. Spawning Areas. The Corps did not propose any changes to this 
general condition. One commenter expressed support for the Corps' 
reissuance of this general condition without changes. The Corps 
appreciates the support for the reissuance of this general condition. 
The general condition is adopted as proposed.
    GC 4. Migratory Bird Breeding Areas. The Corps did not propose any 
changes to this general condition. The Corps did not receive any 
comments on this general condition. The general condition is adopted as 
proposed.
    GC 5. Shellfish Beds. The Corps did not propose any changes to this 
general condition. The Corps did not receive any comments on this 
general condition. The general condition is adopted as proposed.
    GC 6. Suitable Material. The Corps did not propose any changes to 
this general condition. One commenter stated that the condition should 
be refined to align with state water quality standards, specifically 
relative to nutrients and nutrient loading. Concerns about compliance 
with applicable state water quality standards or requirements are more 
appropriately addressed through the water quality certification 
requirements for proposed discharges of dredged or fill material into 
waters of the United States. The general condition is adopted as 
proposed.
    GC 7. Water Supply Intakes. The Corps did not propose any changes 
to this general condition. One commenter expressed support with 
reissuance of

[[Page 2821]]

the GC without change. The Corps acknowledges this commenters support 
for the reissuance of this general condition. The general condition is 
adopted as proposed.
    GC 8. Adverse Effects from Impoundments. The Corps did not propose 
any changes to this general condition. The Corps did not receive any 
comments on this general condition. The general condition is adopted as 
proposed.
    GC 9. Management of Water Flows. The Corps did not propose any 
changes to this general condition. The Corps did not receive any 
comments on this general condition. The general condition is adopted as 
proposed.
    GC 10. Fills Within 100-Year Floodplains. The Corps did not propose 
any changes to this general condition.
    A few commenters stated that the Corps should prohibit the use of 
NWPs and many other activities in 100-year floodplains and high-risk 
hurricane evacuation zones because of increasing risks of climate 
change and sea level rise. One commenter stated that the Corps' 
requirement in the condition to comply with FEMA-approved state or 
local floodplain management requirements is insufficient to ensure that 
authorized activities have no more than minimal adverse environmental 
effects and comply with the Clean Water Act, the Endangered Species 
Act, and the National Environmental Policy Act. One commenter said that 
``high impact'' NWPs should be prohibited from use in floodplains and 
that individual permits should be required for those activities. this 
commenter also stated that this general condition should be revised to 
prohibit the use of certain NWPs to authorize discharges of dredged or 
fill material into waters of the United States that result in permanent 
above-grade fills in mapped 100-year floodplains or floodways, in order 
to comply with Executive Order 11988, Floodplain Management.
    The Corps does not have the authority to regulate activities in 
100-year floodplains or high-risk hurricane evacuation zones, except 
for discharges of dredged or fill material into waters of the United 
States that may be located within those floodplains or evacuation 
zones. The primary responsibility for determining zoning and land use 
matters, including development activities in 100-year floodplains and 
high-risk hurricane evacuation zones, lies with state, local and tribal 
governments (see 33 CFR 320.4(j)(2)). This general condition is 
consistent with the item 2 of Section E, Further Information, which 
states that the NWPs do not obviate the need to obtain other federal, 
state, or local permits, approvals, or authorizations required by law. 
State and local governments are the entities that have primary 
responsibility for regulating land uses within floodplains and other 
areas.
    Under the discretionary authority provision at 33 CFR 330.1(d) and 
other provisions of the NWP regulations at 33 CFR part 330, division 
and district engineers can further condition or restrict the 
applicability of an NWP for cases where they have concerns for the 
aquatic environment under the Clean Water Act section 404(b)(1) 
Guidelines or for any factor of the public interest. There are two 
public interest review factors related to floodplains in the Corps' 
public interest review regulations at 33 CFR 320.4(a)(1) that could be 
used as a basis for exercising discretionary authority: Floodplain 
values and flood hazards.
    Nationwide permit activities, including discharges of dredged or 
fill material into waters of the United States within floodplains, 
comply with the Endangered Species Act through the requirements of NWP 
general condition 18. The National Environmental Policy Act is a 
procedural statute, and does not mandate any substantive floodplain 
management requirements. The Corps complies with NEPA requirements when 
it prepares the national decision documents for the issuance, 
reissuance, or modification of NWPs, and discusses potential impacts to 
flood hazards and floodplain values in its public interest review 
evaluation. The proposed NWPs, including general condition 10, are 
consistent with E.O. 11988, Floodplain Management, with respect to the 
Corps' authority to regulate specific activities that may occur in 
floodplains (i.e., discharges of dredged or fill material into waters 
of the United State). In each national decision document for the final 
NWPs, the Corps considered potential impacts to floodplain values and 
flood hazards.
    The general condition is adopted as proposed.
    GC 11. Equipment. The Corps did not propose any changes to this 
general condition. One commenter expressed support for reissuance of 
the general condition with no change. The Corps appreciates this 
commenter's support for the reissuance of this general condition 
without change.
    The general condition is adopted as proposed.
    GC 12. Soil Erosion and Sediment Controls. The Corps did not 
propose any changes to this general condition. One commenter stated 
that the condition should be modified to reference specific erosion 
control standards or specifications that must be followed, particularly 
for projects that exceed an acre of land disturbance. Specific soil 
erosion and sediment control requirements vary among state and local 
governments and other entities, and are more appropriately determined 
on a case-by-case basis for specific NWP activities. Therefore, it 
would be inappropriate to establish national standards for erosion 
control.
    The general condition is adopted as proposed.
    GC 13. Removal of Temporary Structures and Fills. The Corps 
proposed to modify this general condition to apply to temporary 
structures. A few commenters expressed support for the addition of 
temporary structures to this general condition. A few commenters 
objected to the addition of temporary structures to this general 
condition, stating that their removal may cause more harm than leaving 
them in place because temporary structures are not all alike. One 
commenter requested a definition of ``temporary.'' In contrast, another 
commenter supported leaving the definition of ``temporary'' to the 
district engineer's discretion. One commenter requested that the Corps 
add preamble language to the final rule that states that the removal of 
structures should occur after they have fulfilled their intended 
purpose. This commenter further stated that the project proponent 
should determine when the structure has fulfilled its intended purpose.
    What constitutes a temporary structure should be determined on a 
case-by-case basis. Therefore, the Corps declines to define 
``temporary'' for the purposes of this general condition. The Corps has 
changed the text of this general condition as it relates to temporary 
structures. The general condition now states that temporary structures 
must be removed, to the maximum extent practicable, after their use has 
been discontinued. The Corps recognizes that it might not be feasible 
to completely remove the structure after its use has been discontinued. 
For example, it might not be feasible to remove an entire piling from 
navigable waters after it is no longer needed, but the project 
proponent could remove that portion of the piling that extends above 
the bottom of the waterbody so that it no longer is an obstruction at 
the water surface. The Corps also acknowledges that attempting to 
remove a temporary structure in its entirety has the potential to cause 
more substantial adverse environmental effects than leaving a portion 
of the structure in place.
    The general condition is adopted with the modifications discussed 
above.

[[Page 2822]]

    GC 14. Proper Maintenance. The Corps did not propose any changes to 
this general condition. No comments were received. The general 
condition is adopted as proposed.
    GC 15. Single and Complete Project. The Corps did not propose any 
changes to this general condition. One commenter expressed support for 
reissuance of this general condition with no change. The general 
condition is adopted as proposed.
    GC 16. Wild and Scenic Rivers. The Corps did not propose any 
changes to this general condition. No comments were received on this 
general condition.
    The general condition is adopted as proposed.
    GC 17. Tribal Rights. The Corps proposed to modify this general 
condition to restore the text that was in the general condition for 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. 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 
proposed changes to this general condition were also intended to avoid 
any confusion between tribal consultation policies, tribal rights, and 
the requirements of the Corps' permitting authorities.
    Many commenters objected to the proposed changes to general 
condition 17 and many commenters expressed support for the proposed 
change. Many commenters stated that the 2017 general condition's use of 
the ``no more than minimal effects on'' standard is clearer than the 
``impair'' standard the Corps proposes to revert to because the ``no 
more than minimal adverse effects'' standard used throughout the NWPs. 
One commenter stated that ``impair'' is a clearer standard. Many 
commenters asserted that use of ``no more than minimal effect'' 
threshold in the general condition is consistent with Section 404(e) of 
the Clean Water Act and would not be confusing to retain in the general 
condition. Several commenters remarked that a minimal effect 
determination is well established in guidance and regulation and use of 
the word ``impair'' provides no additional clarity.
    The Corps is returning the text of this general condition to 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. By using the word ``impair'' instead of ``no more than 
minimal adverse effects on'' 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 Clean Water Act section 404(e) 
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.
    Many commenters said that the change in language would result in 
less protection for tribal rights and resources and is inconsistent 
with the Corps' trust obligations. Many commenters stated that the 
Corps provides no rationale for the proposed change considering its 
rationale for changing the language in 2017. A few commenters stated 
that tribes should receive copies of PCNs for all activities that occur 
on tribal lands or off-reservation areas where treaty rights are 
exercised. One commenter stated that the tribes should be allowed to 
make the ``no more than minimal effect'' determination.
    The change in the text of this general condition will not result in 
less protection for tribal rights and resources. The rationale for the 
proposed change was provided in the preamble to the 2020 Proposal (see 
85 FR 57350). The 1998 Department of Defense American Indian and Alaska 
Native Policy continues to apply to the NWPs and other DA permits. The 
district engineer is authorized to determine whether a proposed NWP 
activity will result in no more than minimal individual and cumulative 
adverse environmental effects.
    Many commenters said they are opposed to removing ``tribal lands'' 
and its definition from the suite of protected resources. Many 
commenters expressed opposition to removing ``protected tribal 
resources'' and its definition from the suite of protected resources. 
Many commenters stated that the proposed wording would only protect 
tribal treaty rights and not all tribal rights. A few commenters 
suggested that the definition of tribal rights be moved to the text of 
general condition 17. One commenter said that the change in general 
condition 17 would not affect the Corps' tribal trust responsibilities. 
One commenter recommended that the Corps delete unnecessary definitions 
and should only retain definitions for ``tribal rights'' and ``tribal 
lands'' as they pertain to general condition 17.
    Protection of tribal lands will continue through the implementation 
of the 1998 Department of Defense American Indian and Alaska Native 
Policy. ``Protected tribal resources'' is an ambiguous term and removal 
of that term from the general condition will result in a clearer, more 
enforceable general condition with less risk of disputes and litigation 
concerning whether particular resources are protected tribal resources. 
The Corps is retaining the definition of ``tribal rights'' in the 
``Definitions'' section of these NWPs (Section F). The Corps is also 
retaining the definition of ``tribal lands'' in Section F of the NWPs.
    Many commenters said that ``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,'' is contrary to statutory authority and the Corps' 
trust obligations. One commenter encouraged the Corps to engage 
prospective applicants for projects that have a greater potential to 
affect tribal rights in an optional pre-application meeting with the 
tribes prior to submittal of an NWP verification request. One commenter 
said that the general condition should include a statement requiring 
the Corps to conduct meaningful consultation with potentially impacted 
tribes in accordance with tribal protocols.
    District engineers have the final decision-making authority as to 
whether a proposed NWP activity that requires DA authorization 
qualifies for NWP authorization. District engineers can coordinate with 
tribes to help make these decisions, including whether a proposed NWP 
activity complies with general condition 17. If a district engineer 
holds a pre-application meeting with a project proponent, he or she has 
the discretion to invite tribal representatives to attend the meeting. 
When conducting government-to-government consultation with tribes, 
district engineers endeavor to conduct meaningful consultation with 
tribes.
    One commenter suggested revising general condition 17 to read as 
follows: ``No NWP activity may cause more than

[[Page 2823]]

minimal adverse effects to tribal rights, including treaty rights, 
protected tribal resources such as ceded territory, any sacred/cultural 
site/landscape or tribal lands, as determined by any concerned 
tribe(s).'' Another commenter recommended revising this general 
condition to read as follows: ``No activity or its operation may cause 
adverse effects on tribal rights (including, but not limited to, 
reserved water rights and treaty rights), protected tribal resources, 
or tribal lands.'' As discussed above, the Corps is adopting the 
proposed text of general condition 17.
    Several commenters said that the change in language does not 
support the Corps' rationale for the NWPs in light E.O. 13783, 
``Promoting Energy Independence and Economic Growth.'' A few commenters 
stated that the change in language would violate E.O. 13175. One 
commenter suggested that the condition should include a statement 
requiring the project proponent to obtain consent from potentially 
impacted tribes for the NWP activity. One commenter requested a 
definition of ``impair.'' One commenter suggested that the Corps 
provide an approved list of tribal entities. One commenter suggested 
that the Corps provide guidance and processes relative to consultation 
and timelines.
    General condition 17 was not discussed in the report issued by the 
Office of the Assistant Secretary of the Army (Civil Works) in response 
to E.O. 13783. This change in the text of general condition 17 does not 
violate E.O. 13175. The Corps continues to consult with tribes on 
proposed NWP activities when such consultation is warranted. The 
district engineer determines whether a proposed activity requiring DA 
authorization qualifies for NWP authorization, and consent from 
potentially impacted tribes is not required for that determination. The 
Corps does not believe it is necessary to develop an approved list of 
tribal entities. Corps districts are aware of the tribes they may need 
to consult with. The Bureau of Indian Affairs may be the appropriate 
entity to develop and maintain such a list. The Corps Regulatory 
Program follows a number of existing Department of Defense, Army, and 
Corps tribal consultation policies. Information on these tribal 
consultation policies are available at: https://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations/.
    This general condition is adopted as proposed.
    GC 18. Endangered Species. The Corps proposed to modify this 
general condition to make changes to be consistent with the 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.''
    Several commenters supported the proposed changes to ensure that 
general condition 18 aligns with the current ESA implementing 
regulations at 50 CFR part 402. A few commenters suggested that the 
Corps incorporate the new ESA section 7 regulation definitions directly 
into the general condition rather than by referencing provisions in the 
Code of Federal Regulations. These commenters also suggested adding a 
definition for ``action area'' to the text of the general condition.
    The Corps believes that it is more appropriate to reference the 
current ESA section 7 regulations in the general condition rather than 
copying the text of the applicable provisions into the general 
condition itself. During the process of determining whether a proposed 
NWP activity ``may affect'' listed species or critical habitat, the 
Corps will utilize the definition of ``action area'' at 50 CFR 402.02 
and there is no need to provide the definition of that term in the text 
of general condition 18.
    Several commenters objected to the removal of ``direct effects'' 
and ``indirect effects'' definitions from the general condition and 
asserted that ESA section 7 consultation compliance will not be 
achieved without the analysis of the effects and/or would cause 
significant adverse impacts to endangered species. One commenter 
expressed opposition to the proposed change to general condition 18 
because he or she is opposed to the 2019 amendments to the U.S. FWS's 
and NMFS's ESA section 7 regulations. One commenter stated that the 
Corps must seek concurrence from the U.S. FWS or NMFS for any ``no 
effect'' determination.
    The terms ``direct effect'' and ``indirect effect'' are no longer 
used in 50 CFR part 402. When the district engineer evaluates a PCN for 
a proposed NWP activity to determine whether the proposed activity 
``may affect'' listed species or critical habitat, he or she applies 
the definition of ``effects of the action'' at 50 CFR 402.02, as well 
as the U.S. FWS's and NMFS's regulations for identifying activities 
that are reasonably certain to occur (50 CFR 402.17(a)) and identifying 
the consequences caused by the proposed action (50 CFR 402.17(b)). The 
ESA section 7 consultation handbook issued by the U.S. FWS and NMFS in 
1998 states that a federal agency is not required to obtain written 
concurrence from the U.S. FWS or NMFS for its ``no effect'' 
determinations.
    One commenter stated that clarification is needed as to what is 
meant by non-Federal permittees that require pre-construction 
notification under paragraph (c) of this general condition. A few 
commenters said that the general condition only requires project 
proponents to submit a PCN if a proposed activity might affect a 
species or its critical habitat, which ignores the Corps responsibility 
to conference on species proposed for listing. These commenters 
suggested revising this general condition to include proposed species. 
Several commenters requested clarification of the term ``in the 
vicinity'' in paragraph (c) of this general condition. One commenter 
said that the Corps inappropriately relies on information contained in 
the PCN to make its effect determinations and must independently verify 
the potential for a listed species to be affected.
    Generally speaking, a non-federal permittee is a permittee that is 
not a federal agency. There may be limited circumstances where a non-
federal agency might be considered as having ESA section 7 obligations 
similar to those of a federal agency. For example, the Federal Highway 
Administration may assign a state Department of Transportation the 
responsibility for complying with non-NEPA environmental statutes such 
as the ESA.
    The Corps has modified paragraph (c) of this general condition to 
be consistent with 33 CFR 330.4(f)(2), which states non-federal 
permittees shall notify the district engineer if any Federally listed 
(or proposed for listing) endangered or threatened species or critical 
habitat might be affected or is in the vicinity of the project. The 
Corps also added ``critical habitat proposed for such designation'' to 
paragraph (c). These changes are necessary for species proposed for 
listing and critical habitat proposed for such designation because 
section 7(a)(4) of the ESA requires agencies to confer with the U.S. 
FWS or NMFS on any agency action which is likely to jeopardize the 
continued existence of any species proposed to be listed under section 
4 of the ESA or result in the destruction or adverse modification of 
critical habitat proposed to be designated for such species. The Corps 
has modified the first sentence of paragraph (c) as follows: ``Non-
federal permittees must submit a pre-construction notification to the 
district

[[Page 2824]]

engineer if any listed species or designated critical habitat (or 
species proposed for listing or critical habitat proposed for such 
designation) might be affected or is in the vicinity of the activity, 
or if the activity is located in designated critical habitat or 
critical habitat proposed for such designation, 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.'' The Corps has added ``species proposed for listing'' and 
``critical habitat proposed for such designation'' where appropriate in 
other sentences in this paragraph.
    When reviewing a PCN for a proposed NWP activity that might affect 
species proposed for listing or critical habitat proposed for such 
designation, or is located in critical habitat proposed for such 
designation, the district engineer will evaluate the effects of the 
proposed NWP activity on the species proposed for listing or the 
critical habitat proposed for designation. If the district engineer 
determines that the proposed NWP activity is likely to jeopardize the 
continued existence of any proposed species or result in the 
destruction or adverse modification of proposed critical habitat, he or 
she will initiate a conference with the U.S. FWS and/or NMFS in 
accordance with 50 CFR 402.10. If the district engineer determines that 
a conference is necessary, he or she will notify the non-federal 
applicant within 45 days of receipt of a complete PCN. The activity is 
not authorized by NWP until the district engineer has notified the 
project proponent that the requirements of ESA section 7 have been 
satisfied
    The Corps added ``or conference'' to the second to last sentence of 
paragraph (c) to address situations where the district engineer 
conducts an ESA section 7 conference with the U.S. FWS or NMFS for a 
proposed NWP activity that may affect a species proposed for listing or 
proposed critical habitat. The Corps also modified paragraph (d) of 
this general condition to state that as a result of a conference with 
the U.S. FWS or NMFS the district engineer may add species-specific 
permit conditions to the NWPs.
    The Corps is adding ``or critical habitat proposed for such 
designation'' to this general condition to ensure that these NWPs do 
not authorize any activities that are likely to result in the 
destruction or adverse modification of proposed critical habitat. The 
general condition already prohibits the use of NWPs for any activity 
that is likely to jeopardize the continued existence of species 
proposed for listing. The prior exclusion of proposed critical habitat 
was an administrative oversight.
    The term ``in the vicinity'' for the purposes of paragraph (c) of 
this general condition cannot be defined at a national level. What 
constitutes ``in the vicinity'' can vary substantially by species, 
environmental setting, the medium in which the species lives (e.g., 
water, air, or in the ground), and other factors. When reviewing a PCN, 
the district engineer makes an independent determination of whether the 
proposed activity ``may affect'' listed species or designated critical 
habitat and thus requires ESA section 7 consultation. The district 
engineer relies in part on information in the PCN, but he or she will 
also utilize other information, including local knowledge of the area, 
and the species and the habitats in which the listed species lives in.
    One commenter said general condition 18 should require PCNs for 
activities authorized by NWPs 3, 12, 13, 14, 21, 39, 44 and 48. One 
commenter stated that the Corps must not rely solely on permittees 
submitting PCNs to comply with its ESA obligations. One commenter 
suggested revising the general condition to state that the ESA section 
7 consultation for an NWP activity will cover the entire project, to 
clarify that the entire action area must be examined and not just the 
activities on lands under the Corps' jurisdiction.
    All activities authorized by NWPs 21, 39, and 44 require PCNs to 
district engineers. The district engineers will review those proposed 
activities and determine whether ESA section 7 consultation is 
required. Activities authorized by NWPs 3, 12, 13, 14, and 48 require 
PCNs under specific circumstances, and district engineers will review 
those PCNs to identify proposed activities that ``may affect'' listed 
species or designated critical habitat. For those activities that do 
not require PCNs under the text of those general permits, paragraph (c) 
applies when the project proponent is a non-federal permittee. If any 
listed species or designated critical habitat might be affected or is 
in the vicinity of the proposed NWP activity, or if the proposed NWP 
activity is located in designated critical habitat, then the project 
proponent is required to submit a PCN so that the district engineer can 
determine whether the proposed activity ``may affect'' listed species 
or designated critical habitat. When determining the scope of the ESA 
section 7 consultation, the district engineer applies the U.S. FWS's 
and NMFS's regulations at 50 CFR part 402, including the definitions of 
``action area'' and ``effects of the action.''
    One commenter recommended that the Corps adhere to the 45-day 
review time to determine whether a proposed NWP activity ``may affect'' 
or will have ``no effect'' on listed species. Alternatively, this 
commenter suggested that the review period not exceed 90 days under any 
circumstances. One commenter expressed support for the use of regional 
programmatic ESA section 7 consultations to satisfy the requirements of 
general condition 18.
    Paragraph (c) of general condition 18 already requires the district 
engineer to notify the non-federal applicant within 45 days of receipt 
of a complete PCN whether the proposed activity will have ``no effect'' 
in listed species or designated critical habitat or where it ``may 
affect'' listed species or designated critical habitat and require 
section 7 consultation with the U.S. FWS and/or NMFS. If the district 
engineer has to conduct section 7 consultation with the U.S. FWS or 
NMFS, the consultation process may take longer than 90 days. Formal 
section 7 consultations conclude within 90 days after initiation unless 
the timeframe is extended in accordance with the section 7 regulations 
at 50 CFR 402.14(e). For informal consultations, the U.S. FWS and NMFS 
are required to provide written concurrence or non-concurrence with the 
federal agency's ``may affect, not likely to adversely affect'' 
determination within 60 days, unless an extension occurs (see 50 CFR 
402.13(c)(2)). The Corps cannot issue the NWP verification until the 
section 7 consultation is completed and the applicant cannot proceed 
without receiving a verification from the Corps as provided for in 
paragraph (a)(2) of general condition 32 because compliance with ESA 
cannot be waived. The Corps will continue to utilize regional 
programmatic consultations for the NWPs, and work with the U.S. FWS and 
NMFS to develop new regional programmatic consultations.
    One commenter suggested changing paragraph (g) of general condition 
18 to advise project proponents to only use the U.S. FWS's IPaC website 
at (http://ww.fws.gov/ipac) because other websites are usually 
outdated. This commenter also recommended requiring project proponents 
to append the IPaC output document to their consultation package. One 
commenter requested that the text of the general condition be modified 
to include specific instructions on the process for ESA Section 7 
consultation where the Corps has limited regulatory authority, such 
linear projects where the Corps' jurisdiction is limited to crossings 
of jurisdictional waters and

