[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73522-73583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27441]
[[Page 73521]]
Vol. 86
Monday,
No. 245
December 27, 2021
Part III
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. 245 / Monday, December 27, 2021 /
Rules and Regulations
[[Page 73522]]
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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-AB29
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 that have no more than minimal individual and
cumulative adverse environmental effects. In a proposed rule published
in the September 15, 2020, issue of the Federal Register, the Corps
proposed to reissue 52 existing NWPs and issue five new NWPs, plus the
NWP general conditions and definitions. In a final rule published in
the January 13, 2021, issue of the Federal Register, the Corps reissued
12 of the 52 existing NWPs and four of the five new NWPs, as well as
the NWP general conditions and definitions. In this final rule, the
Corps is reissuing the remaining 40 existing NWPs and issuing the
remaining one new NWP. The NWP general conditions and definitions
published in the January 13, 2021, issue of the Federal Register apply
to the 41 NWPs reissued or issued in this final rule.
DATES: The 41 NWPs in this final rule go into effect on February 25,
2022. The 41 NWPs in this final rule expire on March 14, 2026.
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
E. Nationwide Permit Verifications
II. Discussion of Public Comments
A. Overview
B. Responses to General Comments
C. Comments on Regional Conditioning of Nationwide Permits
D. Response to Comments on Specific Nationwide Permits in This
Final Rule
E. Responses to Comments on the Nationwide Permit General
Conditions
F. Responses to Comments on the District Engineer's Decision
G. 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
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
RGL Regulatory Guidance Letter
List of Nationwide Permits Issued in This Final Rule
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities
28. Modifications of Existing Marinas
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
41. Reshaping Existing Drainage Ditches
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
49. Coal Remining Activities
53. Removal of Low-Head Dams
54. Living Shorelines
59. Water Reclamation and Reuse Facilities
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
(33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899
(33 U.S.C. 403), where those activities will result in no more than
minimal individual and cumulative adverse 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 with conditions to minimize those adverse effects,
without requiring individual permits for those 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), 2017 (82 FR 1860), and 2021 (86 FR 2744).
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 that will cause only minimal
individual and cumulative adverse environmental effects 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
[[Page 73523]]
delegated to the Chief of Engineers and designated representatives of
the Chief of Engineers. 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, reissue, revoke, or suspend the
NWPs before they expire. NWPs 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.
On September 15, 2020, the Corps published a proposed rule in the
Federal Register (85 FR 57298) to reissue 52 existing NWPs with
modifications, to issue five new NWPs, and to reissue the NWP general
conditions and definitions with modifications. On January 13, 2021, the
Corps published a final rule in the Federal Register (86 FR 2744). In
that final rule, the Corps reissued the following NWPs: NWP 12 (oil or
natural gas pipeline activities); NWP 21 (surface coal mining
activities); NWP 29 (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). The Corps issued 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). In the final rule published on January 13,
2021, the Corps stated that it would issue a separate final rule for
its decisions on the proposed reissuance of the other 40 proposed NWPs
and the issuance of proposed new NWP E for water reclamation and reuse
facilities.
The 16 NWPs issued or reissued in the final rule that was published
in the January 13, 2021, issue of the Federal Register expire on March
14, 2026. The 41 NWPs published in today's final rule will also expire
on March 14, 2026, so that all of the NWPs issued or reissued in 2021
expire on the same date. Under Section 404(e) of the Clean Water Act
(33 U.S.C. 1344(e)), an NWP cannot be issued for a period of more than
five years, and the Corps has discretion to establish an expiration
date for an NWP that is less than five years after the date the NWP
goes into effect. Establishing the same expiration date for 16 NWPs
issued in January 2021 and the 41 NWPs issued in today's final rule
will help provide consistency and clarity to the regulated public and
the Corps, and align all of the NWPs in terms of scheduling the next
rulemaking to issue or reissue the NWPs. At its discretion, the Corps
may rescind, revise, or suspend one or more NWPs prior to that time.
Consistent with E.O. 13990, Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis, the
Army is also considering whether additional steps should be taken to
ensure the Nationwide Permits program aligns with this Administration's
policies and priorities moving forward.
Nationwide permits authorize categories of activities that are
similar in nature and will cause only minimal adverse environmental
effects when performed separately, and will have only minimal
cumulative adverse effect on the environment. See 33 U.S.C. 1344(e)(1).
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 (e.g., 40 CFR 230.7(b)(3)). 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 processing time 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 and that it is not contrary to the public interest, consistent
with processes and requirements set out in 33 CFR 330.5(d). See section
II.G for more
[[Page 73524]]
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,
the district engineer 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 the district engineer 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 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 caused by NWP activities 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 NWP
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 (environmental baseline) 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 authorize 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 or a seascape. 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, the district
engineer 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, 14, 57, or 58) or non-linear projects authorized with two or more
different NWPs (e.g., an NWP 28 for reconfiguring an existing marina
basin plus an NWP 19 for minor dredging within that marina basin), the
district engineer will evaluate the cumulative effects of the
applicable NWP authorizations within the geographic area that the
district engineer 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 such as a seascape.
The Corps' regulations for its ``public interest review'' 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, the district engineer will exercise discretionary authority
and require an application for an individual permit for the proposed
activity that requires Department of the Army (DA) authorization.
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 DA 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
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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).
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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 reissue all existing
permits (some with proposed modifications); (2) to issue two new NWPs
to authorize certain categories of mariculture activities (i.e.,
seaweed and finfish mariculture) that are not currently authorized by
NWP 48; (3) to issue three NWPs that authorize separate categories of
utility line based on the substances they convey; (4) to issue 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 (5) 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. The final rule published
in the January 13, 2021, issue of the Federal Register (86 FR 2744)
finalized 12 of the existing permits and addressed items (2), (3), and
(5), as well as the NWP general conditions and definitions.
C. Overview of This Final Rule
This final rule reissues the 40 existing NWPs that were previously
issued in the January 6, 2017, final rule (82 FR 1860) but not
finalized on January 13, 2021 and issues one new NWP (NWP 59 for water
reclamation and reuse facilities). This final rule does not address the
16 NWPs, general conditions, and definitions that were finalized on
January 13, 2021. In response to the 2020 Proposal, the Corps received
approximately 22,700 comments. Those comments relating to the January
13, 2021 final rule were addressed as part of that action; those
comments relating to the NWPs in this final rule are discussed below
together with the modifications made in response to those comments.
The January 13, 2021, final rule addressed the comments received in
response to the 2020 Proposal on the NWP general conditions and
definitions. The NWP general conditions and definitions from the final
rule published in the January 13, 2021, issue of the Federal Register
apply to the NWPs published in today's final rule. The text of the NWP
general conditions and definitions are provided in the January 13,
2021, final rule on pages at 86 FR 2867-2877. The 41 NWPs in today's
final rule expire on March 14, 2026, the same date as the 16 NWPs
published in the January 13, 2021, issue of the Federal Register
expire.
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 would create 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 40 existing NWPs
(i.e., NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18,
19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41,
45, 46, 49, 53, and 54) that are issued in this final rule to the day
before February 25, 2022. The expiration date for the 40 existing NWPs
and the new NWP issued in this final rule is March 14, 2026.
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, if the previously verified
activity continues to qualify for NWP authorization under any of the 40
existing NWPs reissued 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 40 existing NWPs reissued 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,
suspend, 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 40 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 41 NWPs issued in this final rule go into effect on February
25, 2022. The 2017 versions of the 40 existing NWPs reissued in this
final rule expire on the day before February 25, 2022. The 40 existing
NWPs reissued in this final rule and the new NWP issued in this final
rule (i.e., NWP 59) expire on March 14, 2026.
E. Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN, and thus
request confirmation from the district engineer
[[Page 73526]]
prior to commencing the proposed NWP activity, to ensure that the NWP
activity complies with the terms and conditions of the NWP, including
any conditions the district engineer adds to the NWP authorization in
accordance with 33 CFR 330.6(a)(3)(i). 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 Endangered Species Act (ESA)-
listed species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed for such designation), if listed
species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed for such designation) are in the
vicinity of the proposed activity, or if the proposed activity is
located in critical habitat or critical habitat proposed for such
designation. General condition 20 requires non-federal permittees to
submit PCNs for any proposed activity that might 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
the project proponent wants to use to provide the required 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 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 the district engineer exercises discretionary
authority and requires an individual permit. If the proposed activity
does not meet the terms and conditions of the NWP identified in the
applicant's 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, the
district engineer should explain the reasons for determining that the
proposed activity raises sufficient concern for the environment or
otherwise may be contrary to the public interest.
PCN 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 the project proponent 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, the district
engineer 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 and will not be contrary to the public
interest. 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, the district engineer
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 ESA Section 7 consultation and/or NHPA Section
106 consultation, if the project proponent has not received a reply
from the Corps within 45 days, the project proponent 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 cannot 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.
II. Discussion of Public Comments
A. Overview
In response to the 2020 Proposal, the Corps received approximately
22,700 comment letters, of which approximately 22,330 were form
letters. In addition to the various form letters, the Corps received 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. The Corps' responses to the comments
received on the proposed removal of the 300 linear foot limit for
losses of stream bed from 10 existing NWPs, the proposed changes to
NWPs 21 and 50, the proposed reissuance of NWP 48, the proposed
reissuance of NWP 12, and the proposed issuance of four new NWPs (NWPs
55, 56, 57, and 58) are summarized and addressed in the final rule
published in the January 13, 2021, issue of the Federal Register (86 FR
2744). The sections below discuss the comments received and the Corps
responses on the 40 existing NWPs and one new NWP being finalized in
this rule.
B. Responses to General Comments
A summary of general comments submitted to the Corps in response to
the 2020 Proposal, and responses to those general comments, are
provided in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2750-2753.
[[Page 73527]]
(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. These comments were summarized and addressed in the final
rule published in the January 13, 2021, issue of the Federal Register
at 86 FR 2753-2754.
(2) Pre-Construction Notification Requirements
Comments on PCN requirements for the NWPs in the 2020 Proposal were
addressed in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2754-2755.
(3) Climate Change
Comments on climate change and the NWPs in the 2020 Proposal were
addressed in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2755. The Corps recognizes the importance
of climate change resiliency and both mitigation and adaptation efforts
to address climate change. The Corps discusses climate change in the
context of the NWP reissuance in each of the national decision
documents for the 41 NWPs. Some activities authorized by various NWPs
may be associated with energy production (including the energy
production through solar, wind, and other renewable resources),
distribution, and use, while other activities authorized by the NWPs
may contribute to adaptation to climate change and help increase the
resilience of communities to the adverse effects of climate change.
(4) Environmental Justice
In response to the 2020 Proposal, the Corps received comments
concerning environmental justice and how it was considered during
development of the final rule. The Corps recognizes the importance of
environmental justice to the Administration and incorporated
consideration of impacts to communities with environmental justice
interests to the extent practicable within its regulatory authorities
in the issuance of this rule. The NWPs issuance 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. The NWPs issued in this final rule can be used by
communities with environmental justice interests that want to conduct
activities that require DA authorization that will help improve
environmental quality within their communities (e.g., NWP 13 for bank
stabilization activities; NWP 27 for aquatic habitat restoration,
establishment, and enhancement activities; NWP 31 for the maintenance
of existing flood control facilities; and NWP 38 for hazardous and
toxic waste clean-up activities).
C. 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.
Prior to the effective date of the 41 NWPs published in this final
rule, division engineers will complete supplemental documents for these
NWPs, which will include the final regional conditions for these NWPs.
Concurrent with the publication of the 2020 Proposal in the Federal
Register, Corps districts issued public notices seeking comment on
proposed regional conditions for the proposed NWPs. The division
engineers' supplemental documents for the 41 NWPs will summarize the
comments Corps districts received on the proposed regional conditions
for those NWPs, provide responses to those comments, and provide the
division engineers' decisions on whether to approve some or all of the
regional conditions that were proposed by district engineers in their
public notices. After the division engineers approve the regional
conditions and sign the supplemental documents for these 41 NWPs, Corps
districts will issue public notices on their websites 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 public
notices are also sent to interested parties that are on each district's
public notice mailing list via email or the U.S. mail. The public
notice will also describe, if appropriate, a time period to complete an
authorized activity 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)). Copies of
district public notices announcing final regional conditions for these
41 NWPs will be posted in the www.regulations.gov docket for the 2021
NWPs (docket number COE-2020-0002), under Supporting and Related
Information so that copies of all district public notices and regional
conditions are available at a central location. If, during
implementation of the 41 NWPs in this final rule, division or district
engineers identify the need for additional regional conditions, or
changes to existing regional conditions, the procedures at 33 CFR
330.5(c)(1) must be followed, including the issuance of district public
notices to provide the public with the opportunity to submit comments
on the proposed new regional conditions or proposed modifications to
existing regional conditions.
Comments on regional conditioning for the NWPs in the 2020 Proposal
were addressed in the final rule published in the January 13, 2021,
issue of the Federal Register at 86 FR 2758-2760.
D. Response to Comments on Specific Nationwide Permits in This Final
Rule
NWP 1. Aids to Navigation. The Corps did not propose any changes to
this NWP. No comments were received on the proposed NWP. This NWP is
reissued as proposed.
NWP 2. Structures in Artificial Canals. The Corps did not propose
any changes to this NWP. No comments were received on the proposed NWP.
This NWP is reissued as proposed.
NWP 3. Maintenance. The Corps proposed to modify paragraph (a) of
this NWP to authorize the repair, rehabilitation, or replacement of any
currently serviceable structure or fill that did not require DA
authorization at the time it was constructed. The Corps also proposed
to modify paragraph (a) of this NWP to authorize the placement of new
or additional riprap to protect the structure, provided the placement
of riprap is the minimum necessary to
[[Page 73528]]
protect the structure or to ensure the safety of the structure, to
reinstate a provision was in the 2007 version of NWP 3 (see 72 FR
11181).
Several commenters stated that they support modifying paragraph (a)
of this NWP to authorize the repair, rehabilitation, or replacement of
any currently serviceable structure that did not require DA
authorization of the time it was constructed. A few commenters
expressed opposition to the proposed modification of this NWP and said
that the text of the 2017 version of this NWP that limits maintenance
to previously authorized and currently serviceable structures should be
retained. Several commenters expressed opposition to the authorization
of any currently serviceable fills that were installed prior to the
Clean Water Act without requiring a PCN because those fills have not
been evaluated under current environmental regulations. One commenter
said that the maintenance of any structures or fills that existed prior
to the Clean Water Act should not require any authorization from the
Corps. One commenter stated that a timeframe should be added to NWP 3
to specify a maximum length of time the structure has been in disrepair
in order to use this NWP to authorize maintenance of the structure.