[[Page 2825]]

the crossings are separated by upland areas.
    Project proponents should be allowed to use whatever information 
that can help them determine whether the PCN threshold in paragraph (c) 
of general condition 18 is triggered. The U.S. FWS's IPaC tool is just 
one tool that might provide useful information to prospective 
permittees. There may be other tools, such as databases and websites 
managed by state and local governments and non-governmental 
organizations that may be helpful in determining whether a proposed NWP 
activity might affect listed species, if listed species are in the 
vicinity of a proposed activity, or if the activity is located in 
designated critical habitat. This includes listed species under the 
jurisdiction of the NMFS, which are not included in IPaC. The Corps 
does not believe that there should be a requirement to the output from 
IPaC in the PCN because not all listed species are included in that 
information system.
    For linear projects, such as various types of utility line 
activities authorized by NWPs 12, 57, and 58, the Corps applies the ESA 
section 7 regulations at 50 CFR part 402, including the definition of 
``effects of the action'' and other provisions in determining whether a 
proposed NWP activity ``may affect'' listed species or designated 
critical habitat, and for initiating ESA section 7 consultation for 
those proposed activities where the district engineer makes a ``may 
affect'' determination. If ESA section 7 consultation is required for 
activities authorized by NWPs 12, 57, and 58, the Corps and U.S. FWS 
and/or NMFS work together on a comprehensive review of the overall 
project in accordance with the definition of ``effects of the action'' 
and other provisions of 50 CFR part 402, including the 2019 amendments 
the U.S FWS and NMFS made to those regulations (see 84 FR 44976). For 
ESA section 7 purposes where the Corps has a limited regulatory role 
under the Clean Water Act and/or Section 10 of the Rivers and Harbors 
Act of 1899, the Corps, with the assistance of the permit applicant, 
can provide the U.S. FWS or NMFS with a biological assessment that 
evaluates the larger project as a whole but that clearly distinguishes 
between areas and effects subject to the Corps' jurisdiction and areas 
and effects outside of its jurisdiction. If the proposed activity 
requires formal ESA section 7 consultation, the U.S. FWS and NMFS can 
issue an incidental take statement for a biological opinion where, in 
accordance with ESA section 7(b)(4)(iv) they can assign responsibility 
of specific terms and conditions of the incidental take statement to 
the Corps, the applicant, or both taking into account their respective 
roles, authorities, and responsibilities (see 84 FR 44977).
    A few commenters said that it is likely activities are occurring 
that are not in compliance with general condition 18 because the Corps 
does not require PCNs for all activities. One commenter stated, with 
regard to ESA-listed species, PCNs should not only include the 
immediate area, rather the entire area impacted by NWP activities, 
which must be consulted on programmatically with the U.S. FWS. This 
commenter provided an example of studies have shown that pollutants and 
sediments can impact critically imperiled mussels up to 10 river miles 
from the impact location and said that ESA section 7 consultations 
should include the evaluation of 10 river miles of potential effects 
from the NWP impact location and analyses of cumulative effects as 
well.
    In order to obtain NWP authorizations, project proponents must 
comply with all terms and conditions of the NWPs (see 33 CFR 330.1(c)), 
including general condition 18. If a project proponent does not comply 
with the requirements of general condition 18, including the PCN 
requirements in paragraph (c) of that general condition, the activity 
is not authorized by an NWP. When determining whether a proposed NWP 
activity may affect listed species or designated critical habitat, the 
district engineer applies the regulations issued by the U.S. FWS and 
NMFS at 50 CFR part 402, including the definition of ``effects of the 
action'' and other provisions the determine the scope of the ESA 
section 7 consultation and analysis of effects or consequences
    This general condition is adopted with the modifications discussed 
above.
    GC 19. Migratory Birds and Bald and Golden Eagles. The Corps 
proposed to revise the wording of this general condition to clarify 
that members of the regulated public should determine for themselves, 
with the assistance of the U.S. Fish and Wildlife Service, what 
``take'' permits, if any, they might require under the Migratory Bird 
Treaty Act or the Bald and Golden Eagle Protection Act. This General 
Condition makes clear that Project Proponents are responsible for 
complying with the Migratory Bird Treaty Act and the Bald and Golden 
Eagle Protection Act, including obtaining any ``take'' permits that may 
be required under the U.S. Fish and Wildlife Service's regulations 
issued under those statutes.
    Several commenters expressed support for making no changes to this 
general condition. One commenter noted that even though the Solicitor's 
Opinion has been vacated, the Corps should move text from the preamble 
to the general condition if reforms to the Migratory Bird Treaty Act 
are finalized by the administration before the final NWPs are issued. 
One commenter said that applicants should be encouraged to coordinate 
with wildlife agencies. Several commenters stated that reference to the 
Solicitor's Opinion in the preamble should be stricken because it was 
recently vacated by a federal district court.
    The text of the general condition is sufficient to address the 
Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act 
without moving text from the preamble of the proposed rule to the 
general condition. Project proponents can coordinate their proposed 
projects with federal and state wildlife agencies. There is no need to 
strike the text that was in the preamble to the 2020 Proposal because 
it was background used to solicit public comment, and it was current at 
the time the proposal was published in the Federal Register.
    This general condition is adopted as proposed.
    GC 20. Historic Properties. The Corps proposed 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. The Corps also proposed to modify paragraph (d) 
of this general condition to inform non-federal permittees 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.
    Several commenters expressed support for the proposed changes to 
this general condition. A few commenters suggested adding language to 
the general condition to require disclosure of the qualifications of 
the person who would make an effect determination for the purposes of 
Section 106 of the National Historic Preservation Act (NHPA). That 
individual would need to satisfy the Secretary of the Interior's 
Standards for Professional Qualifications in Archaeology and Historic 
Preservation.

[[Page 2826]]

    The Corps does not believe it would be appropriate to add text to 
this general condition to require disclosure of the qualifications of 
people making effects determinations for the purposes of section 106 of 
the NHPA. Effect determinations may be made by a variety of agency 
officials, including Corps district staff.
    Many commenters stated that this general condition does not comply 
with the NHPA and does not satisfy the Corps Section 106 obligations 
with regards to the NWPs as it unlawfully delegates its Section 106 
responsibilities to non-federal permittees and establishes a review 
process that is not consistent with the Advisory Council on Historic 
Preservation's (ACHP's) regulations at 36 CFR part 800. A few 
commenters said that this general condition should not reference 
Appendix C to 33 CFR part 325, because Appendix C has been determined 
by the federal courts, the ACHP, and other federal agencies to be 
unlawful. One commenter expressed support for the Corps' reliance on 
Appendix C and its interim guidance, stating that they are generally 
consistent with the ACHP's regulations.
    This general condition does not delegate the Corps' section 106 
responsibilities to permit applicants. The responsibility for making 
effect determinations under section 106 of the NHPA for NWP activities 
falls to the district engineer. For non-federal permittees, paragraph 
(c) of general condition 20 requires the submission of a PCN for a 
proposed activity that might have the potential to cause effects to 
historic properties. The Corps' regulations for complying with section 
106 of the NHPA are found at Appendix C to 33 CFR part 325. Appendix C 
remains in effect as a counterpart regulation to 36 CFR part 800, and 
no federal court has invalidated Appendix C.
    A few commenters objected to this general condition, saying that it 
encourages applicants to consult with State Historic Preservation 
Officers (SHPOs), Tribal Historic Preservation Officers (THPOs) and 
tribes. These commenters said that the Corps cannot delegate its tribal 
consultation obligations to applicants. One commenter stated that the 
proposed changes to general condition 20 will impact Native American 
cultural resources.
    Paragraph (c) of this general condition encourages permit 
applicants to seek assistance from SHPOs, THPOs, and designated tribal 
representatives to help ensure compliance with this general condition. 
Seeking assistance is not equivalent to conducting consultation. 
Section 106 consultation remains the responsibility of the Corps. The 
requirements of general condition 20, plus the changes being made in 
this final rule, will ensure that section 106 consultation occurs for 
NWP activities that have potential to cause effects to Native American 
cultural resources that meet the definition of ``historic property'' in 
Section F, Definitions.
    Several commenters said that the proposed change to paragraph (c), 
which states that the district engineer's identification efforts for 
historic properties shall be commensurate with potential impacts, 
should be further revised for clarity. A few commenters expressed 
opposition to this proposed change to paragraph (c) and requested that 
it be removed in the final rule. Several commenters stated that the 
text in paragraph (c) should make clear that the evaluation is only 
associated with the extent of the Corps' jurisdiction. One commenter 
said that the proposed change gives the Corps justification to decline 
to identify certain historic properties if the district engineer 
determines that the property or properties will not be impacted by the 
proposed activity. A few commenters opined that the Corps fails to 
evaluate areas outside its jurisdiction, particularly with linear 
projects, with is contrary to current regulations.
    The change to paragraph (c) regarding the district engineer's 
identification efforts for historic properties is consistent with the 
ACHP's regulations at 36 CFR 800.4(b)(1) regarding the level of 
identification efforts. Section 800.4(b)(1) states that the federal 
agency should take into account the ``magnitude and nature of the 
undertaking and the degree of federal involvement, the nature and 
extent of potential effects on historic properties, and the likely 
nature and location of historic properties within the area of potential 
effects.'' When evaluating an NWP PCN, the district engineer will 
identify the permit area in accordance with the criteria in paragraph 
1(d) of Appendix C to 33 CFR part 325. The Corps will evaluate direct 
and indirect effects caused by the proposed NWP activity. If an 
historic property is not directly or indirectly affected by the 
proposed NWP activity, the Corps does not have the authority to prevent 
effects to historic properties caused by activities outside of its 
control and responsibility.
    One commenter recommended that the Corps adhere to the 45-day 
review time or as an alternative change paragraph (c) of this general 
condition so that the district engineer's review of the PCN does not 
exceed 90 days. One commenter stated that language requiring an 
applicant to continue to wait beyond 45 days if they have not heard 
back from the Corps creates the potential for an indefinite delay. This 
commenter suggested adding a requirement for the district to establish 
a deadline for notifying the applicant on whether NHPA section 106 
consultation is required.
    Paragraph (d) of general condition 20 states that for non-federal 
permittees, the district engineer will notify the prospective permittee 
within 45 days of receipt of a complete PCN whether NHPA section 106 
consultation is required. The section 106 consultation process may take 
longer than 45 days. The NWP verification cannot be issued and the 
project applicant cannot proceed with the proposed activities under 
Corps jurisdiction until the section 106 consultation process has been 
completed.
    A few commenters said that Corps districts often override the 
permittees' determination as to whether a PCN is required for a 
proposed activity under paragraph (c). One commenter recommended 
modifying or revising paragraph (a) of general condition 20 in a manner 
consistent with paragraph (a) of general condition 18 to focus on the 
threshold that triggers the requirement for section 106 consultation, 
rather than determinations made by district engineers once a PCN is 
submitted. One commenter recommended timely review of scopes of work 
and requested that the Corps make final determinations regarding scopes 
of review and not allow any revisions to those determinations.
    For an NWP activity, it is ultimately the district engineer's 
responsibility to determine compliance with section 106 of the NHPA. As 
additional information is revealed during the review of a PCN or during 
section 106 consultation, it may be necessary to change the scope of 
review to ensure compliance with the requirements of section 106 of the 
NHPA. The Corps has modified paragraph (a) of this general condition to 
state that ``no activity is authorized under any NWP which 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 National Historic Preservation Act 
(NHPA) have been satisfied.''
    One commenter said that clarification is needed on who are the non-
federal permittees that need to submit PCNs under paragraph (c). One 
commenter remarked that the terms ``might have the potential to cause'' 
and ``potentially

[[Page 2827]]

eligible'' are vague terms and that Corps districts are applying these 
requirements inconsistently and more expansively than appropriate. One 
commenter said that the ``might have the potential'' standard is a 
higher threshold than the threshold set forth in the ACHP's regulations 
at 36 CFR part 800.
    As a general matter, a non-federal permittee is a permittee that is 
not a federal agency. There may be limited circumstances where a non-
federal agency might be considered as having NHPA section 106 
obligations similar to those of a federal agency. For example, the 
Federal Highway Administration may assign a state Department of 
Transportation the responsibility for complying with non-NEPA 
environmental statutes such as the NHPA. The purpose of the ``might 
have the potential to cause effects'' threshold in paragraph (c) of 
this general condition is to require submittal of PCNs for proposed NWP 
activities that might have a possibility of causing effects to historic 
properties, so that the district engineer can determine whether section 
106 consultation is required for a proposed NWP activity. ``Potentially 
eligible'' is another threshold that is intended to provide an 
opportunity for further review to determine whether a historic property 
is present. These thresholds cannot be precisely defined, and involve 
some degree of subjectivity.
    One commenter stated that paragraph (b) of this general condition 
improperly designates other federal agencies as the lead with respect 
to Section 106 without their agreement. This commenter further noted 
that this might be problematic given the proposal not to require PCNs 
from federal permittees for proposed activities that might have the 
potential to cause effects to historic properties.
    Other federal agencies have their own obligations to comply with 
section 106 of the NHPA. If a proposed NWP activity being undertaken by 
another federal agency requires a PCN, paragraph (b) of this general 
condition requires the federal permittee to submit appropriate 
documentation demonstrating compliance with the requirements of section 
106. After reviewing that documentation, the district engineer may 
notify the federal permittee that additional section 106 consultation 
may be necessary. Non-federal and federal permittees have different 
thresholds under this general condition because their responsibilities 
under section 106 are different.
    This general condition is adopted with the modifications discussed 
above.
    GC 21. Discovery of Previously Unknown Remains and Artifacts. The 
Corps did not propose any changes to this general condition. One 
commenter recommended reissuance of the general condition with no 
additional restrictive provisions.
    This general condition is adopted as proposed.
    GC 22. Designated Critical Resource Waters. The Corps did not 
propose any changes to this general condition. One commenter 
recommended revising this general condition to include state designated 
critical resource waters rather than deferring to Corps district 
engineers to designate certain waters at a later date. One commenter 
recommended adding proposed new NWPs C and D to the list of NWPs in 
paragraph (a) of this general condition. This commenter also suggested 
adding proposed new NWPs A and B to the list of NWPs in paragraph (b) 
of this general condition. Two commenters said that if the Corps 
removes the PCN requirements for federal permittees, federal agencies 
should still be required to submit PCNs for proposed activities in 
designated critical resource waters.
    After providing notice and an opportunity for public comment, the 
Corps is continuing to require the long-standing practice of allowing 
district engineers to add specific waters to this general condition. 
States that want waters of particular environmental or ecological 
significance to be subjected to this general condition should provide 
their recommendations to the appropriate district engineer for 
consideration. Since NWP 12 has been in paragraph (a) of this general 
condition since it was first adopted in 2000 (65 FR 12872), for 
consistency the Corps has added new NWPs 57 and 58 to this general 
condition. New NWPs 55 (seaweed mariculture activities) and 56 (finfish 
mariculture activities) require PCNs for all activities, so it is 
unnecessary to add these NWPs to the list of NWPs in paragraph (b) of 
this general condition. In addition, the Corps is retaining PCN 
requirements for federal permittees.
    This general condition is adopted with the modifications discussed 
above.
    GC 23. Mitigation. The Corps proposed 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. The 
Corps proposed 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.
    A few commenters expressed support for the changes to this general 
condition. One commenter objected to the proposed changes and 
recommended that this general condition be reissued with no changes. 
One commenter stated that compensatory mitigation should not be 
required when compensatory mitigation is required by other federal or 
state laws, rules, or regulations. Another commenter said that the 
Corps should focus on improving consistency between districts on when 
compensatory mitigation is required for NWP activities.
    Changes to this general condition are necessary to address the 
removal of the 300 linear foot limit for losses of stream bed under 
NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. District engineers 
impose compensatory mitigation requirements on specific activities 
authorized by NWPs to ensure that those activities result in no more 
than minimal individual and cumulative adverse environmental effects. 
If a proposed NWP activity is regulated by another federal agency or a 
state, tribal, or local agency, and that agency requires compensatory 
mitigation for that proposed activity, the district engineer may 
consider those compensatory mitigation requirements before determining 
whether additional compensatory mitigation is required for that 
activity. The Corps should not be imposing duplicative compensatory 
mitigation requirements when the resource concerns are already being 
addressed by another federal, tribal, state, or local agency. The Corps 
believes that federal and state regulatory programs should complement 
rather than duplicate one another (see 33 CFR 320.1(a)(5). Since 
aquatic resources can vary substantially across the country, different 
Corps districts may establish different compensatory mitigation 
requirements.
    One commenter disagreed that project proponents design projects to 
minimize losses of waters of the United States to qualify for NWP 
authorizations to avoid the cost of providing compensatory mitigation 
to offset the authorized losses. One commenter said that other forms of 
mitigation used for NWP activities should include best management 
practices, minimization measures, activities that result in improvement 
of wetland and stream habitat, and actions that improve water quality. 
Another commenter disagreed

[[Page 2828]]

that best management practices and other forms of mitigation are more 
environmentally preferable forms of mitigation, and that best 
management practices should be implemented during the design, 
construction, and operations stages of a project.
    The data the Corps collects on the impacts to waters of the United 
States authorized by the NWPs shows that 82 percent of verified impacts 
authorized by NWPs in 2018 are less than \1/10\-acre (see Figure 5.1 of 
the Regulatory Impact Analysis for this final rule). During 2018, only 
5% of the verified impacts authorized by NWPs resulted in impacts to 
0.25 acre to 0.5 acre. For those NWPs that have a qualitative limit in 
acres, a \1/2\-acre limit is the most common acreage limit. The small 
percentage of verified NWP activities that impact between 0.25 and 0.5 
acre compared to the much larger percentage of verified NWP activities 
that impact less than \1/10\-acre demonstrates the reduction of impacts 
(i.e., minimization) that is incentivized by general condition 23. 
District engineers determine the compensatory mitigation requirements 
for specific NWP activities, and can require forms of mitigation other 
than compensatory mitigation to ensure that the authorized NWP activity 
results in no more than minimal individual and cumulative adverse 
environmental effects. The use of other forms of mitigation is 
consistent with the watershed approach to compensatory mitigation 
described in the Corps' regulations at 33 CFR 332.3(c). The use of best 
management practices and other forms of mitigation may be effective at 
reducing adverse environmental effects so that compensatory mitigation 
is not necessary to ensure that an NWP activity results in only minimal 
individual and cumulative adverse environmental effects.
    A couple of commenters said that compensatory mitigation cannot 
legally be used to make minimal adverse effects determinations and that 
Section 404(e) of the Clean Water Act does not state that mitigation 
will be considered to ensure activities would cause only minimal 
adverse environmental effects. These commenters objected to the use of 
compensatory mitigation to allow more impacts to waters and wetlands. 
One commenter stated that the Corps has not provided any scientific or 
factual evidence to conclude that compensatory mitigation helps ensure 
that NWP activities do not result in more than minimal adverse 
environmental effects. A couple of commenters said that compensatory 
mitigation does not adequately or fully replace wetland or stream bed 
losses. Several commenters said they do not support the use of 
mitigation as a means to allow more impacts and justify findings of no 
more than minimal adverse environmental effects.
    The use of compensatory mitigation and other forms of mitigation to 
ensure that activities authorized by an NWP result in no more than 
minimal individual and cumulative adverse environmental effects is 
codified in the Corps' NWP regulations at 33 CFR 330.1(e)(3). Section 
404(e) of the Clean Water Act does not prescribe how the Corps is to 
ensure that the categories of activities authorized by general permits 
such as the NWPs will cause only minimal adverse environmental effects 
when performed separately, and will have only minimal cumulative 
adverse effect on the environment. Therefore, the Corps has discretion 
on how to comply with the requirement in the statute. Wetlands can be 
restored to improve the degree of ecological functions they provide 
(e.g., NRC 2001), to offset wetland losses authorized by the NWPs and 
other types of DA permits. Streams can also be restored to increase the 
degree of ecological functions they provide (e.g., Wohl et al. 2015), 
which can also be used to offset losses of stream functions caused by 
activities authorized by NWPs and other types of DA permits.
    One commenter stated that this general condition should require 
compensatory mitigation for all losses of wetlands, special aquatic 
sites, and stream beds authorized by an NWP, not just those losses 
exceeding \1/10\-acre that require PCNs. One commenter said that 
current compensatory mitigation requirements only replace, not improve, 
aquatic resources, and to protect tribal treaty rights, the Corps 
should require improvements of aquatic resources to ensure the 
successful recovery of salmon.
    Compensatory mitigation and other forms of mitigation are only 
required by district engineers when it is necessary to ensure that NWP 
activities result in no more than minimal individual and cumulative 
adverse environmental effects (see 33 CFR 330.1(e)(3)), and the Corps 
has determined that \1/10\-acre is an appropriate threshold with 
respect to wetland mitigation. Compensatory mitigation can be provided 
through the restoration, enhancement, establishment, and protection of 
aquatic resources to offset losses of those functions caused by 
activities authorized by the NWPs and other types of DA permits. A 
compensatory mitigation credit is 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 (see 
33 CFR 332.2). Compensatory mitigation required for NWP activities can 
help improve aquatic resources that may assist in the successful 
recovery of salmon.
    One commenter said the Corps relies too heavily on mitigation banks 
and in-lieu fee programs to provide compensatory mitigation despite a 
large body of scientific evidence that concluded that wetland banks are 
ineffective and poorly monitored. A couple of commenters stated that 
mitigation banks and in-lieu fee programs do not replace lost functions 
and values at impact sites. One commenter said that the Corps relies on 
unrealized mitigation requirements to allow significant environmental 
harm to occur under the NWP program and that previous reports from the 
National Research Council and the Government Accountability Office have 
shown that mitigation under the NWP program has not proven successful 
and therefore, does not compensate for lost wetlands.
    Regulations for the establishment and use of mitigation banks and 
in-lieu fee programs to provide compensatory mitigation for activities 
authorized by the NWPs and other forms of DA authorization were issued 
by the Corps in 2008 (see 73 FR 19594). The 2008 rule establishes 
establish performance standards and criteria for the use of permittee-
responsible compensatory mitigation, mitigation banks, and in-lieu 
programs to improve the quality and success of compensatory mitigation 
projects for activities authorized by Department of the Army permits. 
The 2008 mitigation rule incorporated many of the recommendations made 
by the National Research Council in its 2001 titled ``Compensating for 
Wetland Losses Under the Clean Water Act'' to improve the ecological 
outcomes of wetland compensatory mitigation projects. The 2005 
Government Accountability Office report titled ``Wetlands Protection: 
Corps of Engineers Does Not Have an Effective Oversight Approach to 
Ensure That Compensatory Mitigation Is Occurring'' also included 
recommendations for improving the Corps' oversight and outcomes of 
compensatory mitigation projects performed by permittees, mitigation 
banks, and in-lieu-fee program sponsors, and the Corps incorporated 
those recommendations in the 2008 mitigation rule.
    One commenter said the NWP program should not be used to authorize 
activities that requiring compensatory mitigation and that project 
proponents should have to apply for individual

[[Page 2829]]

permits for activities requiring compensatory mitigation. One commenter 
stated that using mitigation to reduce impacts below a threshold of 
significance violates the National Environmental Policy Act.
    The use of compensatory mitigation for NWP activities is an 
important tool for authorizing activities that have no more than 
minimal individual and cumulative adverse environmental effects by NWP. 
Requiring individual permits for any NWP activity that requires 
compensatory mitigation would not provide any additional environmental 
protection because the ecological outcomes of compensatory mitigation 
projects is more dependent on site selection, planning, and 
implementation, as well as monitoring and adaptive management to 
address deficiencies in the compensatory mitigation project that impede 
the ecological success of that project. The type of DA authorization 
used to authorize a regulated activity is not linked to the ecological 
outcomes of compensatory mitigation projects. Under the Council on 
Environmental Quality's regulations for implementing the National 
Environmental Policy Act, mitigation can be used to reduce project 
impacts so that they are not significant (see 40 CFR 1501.6(c)).
    A couple commenters recommended that an economic analysis be 
performed to evaluate the economic effects of the proposed changes to 
this general condition, to assess the costs of the additional time and 
resources needed to overhaul stream credit programs, evaluate losses to 
mitigation providers and contractors, and the capacity to determine if 
the Corps can reasonably implement the proposed changes.
    The changes to this general condition do not require an overhaul of 
stream credit programs. Compensatory mitigation credits, including 
stream credits, can be quantified in acres, linear feet, functional 
assessment units, or other suitable metrics of particular resource 
types (see 33 CFR 332.8(o)(1)). The preamble to the 2008 mitigation 
rule states that district engineers retain the discretion to quantify 
stream impacts and required compensatory mitigation in terms of area or 
other appropriate units of measure (see 73 FR 19633). This discretion 
also applies to the issuance of the NWPs by Corps Headquarters, to 
determine appropriate units of measure for efficient administration of 
the NWP program. Existing inventories of stream credits can be used to 
provide compensatory mitigation for losses of stream bed authorized by 
these NWPs. For those current inventories of stream credits quantified 
in linear feet or other linear metrics, the permittee and mitigation 
provider can engage in discussions to determine how many linear feet of 
stream credits are roughly proportional to the area of stream bed 
filled or excavated as a result of an activity authorized by an NWP. 
Each mitigation bank and in-lieu fee project has an approved mitigation 
plan, and that mitigation plan can be used to estimate how many linear 
feet of stream credits might be used to offset a specified number of 
acres or square feet filled or excavated as a result of an NWP 
activity. Over the years, there have been numerous changes to the Corps 
Regulatory Program, and each of those changes require some adjustment 
by Corps personnel, permit applicants, consultants, contractors, 
mitigation providers, and other people.
    One commenter recommended NWPs and/or regional conditions 
authorizing the use of compensatory mitigation, mitigation banks, and/
or in-lieu fee programs be withdrawn. One commenter said that this 
general condition should be modified to state that out-of-kind 
mitigation is prohibited for losses of designated critical resource 
waters identified in general condition 22.
    Division engineers can add regional conditions to the NWPs to 
establish lower thresholds for stream compensatory mitigation, and for 
the use of mitigation banks, in-lieu fee programs, and permittee-
responsible mitigation for activities authorized by NWPs. Out-of-kind 
mitigation may be beneficial to designated critical resource waters. 
Therefore, the Corps declines to make the recommended change to general 
conditions 22 or 23.
    Several commenters said that this general condition should be 
modified to require applicants to take all practicable steps to avoid 
and minimize effects to waters of the United States. One commenter 
stated that avoidance and minimization of waters of the United States 
during the planning and siting phases of project development are not 
appreciated or considered by regulatory agencies.
    Paragraph (a) of general condition 23 already 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). 
A description of the mitigation measures being undertaken by the 
project proponent, including avoidance and minimization on the project 
site, in the PCN can assist the district engineer in his or her 
decision whether the proposed activity qualifies for NWP authorization.
    One commenter expressed support for allowing the district engineer 
to waive compensatory mitigation requirements for wetland losses if she 
or he makes an activity-specific determination that other forms of 
mitigation would be environmentally preferable. One commenter requested 
the Corps identify, at a national level, the minimum amount of 
compensatory mitigation required to offset resource losses. Several 
commenters said that compensatory mitigation should be required 
consistently for all NWPs with areal and linear thresholds.
    The Corps has retained the ability of district engineers to waive 
compensatory mitigation requirements for wetland losses when they 
determine that the proposed activity, without wetland compensatory 
mitigation, will result in no more than minimal individual and 
cumulative adverse environmental effect. Compensatory mitigation 
decisions are made on a case-by-case basis by district engineers, so it 
would be inappropriate to establish national minimums for compensatory 
mitigation requirements, or for all NWPs that have quantitative limits.
    One commenter stated that paragraph (c) should be modified to allow 
for protection, restoration, or enhancement of areas next to wetlands 
as compensatory mitigation, similar to the proposed language in 
paragraph (d). A couple of commenters said that a one-for-one impact-
to-compensation ratio only works if all compensatory mitigation efforts 
are successfully implemented and the Corps monitors and enforces 
compensatory mitigation requirements. These commenters recommended 
modifying this general condition to clarify how the ecological outcomes 
of compensatory mitigation projects would be improved and how the Corps 
would ensure that no-net-loss of aquatic resources is achieved.
    The Corps' compensatory mitigation regulations at 33 CFR 332.3(i) 
allow district engineers to require the restoration, establishment, 
enhancement, and preservation, as well as the maintenance, of riparian 
areas and/or buffers around aquatic resources where necessary to ensure 
the long-term viability of those resources. This provision also applies 
to all types of DA permits, including the NWPs. There is no need to 
explicitly state this information in the text of the general condition. 
The Corps' compensatory mitigation regulations requires monitoring of 
compensatory mitigation projects, and for district engineers to take 
action to ensure that compensatory

[[Page 2830]]

mitigation projects achieve their objectives and offset the losses of 
waters of the United States. Adaptive management may be required to 
ensure that those compensatory mitigation objectives are met. The 
ecological outcomes of compensatory mitigation projects are more 
appropriately addressed on a case-by-case basis, through compliance 
efforts by district engineers.
    A couple commenters supported the continued use of a \1/10\-acre 
threshold for requiring compensatory mitigation and said that the 
threshold has been effective in encouraging avoidance and minimization 
of adverse effects to wetlands. Several commenters said that a one-for-
one impact-to-compensation ratio should be required to compensate for 
all wetland losses to ensure no-net-loss, not just those losses that 
exceed \1/10\-acre. Several commenters remarked that the proposed \1/
10\-acre threshold to require compensatory mitigation for losses of 
wetlands and stream bed does not achieve a goal of no-net-loss of 
aquatic resources. One commenter said no-net-loss should not be applied 
to areas that have been previously and heavily modified.
    The Corps is retaining the \1/10\-acre threshold for wetland 
compensatory mitigation in paragraph (c) of this general condition 
based on its experience administering the program. There is no 
requirement in Section 404 or the Clean Water Act, the Corps' 
regulations at 33 CFR parts 320 to 332, or the U.S. EPA's 404(b)(1) 
Guidelines for no net loss of wetlands or other types of aquatic 
resources. For all DA permits, including the NWPs, compensatory 
mitigation requirements are determined on a case-by-case basis. 
Compensatory mitigation may be required by district engineers to ensure 
that an activity that requires authorization under section 404 of the 
Clean Water Act and/or sections 9 or 10 of the Rivers and Harbors Act 
of 1899 is not contrary to the public interest (see 33 CFR 332.1(d)). 
Compensatory mitigation for unavoidable impacts may be required to 
ensure that an activity requiring a section 404 permit complies with 
the Section 404(b)(1) Guidelines (see 33 CFR 332.1(c)(3)).
    One commenter said that paragraph (c) of this general condition 
should be modified to allow mitigation bank credits to be used at a 
one-for-one ratio rather than performing a functional analysis. A 
commenter stated that \1/10th\-acre may be too restrictive of a 
compensatory mitigation threshold in some Corps districts or watersheds 
and compensatory mitigation may not be required to achieve no more than 
minimal adverse environmental effects for certain NWP activities. 
Another commenter suggested the applicant be required to provide 
documentation of credit availability or credit reservation if proposing 
to satisfy compensatory mitigation requirements with credits from a 
mitigation bank. One commenter said that this general condition should 
be modified to state that mitigation bank credits are preferred where 
practicable, and to elucidate that mitigation banks are not practicable 
in the State of Alaska.
    Paragraph (c) of this general condition does not require the use of 
a functional analysis to determine whether mitigation bank credits can 
be used to provide compensatory mitigation for an NWP activity. 
District engineers have the discretion to waive the compensatory 
mitigation requirement for losses of greater than \1/10\-acre of 
wetlands, or to require another form of mitigation to ensure that the 
NWP activity results in no more than minimal individual and cumulative 
adverse environmental effects. If the district engineer determines that 
compensatory mitigation is required for a proposed NWP activity, the 
applicant can propose to use mitigation bank credits or in-lieu fee 
program credits to fulfill the compensatory mitigation requirement. The 
district engineer can require the applicant to provide a statement of 
credit availability, so that the applicant does not have to prepare a 
mitigation proposal for a permittee-responsible mitigation project. The 
framework for evaluating compensatory mitigation options, that is the 
use of mitigation bank credits, in-lieu fee program credits, or 
permittee-responsible mitigation, is provided in the Corps' regulations 
at 33 CFR 332.3(b). Mitigation banks can be practicable in the State of 
Alaska.
    One commenter requested clarification on PCN and compensatory 
mitigation requirements for NWP activities involving mechanized land 
clearing in forested wetlands for utility line rights-of-way since 
paragraph (i) of general condition 23 states that compensatory 
mitigation may be required for activities that convert a forested or 
scrub-shrub wetland to an herbaceous wetland. A commenter said that 
compensatory mitigation should be provided on-site or in the sub-basin 
where impacts occur.
    Consistent with paragraph (i) of this general condition, if a 
proposed NWP activity involves mechanized land clearing in a forested 
wetland, and it requires a PCN, the district engineer can require 
compensatory mitigation to ensure the proposed activity result in no 
more than minimal individual and cumulative adverse environmental 
effects. For an NWP activity that requires compensatory mitigation, the 
district engineer will determine whether on-site or off-site 
compensatory mitigation is required, and the appropriate geographic 
scale for consideration of off-site compensatory mitigation options.
    One commenter said that general condition 23 should clearly state 
whether compensatory mitigation would or would not be required for 
wetland and stream bed losses for NWP activities that do not require 
PCNs. One commenter recommended that compensatory mitigation be 
provided for all losses of wetland or stream bed that exceed \1/10\-
acre, not just those losses requiring PCNs. A few commenters stated 
that compensatory mitigation for wetland and stream bed losses should 
be required at ratios greater than one-for-one to account for temporal 
loss and the difficulty of replacing wetlands and stream bed, and to 
ensure that habitat is recovered at a greater degree than it is being 
lost. One commenter said that there is no basis for wetlands and 
streams to have the same \1/10\-acre compensatory mitigation threshold.
    For those NWP activities that do not require PCNs, compensatory 
mitigation is not required because the district engineer is not 
notified of those activities and cannot add permit conditions to the 
NWP authorization in accordance with 33 CFR 332.3(k). The district 
engineer determines the appropriate amount of compensatory mitigation 
in accordance with the Corps' regulations at 33 CFR 332.3(f). As 
discussed below, in response to comments received on the proposed rule, 
the Corps is changing the threshold in paragraph (d) of this general 
condition from \1/10\-acre to \3/100\-acre.
    A few commenters stated that compensatory mitigation should only be 
required for the losses of jurisdictional wetlands and streams and 
compensatory mitigation should not be required for losses of ephemeral 
stream bed or losses of other non-jurisdictional waters. Several 
commenters said that compensatory mitigation should only be required 
for permanent impacts and that temporary impacts should not be counted 
in the \1/10\-acre threshold. One commenter suggested that this general 
condition should be modified to clarify if the \1/10\-acre threshold 
would be applied individually or cumulatively in cases where both 
stream bed and wetlands would be lost. Several commenters said the \1/
10\-acre threshold in paragraphs (c) and (d) should be applied 
cumulatively so that any

[[Page 2831]]

combination of wetland and stream losses exceeding \1/10\-acre would 
require compensatory mitigation.
    Since ephemeral streams are excluded from Clean Water Act 
jurisdiction, (see 33 CFR 328.3(b)(3)), NWP authorization is not 
applicable to ephemeral streams. Compensatory mitigation is not 
required for losses of ephemeral stream bed, or for losses of any other 
non-jurisdictional waters. The \1/10\-acre and \3/100\-acre thresholds 
in paragraphs (c) and (d) of this general condition apply to losses of 
waters of the United States, as that term is defined in Section F of 
the NWPs (Definitions). These thresholds apply to single and complete 
projects authorized by the NWPs.
    Several commenters said it is important to maintain the Corps' 
flexibility as proposed to allow district engineers to determine that 
other forms of mitigation are appropriate or to waive mitigation 
requirements for specific NWP activities. Several commenters objected 
to allowing district engineers to waive compensatory mitigation 
requirements. One commenter said that if federal agencies are not 
required to submit PCNs, those agencies would not have to provide 
compensatory mitigation for wetland or stream bed losses that exceed 
\1/10\-acre because the \1/10\-acre threshold proposed in paragraphs 
(c) and (d) only applies to NWP activities that require PCNs. Several 
commenters said that paragraphs (c) and (d) should be modified to state 
that advanced mitigation is preferred.
    The general condition retains flexibility for district engineers to 
determine the appropriate mitigation for a particular NWP activity to 
ensure that the activity causes no more than minimal individual and 
cumulative adverse environmental effects. After the district engineer 
reviews a PCN, he or she may determine that no mitigation is necessary 
for the proposed activity to be authorized by an NWP. For these 16 
final NWPs, federal agencies are subjected to the same PCN requirements 
as non-federal permittees. They are also subject to the mitigation 
requirements in this general condition. Advance compensatory mitigation 
can be used to satisfy compensatory mitigation requirements added to 
NWP authorizations by district engineers.
    One commenter voiced support for the addition of a \1/10\-acre 
threshold for requiring compensatory mitigation for losses of stream 
beds that require pre-construction notification. Another commenter 
expressed support for the addition of a compensatory mitigation 
threshold for stream bed losses represented in either linear feet or 
acres. One commenter stated that compensatory mitigation for stream bed 
losses should result in net gains in area or functions. A few 
commenters said that headwater streams are fundamentally different and 
offer different services than non-tidal wetlands and therefore should 
not be regulated the same. Additionally, minimal adverse environmental 
effects are different for distinct aquatic resources. One commenter 
opposed the elimination of ``other open waters'' from paragraph (d) and 
said it would create uncertainty for when compensatory mitigation would 
be required for losses of other open waters. A couple commenters said 
that reducing compensatory mitigation requirements also reduces the 
incentive to minimize impacts.
    Stream compensatory mitigation projects are expected to result in 
increases in stream functions, since the purpose of compensatory 
mitigation is to offset unavoidable adverse impacts which remain after 
all appropriate and practicable avoidance and minimization has been 
achieved. Stream compensatory mitigation projects produce credits that 
represent the accrual or attainment of stream functions at a 
compensatory mitigation site, consistent with the definition of 
``credit'' in the Corps' regulations at 33 CFR 332.2. While headwater 
streams exhibit some differences in structure and function than 
downstream streams in a tributary network, when those headwater streams 
are considered waters of the United States, they are subjected to the 
same regulatory requirements as other waters of the United States. 
Headwater streams have no special status under the Clean Water Act or 
its implementing regulations, including the 404(b)(1) Guidelines issued 
by the U.S. EPA. The only streams that are special aquatic sites under 
the 404(b)(1) Guidelines are riffle and pool complexes (see subpart E 
of 40 CFR part 230). When reviewing a PCN for a proposed activity that 
may cause the loss of headwater stream bed, the district engineer will 
consider the functions being performed by the headwater streams. The 
Corps proposed to redesignate paragraph (d) of the 2017 general 
condition 23 as paragraph (e) of the 2021 general condition 23, so it 
did not propose to remove ``other open waters'' from the paragraph that 
discusses the use of riparian areas next to open waters as compensatory 
mitigation for NWP activities. The Corps did not propose to reduce any 
compensatory mitigation requirements.
    Several commenters stated the \1/10\-acre stream compensatory 
mitigation threshold is too broad to apply nationally. One commenter 
recommended establishing thresholds for requiring compensatory 
mitigation for stream bed losses through regional conditions instead of 
general condition 23 to account for the regional variability of streams 
across the United States. Several commenters stated that implementation 
of a \1/10\-acre threshold for stream compensatory mitigation does not 
achieve a goal of no-net-loss of aquatic resources. A couple commenters 
said that paragraph (d) allows for incremental losses of stream bed, 
which is contrary to the Corps' no-net-loss objective and is 
inconsistent with restoring habitat necessary to provide sustainable 
fish populations. One commenter stated that reductions in the amount of 
required mitigation to compensate for headwater stream losses would 
have large impacts on downstream waters, including large rivers. One 
commenter said that implementing a \1/10\-acre threshold for requiring 
compensatory mitigation for stream bed losses would increase the 
regulatory burden on downstream applicants due to declining water 
quality.
    Since the NWPs authorize activities across the country, paragraph 
(d) of this general condition establishes a national threshold for 
stream compensatory mitigation, but there is flexibility in the general 
condition to allow district engineers to make activity-specific 
determinations on whether stream compensatory mitigation should be 
required for activities that result in the loss of stream bed. Division 
engineers can add regional conditions to the NWPs to establish a lower 
threshold for requiring stream compensatory mitigation. As discussed 
above, there is no requirement for no net loss of stream bed in the 
Clean Water Act or the Corps' regulations for implementing the Clean 
Water Act. Previous versions of this general condition in prior NWP 
rulemakings did not have a threshold for compensatory mitigation for 
losses of stream bed. A stream compensatory mitigation threshold was 
added to this general condition to provide an additional mechanism to 
help ensure that activities authorized by the 10 NWPs from which the 
300 linear foot limit for losses of stream bed was removed result in no 
more than minimal individual and cumulative adverse environmental 
effects. Similar to the \1/10\-acre wetland compensatory mitigation 
threshold, this compensatory mitigation threshold for stream bed losses 
is expected to provide incentives for project proponents to design 
their

[[Page 2832]]

projects to minimize losses of stream bed, and help sustain downstream 
functions and water quality.
    One commenter said that stream compensatory mitigation should only 
be required for new impacts associated with the maintenance or 
replacement of previously authorized structures. Another commenter 
stated that given the difficulties to achieve successful stream 
mitigation, requiring compensatory mitigation for stream bed losses 
greater than \1/10\-acre will be unrealistic in areas where permittee-
responsible mitigation is the only option available. A few commenters 
suggested that thresholds reflect what would be required to ensure 
activities result in only minimal adverse environmental effects. Many 
commenters said that the \1/10\-acre threshold for requiring 
compensatory mitigation for stream bed losses is too large for 
headwater streams.
    District engineers will determine on a case-by-case basis whether 
to require compensatory mitigation for losses of stream bed authorized 
by NWPs. When determining whether to require compensatory mitigation, 
the district engineer will also consider practicability, including 
whether permittee-responsible mitigation is likely to be ecologically 
successful in offsetting the permitted impacts. As discussed below, the 
Corps has changed the \1/10\-acre threshold to \3/100\-acre to account 
for stream size.
    One commenter said the compensatory mitigation requirement for 
losses of stream bed greater than \1/10\-acre reduces the flexibility 
of the district engineer in making compensatory mitigation decisions. A 
few commenters objected to including a threshold for compensatory 
mitigation for the loss of stream bed, stating that it may result in 
unnecessary additional mitigation requirements and would not reduce 
burdens on the regulated public. Several commenters said the \1/10\-
acre threshold for compensatory mitigation for stream bed losses or the 
district engineer's determination to waive compensatory mitigation 
requirements would individually and cumulatively would directly or 
indirectly result in more than minimal adverse environmental effects.
    The text of this general condition is written to provide district 
engineers with substantial flexibility in determining whether 
compensatory mitigation is required for NWP activities and what the 
required compensatory mitigation should be for a particular NWP 
activity. Corps districts have been requiring stream compensatory 
mitigation for a number of years, so the changes to this general 
condition will not impose additional burdens on the regulated public. 
If the district engineer determines, after reviewing a PCN, that stream 
compensatory mitigation is not necessary to ensure that the NWP 
activity result in no more than minimal adverse environmental effects, 
he or she will not require stream compensatory mitigation for that 
activity.
    Many commenters suggested requiring compensatory mitigation for 
stream bed losses of 300 linear feet or more instead of the proposed 
\1/10\-acre threshold. One commenter said that a linear foot threshold 
is more appropriate than acreage and recommended revising paragraph (d) 
to require compensatory mitigation for stream bed losses greater than 
100 linear feet. One commenter recommended revising paragraph (d) to 
require compensatory mitigation for stream bed losses greater than 150 
linear feet. One commenter recommended changing paragraph (d) to 
require compensatory mitigation for stream bed losses of \1/10\-acre or 
300 linear feet. Many commenters said that the proposed \1/10\-acre 
stream mitigation threshold would result in more impacts with less 
compensatory mitigation being required. One commenter suggested using a 
scaled approach for establishing a stream compensatory mitigation 
threshold, such as a length threshold of five times the bankfull width 
or five times the width between ordinary high water marks. This 
commenter said a scaled approach would better account for variations in 
headwater streams and large rivers, compared to a \1/10\-acre 
threshold.
    After evaluating the comments received in response to the proposed 
modification of general condition 23, the Corps is changing the 
threshold for stream compensatory mitigation in paragraph (d) from \1/
10\-acre to \3/100\-acre. This is consistent with the stream 
compensatory mitigation threshold established in some Corps districts 
under the 2017 NWPs and the compensatory mitigation threshold 
recommended by several commenters. For the 2017 NWPs, a number of Corps 
districts have regional conditions requiring compensatory mitigation 
for losses of greater than 300 linear feet of stream bed. This is 
consistent with the recommendation for a 300 linear foot threshold made 
by many commenters in response to this proposed rule. The \3/100\-acre 
threshold in paragraph (d) was calculated by estimating the average 
width of stream fills (4 feet) authorized by the 2017 NWPs under the 10 
NWPs and multiplying that figure by 300 linear feet. The average width 
of stream filling or excavation was calculated from ORM2 data for NWP 
verifications issued between March 19, 2017, and March 19, 2019, for 
those NWP verifications where the average width of the stream fill or 
excavation was recorded by Corps district staff. The \3/100\-acre 
threshold is anticipated to result in similar stream compensatory 
mitigation requirements for the NWPs in this final rule compared to the 
2017 NWPs, and therefore is generally consistent with current agency 
practice. A scaled approach for establishing a stream compensatory 
mitigation threshold would add another level of complexity to a permit 
program that is intended to regulate, with little delay or paperwork, 
activities that result in minimal adverse environmental effects.
    A few commenters said the \1/10\-acre threshold for stream losses 
requiring compensatory mitigation is not scientifically supported or 
lacks supporting analysis. A couple commenters said they do not agree 
with the change in threshold from linear feet of impact to acres for 
requiring compensatory mitigation for losses of stream beds that 
require PCNs. A few commenters stated that the use of stream length 
rather than acreage has been used in many programs as a basis for 
determining mitigation credits to compensate for the loss of stream 
bed, and that the \1/10\-acre threshold would create uncertainty and 
additional costs for applicants, the public, mitigation banks, and in-
lieu fee programs. One commenter said that if the threshold for 
requiring stream compensatory mitigation is going to be changed from 
linear feet to acres, the acreage should include all of the affected 
area on the valley bottom, not just the area between ordinary high 
water marks of a river or stream.
    The establishment of the \3/100\-acre threshold for stream 
compensatory mitigation for NWP activities is an administrative 
decision to facilitate consistent implementation across districts. It 
is intended to be a conservative threshold based on the complexities of 
riverine systems, the substantial variation in riverine systems across 
the country, and the subjectivity inherent in the threshold for the 
NWPs (i.e., no more than minimal individual and cumulative adverse 
environmental effects). The use of acres to quantify stream 
compensatory mitigation is consistent with the Corps' compensatory 
mitigation regulations at 33 CFR 332.8(o)(1), which does not mandate 
the use of a particular metric for quantifying stream compensatory 
mitigation credits. It would be inappropriate to use the area of a 
valley bottom, since the Corps only has jurisdiction over certain 
categories of waters and wetlands, and valley