After considering the comments received in response to the 2020
Proposal, the Corps is reissuing this NWP without modifying paragraph
(a) of this NWP to authorize the repair, rehabilitation, or replacement
of any currently serviceable structure that did not require DA
authorization at the time it was constructed. The repair,
rehabilitation, or replacement of any currently serviceable structure
that did not require DA authorization of the time it was constructed
may be authorized by other forms of DA authorization, such as regional
general permits and individual permits.
The NWP is limited to the repair, rehabilitation, or replacement of
currently serviceable structures or fills, so it is not necessary to
impose a timeframe for NWP 3 eligibility during which the need for
repair, rehabilitation, or replacement activity must be completed in
order to be eligible for NWP 3 authorization. The term ``currently
serviceable'' is defined in section F of the NWPs. This NWP does not
authorize the reconstruction of structures or fills that are no longer
currently serviceable. In addition, changes to a structure or fill that
prompt the need for repair, rehabilitation, or replacement may occur
gradually or abruptly, or at some intermediate rate. The timeframe in
which the structure or fill requires some degree of repair,
rehabilitation, or replacement is not as relevant to ensuring no more
than minimal adverse environmental effects than the constraints imposed
by the ``currently serviceable'' and ``minor deviations'' provisions of
this NWP.
The Corps does not agree that PCNs should be required for
maintenance activities authorized by paragraph (a) of this NWP because
of the limitations in that paragraph.
One commenter stated that the text of this NWP should be modified
to allow for maintenance of any existing infrastructure provided it
does not change the intended use of the structure or fill. A few
commenters requested clarification as to what the term ``currently
serviceable structure'' means, including whether or not the structure
or fill has to be operational. One commenter requested clarification on
the differences between ``replacement'' and ``reconstruction.'' A few
commenters asked for changes in the text of NWP 3 to clarify that any
structures or fill that were previously permitted by the Corps may
utilize NWP 3 for maintenance and repair activities.
This NWP authorizes the repair, rehabilitation, or replacement of
existing infrastructure while allowing minor deviations due to due to
changes in materials, construction techniques, requirements of other
regulatory agencies, or current construction codes or safety standards.
In addition, the NWP requires the structure or fill to not be put to
uses that differ from the uses originally contemplated for it when the
structure or fill was originally constructed. Repair, rehabilitation,
or replacement activities that exceed the ``minor deviations''
provision of this NWP may be authorized by individual permits, regional
general permits, or another NWP.
The term ``currently serviceable'' is currently defined in section
F of the NWPs as: ``useable as is or with some maintenance, but not so
degraded as to essentially require reconstruction.'' Therefore, there
must be some degree of operability associated with the structure or
fill in order for repair, rehabilitation, and replacement activities to
be authorized by this NWP. The difference between ``replacement'' and
``reconstruction'' is based on the concept of ``currently
serviceable.'' A currently serviceable structure or fill retains some
degree of operability but can be replaced before it degrades to the
extent where it is no longer operable (i.e., incapable of performing
its intended function). In contrast, a structure or fill that is no
longer capable of providing any degree of operability would have to be
reconstructed to perform its intended function. This NWP can be used to
repair, rehabilitate, or replace existing, currently serviceable
structures or fills as long as the proposed activities satisfy the
requirements in the text of the NWP, including any applicable NWP
general conditions, regional conditions imposed by division engineers,
and activity-specific conditions imposed by district engineers. The
Corps declines to modify the text of this NWP to state that it can be
used for maintenance and repair activities for previously permitted
structures or fills because some of those maintenance and repair
activities might not qualify for NWP 3 authorization and may require
individual permits or other forms of DA authorization.
One commenter expressed opposition to authorizing the
rehabilitation or replacement of structures that are derelict or not
operational without a PCN and analyses of individual cumulative
effects. One commenter recommended modifying this NWP to authorize
regular maintenance of drainages to reduce exposed pipelines and
pipeline spans. One commenter stated that without individual permit
review, the Corps has no way of knowing if the structures are being
replaced in kind, and whether those structures would have adverse
environmental effects. This commenter also said that there need to be
practicable alternatives if adverse effects are anticipated by these
activities.
This NWP does not authorize the repair, rehabilitation, or
replacement of structures and fills that are no longer currently
serviceable. If a derelict or non-operational structure requires
repair, rehabilitation, or replacement, and those activities require DA
authorization, they may be authorized by individual permits or regional
general permits. Discharges of dredged or fill material into waters of
the United States that are necessary to rebury pipelines exposed in
drainages or repair pipeline spans that extend over drainages may be
authorized by this NWP or other NWPs, such as NWP 18, which authorizes
minor discharges into waters of the United States. Corps district staff
may conduct compliance actions for activities authorized by NWP 3, to
ensure that authorized activities comply with the conditions of the
NWP, including in-kind replacement. Because this NWP is limited to the
repair, rehabilitation, and replacement of existing, currently
serviceable structures or fills, there are usually no practicable
alternatives for repairing, rehabilitating, or replacing these
structures or fills. Relocating or reconstructing the
[[Page 73529]]
structure or fill in a different location has the potential to result
in more adverse environmental effects than the incremental impact
caused by the repair, rehabilitation, or replacement of the structure
or fill, and might not serve the intended purpose as the original
structure or fill.
Many commenters stated that they support the proposed modification
that authorizes the placement of new or additional riprap to protect
the structure. Several commenters said that authorization of the
placement of riprap under NWP 3 should require a PCN. Some commenters
objected to this proposed modification. One commenter objected to this
proposed modification, stating that it could be used to authorize
substantial amounts of riprap to protect an existing structure or fill,
such as a beach house. One commenter stated that the phrase ``minimum
necessary'' is ambiguous and unquantifiable and NWP 3 activities should
be limited to ensure that no significant adverse effects occur as a
result of the placement of the riprap. One commenter said that riprap
placed to protect the structure or fill should be limited to 25 cubic
yards. One commenter said that riprap placed above the ordinary high
water mark should be covered with topsoil and revegetated, and that
stream-side areas at the ordinary high water mark should be revegetated
with acceptable bioengineering techniques. A few commenters stated that
using the term ``riprap'' in the proposed modification will result in
preferential use of this technique when other forms of protection, such
as bioengineering, may be feasible and less environmentally damaging.
After considering the comments received in response to the 2020
Proposal, the Corps is not reissuing NWP 3 with the proposed
modification that would authorize the placement of new or additional
riprap to protect the structure or fill, as long as the placement of
riprap is the minimum necessary to protect the structure or fill and to
ensure the safety of the structure or fill. The placement of new or
additional riprap to protect the structure or fill may be authorized by
other forms of DA authorization, such as regional general permits and
individual permits. If a project proponent wants to place riprap to
protect a building, such as a beach house constructed in uplands, then
the project proponent can use NWP 13, which may require submittal of a
PCN to the district engineer, or seek DA authorization through the
individual permit process.
Riprap placed in uplands landward of the ordinary high water mark
does not require DA authorization, so the Corps does not have the
authority to require the permittee place topsoil in those upland areas
and install plants in the topsoil. Bioengineering might not be a
practicable alternative to riprap for the purposes of protecting a
repaired, rehabilitated, or replaced structure or fill, or ensuring its
safe operation. A permittee can choose to use bioengineering to protect
a structure or fill from erosion, if appropriate, and bioengineering
activities that require DA authorization may be authorized by NWP 3 if
it is considered a minor deviation due to changes in materials,
construction techniques, requirements of other regulatory agencies, or
current construction codes or safety standards. Bioengineering for bank
stabilization may also be authorized by NWP 13, which authorizes a
variety of bank stabilization techniques.
A few commenters requested clarification on what constitutes a
minor deviation, and what constitutes a small amount of riprap. One
commenter suggested replacing the term ``small'' with ``minor'' when
referring the amount of riprap that can be used to protect the
structure or fill, to be consistent with the 1996 NWP. One of these
commenters said that NWP 3 should have quantitative limits. One
commenter requested that the Corps further restrict the NWP by adding
text that states that the placement of riprap may be used to ensure the
safety of the design, but not for other safety purposes.
As discussed above, the Corps is not reissuing this NWP with
modifications that would authorize the placement of new or additional
riprap to protect the existing structure or fill. What constitutes a
``minor deviation'' is dependent on the degree to which changes in the
structure's configuration or filled area would occur as a result of the
repair, rehabilitation, or replacement activity relative to the size
and shape of the existing structure or fill, as well as any deviations
that are necessary because of changes in materials, construction
techniques, the requirements of other regulatory agencies, or current
construction codes or safety standards. Because this NWP 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 the repair, rehabilitation, or replacement of existing, currently
serviceable structures or fills, and only allows minor deviations, it
would not be appropriate to add quantitative limits to the text of the
NWP other than the quantitative limits currently in paragraph (b)
(i.e., the 200 foot limit for the removal of accumulated sediments and
debris). The safety of the structure or fill may be dependent on more
than the design of the structure or fill. For example, the safety of
the structure or fill may be dependent on the types of materials used
for the structure or fill, to help provide greater stability and help
ensure that the structure or fill withstands expected erosive forces or
other forces.
Many commenters stated that they support the removal of
``previously authorized'' from the Note and replacing it with
``currently serviceable.'' Several commenters suggested retaining in
the ``Note'' the text that refers to ``previously authorized''
structures or fills to allow for maintenance of previously authorized
structures or fills. One commenter said that in the Note the phrase
``previously authorized'' should be replaced with the term
``existing.''
In the Note for this NWP, the Corps has retained ``previously
authorized'' because the Corps is not reissuing this NWP with the
proposed changes to paragraph (a), which would have authorized the
repair, rehabilitation, or replacement of any currently serviceable
structure or fill that did not require a permit at the time it was
constructed. If the structure or fill is ``currently serviceable'' it
is an existing structure or fill. Therefore, it is not necessary to
replace the phrase ``previously authorized'' with ``existing.''
One commenter said that the removal of accumulated sediments within
200 feet of a structure is excessive and should be evaluated on a case-
by-case basis. One commenter stated that the provisions allowing
removal of sediment could result in more than minimal impacts on
aquatic organisms. One commenter stated that the PCN requirement for
activities authorized under (b) of this NWP for sediment and debris
removal is unnecessary unless the dredged material is proposed to be
redeposited or retained within waters of the United States.
Paragraph (b) authorizes the removal of accumulated sediments and
debris outside the immediate vicinity of existing structures (e.g.,
bridges, culverted road crossings, water intake structures, etc.) for a
distance of no more than 200 feet from the structure. All activities
authorized by paragraph (b) of this NWP require a PCN to district
engineers. Therefore, district engineers will review these proposed
activities to determine whether removal of accumulated sediments up to
200 feet from the structure will result in no more than minimal
individual and cumulative adverse environmental
[[Page 73530]]
effects. The removal of accumulated sediment and debris is likely to
have temporary impacts on aquatic organisms because those activities
occur on a periodic basis in response to the accumulation of sediment
and debris in these dynamic waterbodies. Communities of aquatic
organisms are likely to recover in the waterbody between sediment and
debris removal activities. Division engineers may add regional
conditions to this NWP to reduce the 200-foot limit in regions where
shorter limits are necessary to ensure that the adverse environmental
effects caused by these activities are no more than minimal. The Corps
is retaining the PCN requirement for activities authorized by paragraph
(b) of this NWP because of the potential for some of these activities
to result in more than minimal adverse environmental effects.
Therefore, district engineers should have the opportunity to review
these proposed activities so that they can exercise discretionary
authority when necessary to require individual permits for certain
activities.
One commenter said that rebuilding existing electric utility lines
should continue to be covered under NWP 3 even though NWP 57 would also
authorize these activities. Numerous commenters stated that PCNs should
be required for all activities authorized by this NWP. Many commenters
stated this permit causes significant adverse impacts which are a
violation of the Clean Water Act, and that this NWP should be withdrawn
or stricter impact limitations should be imposed. One commenter said
that NWP 3 authorizes activities that are not similar in nature, which
violates Section 404(e) of the Clean Water Act. One commenter stated
the draft decision document does not provide enough information to
determine the full extent of impacts associated with this NWP.
This NWP can be used to repair, rehabilitate, or replace electric
utility lines, as well as other structures or fills, as long as those
electric utility lines are currently serviceable. If the electric
utility line must be rebuilt because of destruction or damage by a
storm, flood, fire, or other discrete event, this NWP can be used to
authorize discharges of dredged or fill material into waters of the
United States or structures as well as work in navigable waters of the
United States for those rebuilding activities. Those electric utility
line rebuilding activities may also be authorized by NWP 57. Because
this NWP 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 the repair, rehabilitation, or replacement of
existing, currently serviceable structures or fills, and only
authorizes minor deviations, the Corps does not believe that PCNs
should be required for activities authorized by paragraph (a). The
activities authorized by NWP 3 are similar in nature, because they are
limited to the repair, rehabilitation, and replacement of currently
serviceable structures or fills, or structures or fills damaged or
destroyed by storms, floods (including tidal floods), fires, or other
discrete events. The current qualitative and quantitative limits in the
text of this NWP are sufficient to ensure that the NWP authorizes only
those activities that result in no more than minimal individual and
cumulative adverse effects, and no additional limits are necessary. The
final decision document for this NWP provides an assessment of
activities that may be authorized by this NWP during the 5-year period
it is anticipated to be in effect, as well as an evaluation of
potential environmental impacts that is commensurate with the
anticipated degree and severity of those environmental impacts. The
decision document has been prepared in compliance with the requirements
of the National Environmental Policy Act (NEPA), the Corps' public
interest review regulations, and the Clean Water Act Section 404(b)(1)
Guidelines.
This NWP is reissued without the proposed modifications.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. The Corps did not propose any changes to this
NWP. No comments were received on the proposed reissuance of this NWP.
This NWP is reissued as proposed.
NWP 5. Scientific Measurement Devices. The Corps did not propose
any changes to this NWP. No comments were received on the proposed
reissuance of this NWP. This NWP is reissued as proposed.
NWP 6. Survey Activities. The Corps did not propose any changes to
this NWP. One commenter expressed support for the reissuance of this
NWP with no changes. One commenter stated that the Corps should clarify
the nature and extent of seismic exploratory operations that qualify
for authorization under this NWP and modify this NWP to require PCNs
for all seismic exploratory operations. This commenter said that
seismic exploration operations may use vehicles that can compact
wetland soils, create tire ruts in wetlands, and cause regulated
discharges of dredged or fill material. A few commenters said seismic
exploratory operations cause adverse effects to waters of the United
States, endangered species, and marine mammals, and should require
authorization through individual permits. One commenter stated that if
seismic testing activities continue to be authorized by this NWP, then
limits should be placed on the amount of exploratory trenching. One
commenter said that this NWP should be modified to impose a 25 cubic
yard limit for discharges of fill material for shot holes, and that
survey activities involving numerous small pads in excess of 25 cubic
yards should require individual permits.