[[Page 2833]]

bottoms may consist of a substantial proportion of upland area or other 
features that are outside of the Corps' jurisdiction.
    Several commenters said the change to an area-based approach would 
not provide accounting consistency and would result in dual accounting 
systems for credits and debits generated under both linear feet and 
acreage-based scenarios and it would create inconsistencies, and would 
create confusion over how to handle sold versus proposed credits. One 
commenter expressed concern that ecological values of mitigation 
credits would not carry over in the conversion from linear feet to 
acres, creating the potential for activities to result in more than 
minimal individual and cumulative adverse environmental effects.
    There is no requirement in the Corps' regulations to quantify 
stream compensatory mitigation credits in linear feet. Compensatory 
mitigation credits, including stream credits, can be quantified in 
acres, linear feet, functional assessment units, or other suitable 
metrics of particular resource types (33 CFR 332.8(o)(1)). This final 
rule does not affect prior credit transactions for previously 
authorized NWP activities where the permittee secured stream 
compensatory mitigation credits from mitigation bank or in-lieu fee 
program sponsors. This final rule only applies to activities authorized 
by these NWP after they go into effect. The Corps acknowledges that a 
period of adjustment will be required, and that different agencies may 
require the use of different metrics to quantify losses of stream bed 
and stream compensatory mitigation credits. The ecological values of 
mitigation credits from the accrual or attainment of aquatic functions 
at a compensatory mitigation site (see the definition of ``credit'' at 
33 CFR 332.2). Quantifying stream mitigation credits in acres or linear 
feet is a surrogate for the increases in stream functions expected to 
result from a stream compensatory mitigation project, when there is no 
method available to assess the specific functional gains through a 
rapid ecological assessment method or other method.
    The amount of compensatory mitigation required for an NWP activity 
has to be sufficient to replace lost aquatic resource functions (see 33 
CFR 332.3(f)(1)), and the mitigation provider can use his or her 
judgment or the approved mitigation plans to determine how many stream 
credits quantified in linear feet are needed to offset a particular 
acreage of stream bed that is filled or excavated as a result of an NWP 
activity. It is important to note that the mitigation industry provides 
a service to permittees, as an option to fulfill the compensatory 
mitigation requirements in NWP authorization and other forms of DA 
authorizations. The Corps is making these changes for administrative 
efficiency, to provide NWP authorization for more activities that 
result in no more than minimal individual and cumulative adverse 
effects. The 300 linear foot limit for losses of stream bed in the 2017 
NWPs and prior NWPs required the Corps to process individual permits 
for activities that likely would have otherwise qualified for NWP 
authorization. In the 2007 NWPs, general condition 23 was modified to 
state that district engineers could require stream compensatory 
mitigation for losses of stream bed, but there was no acreage threshold 
as there was for wetland losses. In paragraph (d) of this general 
condition, the Corps has established a\ 3/100\-acre threshold for 
stream compensatory mitigation. District engineers can require 
compensatory mitigation for losses of less than \3/100\-acre of stream 
bed, and they can require compensatory mitigation for losses of up to 
\1/2\-acre of stream bed.
    One commenter said mitigation banks and in-lieu fee programs would 
be negatively affected because less compensatory mitigation would be 
required for the loss of stream beds. A few commenters said they have 
reservations about the implementation of a compensatory mitigation 
threshold for losses of stream bed and that there may not be bank or 
in-lieu fee program credits available.
    The 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 and the changes to 
this general condition will not result in less compensatory mitigation 
being required for losses of stream bed authorized by NWPs. By 
providing equivalent quantitative limits for all non-tidal 
jurisdictional waters and wetlands in these 10 NWPs (i.e., the \1/2\-
acre limit), there will likely be more NWP activities for which 
district engineers require compensatory mitigation. As discussed above, 
the Corps has changed the threshold from \1/10\-acre to \3/100\-acre to 
require stream compensatory mitigation that is more aligned with 
current practices and the recommendations of many commenters. The 
existing stream credits can be used for NWP activities, even though the 
authorized impacts will be quantified in acres.
    Several commenters supported the flexibility of the district 
engineer to allow other forms of mitigation as determined appropriate 
and to waive compensatory mitigation requirements after an activity 
specific determination that other forms of mitigation would be 
environmentally preferable. Several commenters said that increased 
impacts and allowing the district engineer to waive compensatory 
mitigation requirements would be counterproductive to the success of 
salmon recovery efforts, and therefore would not be protective of 
tribal treaty rights. Several commenters said the district engineer 
should be able to consider other site-specific activities required by 
other regulatory programs, such as mine site reclamation to considered 
as mitigation for activities affecting stream beds. One commenter 
stated that requiring a compensatory mitigation decision by the 
district engineer could delay issuance of a permit and to modify 
paragraph (d) to allow the district engineer or designee to waive the 
compensatory mitigation requirement. One commenter expressed concern 
that allowing the district engineer to waive compensatory mitigation 
requirements could allow for up to \1/2\-acre of stream bed loss which 
would result in adverse environmental impacts.
    The removal of the 300 linear foot limit from the NWPs (while 
retaining the \1/2\-acre limit, PCN process, and other tools to ensure 
no more than minimal adverse environmental effects) and the changes to 
general condition 23 will allow district engineers to authorize certain 
activities by NWP and require compensatory mitigation when necessary. 
It will provide more flexibility in the NWP and allow district 
engineers to devote more staff and other resources to proposed 
activities that have the potential for more substantial adverse 
environmental effects. These changes will not impair salmon recovery 
efforts, and for those proposed NWP activities that the district 
engineer determines ``may affect'' listed salmon species, additional 
protection to those listed species will be provided through the ESA 
section 7 process.
    The flexibility in general condition 23 allows district engineers 
to consider mitigation and other site-specific activities required by 
other agencies, such as mine reclamation, when determining whether to 
require compensatory mitigation for NWP activities. District engineers 
are required to make compensatory mitigation decisions within the 45-
day review period for NWP PCNs. The district engineer has the decision-
making authority for whether compensatory mitigation is required for an 
NWP activity.

[[Page 2834]]

    One commenter said the Corps should develop clear expectations and 
performance standards for the types of other mitigation that could be 
utilized to compensate for stream bed losses. One commenter suggested 
modifying paragraph (d) to list acceptable alternatives to compensatory 
mitigation. One commenter expressed support for compensatory mitigation 
requirements could be fulfilled through restoration or enhancement of 
riparian areas next to streams. Several commenters said that riparian 
restoration or enhancement results in out-of-kind mitigation since they 
do not always replace lost stream functions. One commenter suggested 
the proposed paragraph (d) be modified to state that riparian 
restoration or enhancement may only satisfy compensatory mitigation 
requirements when other in-kind mitigation options are unavailable or 
are not practicable.
    Ecological performance standards for stream compensatory mitigation 
projects are determined by district engineers when they review and 
approve mitigation plans. Permit applicants may propose potential 
alternatives to compensatory to district engineers, who will determine 
whether that alternative mitigation is appropriate and likely to be 
effective in reducing adverse environmental effects so that it is not 
necessary to require compensatory mitigation. While the restoration or 
enhancement of riparian areas might not replace all stream functions, 
they can help improve some stream functions and help reduce nutrient 
and pollutant loads to streams. District engineers will determine on a 
case-by-case basis whether the restoration or enhancement of riparian 
areas is appropriate and practicable compensatory mitigation for an NWP 
activity.
    One commenter said that the general condition should be modified to 
require the applicant to provide project specifications addressing the 
Natural Stream Channel Design Techniques and Review Checklist, 
developed by the U.S. EPA and U.S. FWS. One commenter said there 
currently are no national or regional tools developed by the Corps to 
guide compensatory mitigation for stream bed losses. One commenter 
stated the Corps and U.S. EPA are currently collaborating on a peer-
reviewed study analyzing the environmental and policy consequences of 
stream restoration metrics. This commenter recommended not modifying 
the NWPs until they are scheduled to expire in 2022 to allow for the 
results of the study to be completed and the results to be considered. 
One commenter said general condition 23 should be incorporated into 
every applicable NWP rather than referring to the loss of 300 linear 
feet in each NWP.
    District engineers evaluate stream compensatory mitigation 
proposals and should be provided the flexibility to consider a variety 
of potential stream restoration or rehabilitation approaches. This 
includes river and stream restoration approaches, such as dam removals, 
culvert replacements, and other process-based methods that may be more 
ecologically effective than natural channel design in improving stream 
functions (e.g., Palmer et al. 2014). The Corps is removing the 300 
linear foot limit for losses of stream bed from 10 NWPs and modifying 
general condition 23 for more efficient administration of the NWP 
program. The study on stream metrics may have some utility in future 
rulemakings and the development of guidance, but it is not necessary to 
delay this rulemaking to wait for that study to be completed. General 
condition 23 applies to all NWPs.
    Several commenters supported the proposed changes to paragraph (e). 
Several commenters said that paragraph (e) of general condition 23 
should be modified to eliminate the district engineer's ability to 
allow riparian area compensatory mitigation for wetland losses. One 
commenter suggested modifying paragraph (e) to allow the planting of 
adapted seed mixes that may contain non-native species and to allow for 
the replacement of existing vegetation when restoring riparian areas. 
One commenter said the proposed condition should be modified to state 
that use of native vegetation is preferred, rather than required, and 
to allow for consideration of regionally appropriate vegetation. A few 
commenters expressed opposition to the proposed changes the changes to 
paragraph (e) and expressed concerns that allowing non-native species 
would result in negative environmental effects. One commenter said they 
were concerned that allowing non-native species in the restored areas 
could negate the prevention, control, and management of non-native 
species performed by other government agencies, non-government 
organizations, and citizens and could introduce a source for spread 
among those activities.
    The restoration and enhancement of riparian areas may be used to 
offset wetland losses as another form of mitigation that could be more 
environmentally appropriate, since riparian areas perform a number of 
functions that are also performed by wetlands (NRC 1995, NRC 2002). 
There may be a number of seed mixes that are acceptable for 
revegetating riparian areas. Paragraph (e) contains flexibility because 
it states that native species should be planted; it does not require 
native species to be planted. As discussed in the proposed rule, non-
native species can have positive, negative, or neutral effects on 
ecosystems and the functions they perform. Compensatory mitigation 
requirements, including long-term management activities, must be 
practicable (see 33 CFR 332.3(a)(1)). For a particular compensatory 
mitigation site, the district engineer may determine that the 
management of invasive or non-native species is not practicable cause 
of site or watershed conditions, the degree to which the invasive or 
non-native species is established in the region, and other factors. If 
other government agencies and non-governmental organizations want to 
undertake efforts to control invasive or non-native species, they can 
do that under their authorities or mission statements.
    Several commenters said there is no support for allowing narrow 
riparian areas of 25-50 feet wide on each side of the stream that would 
support habitat needed by federally threatened or endangered salmon. 
Buffers of 100 feet or more are needed. One commenter said that 
riparian area restoration and enhancement requirements (e.g. minimum 
riparian width, historical and existing site conditions) should be 
addressed regionally rather than included in paragraph (e). One 
commenter said that restoring or enhancing riparian areas does not 
achieve no-net-loss of the stream bed.
    The recommended riparian area width of 25-50 feet was established 
in the NWP program in 2000 (65 FR 12833) because riparian areas of that 
width can provide important aquatic habitat functions and water quality 
benefits. The establishment of wider riparian areas for listed species 
be more appropriately addressed through the ESA section 7 consultation 
process. Division and district engineers can establish regional 
requirements for riparian areas. The purpose of restoring and enhancing 
riparian areas is to help improve stream functions and water quality. 
The improved functions are expected to occur in nearby stream bed and 
in downstream waters.
    One commenter recommended modifying paragraph (f)(4) of this 
general condition to state that if permittee-responsible mitigation is 
the proposed compensatory mitigation option, and the proposed 
compensatory mitigation site is located on land in which another 
federal agency holds an easement, the district engineer will

[[Page 2835]]

coordinate with that federal agency to determine if proposed 
compensatory mitigation project is compatible with the terms of the 
easement. The Corps added the suggested text to paragraph (f)(4) of 
general condition 23.
    This general condition is adopted with the modifications discussed 
above.
    GC 24. Safety of Impoundment Structures. The Corps did not propose 
any changes to this general condition. One commenter recommended adding 
``federal'' to this general condition because some federal agencies may 
have established federal dam safety criteria. The Corps added 
``federal'' to the text of this general condition so that district 
engineers can require non-federal applicants to demonstrate that the 
structures comply with established federal dam safety criteria.
    This general condition is adopted as with the modification 
discussed above.
    GC 25. Water Quality. The Corps proposed 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 (WQC) 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 a certification 
request 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.
    One commenter expressed general support for the proposed changes to 
general condition 25. Several commenters supported the proposed changes 
clarifying that applicants need to request certification from the 
certifying authority for specific discharges when he or she cannot 
comply with all of the conditions in the WQC for the NWP. One commenter 
said that general condition 25 should be clarified to state that WQCs 
must be consistent with 33 CFR 325.4 and 40 CFR 121.7(d), and that any 
WQC condition not within the established scope of the certification, 
may not be included as a regional condition.
    The proposed changes have been incorporated into this general 
condition. The Corps has added text to this general condition to state 
that if the certifying authority issues a water quality certification 
for the proposed discharge authorized by a specific NWP activity, the 
permittee must submit a copy of the certification to the district 
engineer. Furthermore, the general condition states that if 
certification is required for a specific discharge, the discharge is 
not authorized by an NWP until the district engineer has notified the 
permittee that the water quality certification requirement has been 
satisfied.
    When water quality certification is required for a specific 
discharge authorized by an NWP, and the Corps has completed its review 
of the PCN and has determined that the activity is authorized by an NWP 
as long as water quality certification is issued or waived for that 
discharge, the district engineer will send a provisional notification 
to the permittee. The provisional notification will inform the project 
proponent that the activity will be authorized by an NWP once water 
quality certification for the proposed discharge is obtained or waived. 
If water quality certification is issued for the proposed discharge, 
the district engineer will conduct coordination that may be required 
under Section 401(a)(2) of the Clean Water Act. After that process, the 
district engineer will issue the NWP verification letter with the water 
quality certification. The district engineer may add conditions to the 
NWP authorization to ensure the authorized activity results in no more 
than minimal individual and cumulative adverse environmental effects. 
The district engineer will also add to the NWP authorization conditions 
in the water quality certification that are not waived pursuant to 40 
CFR 121.9(b).
    The Corps divided the text of this general condition into three 
paragraphs to make the general condition easier to read. This general 
condition is adopted with the modifications discussed above.
    GC 26. Coastal Zone Management. The Corps proposed 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 
concurrence, then he or she must obtain an individual CZMA consistency 
concurrence or presumption of concurrence from the state in order for 
the activity to be authorized by an NWP.
    Several commenters expressed support for the change, stating that 
it provided clarification of the consistency concurrence process and 
additional flexibility. The commenters further noted that the proposed 
language makes it clear that the permittee is expected to fully comply 
with all the conditions of the general concurrence or seek an 
individual CZMA consistency concurrence or presumption of concurrence 
from the state coastal program.
    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 
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, she or he 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.
    When CZMA consistency concurrence is required for a specific 
activity authorized by an NWP, and the Corps has completed its review 
of the PCN and has determined that the activity is authorized by an NWP 
as long as CZMA consistency concurrence is issued or a presumption of 
concurrence occurs for the activity, the district engineer will send a 
provisional notification to the permittee. The provisional notification 
will inform the project proponent that the activity will be authorized 
by an NWP once CZMA consistency concurrence for the proposed activity 
is obtained or a presumption of concurrence occurs. The district 
engineer may add conditions to the NWP authorization to ensure the 
authorized activity results in no more than minimal individual and 
cumulative adverse environmental effects.
    The general condition is adopted as proposed.
    GC 27. Regional and Case-By-Case Conditions. The Corps did not 
propose any changes to this general condition. No comments were 
received. The general condition is adopted as proposed.
    GC 28. Use of Multiple Nationwide Permits. The Corps proposed 
changes to this general condition to address the use of more than one 
NWP to authorize a single and complete project, when two of those NWPs 
have different acreage limits. The proposed changes were

[[Page 2836]]

intended to ensure that use of an NWP with a higher acreage limit could 
not circumvent the lower acreage limit for another NWP, when the two 
NWPs are combined to authorize a single and complete project.
    A few commenters expressed support for the change and said that it 
clarified language regarding the use of multiple NWPs for a single and 
complete project. Several commenters recommended making no changes to 
this general condition, and retaining the general condition language 
from the 2017 NWPs. One commenter suggested that the NWP numbers used 
in the example in the text of the general condition should match the 
NWP numbers used in the example in the preamble to the proposed rule, 
specifically by using NWP 39 rather than NWP 29. One commenter said 
that no more than two NWPs should be used to authorize a single and 
complete project. One commenter stated that the use of multiple NWPs to 
authorize a single and complete project should not cumulatively exceed 
the threshold of the highest limit.
    In the example in the text of this general condition, the Corps has 
replaced NWP 29 with 39 to make the example clearer. Nationwide permit 
29 has a subdivision provision that adds an additional layer of 
complexity, so it would be simpler to use NWP 39 in the example since 
that NWP has no subdivision provision. There may circumstances in which 
more than three NWPs may be appropriate for authorizing a single and 
complete project. One commenter stated that the use of multiple NWPs to 
authorize a single and complete project should not cumulatively exceed 
the threshold of the highest limit. The general condition does limit 
the acreage loss of waters of the United States to the highest 
specified acreage limit, but it does not allow the acreage limit of an 
NWP with a lower acreage limit to be exceeded.
    One commenter stated that the proposed language would limit use of 
NWPs with no acreage limit, such as NWP 3 in combination with other 
NWPs, where it may be desirable to allow additional work beyond a 
specified acreage to occur as it would promote re-use and 
rehabilitation of existing structures rather than construction of new 
structures. One commenter recommended that the Corps provide 
clarification regarding how temporary and cumulative impacts would be 
addressed when more than one NWP is used to authorize a single and 
complete project.
    The text in paragraph (a) of this general condition will limit the 
use of NWPs with no acreage limits, as it has since this text was 
incorporated into this general condition in 2000 (47 FR 12896). The 
general condition applies to losses of waters of the United States, as 
that term is defined in Section F of the NWPs. It does not include 
temporary impacts. Cumulative impacts are addressed separately during 
the district engineer's review of the PCN, in accordance with paragraph 
2 of Section D, District Engineer's Decision.
    Several commenters stated that the Corps must prohibit the use of 
multiple NWPs and NWPs with other general or individual permits as the 
Corps is not assessing the cumulative impacts. A few commenters stated 
that the proposed change may result in a greater loss of waters, and 
expressed concern that allowing two NWPs with different specified 
acreage limits to be used would result in larger impacts than allowed 
by each individual NWP. A few commenters said that allowing the use of 
more than one NWP to authorize a single and complete project will 
result in more than minimal individual and cumulative adverse 
environmental effects. One commenter suggested that the Corps eliminate 
the use of multiple NWPs to authorize individual segments of linear 
projects.
    The Corps considers cumulative impacts when it evaluates PCNs for 
proposed NWP activities (see paragraph 2 of Section D, District 
Engineer's Decision). General condition 28 does not address the use of 
NWPs with individual permits; it only addresses the use of multiple 
NWPs to authorize a single and complete project. The use of NWPs with 
individual permits is addressed in the Corps' NWP regulations at 33 CFR 
330.6(d). The modification of this general condition is specifically 
intended to prohibit the circumvention of the specified acreage limits 
of the NWPs, so that the loss of waters of the United States under a 
particular NWP is not exceeded.
    Not allowing any deviation from the specified acreage limits of the 
NWPs used to authorize a single and complete project will help ensure 
that authorized activities will result in no more than minimal 
individual and cumulative adverse environmental effects. This general 
condition does not apply to the long-standing practice of allowing each 
separate and distant crossing of waters of the United States for a 
linear project to be considered a separate NWP authorization. This 
general condition does apply to circumstances where a linear project 
may involve two separate utility lines (e.g., an electric utility line 
authorized by NWP 57 and a water line authorized NWP 58) both cross a 
waterbody. In this situation, the \1/2\-acre limit would apply to the 
cumulative loss of waters of the United States caused by the electric 
line and water line crossing of that waterbody.
    The general condition is adopted with the modifications discussed 
above.
    GC 29. Transfer of Nationwide Permit Verifications. The Corps did 
not propose any changes to this general condition. No comments were 
received. The general condition is adopted as proposed.
    GC 30. Compliance Certification. The Corps did not propose any 
changes to this NWP. No comments were received. The general condition 
is adopted as proposed.
    GC 31. Activities Affecting Structures or Works Built by the United 
States. The Corps proposed to modify this general condition to be 
consistent with the current Engineer Circular (EC) 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). Under the current EC, 
Corps districts are required to conduct section 10 and section 404 
permit evaluations and requests for 408 permissions in a coordinated 
and concurrent manner.
    One commenter supported the proposed changes to this general 
condition. One commenter stated that a PCN should not be required for a 
Section 408 review or permission if the underlying NWP activity does 
not otherwise require a PCN. One commenter said that the proposed text 
raises concerns about timely processing of NWPs.
    Pre-construction notifications are required for proposed NWP 
activities that also require Section 408 permissions so that the 
appropriate coordination can occur between district staff involved in 
the NWP authorization and Section 408 permission processes. The Corps 
acknowledges that it may take longer for NWP verification letters to be 
issued by the district engineer, because the NWP verification cannot be 
issued before the Section 408 permission process is completed.
    The general condition is adopted as proposed.
    GC 32. Pre-Construction Notification. The Corps proposed several 
modifications to this general condition to provide consistency with 
proposed changes to the NWPs and to clarify pre-construction 
notification requirements. The Corps proposed 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

[[Page 2837]]