This NWP authorizes survey activities, including seismic
exploratory activities, that involve structures or work in navigable
waters of the United States that require DA authorization under Section
10 of the Rivers and Harbors Act of 1899 and discharges of dredged or
fill material into waters of the United States that require DA
authorization under Section 404 of the Clean Water Act. Seismic
exploratory operations may be conducted in a manner that does not
require DA authorization under any of the Corps' permitting
authorities. Seismic exploratory operations may be conducted using
equipment on or attached to vessels in navigable waters and vehicles
used on land that involve no structures or work in navigable waters or
discharges of dredged or fill material into waters of the United
States. For example, seismic surveying activities in marine waters may
be conducted from vessels carrying or towing seismic surveying
equipment, with no structures or work requiring DA authorization under
Section 10 of the Rivers and Harbors Act of 1899. Those types of
seismic surveying activities in marine waters do not require DA
authorization.
Land-based seismic surveying activities are often conducted from
vehicles that generate the seismic waves and vehicles or other devices
that carry the sensors that receive the seismic waves for analysis.
Driving vehicles in wetlands may cause the formation of ruts as the
wheels move through wet or moist soils. However, driving vehicles such
as trucks, cars, off-road vehicles, or farm tractors through a wetland
in a manner in which such vehicles is designed to be used generally is
not subject to regulation under Section 404 of the Clean Water Act (see
66 FR 4568). Land-based seismic surveying activities may also be
conducted by drilling shot holes and detonating explosive charges in
those shot holes to produce sound that is received by sensors. If those
shot holes are drilled in jurisdictional
[[Page 73531]]
wetlands, backfilling the shot holes in jurisdictional wetlands with
fill material may require DA authorization under Section 404 of the
Clean Water Act.
If survey activities proposed to be conducted by non-federal
permittees involve structures or work in navigable waters of the United
States and/or discharges of dredged or fill material into waters of the
United States, pre-construction notification is required for the
proposed NWP activity 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 proposed activity is located in designated critical
habitat or critical habitat proposed for such designation (see
paragraph (c) of general condition 18, endangered species). District
engineers will review PCNs submitted under paragraph (c) of general
condition 18 and determine whether ESA Section 7 consultation is
required for proposed NWP 6 activities. Project proponents who
undertake survey activities that may result in a take of marine mammals
may be required to obtain an incidental take authorization from the
National Marine Fisheries Service pursuant to the Marine Mammal
Protection Act.
The Corps does not agree that quantitative limits should be placed
on exploratory trenching because the NWP requires restoration of the
area of waters of the United States in which the exploratory trench is
dug to preconstruction elevations upon completion of the survey work.
In addition, the NWP does not authorize exploratory trenching
activities that drain waters of the United States. The Corps also
declines to impose a 25-cubic-yard limit on discharges of dredged or
fill material into waters of the United States for plugging shot holes,
because plugging shot holes helps restore affected areas to pre-
construction elevations. Plugging shot holes also provides safety
benefits by filling holes in the soil that can cause injury to people
and wildlife. This NWP has a 1/10-acre limit for losses of waters of
the United States for temporary pads used for survey activities, so the
Corps does not believe that an additional 25-cubic-yard limit is
necessary to help ensure that this NWP authorizes only those survey
activities that result in no more than minimal adverse environmental
effects.
This NWP is reissued as proposed.
NWP 7. Outfall Structures and Associated Intake Structures. The
Corps did not propose any changes to this NWP. One commenter stated
this NWP should be reissued with no changes. This NWP is reissued as
proposed.
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. The
Corps did not propose any changes to this NWP. One commenter stated
that this NWP should be reissued with no changes. One commenter said
that the Corps must analyze impacts to marine mammals through an
environmental impact statement and consult with NMFS through the ESA
Section 7 consultation process before verifying activities under this
NWP. A commenter stated that the Corps should categorically exclude the
state of Oregon from this NWP because oil and gas drilling activities
in federal waters near Oregon are prohibited, and all activities
authorized by this NWP should require PCNs to provide the necessary
coordination between the district engineer and the state.
Project proponents that use NWP 8 to authorize oil or natural gas
structures on the outer continental shelf under Section 10 of the
Rivers and Harbors Act of 1899 are responsible for complying with the
Marine Mammal Protection Act, including any requirement to obtain
incidental take authorizations from the NMFS. When a district engineer
receives a PCN for a proposed NWP 8 activity, a district engineer will
evaluate potential effects of the proposed structures on marine mammals
that are listed as endangered or threatened under the ESA, as well as
marine mammals species proposed for listing under the ESA. The district
engineer will also evaluate potential effects of the proposed
structures on designated critical habitat, and if applicable, critical
habitat proposed for such designation. If the district engineer
determines the proposed NWP 8 activity may affect listed species or
designated critical habitat, including listed marine mammals and
designated critical habitat for marine mammals, he or she will initiate
ESA Section 7 consultation with the NMFS and, if appropriate, the U.S.
FWS, unless ESA Section 7 consultation has already been conducted by
another federal agency for the proposed oil and gas structures. This
NWP authorizes structures in federal waters overlying the outer
continental shelf; it does not authorize structures in the territorial
seas. Therefore, if a project proponent wants to conduct oil or natural
gas drilling activities in the territorial seas, he or she would need
to obtain DA authorization through the individual permit process, or
through a regional general permit if the Corps district has issued a
regional general permit that authorizes oil or gas structures in the
territorial seas. All activities authorized by this NWP require PCNs,
and the district engineer can elect to coordinate the review of the PCN
with the state.
This NWP is reissued as proposed.
NWP 9. Structures in Fleeting and Anchorage Areas. The Corps did
not propose any changes to this NWP. No comments were received on the
proposed reissuance of this NWP. This NWP is reissued as proposed.
NWP 10. Mooring Buoys. The Corps did not propose any changes to
this NWP. Several commenters said that PCNs should be required for all
activities authorized by this NWP. Several commenters stated they
oppose the installation of mooring buoys within tribal lands without
coordinating with the tribes. One commenter requested clarification as
to how this NWP will interface with regional conditions.
The Corps does not agree that PCNs should be required for all non-
commercial, single-boat mooring buoys authorized by this NWP because
the installation of these structures in navigable waters of the United
States is unlikely to result in more than minimal individual and
cumulative adverse environmental effects. Certain NWP general
conditions, such as general condition 18 for endangered species and
general condition 20 for historic properties, may trigger PCN
requirements for some mooring buoys proposed to be installed by non-
federal permittees. For example, under paragraph (c) of general
condition 18 non-federal permittees are required to submit PCNs 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
proposed mooring buoy, or if the proposed mooring buoy is located in
designated critical habitat or critical habitat proposed for such
designation. Activities authorized by this NWP must comply with general
condition 17, tribal rights. During the process for reissuing this NWP,
Corps districts consulted with tribes and those consultation efforts
may have resulted in regional conditions or coordination procedures
with tribes to help ensure compliance with general condition 17. This
NWP interfaces with regional conditions in the same manner as any other
NWP interfaces with regional conditions. If a division engineer imposed
a regional condition on this NWP, in order to qualify for NWP
authorization, the proposed activity must comply with that regional
condition as well as any requirements in the text of the NWP and
applicable NWP general conditions.
This NWP is reissued as proposed.
[[Page 73532]]
NWP 11. Temporary Recreational Structures. The Corps did not
propose any changes to this NWP. No comments were received on the
proposed reissuance of this NWP. This NWP is reissued as proposed.
NWP 13. Bank Stabilization. The Corps proposed to modify this NWP
by adding a ``Note'' that states that in coastal waters and the Great
Lakes, living shorelines may be an appropriate option for bank
stabilization, and may be authorized by NWP 54.
Many commenters objected to the proposed reissuance of NWP 13,
stating that that bank stabilization using bulkheads, revetments, and
other hard structures has deleterious effects on shoreline ecosystems.
Several commenters stated that this NWP should not be reissued so that
bank stabilization activities can be limited to bioengineering or the
construction of living shorelines. Many commenters said that the
proposed NWP would result in significant adverse impacts, and violate
Section 404(e) of the Clean Water Act, the Clean Water Act Section
404(b)(1) Guidelines, the NEPA, and the ESA. One commenter stated that
the reissuance of this NWP should require an environmental impact
statement.
This NWP authorizes a wide variety of bank stabilization activities
because bioengineering and living shorelines are effective bank
stabilization approaches in limited circumstances. This NWP authorizes
both hard bank stabilization activities (e.g., revetments, riprap,
bulkheads) and soft bank stabilization activities (e.g.,
bioengineering, other forms of vegetative stabilization). Living
shorelines may be authorized by NWP 54, as indicated by the Note
proposed to be added to this NWP. Hard bank stabilization activities
may be necessary in riverine, lacustrine, estuarine, and marine
environments subject to strong erosive forces. Soft bank stabilization
activities may be effective at reducing erosion in aquatic habitats
subject to moderate to low erosive forces. This NWP has been issued in
compliance with Section 404(e) of the Clean Water Act (including the
Section 404(b)(1) Guidelines), NEPA, and the ESA. In the national
decision document for the reissuance of this NWP, the Corps prepared an
environmental assessment with a finding of no significant impact to
comply with NEPA requirements. Therefore, the reissuance of this NWP
does not require the preparation of an environmental impact statement.
In the national decision document, the Corps prepared a Clean Water Act
Section 404(b)(1) Guidelines compliance analysis, which also addresses
the requirements of Section 404(e) of the Clean Water Act. In section
8.0 of the national decision document for this NWP, the Corps discusses
compliance with the ESA, including the requirements of general
condition 18 and 33 CFR 330.4(f).
Many commenters said that the secondary, indirect, and cumulative
effects associated with bank stabilization activities authorized by
this NWP are adverse. A few commenters stated that the activities
authorized by this NWP have negative adverse effects on ESA-listed fish
and their critical habitat. One commenter said that bulkheads have more
than minimal cumulative adverse impacts and that the Corps should not
reissue this NWP because it does not know how many NWP 13 activities
occur each year. One commenter said that the activities authorized by
this NWP have substantial sediment-related impacts. One commenter
stated that the Corps should develop a means to measure, monitor, and
enforce sediment limits.
While bank stabilization activities may have adverse effects on the
aquatic environment, to be authorized by this NWP those adverse effects
must be no more than minimal on an individual and cumulative basis.
Activities authorized by this NWP must comply with general condition 18
and 33 CFR 330.4(f), which address compliance with the ESA. Under
paragraph (c) of general condition 18, non-federal permittees are
required to submit a PCN 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 by the
proposed activity or is in the vicinity of the proposed activity, or if
the proposed activity is located in designated critical habitat or
critical habitat proposed for such designation. District engineers will
review all PCNs for proposed NWP 13 activities for potential effects to
species and critical habitats covered under the ESA and will initiate
ESA Section 7 consultation for any proposed activity that may affect
listed species or designated critical habitat, including ESA-listed
fish species and their designated critical habitat.
This NWP requires a PCN for any proposed activity that: (1)
Involves discharges into special aquatic sites; (2) is in excess of 500
feet in length; or (3) will involve the discharge of greater than an
average of one cubic yard per running foot as measured along the length
of the treated bank, below the plane of the ordinary high water mark or
the high tide line. District engineers will review proposed bulkheads
constructed in wetlands and other special aquatic sites, as well as
proposed bulkheads that are longer than 500 feet in length or involve
the discharge of greater than one cubic yard per running foot as
measured along the bank. The Corps tracks the use of this NWP through
the required and voluntary PCNs for proposed NWP 13 activities that are
submitted to district offices. While not all proposed NWP 13 activities
involving the construction or replacement of bulkheads require PCNs,
consistent with other NWPs that do not require PCNs for all authorized
activities the Corps estimates the number of PCN and non-PCN activities
anticipated to occur during the 5-year period the NWP is expected to be
in effect.
Bank stabilization activities can have adverse effects on sediment
processes in aquatic ecosystems, and this NWP authorizes only those
bank stabilization activities that have no more than minimal individual
and cumulative adverse environmental effects. Bank stabilization
activities may be necessary to reduce erosion to protect buildings and
other structures, as well as infrastructure (e.g., utility lines). Bank
stabilization activities may also help reduce sediment loads to
waterbodies, by reducing erosion caused by flowing water and other
sediment inputs to waterbodies. Under its procedures at 33 CFR part
326, the Corps can take actions to address situations where permittees
do not comply with the terms and conditions of this NWP, including the
cubic yard limit for discharges of dredged or fill material into waters
of the United States.
One commenter said that the Corps needs to consider secondary
effects of structures such as bulkheads in its minimal effects
determination. One commenter suggested limiting use of this NWP to
emergency situations when other bank stabilization techniques, such as
living shorelines and bioengineering, are not available. One commenter
recommended adding emergency provisions to NWP 13. One commenter
expressed opposition to the complete removal of non-native plant
species.
In its national decision document for the reissuance of this NWP,
including the environmental assessment, public interest review, and
Clean Water Act Section 404(b)(1) Guidelines analysis, the Corps
evaluates potential indirect or secondary effects caused by activities
authorized by this NWP. When reviewing required PCNs, as well as
voluntary PCNs, for proposed NWP 13 activities, district engineers
consider the site-specific direct and indirect effects that may be
caused by those activities,
[[Page 73533]]
as required by paragraph 2 of section D, District Engineer's Decision.
As discussed above, living shorelines and bioengineering are effective
bank stabilization techniques under certain circumstances, and
therefore this NWP should not limit the use of hard bank stabilization
measures to emergency situations.
The Corps does not believe it is necessary to add provisions to
this NWP to address emergency situations. Not all activities authorized
by NWP 13 require PCNs, and some emergency bank stabilization measures
may be undertaken without the need to submit a PCN to the Corps. If an
emergency situation arises where bank stabilization activities require
review by the Corps, those bank stabilization activities may be
authorized through the Corps' emergency authorization procedures at 33
CFR 325.2(e)(4). The Corps did not propose any changes to this NWP
regarding the removal of non-native plant species. While paragraph (g)
of this NWP requires the use of native plants appropriate for current
site conditions, including salinity, for bioengineering or vegetative
bank stabilization, it does not require the permittee to remove
individuals of non-native plant species that may become established in
the project area through natural processes.
Many commenters suggested reducing the linear foot limits of this
NWP. One commenter recommended removing the 500 linear foot limit from
this NWP. One commenter suggested removing the 1,000-foot limit for
waivers for bulkheads, to allow district engineers to issue waivers
that authorize bulkheads greater than 1,000 feet in length. One
commenter stated that the waiver provision should be removed from this
NWP because it includes no performance standards and it can be abused.
One commenter said that the Corps should not require permits for longer
reaches of stream banks that would be temporarily impacted.