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, the Corps proposed 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)).
    Many commenters expressed concern with the 45-day clock and the 
default authorization of PCNs and questioned whether this was a 
sufficient review period. Many commenters stated that the Corps should 
hold districts accountable regarding when the 45-day PCN review period 
starts and limit information requests to a single request. These 
commenters further stated that some Corps districts make numerous 
information requests to reset the 45-day review period or request 
additional information not listed in the text of the general condition. 
One commenter suggested that the Corps provide more direction/guidance 
to districts on the ability to use sketches (rather than engineered 
drawings). A few commenters said that no additional information 
requirements should be added to the PCN process that would further 
complicate or burden the process. One commenter recommended that 
district engineer use their discretionary authority to expedite certain 
time-sensitive maintenance and inspection projects associated with key 
energy infrastructure projects.
    Forty-five days is sufficient time for district engineers to review 
PCNs and determine whether proposed activities qualify for NWP 
authorization or whether discretionary authority should be exercised to 
require individual permits. Exceptions to the 45-day review period when 
district engineers have to complete ESA section 7 consultation, NHPH 
section 106 consultations, or other required consultations. District 
engineers are supposed to make only one request for additional 
information to make PCNs complete. District engineers can make 
additional requests only when the project proponent has not submitted 
the requested information to the district engineer. A complete PCN only 
requires the information listed in general condition 32, plus the text 
of the NWP itself if the ``Notification'' provision includes additional 
information requirements. The sketches submitted with a PCN have to be 
sufficiently detailed to help a district engineer understand the 
proposed activity, but it does not have to be an engineering drawing or 
a comparably detailed drawing. The Corps has not added any more 
information requirements beyond what was proposed in the 2020 Proposal. 
The Corps does not agree that general condition 32 should be modified 
to state that a district engineer has discretionary authority to 
expedite certain time-sensitive maintenance and inspection activities. 
District engineers already have the discretion to manage their 
workload.
    The Corps also proposed 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), the Corps also proposed 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. In subparagraph (b)(4)(ii), the Corps proposed 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 an NWP that do not require PCNs. The 
Corps also proposed 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.
    A few commenters expressed support for the proposed changes, 
particularly the clarification that a PCN must identify non-PCN NWPs 
used to authorize other aspects of projects, including linear projects. 
The Corps has incorporated the proposed changes into paragraph (b)(4).
    In the first sentence of paragraph (b)(5), the Corps proposed 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, the Corps proposed to modify paragraph (b)(5) to be 
consistent with its 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, based on regional or local 
conditions, 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 jurisdictional 
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 jurisdictional waters and wetlands 
exceeds the \1/2\-acre limit.
    A few commenters stated that the Corps should add the word 
``jurisdictional'' to ``streams'' in paragraph (b)(5). One commenter 
recommended that the Corps clarify that paragraph (b)(5) only applies 
to jurisdictional waters. One commenter stated that the use of the word 
``ephemeral'' in paragraph (b)(5) is inconsistent with the Navigable 
Waters Protection Rule and recommended omitting the term from the 
general condition. One commenter opposed the addition of ``streams'' in 
paragraph (b)(6) and requiring PCNs for stream losses in excess of \1/
10\-acre, since the removal of the 300-foot limit only applies to 10 
NWPs.
    The Corps declines to add the word ``jurisdictional'' to modify the 
word ``stream'' or other types of waters listed in paragraph (b)(5) 
because an approved jurisdictional determination is not required for an 
NWP PCN. If the project proponent did not obtain an approved 
jurisdictional determination for the project site prior to submitting 
the PCN, for the purposes of evaluating the PCN the district engineer 
will presume the wetlands, streams, and other waters on the project 
site are subject to Clean Water Act jurisdiction. The Corps has removed 
the word ``ephemeral'' from paragraph (b)(5). Paragraph (b)(6) does not 
impose any additional PCN requirements for losses of stream bed. The 
first sentence of paragraph (b)(6) has been revised as follows to 
incorporate the mitigation thresholds in general condition 23: ``If the 
proposed activity will result in the loss of greater than \1/10\-acre 
of wetlands or \3/100\-acre of stream bed and a PCN is required, the 
prospective permittee must submit a

[[Page 2838]]

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.''
    The Corps proposed 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, 
the Corps proposed 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.
    One commenter stated that paragraph (c), which references the use 
of ENG 6082, should be altered to include allowance for states that 
have a joint application process. The ENG Form 6082 has been approved 
for purposes of the Paperwork Reduction Act, but joint state-federal 
forms have not been approved. Therefore, the Corps declines to make 
this suggested change.
    Because of the 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, the Corps proposed to modify 
paragraph (d)(2) of the agency coordination provisions of this general 
condition. The Corps proposed 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.
    Several commenters objected to the removal of the agency 
coordination process with the removal of the 300 linear foot limit for 
loss of stream bed. One commenter stated that removal of the agency 
coordination process resulting from the removal of PCN requirements may 
lead to the Corps being the only entity involved in the review of 
potential source water (i.e. drinking water) impacts. One commenter 
stated that the PCN requirement is a benefit for state agency 
coordination, which assists the applicant and regulatory agencies in 
permit streamlining.
    The Corps has removed the agency coordination provisions for 
waivers for losses of greater than 300 linear feet of intermittent or 
ephemeral stream bed for activities authorized by NWPs 21, 29, 39, 40, 
42, 43, 44, 50, 51, and 52. The NWPs do not require district engineers 
to coordinate proposed activities that may affect source waters or 
drinking water supplies. Pre-construction notifications are required 
for certain NWP activities, and coordination with state agencies is 
only required for specific activities identified in paragraph (d) of 
this general condition.
    This general condition is adopted with the modifications discussed 
above.

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

    In paragraph 1 of Section D, the Corps proposed 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. The Corps proposed 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, the 
Corps proposed 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 and 50 
will be subject to the same timeframes as other NWP activities that 
require PCNs, because the Corps removed the provision from these NWPs 
that required the permittee to obtain written verification from the 
Corps before commencing the authorized activity. This includes the 
ability for the permittee to presume that her or his project qualifies 
for the NWP unless she or he is otherwise notified by the district 
engineer 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.
    One commenter said the Corps should only use functional assessments 
that have been developed, peer reviewed, and subject to public and 
stakeholder comment at the regional level, and that the Corps not 
unilaterally revise the tools or substitute alternative methodologies 
only when the Corps prefers. The Corps determines which functional 
assessments are appropriate for use in evaluating NWP PCNs and other 
applications for DA authorization. The Corps does not require 
functional assessments to be peer reviewed, but acknowledges that peer 
review can help improve functional assessments to better assess aquatic 
resource functions. The Corps has modified the first sentence of 
paragraph 3 of this section to be consistent with the wetland and 
stream mitigation thresholds in general condition 23. That sentence has 
been changed to read: ``If the proposed activity requires a PCN and 
will result in the loss of greater than \1/10\-acre of wetlands or \3/
100\-acre of stream bed, the prospective permittee should submit a 
mitigation proposal with the PCN.''

J. Discussion of Proposed Modifications to Section F, Definitions

    In the 2020 Proposal, the Corps proposed changes to some of the NWP 
definitions and the Corps proposed to remove some definitions. Several 
commenters stated that the definitions in Section F should match the 
definitions used in the Navigable Waters Protection Rule and in other 
regulations. A few commenters suggested retaining the definitions for 
intermittent stream and ephemeral stream. One commenter suggested 
repeating all ``geographic definitions'' in the NWP definitions. One 
commenter requested definitions for levee, berm and dike. One commenter 
asked that the Corps differentiate between ``top of bank,'' ``ordinary 
high water mark'' and ``bankfull elevation.'' One commenter expressed 
concern with the proposed removal of definitions for ``protected tribal 
resources,'' ``ephemeral streams'' and ``intermittent streams.''
    As discussed in the proposed rule, the Corps proposed to modify the 
definitions of ``ordinary high water mark'' and ``perennial stream'' to 
be consistent with the Navigable Waters Protection Rule at 33 CFR 
328.3(c)(7) and 33 CFR 328.3(c)(8). The Corps is removing the 
definitions of intermittent stream and ephemeral stream because they 
are no longer used in the text of the NWPs. The Corps does not believe 
it is necessary to copy the entire definition of ``waters of the United 
States'' into the NWPs because that definition is available at 33 CFR 
328.3. The Corps declines to add definitions of the terms ``levee,'' 
``berm,'' ``dike,'' and ``top of bank.'' The Corps does not see a need 
to differentiate or define the terms ``top of bank'' or ``bankfull 
elevation'' because those terms are not used in the NWPs. The 
definition of ``protected tribal resources'' has been removed because 
that phrase is no longer in the text of general condition 17, tribal 
rights. The term ``protected tribal resources'' continues to be applied

[[Page 2839]]

through the Corps' implementation of the 1998 Department of Defense 
American Indian and Alaska Native Policy.
    One commenter stated that unless a definition of ``water of the 
United States'' is included or referenced all waterbodies should be 
defined within the NWPs to avoid confusion. One commenter requested a 
definition of ``adjacent wetlands'' that is consistent across all 
regulations. One commenter suggested adding a definition of ``oil and 
gas pipeline.'' One commenter supported retention of the definitions 
for ``single and complete linear project,'' ``single and complete non-
linear project'' and ``independent utility.'' One commenter suggested 
adding a definition of ``stream'' to differentiate between linear 
wetlands and streams for compensatory mitigation purposes.
    The phrase ``waters of the United States'' is defined at 33 CFR 
part 328.3. The term ``adjacent wetlands'' is defined at 33 CFR 
328.3(c)(1)). The term ``oil or natural gas pipeline'' is defined in 
the text of NWP 12. The Corps declines to add a definition of 
``stream'' because the NWPs include a definition of ``stream bed.'
    Best management practices (BMPs). The Corps did not propose any 
changes to this definition. The Corps did not receive any comments on 
the proposed definition. The definition is adopted as proposed.
    Compensatory mitigation. The Corps did not propose any changes to 
this definition. The Corps did not receive any comments. The definition 
is adopted as proposed.
    Currently serviceable. The Corps did not propose any changes to 
this definition. One commenter stated that the proposed definition 
includes the unclear phrase ``some maintenance'' and requested 
clarification. The Corps declines to clarify the phrase ``some 
maintenance'' because it is subject to application on a case-by-case 
basis.
    The definition is adopted as proposed.
    Direct effects. The Corps did not propose any changes to this 
definition and did not receive any comments. The definition is adopted 
as proposed.
    Discharge. The Corps did not propose any changes to this 
definition. One commenter said that the proposed definition includes 
the word being defined in its definition and suggested edit of the 
definition replacing the word discharge in the definition with 
``addition'', ``release'', or ``placement.'' The Corps declines to make 
the suggested changes because the Corps regulates discharges of dredged 
or fill material and those terms are more comprehensively defined in 33 
CFR 323.2.
    The definition is adopted as proposed.
    Ecological reference. The Corps did not propose any changes to this 
definition. The Corps We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Enhancement. The Corps did not propose any changes to this 
definition. The Corps We did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Ephemeral stream. The Corps proposed to remove the definition of 
``ephemeral stream'' in conjunction with the proposal to remove the 300 
linear foot limit for losses of stream bed and the ability of district 
engineers to waive that 300 linear foot limit for losses of ephemeral 
stream bed on a case-by-case basis. It should also be noted that 
ephemeral features, including ephemeral streams, are excluded from the 
definition of ``waters of the United States'' at 33 CFR 328.3(b)(3). 
Section 328.3 of the Corps' regulations defines ``waters of the United 
States'' for the purposes of the Clean Water Act.
    A few commenters stated that the definition of ``ephemeral stream'' 
should be retained given the importance of stream categorization in 
jurisdiction and thus whether an NWP is necessary. One commenter stated 
that the definition should be retained to differentiate ephemeral 
streams from intermittent and perennial streams. One commenter 
supported the removal of the definition given proposed elimination of 
the 300 linear foot limit from the NWPs and the exclusion of ephemeral 
streams from jurisdiction under the Navigable Waters Protection Rule. 
One commenter expressed opposition to the definition's removal based on 
opposition to removal of the 300 linear foot limit from the NWPs. One 
commenter stated that the term should be retained because a cumulative 
impacts analysis may include a determination of flow through ephemeral 
and intermittent streams.
    The Corps is removing this definition as proposed because, in 
accordance with the Navigable Waters Protection Rule, ephemeral 
features, including ephemeral streams, are categorically excluded from 
the definition of ``waters of the United States'' under the Clean Water 
Act (see 33 CFR 328.3(b)(3)).
    Establishment (creation). The Corps did not propose any changes to 
this definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    High Tide Line. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Historic property. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Independent utility. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Indirect effects. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Intermittent stream. The Corps proposed to remove the definition of 
``intermittent stream,'' in conjunction with the proposal to remove the 
300 linear foot limit for losses of stream bed which obviated the need 
to reference a waiver for losses of an intermittent stream bed.
    One commenter supported the removal of the definition given 
proposed elimination of the 300 linear foot limit from the NWPs and the 
exclusion of ephemeral streams from jurisdiction under the Navigable 
Waters Protection Rule. One commenter objected to the removal of the 
definition of intermittent streams since they are in the Navigable 
Waters Protection Rule. One commenter opposed the definition's removal 
based on opposition to removal of the 300 linear foot limit from the 
NWPs. One commenter stated that the term should be retained because a 
cumulative impacts analysis may include a determination of flow through 
ephemeral and intermittent streams.
    The Corps is removing this definition as proposed because this term 
is no longer used in the text of the NWPs.
    Loss of waters of the United States. The Corps proposed 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, the Corps proposed 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 the 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

[[Page 2840]]

no more than minimal individual and cumulative adverse environmental 
effects, the Corps proposed to remove ``linear feet'' from the third 
sentence of this definition. 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.
    One commenter stated that the Corps should not remove the words 
``linear feet'' from the definition because of opposition to removing a 
method of calculating stream loss relative to compensatory mitigation. 
One commenter expressed support for the changes as it makes clear that 
loss is limited to stream beds permanently adversely impacted. One 
commenter said that removal of linear feet from the definition would 
result in more than minimal adverse environmental effects. One 
commenter stated that conversion of forested wetlands to other wetland 
types should be included in the definition of permanent adverse effects 
which is included in the ``loss of waters of the United States'' 
definition.
    The Corps has removed the 300 linear foot limit for losses of 
stream bed from NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. 
Therefore, the Corps is removing ``linear feet'' from this definition. 
The Corps declines to include the conversion of forested wetlands to 
other wetland types in the definition of ``loss of waters of the United 
States'' because those areas remain wetlands and they continue to 
provide wetland functions.
    This definition is adopted as proposed.
    Navigable waters. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Non-tidal wetland. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Open water. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Ordinary high water mark. The Corps proposed to modify this 
definition to be consistent with the definition in the Navigable Waters 
Protection Rule defining ``waters of the United States'' (see 33 CFR 
328.3(c)(7)). One commenter said that the definition includes only a 
discussion of the stream bed and omits reference to the bank contrary 
to the definition in other Clean Water Act rules and regulations. The 
lateral extent of Clean Water Act jurisdiction ends at the ordinary 
high water mark, not the bank, if no adjacent wetlands are present. See 
33 CFR 328.4(c).
    The definition is adopted as proposed.
    Perennial stream. The Corps proposed to modify the definition of 
``perennial stream'' to be consistent with the definition of 
``perennial'' in the Navigable Waters Protection Rule defining ``waters 
of the United States'' (see 33 CFR 328.3(c)(8)).
    One commenter stated support for the proposed change because of the 
elimination of the 300 linear foot limit for losses of stream bed and 
changes made to the definition in the Navigable Waters Protection Rule. 
One commenter said that the previous definition was clearer in 
instances when perennial streams are diverted underground. One 
commenter stated that the definition does not match the definition in 
the Navigable Waters Protection Rule, and recommended changing the 
definition to match that definition.
    The Navigable Waters Protection Rule at 33 CFR 328.3(c)(8) defines 
the term ``perennial'' not ``perennial stream.'' The Corps used the 
definition of ``perennial'' at 33 CFR 328.3(c)(8) to modify the NWP 
definition of ``perennial steam.''
    The definition is adopted as proposed.
    Practicable. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Pre-construction notification. The Corps did not propose any 
changes to this definition. The Corps did not receive any comments on 
the proposed definition. The definition is adopted as proposed.
    Preservation. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Protected tribal resources. Because of the proposed changes to NWP 
general condition 17, tribal rights, the Corps proposed 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.''
    A few commenters opposed the removal of the definition because they 
opposed changing the text of general condition 17. A few commenters 
said that that removal of the definition and the change to general 
condition 17 will result in substantial impacts to tribal waters, 
treaty, trust and cultural resources. One commenter suggested adding 
the definition to general condition 17.
    The Corps is removing this definition as proposed because it is no 
longer used in the text of the NWPs or the general conditions.
    Re-establishment. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Rehabilitation. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Restoration. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Riffle and pool complex. The Corps did not propose any changes to 
this definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Riparian areas. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Shellfish seeding. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Single and complete linear project. The Corps did not propose any 
changes to this definition.
    Many commenters stated support for retaining the definition given 
longstanding presence in regulation, practice by the Corps and 
upholding in court cases. Several commenters stated that the definition 
violates the Clean Water Act Section 404(e) minimal impact limitation, 
the National Environmental Policy Act the Endangered Species Act and 
other statutes and regulations. A few commenters stated that the 
definition recognizes ``that discharges of dredged or fill material 
along a utility line, with narrow crossings of separate and distant 
waters, will typically have minimal effects both on the individual 
waters crossed and cumulatively on watersheds.'' One commenter 
supported continued use of the definition but said

[[Page 2841]]

that it is vague and has led to inconsistent application among 
districts, particularly relative to multiple crossings of a single 
water with multiple channels. One commenter stated that the definition 
is inconsistently applied and should be revised to require or strongly 
promote the concept of ``multiple'' single and complete linear 
projects. One commenter requested clarification of the definition to 
allow a determination of permit requirements and compensatory 
mitigation by the permittee.
    The definition is consistent with the Corps' regulations at 33 CFR 
330.2(i), which was promulgated in 1991, and with long-standing 
practice for authorizing linear projects by NWP. This definition does 
not violate the Clean Water Act, the National Environmental Policy Act, 
or the Endangered Species Act. It is based on a regulation that was 
promulgated in accordance with the Administrative Procedure Act. 
District engineers have discretion in applying this definition, and in 
identifying separate and distant crossings of waters of the United 
States. Only the district engineer has the authority to require 
compensatory mitigation for activities authorized by NWPs. The permit 
applicant is responsible for submitting a mitigation plan to the 
district engineer for consideration.
    The definition is adopted as proposed.
    Single and complete non-linear project. The Corps did not propose 
any changes to this definition. The Corps did not receive any comments 
on the proposed definition. The definition is adopted as proposed.
    Stormwater management. The Corps did not propose any changes to 
this definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Stormwater management facilities. The Corps did not propose any 
changes to this definition. The Corps did not receive any comments on 
the proposed definition. The definition is adopted as proposed.
    Stream bed. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Stream channelization. The Corps did not propose any changes to 
this definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Structure. The Corps did not propose any changes to this 
definition. One commenter suggested that the definition be altered to 
be consistent with language used in proposed new NWP C. Specifically, 
the commenter, proposes replacing the example of ``power transmission 
line'' with ``utility line'' so it includes other types of lines. The 
Corps declines to make the suggested change to this definition because 
it covers a wide variety of structures that may be authorized by NWPs.
    The definition is adopted as proposed.
    Tidal wetland. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Tribal lands. The Corps did not propose any changes to this 
definition. One commenter stated that the definition of tribal Lands 
used by the U.S. EPA and the Corps' definition is different and 
suggested that they be revised to be consistent. This definition was 
adopted from the 1998 Department of Defense American Indian and Alaska 
Native Policy, so the Corps is retaining that definition.
    The definition is adopted as proposed.
    Tribal rights. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Vegetated shallows. The Corps did not propose any changes to this 
definition. The Corps did not receive any comments on the proposed 
definition. The definition is adopted as proposed.
    Waterbody. The Corps did not propose any changes to this 
definition. Several commenters said that the term ``waterbody'' can be 
confused with ``water body,'' which describes both jurisdictional and 
non-jurisdictional features, for example as used in the Navigable 
Waters Protection Rule. The commenter suggested deletion of 
``waterbody'' and instead use of ``waters of the United States'' to 
avoid confusion. One commenter recommended removal of the last sentence 
of this definition. The Corps declines to make the suggested changes, 
except for the removal of the last sentence, because this term is used 
through the NWPs. The definition of ``waters of the United States'' at 
33 CFR 328.3 is used to identify waterbodies, including adjacent 
wetlands.
    The definition is adopted as proposed.

III. Compliance With Relevant Statutes

A. National Environmental Policy Act Compliance

    The Corps has prepared a decision document for each NWP. Each 
decision document contains an environmental assessment (EA) to fulfill 
the requirements of the National Environmental Policy Act (NEPA). The 
EA includes the public interest review described in 33 CFR part 
320.4(b). The EA generally discusses the anticipated impacts the NWP 
will have on the human environment and the Corps' public interest 
review factors. If a proposed NWP authorizes discharges of dredged or 
fill material into waters of the United States, the decision document 
also includes an analysis conducted pursuant to the Clean Water Act 
section 404(b)(1), in particular 40 CFR part 230.7. These decision 
documents evaluate, from a national perspective, the environmental 
effects of each NWP.
    The final decision document for each NWP is available on the 
internet at: www.regulations.gov (docket ID number COE-2020-0002) as 
Supporting and Related Materials for this final rule. Before the 2021 
NWPs go into effect, division engineers will issue supplemental 
documents to evaluate environmental effects on a regional basis (e.g., 
a state or Corps district) and to determine whether regional conditions 
are necessary to ensure that the NWPs will result in no more than 
minimal individual and cumulative adverse environmental effects on a 
regional basis. The supplemental documents are prepared by Corps 
districts, but must be approved and issued by the appropriate division 
engineer, since the NWP regulations at 33 CFR 330.5(c) state that the 
division engineer has the authority to modify, suspend, or revoke NWP 
authorizations in a specific geographic area within his or her 
division. For some Corps districts, their geographic area of 
responsibility covers an entire state. For other Corps districts, their 
geographic area of responsibility may be based on watershed boundaries. 
For some states, there may be more than one Corps district responsible 
for implementing the Corps regulatory program, including the NWP 
program. In states with more than one Corps district, there is a lead 
Corps district responsible for preparing the supplemental decision 
documents for all of the NWPs. The supplemental decision documents will 
also discuss regional conditions imposed by division engineers to 
protect the aquatic environment and other public interest review 
factors and ensure that any

[[Page 2842]]

adverse environmental effects resulting from NWP activities in that 
region will be no more than minimal, individually and cumulatively.
    The Corps solicited comments on the draft national decision 
documents, and any comments received were considered when preparing the 
final decision documents for the NWPs.
    Before the final NWPs go into effect, 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 under the Corps' 
public interest review occurs at three levels: National, regional, and 
the verification stage. Each national NWP decision document includes a 
national-scale cumulative effects analysis under the Corps' public 
interest review. Each supplemental document has a cumulative effects 
analysis under the Corps' public interest review conducted for a 
region, which is usually a state or Corps district. When a district 
engineer issues a verification letter in response to a PCN or a 
voluntary request for a NWP verification, the district engineer 
prepares a brief decision document. That decision document explains 
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.
    A few commenters said that the Council on Environmental Quality's 
amended NEPA regulations are currently being litigated, and that the 
Corps should continue to apply the 1978 regulations. Several commenters 
stated that an environmental assessment would conclude that a finding 
of no significant impact cannot be achieved for the NWPs, and 
therefore, an environmental impact statement must be prepared for the 
issuance of the NWPs. Several commenters said that a reasonable range 
of actual alternatives must be evaluated, including a no action 
alternative, for each NWP. A few commenters said because NWPs are in 
effect for five years, the Corps should include reasonably foreseeable 
future actions. A few commenters stated the Corps decision documents 
fail to take a ``hard look'' at direct, indirect, and cumulative 
analysis required by NEPA, and that the Corps decision documents fail 
to consider or analyze relevant factors necessary to determine 
significance.
    The Corps prepared NEPA components of the draft and final national 
decision documents in accordance with the Council on Environmental 
Quality's current NEPA regulations, published in the Federal Register 
on July 16, 2020 (85 FR 43304). The commenters objecting to the 
preparation of environmental assessments for the issuance of the NWPs 
do not provide any substantive information backing their claims that 
the issuance of the NWPs requires an environmental impact statement. 
The national decision document prepared for each NWP issued by this 
final rule discusses alternatives, consistent with CEQ's current NEPA 
regulations at 40 CFR 1501.5(c). The national decision documents 
examine the effects and impacts of the proposed action (i.e., the 
issuance of the NWP by Corps Headquarters) consistent with the 
definition of ``effects or impacts'' at 40 CFR 1508.1(g).
    A few commenters said the decision documents somehow imply that the 
NWPs provide site-specific NEPA analysis, but that the Corps does not 
undertake any NEPA analysis at a project-specific level. One commenter 
stated that the Corps cannot defer its NEPA obligations to consider 
mitigation measures, public comments, or alternatives analysis to the 
regional or project level review because there is no guarantee any 
further NEPA analysis would occur. Several commenters said the national 
decision documents do not provide an a NEPA-level cumulative effects 
analysis, and that the Corps cannot defer the analysis at a later stage 
of review.
    The Corps did not defer any of its NEPA obligations during the 
preparation of the national decision documents for these NWPs. No 
further NEPA analysis is required for specific activities authorized by 
NWPs because the Corps fulfills the requirements of NEPA when it 
prepares an environmental assessment with a finding of no significant 
impact for each NWP's national decision document, to inform the 
decision whether to issue or reissue that NWP. The 2020 CEQ NEPA 
regulations altered how cumulative effects are considered under NEPA 
(see the definition of ``effects or impacts'' at 40 CFR 1508.1(g)). The 
Corps considered the effects of the proposed action in its national 
decision documents.