The Corps is retaining the 500 and 1,000 linear foot limits in this
NWP. The 500 linear foot limit can be waived by the district engineer,
if he or she determines after reviewing a PCN that the proposed
activity will result in no more than minimal individual and cumulative
adverse environmental effects and issues a written verification for the
proposed NWP activity. For proposed bulkheads, the 500 linear foot
limit can be waived up to the 1,000 linear foot limit. If a project
proponent wants to construct more than 1,000 linear feet of bulkhead,
then he or she will need to submit an application for an individual
permit, unless the Corps district has issued a regional general permit
that authorizes bulkheads longer than 1,000 feet in length. Division
engineers can add regional conditions to this NWP to impose lower
linear foot limits on bank stabilization activities, including the
maximum length for bulkheads. The only performance standard that
applies to waivers of the 500 linear foot limit is requirement that the
district engineer issue a written determination that concludes that the
proposed activity will result in no more than minimal individual and
cumulative adverse environmental effects. DA authorization is required
for permanent and temporary impacts to stream banks within the Corps'
jurisdiction if those impacts involve discharges of dredged or fill
material into waters of the United States or structures and work in
navigable waters of the United States.
A few commenters said that this NWP should not authorize discharges
of dredged or fill material below the ordinary high water mark or mean
high water line. One commenter suggested prohibiting building out to
pre-existing bank lines. A few commenters stated that impacts to
special aquatic sites should not be authorized by this NWP.
The purpose of this NWP is 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 bank stabilization
activities that have no more than minimal individual and cumulative
adverse environmental effects. Prohibiting discharges of dredged or
fill material into waters of the United States below the ordinary high
water mark in jurisdictional non-tidal rivers and streams, or below the
high tide line in tidal streams and other tidal waters would preclude
NWP authorization for many bank stabilization activities that result in
minimal individual and cumulative adverse environmental effects. In
addition, such a prohibition would result in ineffective protection
against erosion since flowing waters and tidal waters would be likely
to undercut the bank stabilization activity. Bank stabilization
activities constructed under that prohibition would likely collapse
after the stream or river bank, lake shore, estuary shore, or ocean
shore is undermined through erosional processes. If there are no
jurisdictional wetlands landward of the bank or shore, then the Corps
has no authority to prevent landowners from discharging fill material
to construct buildings near the banks of streams or rivers, or the
shores of lakes, estuaries, and oceans. All discharges of dredged or
fill material into special aquatic sites require PCNs to the Corps, and
district engineers will review those PCNs to determine whether the
proposed activities will result in no more than minimal individual and
cumulative adverse environmental effects. If the district engineer
reviews a PCN for a proposed discharge of dredged or fill material into
a special aquatic site, and after considering mitigation proposed by
the applicant, determines that 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 that activity.
Many commenters said that PCNs should be required for all
activities authorized by this NWP. Many commenters stated that PCNs
should be required for activities less than 500 feet in length. One
commenter requested clarification regarding when pre-construction
notification is required for activities authorized by this NWP, because
there is a perception that bank stabilization activities in excess of
500 linear feet require authorization by individual permits. One
commenter said that the PCN requirement for discharges into special
aquatic sites should be removed. One commenter stated that PCNs should
be required for all activities authorized by this NWP to ensure that
those activities will not jeopardize ESA-listed species. One commenter
said that all NWP 13 activities should require agency coordination.
The Corps believes that it has established appropriate PCN
thresholds for this NWP, so that PCNs are required for proposed bank
stabilization activities that have the potential to result in more than
minimal individual and cumulative adverse environmental effects. The
PCN review process allows for case-specific review of proposed
activities so that district engineers can determine whether those
proposed activities can be authorized by this NWP. Division engineers
can impose regional conditions on this NWP to require PCNs for proposed
activities that are less than 500 linear feet in length or would
involve the discharge of less than one cubic yard per running foot as
measured along the length of the bank. The district engineer can waive
the 500 linear foot limit if she or he determines in writing, after
evaluating the PCN and any comments received during the agency
coordination conducted under paragraph (d) of general condition 32,
that the proposed activity will result in no more than minimal
individual and
[[Page 73534]]
cumulative adverse environmental effects.
This NWP requires PCNs for all discharges of dredged or fill
material into special aquatic sites so that district engineers can
review all of these proposed activities to determine whether they will
result in no more than minimal adverse environmental effects. Under
paragraph (c) of general condition 18, non-federal permittees are
required to 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 proposed
activity, or if the proposed activity is located in designated critical
habitat or critical habitat proposed for such designation. The district
engineer will review the PCN and determine whether ESA Section 7
consultation or conference with the U.S. FWS and/or NMFS is required
for the proposed activity. If ESA Section 7 consultation or conference
is required, the activity is not authorized by NWP until the district
engineer notifies the project proponent that those processes are
completed. Certain activities authorized by NWP 13 require agency
coordination, specifically activities for which permittees are
requesting waivers of the quantitative limits of this NWP or for
discharges into special aquatic sites. The Corps does not agree that
agency coordination should be required for all NWP 13 activities that
require pre-construction notification.
Several commenters expressed support for adding the Note to this
NWP to make permittees aware of the availability of NWP 54 (Living
Shorelines) for bank stabilization activities in coastal waters. Many
commenters suggested modifying this NWP to require a preferential
hierarchy for bioengineering and living shorelines over bank hardening
activities to satisfy requirements to authorize the least
environmentally damaging practicable alternative.
The Corps has added the proposed Note to this NWP. The Corps
encourages waterfront property owners and other project proponents to
use living shorelines, bioengineering, vegetative stabilization, and
other soft bank stabilization approaches in coastal areas and other
waterbodies where those methods are likely to be successful in managing
erosion along coastal waters, along river and stream banks, and
shorelines in lakes and other waterbodies. The use of living
shorelines, bioengineering, vegetative stabilization, and other soft
bank stabilization approaches can help increase the resilience of
waterfront properties, as well as the structures and infrastructure
located on those properties, to the adverse effects of climate change.
The increased use of nature-based approaches such as living shorelines
and bioengineering to bank stabilization is a priority in the
Administration's climate resiliency efforts. Noting this, the Corps
provides that such soft bank stabilization techniques should generally
be considered first when project proponents consider the use of NWP 13.
There are many factors, however, that should be taken into account in
both the proposed and verified bank stabilization project.
The appropriate approach to managing shoreline or bank erosion in
coastal areas and other waterbodies must be determined on a site-
specific basis after considering a variety of factors. Examples of
factors relevant to the planning and design of bank stabilization
activities include, but are not limited to: Bank height; bank
condition; the energy of the tides, waves, currents, or other water
flows that the bank is exposed to; fetch; nearshore water depths; the
potential for storm surges; sediment or substrate type; tidal range in
areas subject to the ebb and flow of the tide; shoreline configuration
and orientation; whether there is infrastructure in the vicinity of the
proposed bank stabilization activity that needs to be protected; the
width of the waterway; the presence of trees in the vicinity of the
bank and whether those trees need to be maintained or protected; and
the distance from a navigation channel or navigable fairway in the
waterbody. With respect to living shorelines, factors to consider
regarding the appropriateness of living shorelines to manage bank
erosion in coastal areas include the fetch of the waterbody, shore
morphology, depth gradients of nearshore waters, the stability of the
existing substrate, tidal range, and marsh elevations (Saleh and
Weinstein 2016).
Project proponents may hire coastal engineers and other consultants
to help determine which bank stabilization techniques might be feasible
and successful at a specific site. District engineers are available to
discuss potential bank stabilization options with waterfront property
owners and their consultants, including the use of living shorelines,
bioengineering, and other soft bank stabilization approaches that may
be effective at controlling erosion at a particular site, as well as
more environmentally beneficial. The Corps cannot mandate the use of a
particular bank stabilization technique at a specific site. District
engineers can require minor project modifications to proposed
activities to reduce adverse environmental impacts (see 33 CFR
320.4(r)(1)(i)). However, district engineers cannot require completely
different designs of proposed activities that require DA authorization
without agreement from the applicant. In addition to the factors
identified in the previous paragraph, there are other factors to
consider when selecting a bank stabilization method, including costs
and maintenance requirements, which can vary substantially among
different bank stabilization approaches. In addition, requiring
specific approaches to bank stabilization may also negatively affect
disadvantaged communities. District engineers will review PCNs for
proposed bank stabilization activities, and if the district engineer
determines that a proposed bank stabilization activity will result in
more than minimal adverse environmental effects, the district engineer
will exercise discretionary authority and require an individual permit.
During the individual permit review process, an alternatives analysis
is required and the alternatives evaluated during the individual permit
review process may include soft bank stabilization approaches.
Waterfront property owners and other project proponents are
responsible for proposing bank stabilization activities for their
properties, and under the NWP program, district engineers review PCNs
for those proposed activities. If a district engineer reviews a PCN for
a proposed bank stabilization activity and determines that the proposed
activity will result in more than minimal adverse environmental
effects, the district engineer will exercise discretionary authority
and require an individual permit for that proposed activity.
The Corps encourages waterfront property owners to first consider
the use of living shorelines, vegetative stabilization, bioengineering,
and other soft bank stabilization approaches before considering hard
bank stabilization techniques such as bulkheads and revetments;
however, the Corps acknowledges that living shorelines and
bioengineering are not effective or appropriate approaches to bank
stabilization in all conditions. For certain types of aquatic
ecosystems and site conditions, such as environments subjected to high
energy erosive forces, hard structural bank stabilization measures such
as revetments and bulkheads may be necessary to reduce erosion and
protect people, buildings,
[[Page 73535]]
and infrastructure. The requirement in the Clean Water Act Section
404(b)(1) Guidelines to permit the least environmentally damaging
practicable alternative applies to activities authorized by individual
permits, not to activities authorized by general permits. The Corps
will include in their NWP 13 verification decision document a summary
of the rationale for the verified bank stabilization measures
reflecting the engineering, cost, technology and other considerations
above, to include discussion of soft bank stabilization techniques and
why it was or was not appropriate for the subject site.
One commenter said that the Corps' draft decision document for this
NWP did not provide an adequate analysis of the direct, indirect, and
cumulative impacts caused by these activities and did not use adequate
scientific information to describe the affected environment and the
impacts of bank stabilization activities. One commenter asserted that
this NWP does not comply with the 404(b)(1) Guidelines. One commenter
said that the Corps should prepare an environmental impact statement
for the proposed reissuance of this NWP. One commenter stated that
activities authorized by this NWP cause significant degradation of
aquatic ecosystems. One commenter suggested that the Corps include sea
level rise in its analysis of this NWP, including its assessment of
cumulative impacts.
The final decision document prepared by Corps Headquarters for the
reissuance of this NWP provides a general analysis of the impacts
expected to be caused by activities authorized by this NWP during the
5-year period it is anticipated to be in effect. In the environmental
assessment, the Corps evaluated the effects or impacts on the human
environment that are reasonably foreseeable and have a reasonably close
causal relationship to the activities authorized by this NWP,
consistent with the Council on Environmental Quality's definition of
``effects or impacts'' at 40 CFR 1508.1(g). In the national decision
document, the Corps also addressed the elements required for a Clean
Water Act Section 404(b)(1) Guidelines analysis for the issuance of a
general permit, including a cumulative effects analysis conducted in
accordance with 40 CFR 230.7(b)(3) and a conclusion that the reissuance
of this NWP would not cause or contribute to significant degradation of
the aquatic environment.
The affected environment of the United States is described in
section 4.0 of the national decision document, using available
information at a national scale to describe the current environmental
baseline. The Corps complied with the requirements of NEPA by preparing
an environmental assessment with a finding of no significant impact.
Therefore, an environmental impact statement is not required for the
reissuance of this NWP. The national decision document for this NWP has
been revised to provide more discussion of sea level rise, including
the need for bank stabilization activities to protect buildings and
infrastructure from increased risks of erosion that may be caused by
rising sea levels. Bank stabilization activities authorized by this NWP
can help protect existing buildings and infrastructure and reduce risks
associated with rising sea levels, as a means of adapting to climate
change. Rising sea levels are an effect of climate change.
One commenter suggested adding a definition of ``bioengineering''
to this NWP. One commenter requested that the Corps enforce current
guidelines to remove non-biodegradable fabric used in previous
projects. One commenter said that the Corps needs to develop functional
assessment tools to better assess individual and cumulative impacts of
bank stabilization on channel and floodplain processes.
The Corps declines to add a definition of ``bioengineering'' to
this NWP to because adding such a definition might impose unnecessary
constraints on potential bioengineering approaches to bank
stabilization that may be authorized by this NWP. Bioengineering
approaches can vary by region, may involve a variety of techniques and
materials, and may vary by resource type. Non-biodegradable fabric may
be used as a component for a variety of bank stabilization techniques
and that fabric needs to permanently remain in place to control erosion
at the site. Requiring the removal of fabric that is used for bank
stabilization activities would likely undermine the efficacy of bank
stabilization projects and their structural integrity because fabric is
often necessary to ensure that soil under revetments and other bank
stabilization structures is not washed away by tidal waters or by water
moving through the soil to the bank or shoreline. If the soil under
revetments and other bank stabilization structures is moved away from
the project site, then those structures may collapse and erosion may be
exacerbated. Adjacent uplands may also collapse or subside, posing a
potential danger to people who live at or use the project site.
While functional assessment tools may be useful in assessing the
individual and cumulative environmental impacts of bank stabilization
activities within a project site, a waterbody, or within a geographic
region, those environmental impacts can be assessed through other
means. When reviewing PCNs for proposed NWP 13 activities, district
engineers will apply the 10 criteria in paragraph 2 of section D,
District Engineer's Decision to determine whether a proposed NWP 13
activity qualifies for NWP authorization. If an appropriate functional
assessment is available, that tool may be used by district engineers
when evaluating PCNs and determining whether a proposed bank
stabilization activity qualifies for NWP 13 authorization.
This NWP is reissued as proposed.
NWP 14. Linear Transportation Projects. The Corps proposed to
modify this NWP by adding ``driveways'' to the list of examples of
activities authorized by this NWP.
Several commenters expressed support for the addition of
``driveways'' to the list of examples of the types of projects
authorized by this NWP. One commenter said that adding ``driveways'' to
the list of examples for the types of projects authorized by this NWP
could confuse applicants and result in an increase of PCNs submitted to
the Corps, and requested that the Corps provide a more detailed
explanation of the type of driveway authorized by this NWP. A commenter
said the text of this NWP should be revised to clarify if NWP 14 would
be used to authorize driveways when a project proponent is using other
NWPs such as NWP 29 (Residential Development) or NWP 39 (Commercial and
Institutional Developments) to authorize a development project that may
include one or more driveways. One commenter stated that driveways
should be limited to vehicle access to a facility and not to large-
scale transportation projects, with an acreage limit that applies to
the driveway.
The Corps has adopted the proposed modification of this NWP to
include ``driveways'' in the list of examples of the types of projects
authorized by this NWP. The term ``driveways'' applies broadly to
include features that are used by vehicles to move to and from
buildings and other facilities, and is not limited to driveways
associated with single unit or multiple unit residences, or driveways
used to go to and from commercial buildings, institutional buildings,
or other types of buildings. Discharges of dredged or fill material
into waters of the United States for the construction or expansion of
driveways may also be authorized by NWPs 29 and 39 as attendant
features to residential developments and commercial and institutional
developments. Adding ``driveways'' to the list of examples of
[[Page 73536]]
the types of projects that may be authorized by NWP 14 can provide some
clarity to the regulated public because the construction of a driveway
may be the only activity that requires DA authorization if a
residential development or commercial or institutional development is
constructed in uplands, and the driveway is needed to cross waters of
the United States to provide vehicular access to the upland
development.
There is usually no need to combine NWP 14 with NWP 29 or NWP 39 to
authorize the construction or expansion of driveways within residential
or commercial or institutional developments, unless the construction of
the driveway involves discharges of dredged or fill material into
waters of the United States that are not authorized by NWPs 29 or 39.
For example, the construction or expansion of a driveway that crosses
tidal waters or non-tidal wetlands adjacent to tidal waters, may be
authorized by NWP 14 because NWPs 29 and 39 do not authorize discharges
of dredged or fill material into tidal waters. A driveway serves a
specific purpose that may be different than other types of linear
transportation projects. Driveways are subject to the same acreage
limits as other linear transportation projects authorized by this NWP,
including larger scale linear transportation projects: 1/2-acre for
losses of non-tidal waters of the United States and 1/3-acre for losses
of tidal waters.
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
recommended modifying this NWP to include a definition for ``stand-
alone project.'' One commenter suggested modifying NWP 14 to authorize
any structure or fill that would facilitate the movement of people and/
or goods, including moving sidewalks, stationary sidewalks, streetcars,
trams, and trollies. One commenter stated that this NWP should
authorize the construction, expansion, or modification of ferry
terminals.
When reviewing PCNs for proposed driveways authorized by this NWP,
the district engineer will determine whether a proposed activity may
affect ESA-listed species or designated critical habitat, including
listed salmon species and their designated critical habitat. If the
district engineer determines a proposed NWP activity may affect listed
species or designated critical habitat, he or she will initiate ESA
Section 7 consultation with the NMFS and/or U.S. FWS as appropriate.
The proposed activity cannot be authorized by NWP until the ESA Section
7 consultation process has been concluded. A non-federal permittee 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 (see paragraph (c) of general condition 18).
The Corps declines to add a definition of ``stand-alone project''
to this NWP because that phrase is not used in this NWP. The first
sentence of this NWP provides examples of linear transportation
projects that may be authorized by this NWP, and those examples include
railways and trails. The list of examples is not an exhaustive list, so
other types of linear transportation projects that require DA
authorization may be authorized by this NWP, including streetcars,
trams, and trollies. Sidewalks may be authorized other NWPs, such as
NWPs 29 and 39 if those sidewalks are attendant features of the types
of developments authorized by those NWPs. This NWP does not authorize
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States for the
construction, modification, expansion, or improvement of ferry
terminals because ferry terminals are not linear transportation
projects. A ferry terminal is a single point within a ferry
transportation system, and is a non-linear feature.
One commenter said that the term ``crossing'' should be defined or
changed to ``placement of dredge or fill and structures'' or ``impacts
to waters of the United States.'' This commenter stated that the term
``crossing'' has been viewed strictly as a crossing or bisecting of
waters of the United States rather than allowing roadway fill in a
wetland along the linear transportation project since the road only
filled a portion of the wetland rather than crossing it.
The NWP uses the term ``crossing'' because linear transportation
projects have a point of origin and a terminal point and may involve
multiple crossings of waterbodies at separate and distant locations to
move people, goods, or services between the point of origin and the
terminal point. A crossing does not have to bisect a water of the
United States. For example, a crossing can consist of dredged or fill
material placed in waters of the United States along the edge of the
linear transportation project without bisecting the waterbody. A
crossing constructed in such a manner can be considered to minimize
impacts to waters of the United States in compliance with paragraph (a)
of general condition 23, mitigation, without a loss of connectivity
within the remaining extent of the waterbody. Paragraph (a) of general
condition 23 requires project proponents to design and construct their
NWP activities 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).
One commenter said that linear transportation projects authorized
by this NWP have devastating impacts on animal populations resulting
from habitat loss, habitat fragmentation, creation of migration
barriers, and increased impervious surface runoff. This commenter said
these impacts must be assessed through the preparation of an
environmental impact statement and through ESA Section 7 consultation.
General condition 2 (aquatic life movements) 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. General condition 2
also 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.
For terrestrial animals, linear transportation projects can be designed
and constructed to provide corridors for animal movement (e.g.,
tunnels, bridges) so that target species can safely move from one side
of the linear transportation project to the other side.
The construction of linear transportation projects may trigger a
requirement by state or local governments to provide stormwater
management facilities to reduce adverse effects to changes in watershed
hydrology that may be caused by the construction of roads and other
impervious surfaces in the watershed. Stormwater management facilities
can reduce surface runoff that may adversely affect rivers, streams,
and other waterbodies. District engineers will conduct ESA Section 7
consultation for proposed NWP 14 activities when they determine that
those activities may affect listed species or designated critical
habitat. This NWP authorizes
[[Page 73537]]
only activities that have no more than minimal individual and
cumulative adverse environmental effects, and NEPA compliance was
completed through the preparation of an environmental assessment by
Corps Headquarters in the national decision document for the reissuance
of this NWP. The Corps concluded the environmental assessment with a
finding of no significant impact. Therefore, the reissuance of this NWP
does not require the preparation of an environmental impact statement.
One commenter said the 1/2-acre limit for losses of non-tidal
waters of the United States and the 1/3-acre limit for losses of tidal
waters is not consistent with other NWPs. One commenter stated that
both acreage limits for this NWP should be reduced to 1/10-acre. One
commenter said the phrase ``minimum necessary'' is ambiguous in the
context of limiting stream channel modifications and recommended
limiting stream channel modifications to 300 linear feet or 1/10-acre.
One commenter said that this NWP should not authorize linear projects
that are more than a few hundred feet in length. One commenter
expressed agreement that an individual permit is required for an entire
linear project if one crossing of waters of the United States does not
satisfy the terms and conditions of the NWP.
The 1/2-acre limit for losses of non-tidal waters of the United
States in this NWP is consistent with the 1/2-acre limit in other NWPs
that authorize discharges of dredged or fill material into non-tidal
waters of the United States, such as NWP 21 (surface coal mining
activities), NWP 29 (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 50 (underground coal mining
activities), NWP 51 (land-based renewable energy generation
facilities), and NWP 52 (water-based renewable energy generation pilot
projects). The 1/3-acre limit for losses of tidal waters for NWP 14 was
adopted in 1991 (see 56 FR 59142), and the 1/3-acre limit applied to
losses of tidal waters and non-tidal waters. When the Corps issued 5
new NWPs and modified 6 existing NWPs to replace NWP 26 in 2000 (see 65
FR 12818), it modified NWP 14 by increasing the acreage limit for
losses of non-tidal waters for public linear transportation projects to
1/2-acre. The 1/2-acre and 1/3-acre limits, plus the PCN requirements
for this NWP, are sufficient to ensure that activities authorized by
this NWP result in no more than minimal individual and cumulative
adverse environmental effects. In addition, division engineers can add
regional conditions to this NWP to lower the acreage limits in a
particular geographic area to ensure compliance with the ``no more than
minimal adverse environmental effects'' requirement for the NWPs.
The use of the phrase ``to the minimum necessary'' for stream
channel modifications for linear transportation projects requires
project proponents to minimize their stream channel modifications while
providing flexibility to allow district engineers and project
proponents to take into account for project-specific circumstances as
well as design and construction constraints that may be imposed by
site-specific conditions, including stream channel geomorphology, the
topography of the surrounding area, and the purpose of the linear
transportation project. Any loss of stream bed due to filling or
excavation is also subject to the 1/2-acre and 1/3-acre limits of this
NWP, so the Corps does not believe it is necessary to add a 300 linear
foot limit for stream channel modifications. The Corps also declines to
impose an overall linear foot limit to linear transportation projects
since there can be substantial distances between crossings of waters of
the United States, and those crossings may involve different
waterbodies and watersheds. The Corps has retained Note 1 in this NWP,
which references 33 CFR 330.6(d). Section 330.6(d) addresses how NWPs
may or may not be combined with individual permits for activities that
require DA authorization.
One commenter said that for a linear transportation project with
multiple crossings of waters of the United States, the overall linear
transportation project should be considered as the single and complete
project, not the individual crossings of jurisdictional waters and
wetlands. One commenter stated that allowing up to 1/2-acre of losses
of waters of the United States for each single and complete project
could result in extensive cumulative impacts and recommended that the
Corps impose a single, overall limit to the entire linear
transportation project. One commenter stated that linear transportation
projects may cause cumulative impacts not captured in the NWP
cumulative impact analysis because some activities are authorized by
NWP 14 without a requirement to submit PCNs. One commenter said that
allowing the expansion, modification, or improvement of previously
authorized projects for linear transportation projects could result in
cumulative impacts above the acreage limits and therefore these
activities should only be authorized when losses of waters of the
United States for the previously authorized projects plus the losses of
waters of the United States for the proposed expansion, modification,
or improvement project do not exceed the 1/2-acre or 1/3-acre limits.
One commenter said that all crossings of waters of the United States in
a major watershed should be evaluated together as a single and complete
project because the cumulative impacts are to one system, or
alternatively that all activities authorized by this NWP should require
PCNs to allow for the evaluation of cumulative impacts.
The practice for providing NWP authorization for single and
complete linear project, where each separate and distant crossing of
waters of the United States may qualify for its own NWP authorization,
is consistent with the Corps' NWP regulations at 33 CFR 330.2(i), which
were published in the November 22, 1991, issue of the Federal Register
(56 FR 59110)). District engineers will evaluate the separate and
distant crossings of waters of the United States that require PCNs for
linear transportation projects, as well as the additional information
provided in the PCNs for crossings of waters of the United States
authorized by NWP that do not require PCNs. Paragraph (b)(4)(i) of
general condition 32 requires the prospective permittee to identify in
the PCN 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. In addition, paragraph
(b)(4)(ii) requires the prospective permittee 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 an NWP but do not
require PCNs). Because of the requirements of paragraph (b)(4) of
general condition 32, it is not necessary to require PCNs for all
activities authorized by NWP for linear transportation projects.
The district engineer will use the information in the PCN to
evaluate the individual and cumulative adverse environmental effects of
the proposed linear transportation project that are authorized by NWP.
The district engineer determines the appropriate
[[Page 73538]]
geographic scale for evaluating cumulative impacts. The cumulative
effects may be evaluated on a watershed-basis, or by using other types
of geographic regions, such as a Corps district, state, county, or
other geographic area deemed appropriate by the district engineer.
Cumulative effects accrue from multiple uses of an NWP in a geographic
area. Separate and distant crossings of waters of the United States for
a linear transportation project may occur in different waterbodies
within a single watershed, or various waterbodies in more than one
watershed, depending on the length of the linear transportation
project, the distribution of waterbodies in a watershed, and the size
of the watershed(s). Separate and distant crossings authorized by NWP
may also occur in a single waterbody (e.g., a meandering stream), as
long as there is sufficient distance between crossings of waters of the
United States.
When evaluating PCNs for proposed NWP 14 activities, district
engineers may also consider previously authorized losses of the United
States for linear transportation projects when a project proponent
wants to expand, modify, or improve a previously authorized linear
transportation project. Since the NWPs can be issued for a period of no
more than five years, the cumulative effects caused by an NWP are
limited to the number of times that NWP is used during the five year
period it is in effect (see 40 CFR 230.7(b)(3)). Therefore, if the
proposed expansion, modification, or improvement is for a linear
transportation project that was authorized in the current five-year
cycle for the NWP, the district engineer should take the previously
authorized losses of waters of the United States into account when
determining if the proposed changes to the linear transportation
project will result in no more than minimal individual and cumulative
adverse environmental effects and qualify for NWP 14 authorization. On
the other hand, if the proposed expansion, modification, or improvement
is for a linear transportation project that was authorized by a
previous version of NWP 14 that has expired, the district engineer does
not need to take the previously authorized losses of waters of the
United States into account, because the previously authorized
activities have become part of the current environmental baseline for
evaluating the individual and cumulative adverse environmental effects
of the NWP currently in effect.
One commenter requested clarification regarding whether the PCN
requirement for losses of greater than 1/10-acre of waters of the
United States applies to the overall linear project or each single and
complete project. One commenter stated that agency coordination should
be required for proposed activities in special aquatic sites or that
would result in the loss of greater than 1/10-acre of waters of the
United States. One commenter said that agency coordination should be
required for stream losses of stream bed greater than 300 linear feet.
The PCN thresholds for this NWP apply to each single and complete
project authorized by NWP. However, if the linear transportation
project involves multiple separate and distant crossings of waters of
the United States, and some of those crossings do not require pre-
construction notification, paragraph (b)(4) of general condition 32
requires the project proponent to identify the crossings authorized by
NWP that do not require PCNs, as well as quantity of anticipated losses
of waters of the United States expected to be caused by those non-PCN
NWP activities. The Corps does not agree that agency coordination is
necessary to provide the district engineer with information to assist
in his or her determination whether the proposed activity qualifies for
NWP authorization. District engineers will determine whether proposed
NWP 14 activities qualify for NWP authorization after reviewing the
information in PCNs.
One commenter stated that all linear transportation projects
previously authorized by NWP 14 should require PCNs if the project
proponent wants to use NWP 3 to authorize maintenance activities for
the previously authorized NWP activities. One commenter said there
should be more consistency between NWPs 12 and 14 in terms of acreage
limits, PCN thresholds, and allowing the use of temporary mats, because
both NWPs authorize single and complete linear projects with separate
and distant crossings of waters of the United States that do not have
independent utility.
This NWP can be used to authorize the maintenance of linear
transportation projects, including the replacement of structures and
fills for linear transportation projects that may not qualify NWP 3
authorization. Those replacement activities may not qualify for NWP 3
authorization because the current linear transportation project is not
currently serviceable, or because the project proponent wants to change
the design and/or size of the linear transportation project to
accommodate changes in water flow, improve connectivity for the
movement of aquatic organisms upstream and downstream of the road
crossing, or for other reasons. Changing the size and/or configuration
of the structures and fills for a linear transportation project may be
comprised of more than a minor deviation, which may preclude the use of
NWP 3 for the replacement activity. For example, replacing an
undersized or perched culvert with a larger culvert structure that
improves the passage of aquatic organisms and connectivity may be
considered an improvement of a linear transportation project. NWP 3 may
be more appropriate for certain repair, rehabilitation, or replacement
activities for linear transportation projects, as well as the removal
of accumulated sediment within and near water crossings. The NWP
program provides flexibility to permittees to determine which
applicable NWP to use to provide the required DA authorization under
Section 404 of the Clean Water Act and/or Section 10 of the Rivers and
Harbors Act of 1899.