[[Page 2843]]

    One commenter requested information on what type of NEPA assessment 
has been completed to determine the effects on aquatic resources as a 
result of the proposed changes, and what type of studies have been 
performed to show these changes will not result in more than minimal 
effects. One commenter stated the national decision documents do not 
provide a list of agencies or persons consulted in the development of 
the environmental assessment. One commenter said the national decision 
documents do not include tribal interests or treaty responsibilities.
    The Corps' NEPA assessment is provided in the national decision 
document for each NWP. Further, the Corps considered public comments 
received on the 2020 Proposal and on the draft national decision 
documents. Tribal interests and treaty responsibilities are more 
appropriately addressed through consultations between Corps districts 
and tribes on matters related to the NWP program and its 
implementation.

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

    The NWPs are issued in accordance with Section 404(e) of the Clean 
Water Act and 33 CFR part 330. 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 expressed 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 
conclusion or determination 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 waterbody 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 waterbody is subject to CWA 
jurisdiction) or (2) are otherwise consistent with the CWA to the 
extent that the waterbody is not 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 or may not be 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 in fact 
jurisdictional and thus regulated under Section 404 of the Clean Water 
Act and/or Section 10 of the Rivers and Harbors Act of 1899.
    On April 21, 2020, the U.S. Environmental Protection Agency (EPA) 
and the Department of 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 part 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. 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 federal 
district court-issued stay in that state (the case is currently under 
appeal). The rule has also been challenged in several other federal 
district courts.
    Please note that some of the NWPs could authorize activities that 
involve the discharge of dredged or fill material into water bodies 
that are not subject to CWA jurisdiction, or that may not be subject to 
CWA jurisdiction. For example, a project proponent could 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 that may

[[Page 2844]]

be subject to CWA jurisdiction, at the time those discharges occur. 
Where a particular waterbody 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 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, as well as species proposed for listing 
and critical habitat proposed for such designation. When the district 
engineer evaluates a PCN, he or she determines whether the proposed NWP 
activity may affect listed species or designated critical habitat. 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. As discussed below, each year the Corps conducts 
thousands of ESA section 7 consultations with the FWS and NMFS for 
activities authorized by NWPs. In recent years, an average of more than 
10,800 formal, informal, and programmatic ESA section 7 consultations 
are conducted each year between the Corps and the FWS and/or NMFS in 
response to NWP PCNs, including those activities that required PCNs 
under paragraph (c) of general condition 18 under the ``might affect'' 
threshold.
    If the project proponent is required to submit a PCN and the 
proposed activity might affect listed species or designated critical 
habitat, species proposed for listing, or critical habitat proposed for 
such designation, the activity is not authorized by an NWP until either 
the district engineer makes a ``no effect'' determination or makes a 
``may affect'' determination and completes formal or informal ESA 
section 7 consultation. The district engineer may also use a regional 
programmatic consultation to comply with the requirements of section 7 
of the ESA.
    When evaluating a PCN, where necessary and appropriate, the Corps 
district will either make a ``no effect'' determination or a ``may 
affect'' determination. If the district engineer makes a ``may affect'' 
determination, she or he will notify the non-federal project proponent 
and the activity is not authorized by the NWP until ESA Section 7 
consultation has been completed. In making these determinations, the 
district engineer will apply the definition of ``effects of the 
action'' in the FWS's and NMFS's ESA consultation regulations at 50 CFR 
402.02. If the district engineer initiates section 7 consultation with 
the FWS and/or NMFS, that consultation will also consider ESA section 7 
cumulative effects, in accordance with the definition of ``cumulative 
effects'' at 50 CFR 402.02. 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 an 
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, 
if and when the Corps learns about that 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 where 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.
    The only activities that potentially could be immediately 
authorized by NWPs, assuming they meet all other applicable NWP 
conditions, are activities that would have ``no effect'' on listed 
species or designated critical habitat within the meaning of 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 by 
district engineers 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 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.
    Applying the 2019 amendments to the section 7 regulations to the 
NWP program, consequences to listed species and designated critical 
habitat caused

[[Page 2845]]

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 of 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 consequence 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.
    When the district engineer receives a pre-construction notification 
for a proposed NWP activity, he or she is responsible for applying the 
current 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 
district engineer determines whether the proposed NWP activity ``may 
affect'' listed species or designated critical habitat and initiates 
formal or informal section 7 consultation, unless she or he determines 
that the proposed NWP activity will have ``no effect'' on listed 
species or designated critical habitat. As a general rule, the district 
engineer documents his or her ``no effect'' determination in writing 
for every pre-construction notification that the district engineer 
receives and responds to.
    The NWP program has been structured, 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 levels. Each year, an 
average of more than 10,800 formal, informal, and regional programmatic 
ESA section 7 consultations are conducted by Corps districts with the 
FWS and/or NMFS in response to NWP PCNs for specific NWP activities 
(see below). 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, than doing so at the 
national level because of the similarities in ecosystem characteristics 
and associated listed species and critical habitat within a particular 
region.
    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 between the Corps and the 
FWS and NMFS that effective protection of listed species and their 
designated critical habitat is achieved.
    After applying the current ESA section 7 regulations at 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 are identified after the NWPs are issued and go into 
effect. Compliance with the requirements of ESA section 7 can also be 
achieved by district engineers 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.
    Section 7 of the Endangered Species Act 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 these 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 by a specific NWP. 
With respect to listed species and critical habitat, general condition 
18 expressly prohibits any activity ``which `may affect' a listed 
species or designated 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 designated critical habitat (or a species proposed 
for listing or critical habitat proposed for such designation), 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 
species proposed for listing) 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 must and will 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 an 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 species proposed

[[Page 2846]]

for listing) or designated critical habitat might be affected or is in 
the vicinity of the activity, or if the activity is located in 
designated critical habitat'' or critical habitat proposed for such 
designation, 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 (or species proposed for listing) that might be affected by the 
proposed work or that utilize the designated critical habitat (or 
critical habitat proposed for such designation) 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 an 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 
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 no more than 
minimal adverse environmental effects and thus cannot be authorized by 
an 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 (and species proposed for listing) 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,\4\ an on-line 
project planning tool developed and maintained by the FWS.
---------------------------------------------------------------------------

    \4\ https://ecos.fws.gov/ipac/.
---------------------------------------------------------------------------

    During the process for developing regional conditions, Corps 
districts collaborate 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 
collaborations and 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 office personnel 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, including species proposed for 
listing or critical habitat proposed for such designation. 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.
    The Corps has prepared a biological assessment for this rulemaking 
action. The biological assessment concludes that the issuance or 
reissuance of NWPs has ``no effect'' on listed species and designated 
critical habitat and does not require ESA section 7 consultation. This 
conclusion was reached 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).
    Based on the fact that NWP issuance or reissuance of the NWPs is 
contingent upon any proposed NWP activity that ``may affect'' listed 
species or critical habitat undergoing an activity-specific or regional 
programmatic ESA section 7 consultation, there is no requirement that 
the Corps undertake consultation for the NWP program. The national 
programmatic consultations conducted in the past for the NWP program 
were voluntary consultations despite the inclusion of procedures to 
ensure consultation under Section 7 for proposed NWP activities that 
may affect listed species or designated critical habitat. Regional 
programmatic consultations can be conducted voluntarily by Corps 
districts and regional or local offices of the FWS and/or NMFS to 
tailor regional conditions and procedures to ensure the ``might 
affect'' threshold is implemented consistently and effectively.
    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. Army Corps of Engineers Jacksonville District's Programmatic 
Biological Opinion (JAXBO) (NMFS--2017); Missouri Bat Programmatic

[[Page 2847]]

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 that 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, the 
Corps 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 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 
between the Corps and 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 an 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 
coordinated 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 implementation of the ``might effect'' threshold 
and 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 by the Corps, 
FWS, and NMFS 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 developed by the Corps, FWS, and NMFS 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.
    The Corps received numerous comments regarding compliance with the 
Endangered Species Act for both the rulemaking process for issuing, 
reissuing, and modifying the NWPs by Corps Headquarters, and compliance 
for specific activities authorized by NWPs.
    Many commenters expressed support for the Corps' current method of 
ESA compliance without need for a national programmatic section 7 
consultation. These commenters said that the requirements of general 
condition 18 provide a sufficiently low threshold to trigger necessary 
ESA section 7 consultations for NWP activities. Many commenters said 
that there is no requirement for the Corps to consult under the ESA for 
the reissuance of the NWPs because the reissuance of the NWPs has no 
effect on listed species and consultation for each NWP activity occurs 
as necessary. One commenter suggested that the Corps voluntarily 
consult on reissuance of the NWPs to provide regulatory certainty to 
the business community, and said that this voluntary consultation 
should not delay issuance of a final rule. Many commenters expressed 
opposition to reissuing the NWPs without completing a national 
programmatic ESA section 7 consultation and addressing cumulative 
impacts to listed species. Several commenters stated that the Corps had 
failed to ensure that NWP activities are not likely to jeopardize the 
continued existence of listed species or adversely modify or destroy 
critical habitat, in violation of the ESA. A few commenters said that 
the Corps' programmatic ``no effect'' determination for the NWPs is in 
error because it is arbitrary and

[[Page 2848]]

capricious, in violation of the ESA, and/or in violation of federal 
court decisions.
    With this final rule, the Corps is continuing to implement its 
current approach to ESA section 7 compliance, through general condition 
18 and 33 CFR 330.4(f). The Corps has determined that the issuance of 
this final rule will have no effect on endangered or threatened species 
or critical habitat, completed a Biological Assessment to inform that 
conclusion, and therefore will not be submitting a request to the FWS 
and NMFS for a voluntary national programmatic ESA section 7 
consultation. The Corps will continue to comply with the requirements 
of Section 7(a)(2) of the ESA through activity-specific and regional 
programmatic section 7 consultations conducted between district 
engineers and regional and field offices of the FWS and NMFS.
    A few commenters stated that general 18 unlawfully delegates the 
Corps' ESA section 7 responsibilities to permittees. By requiring 
project proponents to submit PCNs if listed species ``might be'' 
affected, some commenters stated that the Corps unlawfully delegates 
the initial effect determination to the permittee. A few commenters 
said that the definition of agency ``action'' in the ESA which requires 
ESA section 7(b) consultation includes programmatic actions such as the 
Corps issuance of the NWPs. A few commenters said that formal 
programmatic consultation between the Corps and the Services is 
necessary to meet the requirements of the ESA, asserting that such 
consultation allows for consideration of the cumulative impacts of a 
program and guides implementation of the program by establishing 
criteria to avoid adverse effects. These commenters also said that 
project-specific consultation must then be undertaken for specific 
actions under the program, which is when incidental take is authorized. 
One commenter said that the Corps' programmatic ``no effect'' with 
reliance on project specific consultation for compliance with the ESA 
is in error as it does not address cumulative impacts to species. The 
commenter further stated that this is clear based on past court cases, 
a past national programmatic consultation with NMFS, and the Services' 
listing decisions and critical habitat designations whereby they assess 
activities permitted by NWP as a cause of the listing or designation 
decision.
    General condition 18 does not delegate the Corps' ESA section 7 
responsibilities to permittees. Consultation under section 7(a)(2) of 
the ESA is only required when a federal agency determines that its 
proposed action may affect listed species or designated critical 
habitat. As explained in this section of the final rule, the ``might 
affect'' threshold in paragraph (c) of general condition 18 is lower 
than the ``may affect'' threshold for triggering a requirement for 
consultation with the FWS and/or NMFS. The district engineer, not the 
permit applicant, is responsible for making a ``may effect'' or ``no 
effect'' determination under ESA section 7. The non-federal permittee 
is responsible for complying with paragraph (c) of general condition 18 
and submitting a PCN to the district engineer when a proposed NWP 
activity triggers one of the PCN thresholds in that paragraph.
    As discussed above, the Corps evaluated the programmatic action of 
rulemaking to issue these NWPs and determined that the issuance or 
reissuance of the NWPs by Corps Headquarters has no effect on listed 
species or designated critical habitat; that evaluation is documented 
in a Biological Assessment that supports its no effect determination. 
Therefore, an ESA section 7(a)(2) consultation with the FWS and NMFS is 
not required on a national, programmatic level for the issuance or 
reissuance of the NWPs in this final rule. The Corps considered the 
effects of its proposed action (i.e., the issuance or reissuance of the 
NWPs through the rulemaking process), including the cumulative effects 
anticipated to be caused by that proposed action. Those cumulative 
impacts include the projected use of the NWPs during the 5-year period 
those NWPs are anticipated to be in effect, along with the estimated 
impacts to jurisdictional waters and wetlands and other resources, and 
the estimated compensatory mitigation required by district engineers to 
offset the authorized impacts. When issuing or reissuing the NWPs, or 
determining whether specific activities are authorized by an NWP, the 
Corps considers the individual and cumulative adverse environmental 
effects caused by those activities, including adverse environmental 
effects to a variety of resources, including jurisdictional waters and 
wetlands and the species that inhabit those waters and wetlands.
    With respect to cumulative effects under ESA section 7, the FWS and 
NMFS define ``cumulative effects'' as the ``effects of future state or 
private activities, not involving Federal activities, that are 
reasonably certain to occur within the action area of the Federal 
action subject to consultation'' (see 50 CFR 402.02). The Corps does 
not have the legal authority to regulate or control future state or 
private actions that do not involve activities that require DA 
authorization under Section 10 of the Rivers and Harbors Act of 1899 or 
Section 404 of the Clean Water Act. Therefore, the Corps does not have 
the authority or discretion to control cumulative effects to listed 
species or designated critical habitat that are caused by future state 
or private activities. Incidental take is addressed through activity-
specific and regional programmatic formal ESA section 7 section 
consultations when district engineers determine proposed NWP activities 
may affect listed species or designated critical habitat.
    Previous national ESA section 7 programmatic consultations on the 
NWPs were voluntary consultations. Even though some listing decisions 
by the FWS or NMFS may have identified activities that may require DA 
permits as one of the contributing factors to listing a particular 
species as endangered or threatened under the ESA, those listing 
decisions usually acknowledge that section 7 consultations will be 
conducted for proposed federal actions that may affect those species, 
including activities that require DA authorization under Section 10 of 
the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water 
Act. An example is the final rule issued by NMFS on June 28, 2005, for 
the final listing determinations for 16 evolutionary significant units 
of west coast salmon (see 70 FR 37195).
    One commenter suggested that the Corps require PCNs for all NWPs to 
ensure that the Corps is consulting as necessary under the ESA and is 
able to accurately track and evaluate cumulative impacts. One commenter 
stated that there is no requirement for the Corps to consult under the 
ESA for the NWPs but believes the Corps needs to rebut the findings in 
the Montana district court case in the text of the rule for purposes of 
future litigation. One commenter said that the Corps' ``no effect'' 
determination and deferral of ESA consultation until the project is 
proposed is in alignment with recent changes to ESA implementing 
regulations at 50 CFR 402.17(a) and (b). Specifically, these commenters 
assert that the change to the ESA section 7 regulations require that 
``program actions that are reasonably certain to occur'' and the 
potential consequences of proposed actions be based on ``clear and 
substantial information.'' Information that, the commenter argues, is 
not available until the project and its location are proposed.

[[Page 2849]]

    It is neither practical nor necessary to require PCNs for all 
activities authorized by NWPs to ensure compliance with section 7 the 
ESA. There are many activities authorized by the NWPs each year that 
have no effect on listed species or designated critical habitat, 
despite approximately 10,800 ESA section 7 consultations occurring 
annually. Listed species are not uniformly distributed across the 
United States and tend to be concentrated in specific geographic areas 
(``hotspots'') (e.g., Evans et al. 2016), and there are areas in the 
country with jurisdictional waters and wetlands that have no or few 
listed species where NWP activities proceed with no effects to listed 
species or critical habitat. In addition, requiring PCNs for all 
activities authorized by NWPs would nearly double the number of PCNs 
reviewed by Corps district each year. In Appendix A of the Regulatory 
Impact Analysis for the 2020 Proposal, the Corps estimates that nearly 
32,000 NWP activities proceed without PCNs each year. The Regulatory 
Impact Analysis for the 2020 proposal is available in the 
www.regulations.gov docket for this rule (docket number COE-2020-0002). 
That increase in the Corps' workload could result in changes in the 
effectiveness and efficiency in the review of PCNs by district 
engineers, as well as their evaluations of other activities requiring 
DA authorization, including activities authorized by individual permits 
and regional general permits. The increase in the Corps' workload could 
also affect its ability to conduct enforcement and compliance actions. 
Finally, and as explained above, General Condition 18 addresses this 
commenter's concerns regarding PCN requirements.
    The Corps agrees that its ``no effect'' determination for the 
issuance or reissuance of the NWPs complies with the ESA section 7 
regulations at 50 CFR part 402, because section 7 consultation is not 
required when a federal agency determines its proposed action will have 
no effect on listed species or designated critical habitat. In the 
biological assessment prepared by the Corps for this rulemaking 
activity, the Corps presents a substantial amount of data to 
demonstrate the actions it takes to comply with section 7 of the ESA, 
including the number of formal and informal section 7 consultations it 
conducts with the FWS and NMFS and the number of regional programmatic 
consultations and other tools it has developed with the FWS and NMFS.
    One commenter said that the when the Corps implements an incidental 
take statement as a condition in its NWP verification it must undertake 
a project specific NEPA analysis. One commenter stated that the 
incidental take statement must be applied to entire project and not 
just the areas over which the Corps has control and responsibility. If 
not, the project proponent must obtain an ESA section 10(a)(1)(B) 
permit from the Services to ensure compliance with the ESA. Absent 
this, general condition 18 has the potential to continuously violate 
the ESA.
    When a district engineer adds conditions to an NWP authorization to 
comply with the ESA or other federal laws, including terms and 
conditions from reasonable and prudent measures identified in an 
incidental take statement in a biological opinion that apply to the 
activity authorized by an NWP, a project-specific NEPA analysis is not 
required. The Corps complies with the requirements of NEPA when it 
prepares environmental assessments in the national decision documents 
for the issuance or reissuance of the NWPs by Corps Headquarters. The 
activities to which an incidental take statement in a biological 
opinion issued by the FWS or NMFS applies is dependent on project-
specific circumstances identified in that biological opinion. When the 
FWS or NMFS write an incidental take statement for a biological 
opinion, under section 7(b)(4)(iv) of the ESA they can assign 
responsibility of specific terms and conditions of the incidental take 
statement to the federal action agency (e.g., the Corps), the 
applicant, or both taking into account their respective roles, 
authorities, and responsibilities (see 84 FR 44977). Paragraph (f) of 
general condition 18 addresses ESA section 10(a)(1)(B) incidental take 
permits and their potential application for NWP activities.
    The Corps has carefully considered and evaluated all comments that 
were provided regarding this issue. The Corps reaffirms that its ``no 
effect'' determination for the promulgation of the NWPs is correct and 
appropriate, for the reasons explained above.

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.
    One commenter said that consultation with NMFS needs to occur for 
all NWPs used in essential fish habitat. The Corps continues to 
implement the EFH Conservation Recommendation provided by NMFS in 1999. 
In those Corps districts where essential fish habitat has been 
designated, district engineers review PCNs for proposed NWP activities 
to determine whether those proposed activities may adversely affect 
essential fish habitat. If the district engineer determines a proposed 
NWP activity may adversely affect essential fish habitat, she or he 
initiates EFH consultation with the NMFS. Division engineers can add 
PCN requirements via regional conditions to those NWPs that do not 
require PCNs for all activities to ensure that EFH consultation is 
conducted for proposed activities that may adversely affect EFH.

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

[[Page 2850]]

to historic properties, the activity is not authorized by an 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 an 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 an 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 an NWP without first completing activity-specific NHPA 
Section 106 consultations, as required 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 an 
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.

[[Page 2851]]

    One commenter stated the reissuance of the NWPs does not require 
Section 106 NHPA consultation, but specific activities may require 
section 106 consultation. One commenter said the Corps should 
programmatically address the potential adverse effects from 
undertakings permitted pursuant to the NWPs either by creating a 
national programmatic agreement or a division-specific programmatic 
agreement. One commenter stated that the Corps' position that effects 
to historic properties would be evaluated on an individual activity 
phase is not consistent with the 36 CFR part 800 regulations. One 
commenter disagreed with the Corps' position that the issuance or 
reissuance of the NWPs has ``no potential to cause effect'' on historic 
properties and does not require compliance with Section 106 of the 
NHPA. This commenter said that reliance on general conditions 20, 21, 
and 32 is not a substitute for appropriate compliance with section 106 
in individual cases.
    For most NWP activities, the need to conduct NHPA section 106 is 
determined on a case-by-case basis, as district engineers evaluate PCNs 
for proposed NWP activities, including PCNs submitted by non-federal 
permittees under paragraph (c) of general condition 20. The Corps 
believes that programmatic agreements for section 106 compliance are 
more appropriately developed at a regional level, between Corps 
districts and State Historic Preservation Officers and Tribal Historic 
Preservation Officers. The Advisory Council on Historic Preservation's 
regulations provide for section 106 consultation on a case-by-case 
basis, although it includes provisions for federal agency program 
alternatives, including alternative procedures and programmatic 
agreements (see 36 CFR 800.14). With respect to section 106 of the 
NHPA, the only activities immediately authorized by an NWP are those 
activities that have no potential to cause effects to historic 
properties. Paragraph (c) of general condition 20 requires non-federal 
permittees to submit PCNs for any proposed NWP activities that might 
have the potential to cause effects to historic properties. District 
engineers review these PCNs to determine whether NHPA section 106 
consultation is required for a proposed NWP activity.
    Several commenters stated that Appendix C to 33 CFR part 325 and 
the 2005 and 2007 interim guidance documents issued by the Corps does 
not constitute an acceptable federal agency program alternative under 
36 CFR 800.14. One commenter said that the Corps does not have the 
authority under the Clean Water Act and the River and Harbors Act of 
1899 to promulgate its own regulations for compliance with Section 106 
of the National Historic Preservation Act (i.e., Appendix C to 33 CFR 
part 325) rather than complying with 36 CFR part 800.
    The Corps continues to use Appendix C and the 2005 and 2007 interim 
guidance to comply with section 106 of the NHPA. Section 
110(a)(2)(E)(i) of the NHPA states that federal agencies can develop 
their own procedures for complying with section 106 as long as those 
procedures are consistent with the regulations issued by the Advisory 
Council on Historic Preservation.
    A few commenters stated the NWPs and the general conditions violate 
the NHPA by delegating the effects determination to non-federal 
permittees by allowing permittees to make a determination of effect for 
NWP activities that do not require PCNs. Several commenters said that 
general condition 20 is inconsistent with the 36 CFR part 800 
regulations. One commenter stated that general condition 20 does not 
provide a standard by which the permittee must determine a PCN is 
necessary because of potential effects to historic properties.
    The NWPs and their general conditions do not delegate effects 
determinations under section 106 of the NHPA to non-federal permittees. 
Paragraph (c) of general condition 20 requires non-federal permittees 
to submit PCNs to district engineers for any proposed NWP activity that 
might have the potential to cause effects to historic properties. 
District engineers will review those PCNs and determine whether section 
106 NHPA consultation is required for proposed NWP activities. The 
``might have the potential to cause effects'' to any historic property 
is a standard to guide permittees as to when they need to submit PCNs 
so that district engineers can determine whether section 106 
consultation is required for a proposed NWP activity.
    A few commenters said that the Corps' permit area (area of 
potential effects) for section 106 compliance should not be limited to 
the activity within waters of the United States that requires DA 
authorization, and that the area of potential effects should encompass 
the entire project that requires the permit. One commenter stated that 
the Corps' limited permit area causes costly delays to the project 
proponent when section 106 disputes are triggered, and that by limiting 
the permit area, the Corps undertaking does not adequately consider 
direct or indirect effect on historic properties.
    The Corps' permit area or area of potential effects is limited to 
those areas and activities where the Corps has control and 
responsibility to address effects to historic properties through its 
permitting authorities under Section 404 of the Clean Water Act and 
Section 10 of the Rivers and Harbors Act of 1899. District engineers 
work with permit applicants and other consulting parties to resolve 
disagreements about permit areas for section 106 compliance. When 
evaluating PCNs, district engineers consider direct and indirect 
effects to historic properties.
    A few commenters said that a federal agency must consult with the 
Advisory Council on Historic Preservation, State Historic Preservation 
Offices, Tribal Historic Preservation Officers, tribes, and Native 
Hawaiian organization, where applicable, when effects to historic 
properties cannot be fully determined, and said that if a PCN is not 
warranted, these groups are not provided an opportunity to comment. One 
commenter said that the Corps must afford the Advisory Council on 
Historic Preservation a reasonable opportunity to comment on the 
undertaking, and when no PCN is required for an NWP activity, there is 
no consultation on the undertaking.
    Non-federal permit applicants are responsible for complying with 
general condition 20, including the requirement to submit PCNs for any 
proposed NWP activity that might have the potential to cause effects to 
historic properties, so that the district engineer can determine 
whether section 106 consultation is required for proposed activity. If 
the district engineer determines section 106 consultation is necessary, 
she or he will identify consulting parties and initiate section 106 
consultation with those consulting parties. District engineers provide 
the Advisory Council on Historic Preservation with a reasonable 
opportunity to comment when the Council enters the section 106 process 
in accordance with Appendix A to 36 CFR part 800.

G. 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 an 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.
    Nationwide permits 21, 29, 39, 40, 42, 43, and 50 would authorize 
activities that may result in discharges to waters

[[Page 2852]]

of the United States and therefore section 401 water quality 
certification or waiver is required for those NWPs. Nationwide permits 
12, 48, 51, 52, 57, and 58 would authorize various activities, some of 
which may result in a discharge to waters of the United States and 
require section 401 water quality certification or waiver, and others 
which may not. Nationwide permits 55, and 56 do not require section 401 
water quality certification because they would authorize activities 
which, in the opinion of the Corps, could not reasonably be expected to 
result in a discharge into waters of the United States. In the case of 
NWP 8, it only authorizes activities seaward of the territorial seas 
where the Clean Water Act does not apply.
    Prior to the issuance of the 16 NWPs, certifying authorities made 
their decisions on whether to issue, deny, or waive water quality 
certification (WQC) for the issuance of the NWPs. If a certifying 
authority issued water quality certifications with conditions for the 
issuance of these NWPs, district engineers reviewed the conditions in 
those water quality certifications to determine whether they comply 
with the requirements in 40 CFR 121.7(d). If the district engineer 
determines that any condition in the water quality certification for 
the issuance of the NWPs does not comply with the requirements of 40 
CFR 121.7(d), and is waived pursuant to 40 CFR 121.9(d), the district 
engineer will notify the certifying authority and the EPA Administrator 
in accordance with 40 CFR 121.9(c). The conditions in the water quality 
certification for the issuance of the NWP that comply with the 
requirements of 40 CFR 121.7(d) and are not waived become conditions of 
the NWP authorization in accordance with Section 401(d) of the Clean 
Water Act.
    If a certifying agency denies WQC for the issuance of an NWP, then 
the proposed 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.
    In the 2020 Proposal, the Corps noted that EPA 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. The Corps invited comments from the public on 
whether and, if so, when the Corps should revise those regulations in 
light of the new EPA regulations.
    In response to the proposed rule and the associated requests for 
water quality certification, many certifying authorities requested an 
extension of the 60-day reasonable period of time to review and certify 
the proposed NWPs. A few commenters said that many states cannot comply 
with the 60 days provided due to public participation requirements, 
including public hearings. A few commenters stated that the 60-day 
review period is not sufficient time to review the proposed NWPs 
considering recent changes to EPA's regulations for Section 401 of the 
Clean Water Act and the issuance of the final Navigable Waters 
Protection Rule. One commenter voiced support for 60 days certifying 
their complete WQC decision for the proposed NWPs. One commenter stated 
that the 60-day reasonable period of time should be extended to 180 
days to provide adequate time to review the proposed rule including the 
proposed NWPs. One commenter said that the abbreviated timeline 
undermines and limits state and tribal input. A few commenters said the 
Corps should request certification on the final NWPs. One commenter 
said that 60 days to act on the certification request is not consistent 
with the terms of a 1992 settlement agreement between the Pennsylvania 
Department of Environmental Resources and the Corps.
    In light of the timeframe for issuing the final NWPs, the Corps did 
not grant extensions to the 60-day reasonable period of time for water 
quality certification. Section 401 of the Clean Water Act and EPA's 
regulations at 40 CFR 121.6 give the Corps the authority to establish 
the reasonable period of time. For this issuance of these NWPs, the 
Corps complied with EPA's final rule, which was published in the 
Federal Register on July 13, 2020, and went into effect on September 
11, 2020. That final rule went into effect a few days before the 
proposed NWPs were published in the Federal Register for public 
comment. The Corps worked with the Commonwealth of Pennsylvania to 
address the 1992 settlement agreement.
    Many commenters said that the reasonable period of time for 
certification of the NWPs should be extended until the final rule is 
issued. A few commenters stated that certifying the proposed NWPs prior 
to the NWPs being finalized is problematic as there are significant 
proposed changes in the NWPs. Several commenters said that the 
procedure is outside of the normal standard practice of certifying the 
NWPs after the final NWPs are issued. Many commenters expressed concern 
and disagreement over reviewing and certifying the proposed NWPs at the 
same time. Several commenters said that water quality certification 
conditions could change if the final NWPs are modified from the 
proposed NWPs.
    Section 401 of the Clean Water Act states that no permit shall be 
issued until water quality certification has been obtained or waived. 
Therefore, the water quality certification process must be completed 
before the final NWPs are issued. That process is consistent with the 
Corps' NWP regulations at 33 CFR 330.4(c)(1), which says that ``water 
quality certification pursuant to section 401 of the Clean Water Act, 
or waiver thereof, is required prior to the issuance or reissuance of 
NWPs authorizing activities which may result in a discharge into waters 
of the United States.'' The water quality certification regulations 
issued by EPA this year also state that water quality certification 
requests are made for proposed general permits, not the final general 
permits. The regulations issued by EPA include no provisions for 
modifying water quality certifications after the certifying authority 
has acted on the federal agency's certification request. If the federal 
agency is planning to make changes to the general permit in response to 
public comments, those changes may trigger a requirement for a new 
certification before the federal agency can issue the final general 
permit (see 85 FR 42279).
    A few commenters said that requesting state certification of the 
proposed NWPs does not recognize that there may be changes to the final 
NWPs based upon the public comments received. A few commenters stated 
that they should have the opportunity to fully evaluate the final 
version of the NWPs and modify their water quality certifications as 
necessary. A few commenters expressed disagreement with the request to 
certify the proposed NWPs and requested the Corps provide a reasonable 
review time and issue the WQC on the final NWPs after any changes have 
been made after considering public comments. A few commenters said that 
water quality certifications may be issued conditionally and only valid 
if the final NWPs are not different than the proposed NWPs. A few 
commenters noted that the Corps' request to certify the proposed NWPs 
is a departure from past practice whereby states issue water quality 
certifications on the final NWPs before those NWPs go into effect.
    As discussed above, certifying authorities must act on 
certification requests before the Corps can issue the final NWPs. The 
Corps acknowledges

[[Page 2853]]

that the water quality certification process for the 2020 Proposal is a 
departure from past practice; however, it is consistent with section 
401 and EPA's final certification regulation at 40 CFR part 121. In the 
16 NWPs issued in this final rule, there were no substantive changes 
that trigger a requirement for the Corps to submit new certification 
requests for the NWPs.
    A few commenters said that the separate review 60-day timeline for 
water quality certification and the 90-day timeline for CZMA 
consistency determinations bifurcates the review process and is 
unnecessarily cumbersome and suggested that a joint 90-day review 
period should be provided. The Corps established different review 
periods for water quality certification and CZMA consistency 
determinations because those are separate processes that are governed 
by distinctly different laws and regulations. Section 401 of the Clean 
Water Act gives the permitting authority the ability to establish the 
reasonable period of time for a certify authority to act on a request 
for water quality certification. The CZMA consistency determination 
process is governed by regulations issued by the Department of Commerce 
at 15 CFR part 930.
    Several commenters stated that subsequent changes from the proposed 
NWPs to the final NWPs may result in in missing or inappropriate 
conditions and leave the certifying agencies with no opportunity to 
remedy a deficient certification. One commenter said that changes 
between the proposed NWPs and the final NWPs may require certifying 
authorities to deny certification due to insufficient information. One 
commenter stated that denying water quality certification for all of 
the proposed NWPs would have significant implications for streamlining 
federal permitting of discharges authorized by the NWPs. One commenter 
said that should water quality certification for the issuance of the 
NWPs be denied, there will be additional burdens on permittees. One 
commenter said the Corps would need to request water quality 
certification on the final NWPs to have valid water quality 
certifications. One commenter said that some states operate under state 
general permits where NWPs are revoked. This commenter noted that the 
denied certifications for NWPs will raise conflicts and issues when 
state general permits are reissued.
    As discussed above, water quality certification decisions by 
certifying authorities must be made before the Corps issues the final 
NWPs. Certifying authorities can deny water quality certifications if 
they believe they do not have sufficient information to issue water 
quality certification (see 40 CFR 121.7(e)(2)). The Corps acknowledges 
that denial of water quality certifications for the issuance of the 
NWPs creates burdens on the regulated public in terms of having to 
obtain water quality certifications or waivers for specific discharges 
authorized by NWPs. The issuance of the NWPs by Corps Headquarters is 
an independent process from the issuance of regional general permits by 
district engineers.
    One commenter stated a website where all final WQC conditions are 
posted would be helpful. One commenter said the Corps should provide 
proposed water quality certification conditions for the NWPs and let 
the state agencies review those proposed conditions to make the 
certification process for the NWPs. One commenter stated that the Corps 
should not revise its water quality certification regulations.
    After the final NWPs are issued and division engineers have 
approved the final regional conditions for the NWPs, Corps districts 
will issue public notices announcing the final regional conditions for 
the NWPs and the disposition of water quality certifications and CZMA 
consistency concurrences for the final NWPs. The Corps will post copies 
of these district public notices in the www.regulations.gov docket for 
this rulemaking action (docket number COE-2020-0002). It is the 
certifying authorities' responsibility to develop conditions for their 
water quality certifications for the issuance of the NWPs. The Corps 
will be revising the provisions in its regulations for water quality 
certification, to be consistent with EPA's new water quality 
certification regulations.

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.
    Prior to the issuance of the 16 NWPs, states made their decisions 
on whether to concur with or object to the Corps' CZMA consistency 
determination for the issuance of the NWPs. If a state issued a 
concurrence with conditions for the issuance of these NWPs, district 
engineers reviewed the conditions in those consistency concurrences to 
determine whether they comply with the Corps' regulations for permit 
conditions at 33 CFR 325.4. If a state objected to the Corps' CZMA 
consistency determination for the issuance of an NWP, then the activity 
is not authorized by that NWP unless and until a project proponent 
obtains a consistency concurrence from the state or a presumption of 
concurrence occurs.
    The Corps' CZMA consistency determination only applied 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 an 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

[[Page 2854]]

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 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).
    In response to the 2020 proposal several commenters said that the 
Corps is providing a CZMA federal consistency determination for the 
proposed rule and is asking the states to concur with a federal action 
that is not final. These commenters said that if there are changes in 
the final NWPs, those changes may result in missing or inappropriate 
conditions and leave states with no opportunity to remedy deficiencies. 
Several commenters stated that the Corps should have allowed comment on 
the proposed rule prior to initiating the federal consistency review 
process. A few commenters said there is a disconnect between the 60-
days allowed for water quality certifications and the 90-days allowed 
for CZMA consistency reviews. One commenter requested an extension of 
time until mid-January 2021 for the state to complete its review and 
make its determinations.
    The CZMA consistency concurrence process for the issuance of the 
NWPs must be completed before the final NWPs are issued. The Department 
of Commerce's CZMA regulations at 15 CFR 930.36(b)(1) state that the 
federal agency's consistency determination shall be provided to state 
agencies at least 90 days before final approval of the federal agency's 
activity unless both the federal agency and the state agency agree to 
an alternative notification schedule. Therefore, the CZMA consistency 
concurrence process must be completed before the Corps issues the final 
NWPs. If the Corps were to make substantial changes to the proposed 
NWPs, then the Corps would conduct supplemental coordination with the 
states. In these 16 final NWPs, the Corps did not make any substantial 
changes that would trigger supplemental coordination with states. The 
Corps acknowledges that under 15 CFR 930.41(a), it could have requested 
responses from state agencies within 60 days of receipt of the Corps' 
consistency determination and supporting information. Under 15 CFR 
930.41(b), federal agencies are required to approve one extension 
period of 15 days or less, if the state agency requests an extension of 
time within the 60-day review period. The WQC and CZMA consistency 
concurrence review periods are different because they are governed by 
different regulations.

IV. Economic Impact

    The 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 209 activities each year that would have otherwise 
required an individual permit. While applying for a NWP may entail some 
burden (namely, in the form of a PCN, when applicable), by authorizing 
more activities by NWP, this proposal will reduce net burden for the 
regulated public. Specifically, increasing the number of activities 
that can be authorized by NWPs is expected to 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 can incentivize 
some project proponents to design their projects in such a way that 
they would qualify for a NWP thereby reducing impacts to jurisdictional 
waters and wetlands. 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 regulatory impact analysis for this final 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 2019$ ranges from $4,412 to $14,705 
(Institute for Water Resources (2001),\5\ 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 
$17,646 to $35,293 in 2019$. Considering how the proposed NWPs will 
increase the number of activities authorized by an NWP each year, the 
Corps estimates that the 16 final NWPs, when compared with the 2017 
NWPs, will decrease compliance costs for the regulated public by 
approximately $3 million per year. The Corps invited comment on the 
assumptions and methodology used to calculate the compliance costs and 
burden in general associated with the NWP and received no comments.
---------------------------------------------------------------------------

    \5\ 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)             Changes         Anticipated impacts
------------------------------------------------------------------------
 NWP 21.............  Removed 300 linear    Increase number of
 NWP 29.............   foot limit for        activities
 NWP 39.............   losses of stream      authorized by an
 NWP 40.............   bed and rely on \1/   NWP; decrease
 NWP 42.............   2\-acre limit, pre-   number of
 NWP 43.............   construction          activities
 NWP 44.............   notification (PCN)    requiring
 NWP 50.............   review process, and   individual permits.
 NWP 51.............   other tools to
 NWP 52.............   comply with Clean
                               Water Act Section
                               404(e).

[[Page 2855]]

 
 NWP 12.............  Issued separate NWPs  No change in number
 NWP 57.............   for oil or natural    of NWP
 NWP 58.............   gas pipeline          authorizations.
                               activities,
                               electric utility
                               line and
                               telecommunications
                               activities, and
                               utility lines for
                               water and other
                               substances; reduced
                               number of PCN
                               thresholds.
 NWP 21.............  Removed requirement   No change in number
 NWP 49.............   for written           of NWP
 NWP 50.............   authorization         authorizations.
                               before commencing
                               authorized activity.
 NWP 48.............  Changed PCN           Increased number of
                               threshold to          activities
                               require PCNs for      authorized by an
                               activities directly   NWP; decreased
                               impacting more than   number of
                               \1/2\-acre of         activities
                               submerged aquatic     requiring
                               vegetation. Removed   individual permits.
                               \1/2\-acre limit
                               for impacts to
                               submerged aquatic
                               vegetation.
 NWP 55.............  Issued new NWP to     Increased number of
                               authorize seaweed     activities
                               mariculture           authorized by an
                               activities and        NWP; decreased
                               multi-trophic         number of
                               mariculture           activities
                               activities.           requiring
                                                     individual permits.
 NWP 56.............  Issued new NWP to     Increased number of
                               authorize finfish     activities
                               mariculture           authorized by an
                               activities and        NWP; decreased
                               multi-trophic         number of
                               mariculture           activities
                               activities.           requiring
                                                     individual permits.
 General condition    Restored text of      No change in number
 17, tribal rights.            general condition     of NWP
                               in 2012 NWPs.         authorizations.
 General condition    Revised to address    No change in number
 18, endangered species.       2019 changes to 50    of NWP
                               CFR part 402.         authorizations.
                               Clarified PCN
                               requirements for
                               species proposed
                               for listing and
                               proposed critical
                               habitat to be
                               consistent with 33
                               CFR 330.4(f)(2).
 General condition    Added \3/100\-acre    No change in number
 23, mitigation.               threshold for         of NWP
                               compensatory          authorizations.
                               mitigation for
                               losses of stream
                               bed.
 General condition    Clarified that if     No change in number
 25, water quality.            NWP activity does     of NWP
                               not comply with       authorizations.
                               conditions of a
                               general water
                               quality
                               certification, an
                               individual
                               certification is
                               required, unless a
                               waiver occurs.
                               Require permittee
                               to provide district
                               engineer with copy
                               of water quality
                               certification for
                               individual
                               discharge
                               authorized by an
                               NWP.
 General condition    Clarified that if     No change in number
 26, coastal zone management.  NWP activity does     of NWP
                               not comply with       authorizations.
                               conditions of a
                               general consistency
                               concurrence, and
                               individual
                               consistency
                               concurrence is
                               required, unless
                               presumption occurs.
 General condition    Modified 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    Modified to           No change in number
 32, pre-construction          encourage use of      of NWP
 notification.                 Form ENG 6082 for     authorizations.
                               NWP pre-
                               construction
                               notifications.
------------------------------------------------------------------------

    Several commenters stated that the Corps' Regulatory Impact 
Analysis should include estimates of costs to the public due to losses 
of wetland and stream functions and losses of ecosystem services caused 
by activities authorized by NWPs. These commenters also said the 
Regulatory Impact Analysis should address flooding that is exacerbated 
by development in and around stream and wetland habitats. In addition, 
these commenters stated that the Regulatory Impact Analysis should 
evaluate the effect the proposed \1/10\-acre threshold for stream 
mitigation in general condition 23 would have in terms of a reduction 
in stream compensatory mitigation for NWP activities, and increases in 
losses of headwater streams. These commenters also stated that the 
Corps should analyze the effects of removing the PCN threshold for 
mechanized land clearing of forested wetlands in oil or natural gas 
pipeline rights-of-way from NWP 12. Several commenters said the 
Regulatory Impact Analysis should also analyze the economic impacts of 
the 2020 Proposal on the ecological restoration industry. One commenter 
said that a cost-benefit analysis or reissuing the NWPs ahead of 
schedule should be performed.
    The Regulatory Impact Analysis prepared by the Corps for this final 
rule was prepared in accordance with the Office of Management and 
Budget's (OMB) Circular A-4 and OMB's Memorandum M-17-21 for 
implementing E.O. 13771. The Regulatory Impact Analysis provides some 
general information on the value of ecosystem services provided by 
general categories of aquatic resources that may be impacted by 
activities authorized by NWPs and thus result in some degree of loss of 
ecosystem services. Other activities authorized by NWPs (e.g., aquatic 
resource restoration and enhancement activities authorized by NWP 27 
and the removal of low-head dams authorized by NWP 53) are generally 
expected to result in gains in some ecosystem services. Any 
consideration of ecosystem services lost as a result of activities 
authorized by NWPs must also take into account any gains in goods and 
services provided by activities authorized by NWPs or the operation of 
those activities, such as housing, food production, energy generation 
and transmission, transportation, public safety, providing potable 
water, removing sewage, etc. In the Regulatory Impact Analysis for this 
final rule, the Corps has added a general discussion of the goods and 
services that activities authorized by the NWPs provide for human well-
being.
    Increases in downstream flooding are usually caused by development 
activities (e.g., the construction of houses, commercial buildings,

[[Page 2856]]

educational buildings, manufacturing buildings, roads, parking lots, 
etc.) that reduce the land area in a watershed where precipitation can 
infiltrate into the soil, and subsequently cause increases in surface 
runoff to downstream waters that increase the frequency and severity of 
flooding (NRC 2009). Upland development activities provide a 
significant contribution to these changes in watershed hydrology, 
because wetlands and streams occupy a relatively small percentage of 
land area in a watershed (e.g., Zedler and Kercher et al. 2005, Butman 
and Raymond 2011). State and local government agencies may require 
developers to construct stormwater management facilities and green 
infrastructure (e.g., rain gardens) to provide water storage and water 
infiltration within the watershed to reduce potential changes in 
downstream flooding.
    Stream compensatory mitigation was added to the mitigation general 
condition for the NWPs in 2007 (see general condition 20 in the 2007 
NWP final rule at 72 FR 11193). That general condition did not have an 
acreage-based or linear foot based threshold for stream mitigation. In 
the 2012 and 2017 final rules for the issuance and reissuance of the 
NWPs (77 FR 10184 and 82 FR 1860, respectively), there was no acreage-
based or linear foot based threshold for stream mitigation. Under the 
2007, 2012, and 2017 NWPs, district engineers determined on a case-by-
case basis whether stream compensatory mitigation is required for an 
NWP activity. The 2020 Proposal is the first time the Corps proposed a 
threshold in the mitigation general condition for the NWPs for stream 
compensatory mitigation. In response to comments received on the 2020 
Proposal, the Corps changed the proposed \1/10\-acre stream mitigation 
threshold to \3/100\-acre to be consistent with the current practices 
of numerous Corps districts for when they require stream compensatory 
mitigation for proposed NWP activities. Therefore, the changes to 
general condition 23 are not expected to reduce stream compensatory 
mitigation for NWP or have substantive economic impacts on the 
compensatory mitigation industry.
    The removal of the PCN threshold in the 2017 NWP 12 for mechanized 
land clearing of a forested wetland in a utility line right-of-way will 
not eliminate compensatory mitigation requirements for those 
activities. If the impacts to forested wetlands caused by mechanized 
land clearing for an oil or natural gas pipeline right-of-way cannot be 
restored to pre-construction contours in waters of the United States, 
and there is a loss of greater than \1/10\-acre of forested wetlands, 
then the project proponent is required to submit a PCN to the district 
engineer. The district engineer may require compensatory mitigation to 
offset those losses of waters of the United States. The district 
engineer may also require compensatory mitigation to offset losses of 
specific wetland functions (see paragraph (i) of general condition 23).
    The Corps does not believe it is necessary to prepare a cost-
benefit analysis for reissuing the NWPs earlier than many of the users 
of the NWPs expected. One of the reasons the Corps is conducting this 
rulemaking is to address recent court decisions.