The acreage limits for NWPs 12 and 14 have some similarities, with
a 1/2-acre limit for losses of non-tidal waters of the United States.
The 1/2-acre limit for NWP 12 also applies to tidal waters, while NWP
14 has a 1/3-acre limit for losses of tidal waters. Nationwide permits
12 and 14 have somewhat different PCN thresholds because of differences
between oil or natural gas pipeline activities and linear
transportation projects. Both NWPs have a PCN threshold for losses of
greater than 1/10-acre of waters of the United States. Both NWP 12 and
14 have provisions authorizing the use of temporary mats, when the use
of those mats requires DA authorization.
This NWP is reissued as proposed.
NWP 15. U.S. Coast Guard Approved Bridges. The Corps did not
propose any changes to this NWP. No comments were received in response
to the proposed reissuance of this NWP. This NWP is reissued as
proposed.
NWP 16. Return Water From Upland Contained Disposal Areas. The
Corps did not propose any changes to this NWP. One commenter stated
that the NWP should require the applicant to ensure toxic substances
are not released back into the water column through re-exposure from
dredging activities. One commenter said that the applicant should
properly characterize the quality and quantity of return water to
ensure state water quality standards are not violated.
This NWP authorizes only the return water from upland contained
disposal areas for dredged material, which is defined as a ``discharge
of dredged material'' under 33 CFR 323.2(d)(1)(ii).
[[Page 73539]]
This NWP does not authorize the dredging activity itself. Discharges
into waters of the United States require water quality certification
from the appropriate certifying authority unless a waiver of the water
quality certification requirement occurs. The certifying authority will
determine whether a discharge into waters of the United States will
comply with applicable water quality requirements.
This NWP is reissued as proposed.
NWP 17. Hydropower Projects. The Corps proposed to modify this NWP
to authorize discharges of dredged or fill material into waters of the
United States associated with hydropower projects with a generating
capacity of less than 10,000 kilowatts (kW), to be consistent with the
current definition of ``small hydroelectric power project.''
Several commenters stated they support the changing the threshold
for ``small hydroelectric projects'' to 10,000 kW or less. Many
commenters objected to the proposed reissuance of this NWP, stating
that hydropower projects typically result in significant adverse
effects and should not be authorized by an NWP. Several commenters
stated that they do not support increasing the threshold for
hydroelectric projects under criterion (a) of this NWP to 10,000 kW.
One commenter said the Corps is not obligated to modify the NWP to be
consistent with the Federal Energy Regulatory Commission's (FERC)
definition of ``small hydroelectric project'' and stated that the Corps
should not increase the threshold for total generating capacity to
10,000 kW.
This NWP is limited to the authorization of discharges of dredged
or fill material into waters of the United States associated with the
construction of hydropower facilities that satisfy criteria (a) or (b)
in the first paragraph of the NWP. The FERC licenses the construction
and operation of hydropower facilities, and is the lead for conducting
the environmental review for these hydropower projects. Permit
requirements for structures and work in navigable waters of the United
States for non-federal hydropower development are met through the
FERC's licensing process under the Federal Power Act of 1920, as
amended. Therefore, separate authorization from the Corps under Section
10 of the Rivers and Harbors Act of 1899 is not required for structures
and work in navigable waters of the United States.
Because criterion (a) of this NWP applies only to existing
reservoirs, the NWP is limited to authorizing discharges of dredged or
fill material into waters of the United States to install the
hydropower generation unit with a total generating capacity of up to
10,000 kW in the existing reservoir. The modification of this NWP is
intended to provide consistency with FERC's definition of ``small
hydroelectric project'' and reduce duplication of agency reviews for
these projects. In addition, hydropower is a renewable energy source
and increasing the threshold for small hydroelectric projects from
5,000 kW to 10,000 kW will provide NWP authorization for activities
that can help provide more electricity to a community or region, and
may help decrease reliance on energy generation facilities that rely on
the combustion of fossil fuels to produce electricity. Therefore,
increasing the energy generation capacity of hydroelectric facilities
can help reduce emissions of greenhouse gases that contribute to global
climate change.
One commenter stated that activities authorized under criterion (b)
of this NWP would exceed the development at existing dams and related
infrastructure and would result in adverse effects. One commenter said
that in certain circumstances, hydropower projects are exempt from FERC
licensing and subsequently do not require authorization under Section
404 of the Clean Water Act or water quality certification from the
applicable certifying authority. One commenter said that the Corps
failed to provide sufficient explanation as to how the proposed change
would continue to authorize activities that have no more than minimal
individual and cumulative adverse environmental effects. A few
commenters said that the text of the NWP should be revised to protect
tribal and village fisheries. One commenter stated that the NWP should
be revised to clarify that the NWP does not authorize the construction
of new dams.
This NWP was issued in 1982 to reduce duplication between the
reviews conducted by FERC and the Corps for small hydropower projects
(see 47 FR 31798). For hydropower projects, the Corps' regulatory
authority is limited to discharges of dredged or fill material into
waters of the United States under Section 404 of the Clean Water Act.
The FERC conducts a review when it grants a licensing exemption under
the statutes identified in criterion (b) of this NWP (i.e., Section 406
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and
Section 30 of the Federal Power Act, as amended (16 U.S.C. 823)). The
NWP authorization covers the discharges of dredged or fill material
into waters of the United States may be necessary to construct the
hydropower project. This NWP requires pre-construction notification for
all authorized activities, and district engineers will review each
proposed NWP 17 activity to determine if the proposed discharge of
dredged or fill material into waters of the United States will result
in no more than minimal individual and cumulative adverse environmental
effects. If the district engineer determines a proposed discharge of
dredged or fill material into waters of the United States will result
in more than minimal adverse environmental effects after considering
mitigation proposed by the applicant, he or she will exercise
discretionary authority and require an individual permit for the
proposed activity. During the review of the PCN, the district engineer
will also assess compliance with general condition 17, tribal rights.
This NWP does not authorize the construction of new dams for hydropower
projects. The FERC may issue an exemption at an existing dam or
project, or within an existing conduit that was constructed for
purposes other than power production.
This NWP is reissued as proposed.
NWP 18. Minor Discharges. The Corps did not propose any changes to
this NWP. One commenter expressed support for the reissuance of this
NWP with no changes. One commenter said that the limits of this NWP
should be increased to 50 cubic yards to match the proposed increase in
the cubic yard limit for minor dredging activities authorized by NWP
19. One commenter stated that this NWP should require PCNs for all
proposed activities, so that the district engineer can evaluate
potential impacts from sediment and other pollutants.
The Corps is retaining the 25-cubic-yard limit for this NWP.
Activities authorized by NWP 18 may convert wetlands and other waters
to uplands. The Corps is also retaining the 25-cubic-yard limit for NWP
19 as discussed below so NWPs 18 and 19 will remain consistent.
The Corps disagrees that PCNs should be required for all activities
authorized by this NWP. This NWP requires PCNs for discharges of
dredged or fill material into special aquatic sites and discharges of
dredged or fill material into waters of the United States greater than
10 cubic yards below the plane of the ordinary high water mark or the
high tide line, and those PCN thresholds are sufficient to help ensure
that activities authorized by this NWP result in no more than minimal
adverse environmental effects. Division engineers can add regional
conditions to this NWP to require PCNs for additional activities
authorized by
[[Page 73540]]
this NWP, if such regional conditions are necessary to provide district
engineer review for proposed activities that may result in more than
minimal individual and cumulative adverse environmental effects. The
Corps does not have the authority to regulate pollutants other than
discharges of dredged or fill material. Discharges of dredged or fill
material into waters of the United States authorized by this NWP
require water quality certification or waivers to comply with Section
401 of the Clean Water Act. Certifying authorities may issue, deny, or
waive water quality certification for discharges authorized by this
NWP. When certifying pursuant to section 401, certifying authorities
may include conditions to ensure that authorized discharges comply with
applicable water quality requirements.
This NWP is reissued as proposed.
NWP 19. Minor Dredging. The Corps proposed to modify this NWP by
changing the cubic yard limit from 25 cubic yards to 50 cubic yards.
Several commenters expressed opposition to increasing the cubic yard
limit for this NWP from 25 cubic yards to 50 cubic yards. Several
commenters voiced their support for the proposed change. One commenter
recommended increasing the cubic yard limit to 100 cubic yards. A
couple of commenters said that the Corps did not provide sufficient
explanation as to why increasing the cubic yard limit to 50 cubic yards
would ensure that the activities authorized by this NWP will result in
no more than minimal adverse environmental effects.
After considering the comments received in response to the 2020
Proposal, the Corps is retaining the 25 cubic yard limit for this NWP.
Where the 25-cubic-yard limit would be exceeded, those activities may
be authorized under regional general permits or individual permits,
including under letters of permission where those tools are available.
In geographic areas where minor dredging activities removing up to 25
cubic yards have the potential to result in more than minimal
individual and cumulative adverse environmental effects, division
engineers can impose regional conditions to reduce the cubic yard limit
from 25 yards to a smaller number of cubic yards. Division engineers
can also add regional conditions to this NWP to require PCNs for some
or all NWP 19 activities to provide district engineers the opportunity
to review these minor dredging activities on a case-by-case basis and
determine whether they qualify for NWP authorization.
One commenter said that applicants should be required to ensure
that toxic substances are not released back into the water column
through re-exposure from the dredging activity. One commenter objected
to the proposed reissuance of this NWP, stating that the authorized
dredging activities will have adverse effects on shellfish beds,
infaunal invertebrates, and macroalgal beds, as well as biogenic
structures such as shell rubble and large woody debris that provide
ecologically valuable habitat, forage areas, or refuge areas for fish,
shellfish, or shorebirds.
Minor dredging activities authorized by this NWP may require water
quality certification under Section 401 of the Clean Water Act. For a
proposed minor dredging activity that may result in a discharge into
waters of the United States, the certifying authority may issue, waive,
or deny water quality certification. The certifying authority may add
conditions to the water quality certification to ensure that the
discharge complies with applicable water quality requirements. This NWP
does not authorize the dredging or degradation through siltation of
coral reefs, sites that support submerged aquatic vegetation,
anadromous fish spawning areas, or wetlands. Bivalve molluscs
inhabiting shellfish beds may be harvested through dredging activities
authorized by other NWPs, such as NWP 4 for fish and wildlife
harvesting, enhancement, and attraction devices and activities, or NWP
48 for commercial shellfish mariculture activities. Infaunal
invertebrates, beds of macroalgae, and shell rubble areas may be
impacted by activities authorized by this NWP, but those impacts are
likely to be no more than minimal in the highly dynamic marine and
estuarine environments in which those organisms and features are
located, where they are subjected to a variety of natural and
anthropogenic disturbances, such as disturbances caused by storms,
vessels, anchors, and fishing activities. The removal of large woody
debris from waterbodies is usually accomplished through snagging rather
than dredging.
One commenter said that federal and state natural resource agency
coordination should be required for proposed activities that occur in
non-tidal waters inhabited by state and/or federally listed threatened
and endangered freshwater mussels. A commenter stated that project
proponents could piecemeal a number of smaller dredging projects under
this NWP to dredge a larger overall area and such activities may
negatively affect fish spawning habitat and water quality. One
commenter said that this NWP should require the use of silt fences,
booms, and bubblers to protect fish, and other natural resources.
Paragraph (c) of general condition 18 requires non-federal
permittees to 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 proposed
activity, or if the proposed activity is located in designated critical
habitat or critical habitat proposed for such designation. The district
engineer will review the proposed activity and if he or she determines
that it may affect federally-listed mussel species or other federally-
listed endangered or threatened species, the district engineer will
initiate ESA Section 7 consultation with the U.S. FWS and/or NMFS as
appropriate. Potential impacts to state-listed mussel species are more
appropriately addressed through the permittee's compliance with
applicable state natural resource or wildlife laws and regulations.
General condition 15 states that the same NWP cannot be used more
than once to authorize the same single and complete project. Therefore,
this NWP cannot be used multiple times to dredge larger volumes of
material from a specific waterbody as part of a larger overall dredging
project. The applicant should apply for an individual permit to obtain
DA authorization for the larger dredging project unless a different
general permit is available to authorize that project. Activities
authorized by this NWP can occur in a wide variety of waters, including
ocean waters, estuaries, and rivers, and the use of silt fences, booms,
and bubblers may be appropriate for some minor dredging activities but
not for other minor dredging activities. Therefore, the Corps declines
to modify this NWP at a national level to require these mitigation
measures for all activities authorized by this NWP.
This NWP is reissued without proposed modification.
NWP 20. Response Operations for Oil or Hazardous Substances. The
Corps did not propose any changes to this NWP. One commenter expressed
support for the reissuance of this NWP with no changes.
This NWP is reissued as proposed.
NWP 22. Removal of Vessels. The Corps did not propose any changes
to this NWP. One commenter recommended changing the text of this NWP to
state that land-based alternatives should be considered first for
vessel disposal. This commenter also said that intentional ocean
disposal of
[[Page 73541]]
vessels at sea requires a permit from EPA issued under the Marine,
Protection, Research and Sanctuaries Act, and should only be pursued
when land-based alternatives are not available.
This NWP authorizes temporary structures in navigable waters of the
United States or minor discharges of dredged or fill material into
waters of the United States required for the removal of wrecked,
abandoned, or disabled vessels, or the removal of man-made obstructions
to navigation. The consideration of off-site alternatives is not
required for activities authorized by NWPs (see 40 CFR 230.7(b)(1)). If
a project proponent intends to dispose of the vessel in ocean waters
then a separate authorization from EPA may be required under the
Marine, Protection, Research and Sanctuaries Act. Note 1 has been
revised to clarify EPA requirements for intentional ocean disposal of
vessels under the Marine, Protection, Research and Sanctuaries Act. The
project proponent has an independent responsibility to apply to EPA for
that authorization.
This NWP is reissued as proposed.
NWP 23. Approved Categorical Exclusions. The Corps did not propose
any changes to this NWP. Several commenters requested that the Corps
update Regulatory Guidance Letter 05-07 to include all current Federal
Transit Administration, Federal Rail Administration, and Federal
Highway Administration categorical exclusions so that NWP 23 can be
used to authorize regulated activities covered by those categorical
exclusions. One commenter stated that this NWP violates the public
participation requirements of Section 404(e) of the Clean Water Act
because it does not explain how the Chief of Engineers will solicit
public comment on categorical exclusions proposed to be added for
authorization by this NWP. This commenter also objected to the proposed
reissuance of this NWP, stating that it does not authorize categories
of activities that are similar in nature, and does not identify which
categories of activities are authorized by the NWP. In addition, this
commenter said that this NWP authorizes activities that result in more
than minimal adverse environmental effects.