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. In writing this final 
rule, the Corps 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 16 final NWPs would decrease the 
total paperwork burden associated with this program because the Corps 
estimates that under this final rule 59 more PCNs would be required 
each year. This increase is due to the number of activities that would 
be authorized under the 16 NWPs that previously required individual 
permits, and the changes in the PCN thresholds for NWP 48 for 
commercial shellfish mariculture activities and the modified PCN 
thresholds for NWP 12 (oil and natural gas pipeline activities). The 
paperwork burden associated with the 16 final NWPs is expected to 
increase by approximately 99 hours per year from 160,677 hours to 
160,776 hours.
    The following table summarizes the projected changes in paperwork 
burden from the 2017 NWPs to the 16 NWPs issued in this final rule.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Estimated
                                                                                Number of NWP                           Estimated          changes in
                                                             Number of NWP      activities not       Estimated          changes in         number of
                                                             PCNs per year      requiring PCNs     changes in NWP       number of           standard
                                                                                   per year        PCNs per year      authorized NWP       individual
                                                                                                                        activities      permits per year
--------------------------------------------------------------------------------------------------------------------------------------------------------
2017 NWPs................................................             14,607              2,655  .................  .................  .................
16 NWPs..................................................             14,616              2,855               +591               +209               -209
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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 final rule is considered an E.O. 13771 deregulatory action. 
Details on the estimated cost savings can be found in the rule's 
economic analysis.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The issuance and modification of NWPs does not have 
federalism implications. The Corps does

[[Page 2857]]

not believe that the final NWPs will have substantial direct effects on 
the states, on the relationship between the federal government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. These NWPs will not impose any additional 
substantive obligations on state or local governments. Therefore, 
Executive Order 13132 does not apply to this 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 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 
NWPs 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 2017 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 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 NWPs, 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 the mitigation measures in some of the NWP 
general conditions, are imposed to ensure that the NWPs authorize only 
those activities that result in no more than minimal adverse effects on 
the aquatic environment and other public interest review factors.
    After considering the economic impacts of the NWPs on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. Small entities may obtain 
required DA authorizations through the NWPs, in cases where there are 
applicable NWPs authorizing those activities and 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, the Corps 
estimates an increase in the number of activities than can be 
authorized through NWPs, because the Corps made 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) the Corps expects a 
concurrent decrease in the numbers of individual permit and regional 
general permit authorizations required for these activities.

Unfunded Mandates Reform Act

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

[[Page 2858]]

intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    The Corps has determined that the 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 NWPs are generally consistent with current 
agency practice, do not impose new substantive requirements and 
therefore do not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Therefore, this final rule is not subject to the requirements of 
sections 202 and 205 of the UMRA. For the same reasons, the Corps has 
determined that the NWPs contain no regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, the 
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 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 the Corps has reason to believe may have a 
disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Tribes, on the relationship between the federal government 
and the Tribes, or on the distribution of power and responsibilities 
between the federal government and Tribes.''
    The issuance of these NWPs is generally consistent with current 
agency practice and will not have substantial direct effects on tribal 
governments, on the relationship between the federal government and the 
tribes, or on the distribution of power and responsibilities between 
the federal government and tribes. Therefore, Executive Order 13175 
does not apply to this final rule. However, in the spirit of Executive 
Order 13175, the Corps specifically requested comments from tribal 
officials on the proposed rule. Their comments were fully considered 
during the preparation of this final rule. Each Corps district 
conducted government-to-government consultation with tribes, to 
identify regional conditions, other local NWP modifications to protect 
aquatic resources of interest to tribes, and coordination procedures 
with tribes, as part of the Corps' responsibility to protect tribal 
trust resources and fulfill its tribal trust responsibilities.
    Many commenters stated that they disagreed with the Corps' 
determination that the proposal to reissue and issue the NWPs would 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. Most of these commenters said that the Corps is 
required to consult and coordinate with the tribes on the proposed 
rule. Many commenters stated that meaningful consultation with tribes 
is not possible given the short time frames set by the administration, 
lack of information, and complications resulting from the COVID 
pandemic. One commenter stated that the Corps should extend its comment 
period 60 days or should withdraw its proposal to allow early tribal 
engagement.
    While the NWPs are regulations, the Corps believe the final NWPs 
will not have substantial direct effects on tribal governments, on the 
relationship between the federal government and the tribes, or on the 
distribution of power and responsibilities between the federal 
government and tribes. In response to the proposed rule, the Corps 
received comments from 35 tribes and tribal organizations. The Corps 
has taken, and will continue to take, measures (such as Corps districts 
consulting with tribes on specific NWP activities that may have adverse 
effects on tribal rights and tribal trust resources) to ensure that the 
NWPs will not have substantial direct effects on tribal governments, on 
the relationship between the federal government and the tribes, or on 
the distribution of power and responsibilities between the federal 
government and tribes. General condition 17 has been modified to state 
that no NWP activity or its operation may impair reserved tribal 
rights, including, but not limited to, reserved water rights and treaty 
fishing and hunting rights. Tribes use NWPs for activities they conduct 
that require DA authorization under section 404 of the Clean Water Act 
and/or section 10 of the Rivers and Harbors Act of 1899. For example, 
tribes that conduct commercial shellfish mariculture activities have 
used NWP 48, and tribes that conduct aquatic habitat restoration 
activities have used NWP 27.
    For 16 NWPs issued in this final rule, Corps districts conducted 
consultations with tribes to identify regional conditions to ensure 
that NWP activities comply with general conditions 17 and 20. Through 
those consultations, district engineers can also develop coordination 
procedures with tribes to provide tribes with opportunities to review 
proposed NWP activities and provide their views on whether those 
activities will cause more than minimal adverse effects on tribal 
rights (including treaty rights), protected tribal resources, or tribal 
lands. When a Corps district receives a pre-construction notification 
that triggers a need to consult with one or more tribes, that 
consultation will be completed before the district engineer makes his 
or her decision on whether to issue the NWP verification. If, after 
considering mitigation, the district engineer determines the proposed 
NWP activity will have more than minimal adverse effects on tribal 
rights (including treaty rights), protected tribal resources, or tribal 
lands, he or she will exercise discretionary authority and require an 
individual permit. Division engineers can modify, suspend, or revoke 
one or more NWPs in a region to protect tribal rights. A district 
engineer can modify, suspend, or revoke an NWP to protect tribal 
rights, protected tribal resources, and tribal lands.
    For the 2020 Proposal, the Corps provided a 60-day public comment 
period, which is consistent with the length of the comment period 
provided for past NWP rulemaking efforts. After the comment period for 
the 2020 Proposal ended on November 16, 2020, there was some additional 
time for Corps districts to conduct consultation

[[Page 2859]]

and coordination with tribes. For Corps district consultation and 
coordination with tribes, the Corps provided information similar to the 
information provided during past NWP rulemaking efforts. The Corps 
acknowledges that the pandemic complicated tribal consultation and 
coordination activities, but the rulemaking effort needed to be 
completed by the required time frame.

Environmental Documentation

    A decision document has been prepared for each of the 16 NWPs being 
issued in this final rule. Each decision document includes an 
environmental assessment and public interest review determination. If 
an NWP authorizes discharges of dredged or fill material into waters of 
the United States, the decision document includes a 404(b)(1) 
Guidelines analysis. These 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. The Corps will submit a report containing the final 16 
NWPs and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Government Accountability Office. A major 
rule cannot take effect until 60 days after it is published in the 
Federal Register. The 16 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 NWPs are not expected to have any discriminatory effect or 
disproportionate negative impact on any community or group, and 
therefore are not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities.

Executive Order 13211

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy and has not otherwise been designated by 
the OIRA Administrator as a significant energy action.

VI. References

    A complete list of all references cited in this document is 
available on the internet at http://www.regulations.gov in docket 
number COE-2020-0002 or upon request from the U.S. Army Corps of 
Engineers (see FOR FURTHER INFORMATION CONTACT).

Authority

    The Corps is reissuing 12 existing NWPs and issuing 4 new NWPs 
under the authority of 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. 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
12. Oil or Natural Gas Pipeline Activities
21. Surface Coal Mining Activities
29. Residential Developments
39. Commercial and Institutional Developments
40. Agricultural Activities
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
48. Commercial Shellfish Mariculture Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
55. Seaweed Mariculture Activities
56. Finfish Mariculture Activities
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances
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)

[[Page 2860]]

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

    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. 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 products derived from oil or 
natural gas, such as gasoline, jet fuel, diesel fuel. heating oil, 
petrochemical feedstocks, waxes, lubricating oils, and asphalt.
    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 (e.g., 
oil or natural gas or gaseous fuel custody transfer stations, boosting 
stations, compression stations, metering stations, pressure regulating 
stations) 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 of dredged or 
fill material 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 of dredged or fill material 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 may 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 of 
dredged or fill material, 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; (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

[[Page 2861]]

notification must include the locations and proposed impacts (in acres 
or other appropriate unit of measure) for all crossings of waters of 
the United States that require DA authorization, including those 
crossings authorized by an 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 the General Bridge Act of 1946. 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).
    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 of dredged or fill material 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)
    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 of dredged or fill material 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)
    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 of dredged or fill material 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

[[Page 2862]]

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 jurisdictional 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 of dredged or fill material 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 of dredged or fill material into waters of 
the United States 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).
    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 of dredged or fill material 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 
Maximum Daily 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 of dredged or fill material into non-tidal wetlands adjacent 
to tidal waters. 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 of dredged or fill material 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 jurisdictional wetlands, the discharge must not 
cause the loss of greater than \1/2\-acre of non-tidal jurisdictional 
wetlands;
    (b) For mining activities involving discharges of dredged or fill 
material in non-tidal jurisdictional 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 of dredged or fill material 
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)
    48. Commercial Shellfish Mariculture Activities. Structures or work 
in navigable waters of the United States and discharges of dredged or 
fill material into waters of the United States necessary for new and 
continuing commercial shellfish mariculture operations (i.e., the 
cultivation of bivalve molluscs such as oysters, mussels, clams, and 
scallops) 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

[[Page 2863]]

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.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer if the activity directly affects 
more than \1/2\-acre of submerged aquatic vegetation. If the operator 
will be conducting commercial shellfish mariculture activities in 
multiple contiguous project areas, he or she can either submit one PCN 
for those contiguous project areas or submit a separate PCN for each 
project area. (See general condition 32.) (Authorities: Sections 10 and 
404)
    Note 1: The permittee should notify the applicable U.S. Coast Guard 
office regarding the project.
    Note 2: To prevent introduction of aquatic nuisance species, no 
material that has been taken from a different waterbody may be reused 
in the current project area, unless it has been treated in accordance 
with the applicable regional aquatic nuisance species management plan.
    Note 3: The Nonindigenous Aquatic Nuisance Prevention and Control 
Act of 1990 defines ``aquatic nuisance species'' as ``a nonindigenous 
species that threatens the diversity or abundance of native species or 
the ecological stability of infested waters, or commercial, 
agricultural, aquacultural, or recreational activities dependent on 
such waters.''
    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 of dredged or fill material 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 of dredged or fill material 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: Electric 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 electric utility lines may be authorized 
by NWP 57 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 electric utility lines 
and/or road crossings, then NWP 57 and/or NWP 14 shall be used if those 
activities meet the terms and conditions of NWPs 57 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.

[[Page 2864]]

    This NWP does not authorize activities in coral reefs. Structures 
in an anchorage area established by the U.S. Coast Guard must comply 
with the requirements in 33 CFR 322.5(l)(2). Structures may not be 
placed in established danger zones or restricted areas designated in 33 
CFR part 334, Federal navigation channels, shipping safety fairways or 
traffic separation schemes established by the U.S. Coast Guard (see 33 
CFR 322.5(l)(1)), or EPA or Corps designated open water dredged 
material disposal areas.
    Upon completion of the pilot project, the generation units, 
transmission lines, and other structures or fills associated with the 
pilot project must be removed to the maximum extent practicable unless 
they are authorized by a separate Department of the Army authorization, 
such as another NWP, an individual permit, or a regional general 
permit. Completion of the pilot project will be identified as the date 
of expiration of the Federal Energy Regulatory Commission (FERC) 
license, or the expiration date of the NWP authorization if no FERC 
license is required.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authorities: Sections 10 and 404)
    Note 1: Electric 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 electric utility lines may be authorized by NWP 57 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.
    55. Seaweed Mariculture Activities. Structures in marine and 
estuarine waters, including structures anchored to the seabed in waters 
overlying the outer continental shelf, for seaweed mariculture 
activities. This NWP also authorizes structures for bivalve shellfish 
mariculture if shellfish production is a component of an integrated 
multi-trophic mariculture system (e.g., the production of seaweed and 
bivalve 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. To the maximum extent 
practicable, the permittee must remove these structures from navigable 
waters of the United States if they will no longer be used for seaweed 
mariculture activities or multi-trophic mariculture activities.
    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 the cultivation of a nonindigenous species unless that species has 
been previously cultivated in the waterbody; 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.''
    56. Finfish Mariculture Activities. Structures 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 structures for bivalve shellfish 
mariculture and/or seaweed mariculture if the structures for bivalve 
shellfish and/or seaweed production are a component of an integrated 
multi-trophic mariculture structure (e.g., the production of bivalve 
shellfish or seaweed 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

[[Page 2865]]

structures must be securely anchored and clearly marked. To the maximum 
extent practicable, the permittee must remove these structures from 
navigable waters of the United States if they will no longer be used 
for finfish mariculture activities or multi-trophic mariculture 
activities.
    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 the cultivation of a nonindigenous species unless that species has 
been previously cultivated in the waterbody; 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 
the ecological stability of infested waters, or commercial, 
agricultural, aquacultural, or recreational activities dependent on 
such waters.''
    57. 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, fiber optic 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 of dredged or fill material 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 of dredged or fill material 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.

[[Page 2866]]

    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 of dredged 
or fill material, 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).
    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).
    58. 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, products derived from oil or natural gas, and electricity. 
Oil or natural gas pipeline activities or electric utility line and 
telecommunications activities may be authorized by NWPs 12 or 57, 
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

[[Page 2867]]

NWP does not authorize discharges of dredged or fill material 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 of dredged or fill material 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 of dredged 
or fill material, 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 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 the General Bridge Act 
of 1946. 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).

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,

[[Page 2868]]

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 or her 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).
    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 
must be removed, to the maximum extent practicable, after their use has 
been discontinued. Temporary fills must be removed in their entirety 
and the affected areas returned to pre-construction elevations. The 
affected areas must be revegetated, as appropriate.
    14. Proper Maintenance. Any authorized structure or fill shall be 
properly maintained, including maintenance to ensure public safety and 
compliance with applicable NWP general conditions, as well as any 
activity-specific conditions added by the district engineer to an NWP 
authorization.
    15. Single and Complete Project. The activity must be a single and 
complete project. The same NWP cannot be used more than once for the 
same single and complete project.
    16. Wild and Scenic Rivers. (a) No NWP activity may occur in a 
component of the National Wild and Scenic River System, or in a river 
officially designated by Congress as a ``study river'' for possible 
inclusion in the system while the river is in an official study status, 
unless the appropriate Federal agency with direct management 
responsibility for such river, has determined in writing that the 
proposed activity will not adversely affect the Wild and Scenic River 
designation or study status.
    (b) If a proposed NWP activity will occur in a component of the 
National Wild and Scenic River System, or in a river officially 
designated by Congress as a ``study river'' for possible inclusion in 
the system while the river is in an official study status, the 
permittee must submit a pre-construction notification (see general 
condition 32). The district engineer will coordinate the PCN with the 
Federal agency with direct management responsibility for that river. 
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,

[[Page 2869]]

as identified under the Federal Endangered Species Act (ESA), or which 
will directly or indirectly destroy or adversely modify designated 
critical habitat or critical habitat proposed for such designation. 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 species 
proposed for listing) or designated critical habitat (or critical 
habitat proposed such designation) might be affected or is in the 
vicinity of the activity, or if the activity is located in designated 
critical habitat or critical habitat proposed for such designation, 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 species proposed for 
listing) or designated critical habitat (or critical habitat proposed 
for such designation), the pre-construction notification must include 
the name(s) of the endangered or threatened species (or species 
proposed for listing) that might be affected by the proposed activity 
or that utilize the designated critical habitat (or critical habitat 
proposed for such designation) 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 species proposed 
for listing) or designated critical habitat (or critical habitat 
proposed for such designation) that might be affected or is in the 
vicinity of the activity, and has so notified the Corps, the applicant 
shall not begin work until the Corps has provided notification that the 
proposed activity will have ``no effect'' on listed species (or species 
proposed for listing or designated critical habitat (or critical 
habitat proposed for such designation), or until ESA section 7 
consultation or conference has been completed. If the non-Federal 
applicant has not heard back from the Corps within 45 days, the 
applicant must still wait for notification from the Corps.
    (d) As a result of formal or informal consultation or conference 
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 an NWP complies 
with the Migratory Bird Treaty Act and the Bald and Golden Eagle 
Protection Act. The permittee is responsible for contacting the 
appropriate local office of the U.S. Fish and Wildlife Service to 
determine what measures, if any, are necessary or appropriate to reduce 
adverse effects to migratory birds or eagles, including whether 
``incidental take'' permits are necessary and available under the 
Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a 
particular activity.
    20. Historic Properties. (a) No activity is authorized under any 
NWP which 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 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

[[Page 2870]]

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 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 an 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, 52, 57 and 58 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

[[Page 2871]]

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 \3/100\-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 
\3/100\-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 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)). If permittee-responsible mitigation is the proposed 
option, and the proposed compensatory mitigation site is located on 
land in which another federal agency holds an easement, the district 
engineer will coordinate with that federal agency to determine if 
proposed compensatory mitigation project is compatible with the terms 
of the easement.
    (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

[[Page 2872]]

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 or federal, 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. (a) 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 authority 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 an NWP.
    (b) If the NWP activity requires pre-construction notification and 
the certifying authority has not previously certified compliance of an 
NWP with CWA section 401, the proposed discharge is not authorized by 
an NWP until water quality certification is obtained or waived. If the 
certifying authority issues a water quality certification for the 
proposed discharge, the permittee must submit a copy of the 
certification to the district engineer. The discharge is not authorized 
by an NWP until the district engineer has notified the permittee that 
the water quality certification requirement has been satisfied by the 
issuance of a water quality certification or a waiver.
    (c) 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 an 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:
    (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 commercial 
development is constructed under NWP 39, 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 
commercial development under NWP 39 cannot exceed \1/2\-acre, and the 
total acreage loss of waters of United States due to the NWP 39 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.

[[Page 2873]]

    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 an 
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 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 an 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 
and intermittent 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 \3/100\-acre of stream bed 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 species 
proposed for listing) or designated critical habitat (or critical 
habitat proposed for such

[[Page 2874]]

designation) might be affected or is in the vicinity of the activity, 
or if the activity is located in designated critical habitat (or 
critical habitat proposed for such designation), the PCN must include 
the name(s) of those endangered or threatened species (or species 
proposed for listing) that might be affected by the proposed activity 
or utilize the designated critical habitat (or critical habitat 
proposed for such designation) 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 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 an 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 an NWP 
and whether those cumulative adverse

[[Page 2875]]

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 \3/100\-acre of stream 
bed, 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 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

[[Page 2876]]

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 or 
wetlands 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 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

[[Page 2877]]

divided into two categories: Re-establishment and rehabilitation.
    Riffle and pool complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes 
sometimes characterize steep gradient sections of streams. Such stream 
sections are recognizable by their hydraulic characteristics. The rapid 
movement of water over a course substrate in riffles results in a rough 
flow, a turbulent surface, and high dissolved oxygen levels in the 
water. Pools are deeper areas associated with riffles. A slower stream 
velocity, a streaming flow, a smooth surface, and a finer substrate 
characterize pools.
    Riparian areas: Riparian areas are lands next to streams, lakes, 
and estuarine-marine shorelines. Riparian areas are transitional 
between terrestrial and aquatic ecosystems, through which surface and 
subsurface hydrology connects riverine, lacustrine, estuarine, and 
marine waters with their adjacent wetlands, non-wetland waters, or 
uplands. Riparian areas provide a variety of ecological functions and 
services and help improve or maintain local water quality. (See general 
condition 23.)
    Shellfish seeding: The placement of shellfish seed and/or suitable 
substrate to increase shellfish production. Shellfish seed consists of 
immature individual shellfish or individual shellfish attached to 
shells or shell fragments (i.e., spat on shell). Suitable substrate may 
consist of shellfish shells, shell fragments, or other appropriate 
materials placed into waters for shellfish habitat.
    Single and complete linear project: A linear project is a project 
constructed for the purpose of getting people, goods, or services from 
a point of origin to a terminal point, which often involves multiple 
crossings of one or more waterbodies at separate and distant locations. 
The term ``single and complete project'' is defined as that portion of 
the total linear project proposed or accomplished by one owner/
developer or partnership or other association of owners/developers that 
includes all crossings of a single water of the United States (i.e., a 
single waterbody) at a specific location. For linear projects crossing 
a single or multiple waterbodies several times at separate and distant 
locations, each crossing is considered a single and complete project 
for purposes of NWP authorization. However, individual channels in a 
braided stream or river, or individual arms of a large, irregularly 
shaped wetland or lake, etc., are not separate waterbodies, and 
crossings of such features cannot be considered separately.
    Single and complete non-linear project: For non-linear projects, 
the term ``single and complete project'' is defined at 33 CFR 330.2(i) 
as the total project proposed or accomplished by one owner/developer or 
partnership or other association of owners/developers. A single and 
complete non-linear project must have independent utility (see 
definition of ``independent utility''). Single and complete non-linear 
projects may not be ``piecemealed'' to avoid the limits in an NWP 
authorization.
    Stormwater management: Stormwater management is the mechanism for 
controlling stormwater runoff for the purposes of reducing downstream 
erosion, water quality degradation, and flooding and mitigating the 
adverse effects of changes in land use on the aquatic environment.
    Stormwater management facilities: Stormwater management facilities 
are those facilities, including but not limited to, stormwater 
retention and detention ponds and best management practices, which 
retain water for a period of time to control runoff and/or improve the 
quality (i.e., by reducing the concentration of nutrients, sediments, 
hazardous substances and other pollutants) of stormwater runoff.
    Stream bed: The substrate of the stream channel between the 
ordinary high water marks. The substrate may be bedrock or inorganic 
particles that range in size from clay to boulders. Wetlands contiguous 
to the stream bed, but outside of the ordinary high water marks, are 
not considered part of the stream bed.
    Stream channelization: The manipulation of a stream's course, 
condition, capacity, or location that causes more than minimal 
interruption of normal stream processes. A channelized jurisdictional 
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 ``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)).

[FR Doc. 2021-00102 Filed 1-12-21; 8:45 am]
BILLING CODE 3720-58-P