As stated in the Note in this NWP, federal agencies may submit
requests to Corps Headquarters to seek approval for their categorical
exclusions to be authorized by this NWP. The Note also states that,
upon receipt of a request from a federal agency to add, modify, or
remove categorical exclusions for authorization under this NWP, Corps
Headquarters will solicit public comment on the request, and determine
which categorical exclusions involving discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States will be authorized by the NWP.
This NWP provides two opportunities for public participation in the
identification of categories of activities authorized by this NWP: (1)
The public notice and comment process associated with the proposal to
reissue this NWP, and (2) the public notice and comment process
associated with the review and approval for specific categorical
exclusions to be authorized by this NWP through the issuance of a
Regulatory Guidance Letter issued by Corps Headquarters.
This NWP authorizes categories of activities that are similar in
nature-- that is activities regulated by the Corps that are undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another federal agency or department--where those activities
are determined by the federal agency or department to be categorically
excluded from the requirement to prepare an environmental impact
statement or environmental assessment. The categorical exclusions
approved for use with this NWP are identified in a Regulatory Guidance
Letter issued by the Corps after a public notice and comment process.
Some of these approved categorical exclusions require submittal of PCNs
to Corps districts before commencing the authorized activities, so that
district engineers can review those activities on a case-by-case basis
to ensure that the authorized activities result in no more than minimal
individual and cumulative adverse environmental effects. The activities
associated with approved categorical exclusions that do not require
PCNs were determined by the Corps to result in no more than minimal
individual and cumulative adverse environmental effects when the Corps
approved those categorical exclusions for use with NWP 23. For those
approved categorical exclusions that do not require PCNs, district
engineers retain the ability to exercise discretionary authority on a
case-by-case basis to modify, suspend, or revoke the NWP authorization
if they determine those activities will result in more than minimal
adverse environmental effects.
This NWP is reissued as proposed.
NWP 24. Indian Tribe or State Administered Section 404 Programs.
The Corps did not propose any changes to this NWP. No comments were
received on the proposed reissuance of this NWP. After the comment
period for the 2020 Proposal ended on November 16, 2020, the State of
Florida was granted approval by the U.S. Environmental Protection
Agency to assume the Clean Water Act Section 404 permit program in
Florida. Therefore, the Corps has modified Note 1 of this NWP to
include Florida in the list of states with approved Clean Water Act
Section 404 permit programs. This NWP is reissued with the modification
discussed above.
NWP 25. Structural Discharges. The Corps did not propose any
changes to this NWP. One commenter objected to the proposed reissuance
of this NWP, stating that it contains no limits or other constraints to
ensure that it authorizes only activities that have no more than
minimal individual and cumulative adverse environmental effects.
This NWP does not have any quantitative limits because it
authorizes discharges of dredged or fill material into tightly sealed
forms that are used to construct structural components for pile
supported structures such as bridges or for mooring cells for general
navigation. The losses of waters of the United States authorized by
this NWP are limited by the dimensions of the piles, mooring cells, or
other structures for general navigation. The dimensions of these
tightly sealed forms for supported structures or structures for general
navigation will be determined by engineering standards for safe and
functional structures, as well as the purpose of the proposed supported
structure or navigational structure. These limited size of these
structures help ensure that the authorized discharges of dredged or
fill material into waters of the United States result in no more than
minimal individual and cumulative adverse environmental effects.
In addition, as stated in the text of the NWP, structures in
navigable waters of the United States subject to Section 10 of the
Rivers and Harbors Act of 1899 require separate authorization because
this NWP authorizes only discharges of dredged or fill material into
waters of the United States. The section 10 permit process would
address the potential impacts of the structure, including the size of
the proposed structure, on navigation, the aquatic environment, and the
Corps' other public interest review factors.
This NWP is reissued as proposed.
NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. The Corps proposed to modify this NWP by changing the
second sentence of the second paragraph of this NWP to state that an
[[Page 73542]]
ecological reference may be based on the characteristics of one or more
intact aquatic habitats or riparian areas. The Corps also proposed to
modify this NWP by adding coral restoration or relocation activities to
the list of examples of activities authorized by this NWP and stating
that PCNs are not required for permittees that propose to conduct coral
restoration or relocation activities in accordance with a binding
agreement with the NMFS or any of its designated state cooperating
agencies. In addition, the Corps proposed to add ``releasing sediment
from reservoirs to restore downstream habitat'' to the list of examples
of aquatic restoration or enhancement activities that may be authorized
by this NWP.
One commenter expressed support for the reissuance of this NWP
because it allows for expedited permitting for much needed aquatic
habitat restoration and enhancement projects, especially in coastal
areas. One commenter stated that broad application of this NWP supports
proactive state planning efforts on resiliency and flooding master
plans. One commenter recommended revising the text of this NWP to make
it clear that it provides approval for restoration projects,
particularly those activities that will provide documented net
ecological uplifts and have already undergone federal and/or state
review through integrated and advance planning activities. One
commenter also suggested modifying this NWP to authorize the removal of
low-head dams and culverts for stream mitigation credits.
The Corps acknowledges that this NWP provides an expedited
authorization process for aquatic habitat restoration, enhancement, and
establishment activities that result in net increases in aquatic
resource functions and services and have no more than minimal
individual and cumulative adverse environmental effects. The aquatic
resource restoration, enhancement, and establishment activities
authorized by this NWP can be located in coastal areas. The aquatic
habitat restoration, enhancement, and establishment activities
authorized by this NWP can also provide water retention and storage
functions that contribute to ecological services such as natural hazard
mitigation, including water storage to reduce flood hazards. The
activities authorized by this NWP may have also been reviewed by state
agencies and other federal agencies, but review by these agencies is
not required before the Corps authorizes these activities under Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
of 1899. The removal of low-head dams to produce stream mitigation
credits may be authorized by NWP 53. In the third paragraph of NWP 27,
the removal of stream barriers (such as undersized culverts, fords, and
grade control structures) is included in the list of examples of
activities authorized by this NWP. The removal of undersized or perched
culverts may be authorized by this NWP and successful completion of
those activities may generate stream compensatory mitigation credits.
A few commenters expressed support for allowing the use of more
than one ecological reference site. One commenter said that this NWP
should be modified to address inconsistences in triggering mitigation
requirements. One commenter said that the word ``delineation'' be
replaced with ``description'' in the text of this NWP. Commenter stated
preparing an aquatic resources delineation per the Corps' delineation
standards and guidelines is a costly and time-consuming component of
project planning and does not seem to provide any additional protection
to waters and wetlands.
The Corps has adopted the proposed change regarding the use of one
or more intact aquatic habitats or riparian areas as an ecological
reference site. The sixth paragraph of this NWP states that
compensatory mitigation is not required for activities authorized by
this NWP because the authorized activities must result in net increases
in aquatic resource functions and services. Therefore, there should be
no compensatory mitigation requirements for aquatic habitat
restoration, enhancement, or establishment activities authorized by
this NWP.
The reports required for NWP 27 activities that do not require PCNs
must include a delineation of wetlands, streams, and/or other aquatic
habitats on the project site. Delineation is necessary to provide
district engineers with a sufficient description of the baseline
ecological conditions for that site to assist the Corps in determining
whether the reported activity is likely to result in net increases in
aquatic resource functions and services. A description of aquatic
resources on the project site is not sufficient to help district
engineers determine whether a proposed activity will satisfy the
requirements of this NWP. The project plans for the proposed aquatic
habitat restoration, enhancement, or establishment activity, plus the
delineation of aquatic resources on the project site, are necessary for
making certain determinations. Those determinations are whether net
gains in aquatic resource functions and services are likely to occur as
a result of the discharges of dredged or fill material into waters of
the United States and/or structures or work in navigable waters of the
United States, and whether any potential changes to existing aquatic
resources on the project site will help ensure that such net gains will
occur.
One commenter said that this NWP should be changed to clarify that
it authorizes actions by a third-party ecological restoration provider
in connection with a compensatory mitigation project, a restoration
project, or a resiliency-focused project that generates net ecological
uplift. One commenter stated that this NWP should be modified to allow
waters and wetland conversions to natural conditions for a different
aquatic habitat type if the proposed activity as a whole will result in
a net increase in aquatic resource functions and services.
As stated in the ``Note'' in this NWP, this NWP authorizes aquatic
habitat restoration, enhancement, and establishment activities that are
conducted by third-party ecological restoration providers for the
purposes of compensatory mitigation for NWPs and other forms of DA
authorization, such as individual permits and regional general permits.
This NWP can also be used to authorize aquatic habitat restoration
projects that are conducted for the purpose of increasing the functions
and services provided by degraded aquatic habitat, but are not being
conducted for providing compensatory mitigation for NWPs or other types
of DA permits. Resiliency projects may be authorized by this NWP as
long as they are aquatic habitat restoration, enhancement, or
establishment projects, result in net gains in aquatic resource
functions and services and resemble ecological references. Some
resiliency projects, such as nature-based solutions that are modified
ecosystems designed and constructed to provide ecosystem functions and
services (National Academy of Sciences 2019), might not resemble
ecological references because they consist of combinations of natural
and engineered components. Living shorelines are an example of
resiliency projects in coastal areas that do not resemble ecological
references because they may include engineered structures such as sills
or breakwaters. Living shorelines can be authorized by NWP 54. Green
infrastructure projects constructed to manage stormwater, such as rain
gardens or constructed wetlands, might not resemble ecological
references and may be authorized by NWP 43 or other NWPs, or by
individual permits.
The Corps is retaining the current prohibitions on conversions of
streams or natural wetlands to other aquatic
[[Page 73543]]
habitat types because those conversions typically focus on increasing a
specific aquatic resource function or service while resulting in net
losses in most of the other ecological functions and services performed
by the impacted aquatic habitat type. These converted aquatic habitats
may also result in hybrid aquatic habitats that do not resemble
ecological references. This NWP also retains the prohibitions on the
conversion of tidal waters and tidal wetlands to other aquatic uses, to
ensure that activities authorized by NWP 27 result in no more than
minimal individual and cumulative adverse environmental effects.
Conversions of natural wetlands, streams, and other types of waters to
different aquatic habitat types result in artificial conditions, not
natural conditions, and project proponents can seek DA authorization
for these activities through other means, such as the individual permit
process, other NWPs, or if available, regional general permits.
One commenter said that the Corps should issue a separate NWP for
voluntary wetland restoration projects to distinguish those projects
from development projects. One commenter stated that the text of this
NWP should include a definition for voluntary wetland restoration
projects that includes restoration projects that occur in altered,
degraded, and former wetlands. A commenter said that a new federal
process should be established for permitting voluntary wetland
restoration projects. One commenter said that to ensure that voluntary
wetland restoration projects result in net increases of wetland
functions and services, those projects should be prohibited as serving
to fulfilling mitigation requirements. One commenter stated that this
NWP should clarify that it authorizes permittee-responsible mitigation
activities.
This NWP authorizes both voluntary wetland restoration projects and
wetland restoration projects that are required by regulatory agencies
or other agencies. This NWP does not authorize development activities.
Other NWPs, such as NWP 29 (residential developments) and NWP 39
(commercial and institutional developments), may be used to authorize
development activities. The Corps declines to add a definition of
``voluntary wetland restoration project,'' because this NWP does not
distinguish between voluntary wetland restoration projects and wetland
restoration projects that may be conducted for other reasons, such as
wetland restoration requirements imposed by other federal, tribal,
state, or local government agencies. There is no need to establish a
new federal permitting process for voluntary wetland restoration
projects because the Corps currently authorizes wetland restoration
projects through its permitting authorities under Section 404 of the
Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.
While this NWP can be used to authorize discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States for wetland restoration projects,
those activities can also be authorized by individual permits and
regional general permits.
Voluntary wetland restoration projects are conducted by people or
organizations for the purpose of increasing wetland acreage and the
associated wetland functions and services, or the level of wetland
functions and services performed by areas of existing, degraded
wetlands. Wetland restoration for compensatory mitigation serves a
different purpose, which is to offset losses of wetland functions and
services caused by permitted activities. Third-party mitigation
providers (e.g., mitigation bank sponsors and in-lieu fee program
sponsors) may conduct wetland restoration projects to provide
compensatory mitigation for NWPs and other DA permits, or to fulfill
other federal, state, or local government mitigation requirements
without being driven to do so by regulatory requirements. Both
voluntary wetland restoration projects and wetland compensatory
mitigation projects are expected to result in net increases in wetland
functions and services, which is a basic requirement of this NWP. This
NWP can be used to authorize permittee-responsible mitigation projects,
including advance permittee-responsible mitigation projects where there
is no DA permit 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 for the advance permittee-responsible
mitigation project.
One commenter said that this NWP should be modified to explicitly
add the restoration of vegetated and unvegetated intertidal and
subtidal areas--including mudflats, sandflats, and submerged aquatic
vegetation--to the list of examples of activities authorized by this
NWP. Commenter said that the activities authorized by this NWP will
alter and destroy open water habitats in tidal estuaries and convert
them to types of habitat that were never historically present in those
waters. This commenter also stated that the activities authorized by
this NWP would make open water sites unusable by fishermen and species
that currently rely on those open water habitats. One commenter said
that the authorization of structures and fills by this NWP creates
overlap between NWP 27 and NWP 54 (living shorelines) and should be
revised. One commenter stated that the text of this NWP should be
clarified regarding the degradation of downstream waters.
As stated in the first paragraph of this NWP, it authorizes the
rehabilitation and enhancement of tidal streams, tidal wetlands, and
tidal open waters as long as those activities result in net increases
in aquatic resource functions and services. This includes vegetated and
unvegetated intertidal areas (e.g., mud flats and sand flats) and
vegetated and unvegetated subtidal areas (e.g., submerged aquatic
vegetation). Tidal open waters include mud flats and sand flats. Tidal
wetlands include submerged aquatic vegetation. The fifth paragraph of
this NWP states that it does not authorize activities that convert
tidal waters, including tidal wetlands, to other aquatic uses.
Therefore, this NWP cannot be used to authorize discharges of dredged
or fill material that convert tidal waters into uplands or non-tidal
aquatic habitats. In addition, because the text of this NWP states that
it authorizes the rehabilitation and enhancement of tidal open waters,
it limits the authorized activities to those that improve either the
suite of functions or a smaller number of functions performed by tidal
waters. It does not authorize activities that degrade or destroy tidal
waters, or render them unusable by fishermen. Aquatic habitat
restoration and enhancement activities may alter which species use the
restored or enhanced site, and which habitat functions support or deter
certain species.
Activities authorized by NWP 27 must result in an aquatic habitat
that resembles an ``ecological reference,'' consistent with the
definition of that term in section F of the NWPs. A living shoreline
usually consists of living components (e.g., marsh grasses, oysters)
and engineered components (e.g., sills or breakwaters constructed from
stone), and may not resemble an ecological reference. There is no
overlap between NWP 27 and NWP 54, although tidal wetlands restored or
enhanced as a result of the activities authorized by this NWP may help
reduce erosion as an ecological service.
Several commenters stated that NWP 27 has PCN thresholds that are
inconsistent with, and more stringent than, the PCN thresholds for
other NWPs, such as NWP 12 and the two
[[Page 73544]]
new NWPs 57 and 58 that were issued in the final rule published in the
January 13, 2021, issue of the Federal Register (86 FR 2744). Some of
these commenters suggested that this NWP should be modified to require
PCNs for proposed discharges of dredged or fill material into non-
wetland special aquatic sites or if the proposed activity results in
loss of greater than 1/10-acre of wetland. One commenter stated support
of the PCN notification exemption to continue to allow statewide
aquatic habitat restoration and enhancement activities to be conducted
in an efficient and timely manner. One commenter said that in order to
reduce unnecessary delays and expenses from the PCN process, this NWP
should be modified by removing the exception from the requirement to
submit PCNs for activities on non-federal public lands and private
lands conducted under agreements between the landowner and federal
agencies or their designated state cooperating agencies.
The PCN thresholds for this NWP are no more stringent that the PCN
thresholds for many other NWPs. All activities authorized by this NWP
require some form of advance notification to district engineers before
commencing authorized activities, to provide district engineers with
the opportunity to take action on those proposed activities that do not
comply with the requirements of the NWP, such as activities that are
not expected to result in net gains in aquatic resource functions and
services or activities that are not likely to resemble ecological
references. The advance notification takes the form of either: (1) Pre-
construction, or (2) reporting. The activities identified in the
``Notification'' paragraph require PCNs and reports are required for
the activities identified in the ``Reporting'' paragraph. Most of the
NWPs require PCNs for all authorized activities, or for a subset of
authorized activities.
The suggested PCN thresholds for discharges of dredged or fill
material into non-wetland special aquatic sites or for losses of
greater than 1/10-acre of wetland are not appropriate for an NWP that
authorizes discharges of dredged or fill material or structures or work
into all types of waters of the United States. Wetlands are a subset of
jurisdictional waters in which this NWP can be used to authorize
regulated activities associated with aquatic habitat restoration,
enhancement, and establishment. This NWP authorizes activities in tidal
and non-tidal wetlands, rivers and streams, lakes, estuaries, and ocean
waters. Some form of case-by-case review is needed for all authorized
activities to ensure their compliance with the NWP and that they will
result in no more than minimal individual and cumulative adverse
environmental effects.
This NWP does not have an acreage or other quantitative limits.
Instead of a quantitative limit, this NWP requires that aquatic habitat
restoration, enhancement, and establishment activities result in net
increases in aquatic resource functions and services and resemble
ecological references. Aquatic habitat restoration, enhancement, and
establishment activities can occur over large or small areas, and the
PCN and reporting requirements facilitate the expedited review process
for activities that provide benefits for the aquatic environment, as
well as ecological services for people. The reporting requirement was
established for certain NWP 27 activities on non-federal public lands
and private lands to reduce costs associated with preparing PCNs, while
providing district engineers with the opportunity to review proposed
activities that do not require PCNs. The reporting requirement provides
district engineers with the opportunity to take action if they
determine that a proposed activity does not qualify for NWP 27
authorization because it is not an aquatic habitat restoration,
enhancement, or establishment activity; it is not likely to result in
net gains in aquatic resource functions and services; or it does not
resemble an ecological reference.
Several commenters expressed support for adding coral restoration
activities to the list of examples of activities that may be authorized
by NWP 27. One commenter stated that authorizing coral restoration
activities under this NWP would streamline and simplify restoration
activities and reduce burdens on the local agencies.
The Corps has added coral restoration activities and coral
relocation activities to the list of examples of activities authorized
by this NWP when those activities require DA authorization under
Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of
the Clean Water Act.
Many commenters stated opposition to the proposed inclusion of
reservoir sediment releases as an example of an activity authorized by
NWP 27 while many commenters expressed support for the proposed
inclusion of that activity as an example of activities authorized by
this NWP. A few commenters stated that controlled sediment releases can
benefit downstream river and stream beds and embankments. One commenter
asserted that these activities should require individual permits. One
commenter suggested rewording the proposed modification to the
following: ``reservoir sediment management to provide continuity in
sediment transport through reservoirs.''
The Corps is adding ``releases of sediment from reservoirs to
maintain sediment transport continuity to restore downstream habitats''
to the list of examples of activities authorized by this NWP instead of
the proposed text of ``releasing sediment from reservoirs to restore
downstream habitat.'' These activities can be conducted in a manner
that improves the functions and services performed by downstream river
and stream habitats and results in no more than minimal individual and
cumulative adverse environmental effects. The revised text is intended
to emphasize the notion of rehabilitating downstream habitats and
improving the functions and services performed by those habitats by
maintaining continuity of sediment transport through reservoirs rather
than emphasizing reservoir management activities. Sediment releases
from reservoirs must have the purpose of maintaining sediment transport
through rivers that sustains or improves downstream habitat that is
adversely affected by the reservoir because that reservoir disrupts
normal sediment transport processes in the river. The Corps declines to
revise the text to refer to reservoir sediment management activities
because the modification of this NWP addresses only one approach to
reservoir sediment management.
The movement of sediment via flowing water through watersheds and
river and stream networks is a natural watershed process (Black 1997).
Reservoirs trap sediment and disrupt the continuity of sediment
transport though the river network in a watershed, which reduces the
amount of sediment transported downstream that helps maintain river
channel form as well as adjacent riparian areas and floodplains
(Kondolf et al. 2014). Periodic releases of sediment stored in
reservoirs can help maintain the continuity of sediment transport in
riverine systems and help sustain or enhance downstream riverine and
riparian habitats, including floodplains. In coastal areas, periodic
releases of sediment from reservoirs can provide sediment that helps
sustain coastal wetlands and unvegetated coastal habitats (Kondolf et
al. 2014). Those sediments can accrete in coastal wetlands and help
those wetlands adjust to sea level rise. The activities authorized by
this NWP require either PCNs or reports to district engineers, so
[[Page 73545]]
it is not necessary to add a PCN requirement specific to releases of
sediment from reservoirs to maintain sediment transport continuity in
riverine systems to restore or enhance downstream habitats. District
engineers will review these proposed activities through either PCNs or
reporting documentation submitted by project proponents to Corps
district offices.
Releases of sediment from reservoirs may or may not require DA
authorization, depending on how those sediment releases are conducted.
Guidance is provided in Regulatory Guidance Letter (RGL) 05-04:
``Guidance on the Discharge of Sediments From or Through a Dam and the
Breaching of Dams, for Purposes of Section 404 of the Clean Water Act
and Section 10 of the Rivers and Harbors Act of 1899.'' The RGL
explains the circumstances in which sediment releases from reservoir do
not require DA authorization, and how reservoir sediment releases can
be conducted without the need to obtain Clean Water Act Section 404
authorization from the Corps. In general, releases of sediments that
are incidental to normal reservoir operations--such as releases of
water through the dam to restore reservoir capacity during events like
spring run-off, flooding, or storms--are considered de minimis
discharges of dredged material. They do not require DA authorization
under section 404 so long as the sediment loads of waters released from
reservoirs are consistent with the sediment loads entering the
reservoir from the upstream waters. The modification of this NWP
clarifies that this NWP can be used to provide DA authorization under
Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act for sediment releases from reservoirs that require such
authorization, as long as those sediment releases rehabilitate
downstream habitats and result in net gains in aquatic resource
functions and services.
Several commenters stated that sediment releases from reservoirs
authorized by this NWP should have quantitative limits to ensure that
no more than minimal adverse impacts occur as a result of these
activities. One commenter said that the text of this NWP should clarify
that sediment releases from reservoirs must be linked to a clear
restoration action or plan and should not be authorized by this NWP
solely for the purpose of reservoir management or dam maintenance. Many
commenters stated that PCNs should be required for all sediment
releases authorized by this NWP. Several commenters objected to the
proposed modification, stating that sediment release activities under
NWP 27 should require PCNs when dam removal projects would result in
large amounts of sediments being released. One commenter said that a
PCN threshold should be added to this NWP to address discharges
associated with sediment releases and the frequency of those sediment
releases, to ensure that those activities result in no more than
minimal adverse environmental effects.
The Corps does not agree that there should be quantitative limits
for reservoir sediment releases authorized by this NWP because of the
variability in hydrology and sediment transport in rivers and streams
across the country and the variability in reservoir characteristics,
such as their dimensions, how they are operated, and the hydrologic and
sediment regimes of the watershed in which a reservoir is located. In
addition, the appropriate amount of sediment that may be released from
a reservoir to maintain continuity of sediment transport to restore
downstream habitats is affected by a number of factors, which makes it
infeasible to establish a national quantitative limit for these
activities. Such factors include water and sediment inputs to the
river, including upstream, lateral, and downstream inputs; valley
geometry, substrate, and vegetation; river geometry, including the
cross sectional geometry, planform, and gradient; and the disturbance
regime of the river (Wohl et al. 2015). These factors vary considerably
among rivers across the United States. Therefore, the appropriate
amount of sediment to be released from reservoirs, as well as the
timing of those releases, to provide sediment transport continuity and
rehabilitate downstream habitats needs to be determined on a case-by-
case basis.
Activities authorized by NWP 27, including wetland and stream
restoration and enhancement activities, do not require formal
restoration plans, although a project proponent may provide restoration
plans with the PCN or report if she or he believes that information
would help the district engineer determine whether the proposed
activity is authorized by this NWP. The Corps does not believe it is
necessary to require more information for proposed releases of sediment
from reservoirs than it requires for other aquatic habitat restoration,
enhancement, or establishment activities authorized by this NWP.
Wetland and stream restoration activities can involve substantial
amounts of earth moving and sediment releases, and the Corps believes
that proposed releases of sediment from reservoirs do not require a
higher information standard than wetland and stream restoration
activities. The sediment releases from reservoirs to rehabilitate
downstream habitats do not require a formal restoration plan, but the
reservoir operator may develop an operations plan that establishes
protocols for sediment releases that are intended to maintain sediment
transport continuity to restore downstream habitats. The project
proponent can provide a copy of that plan with the PCN or report.
To be authorized by this NWP, the sediment releases from reservoirs
must result in net gains in aquatic habitat functions and services.
This NWP does not authorize sediment releases that are conducted
primarily for the purpose of reservoir management or maintenance. The
primary purpose of the authorized activity must be to restore
downstream habitats. However, controlled releases of sediment from
reservoirs to maintain sediment transport continuity to restore or
enhance downstream habitats may have a secondary benefit of prolonging
the operational life of reservoirs and reducing the need to construct
additional reservoirs in a region (Kondolf et al. 2014). This NWP does
not authorize releases of large amounts of sediment from reservoirs
that would adversely affect downstream habitats and result in net
losses, rather than net gains, in aquatic resource functions and
services.
Several commenters said that the text of this NWP should clarify
whether the sediment releases from reservoirs are one-time activities
or they can be conducted on a recurring, routine basis. One commenter
said that PCNs for proposed sediment releases from reservoirs should
indicate whether the proposed release is part of a single event or
proposed as a routine management technique and should include a plan
describing the amount, frequency, timing, and duration of sediment to
be released. A few commenters support adding releases of sediment from
reservoirs into downstream habitats to the examples in NWP 27, but said
that sediment releases should have established criteria as determined
by state resource managers to maintain balanced sediment levels within
individual watersheds.
The timing and frequency of sediment releases from reservoirs to
restore downstream habitats are likely to differ because of the
variability in climate, watersheds, and rivers across the country, and
the variability in water and sediment regimes in rivers. Sediment
releases from reservoirs that trigger a
[[Page 73546]]
requirement for DA authorization under Section 404 of the Clean Water
Act and/or Section 10 of the Rivers and Harbors Act of 1899 may occur
during multiple times during the 5-year period this NWP is in effect.
This NWP includes a number of examples of authorized activities that
may occur more than once during the 5-year period the NWP is in effect,
such as the removal of accumulated sediments from waterbodies,
shellfish seeding activities, plowing or discing activities for seeding
and planting wetland species, and mechanized land clearing to remove
non-native invasive, exotic, or nuisance vegetation. If the project
proponent anticipates conducting multiple sediment releases during the
period this NWP authorization is in effect, in the PCN or report for
the proposed activity he or she should provide information on the
anticipated number of releases during that time. If the proposed
activity requires a PCN, the description of the proposed activity
required by paragraph (b)(4)(i) of general condition 32 should
including the number of anticipated sediment releases from the
reservoir and their timing. Sediment transport in rivers typically
occurs in a non-linear, episodic manner (Wohl et al. 2015), and
releasing sediments in smaller pulses may more closely mimic non-
linear, episodic natural sediment transport processes. This NWP does
not authorize large sediment releases that will cause losses of aquatic
resource functions and services.
The Corps does not agree that there should be coordination of
proposed activities between district engineers and state resource
managers. None of the other aquatic habitat restoration, enhancement,
and establishment activities authorized by this NWP require
coordination between district engineers and state resource managers.
Therefore, releases of sediment to restore or enhance downstream
habitat should not be subject to a coordination requirement between
district engineers and state resource managers. However, district
engineers have the discretion to coordinate proposed NWP 27 activities
requiring DA authorization with other federal, tribal, state, or local
resource agencies on a case-by-case basis, within the timeframes for
reviewing PCNs (generally 45 days) and reports (30 days), if they want
assistance with their evaluations of those PCNs and reports.
A few commenters stated that sediment releases authorized by this
NWP should be clearly linked to a restoration plan and not be solely
for the purpose of reservoir or dam maintenance. Several commenters
stated that PCNs for proposed sediment releases from reservoirs should
include study results that evaluated and addressed the volume of
sediment to be released, sediment size and distribution, reach
conditions, downstream habitat and aquatic species impacts, and the
time of year for releases. Another commenter stated that PCNs for
sediment release activities authorized by this NWP should include the
plan used for sediment releases and the benefits of each activity must
be clarified regarding the resulting changes on hydrology,
geomorphology, and habitat, as well as watershed stability.
Aquatic habitat restoration, enhancement, and establishment
activities authorized by NWP 27 do not require comprehensive
restoration plans. Releases of sediment from reservoirs to maintain
sediment transport continuity to restore downstream habitats that
require DA authorization will require either PCNs or reporting to
district engineers. The Corps does not agree that it is necessary to
establish information requirements for releases of sediment from
reservoirs that differ from the information requirements for the wide
variety of other aquatic habitat restoration, enhancement, or
establishment activities authorized by this NWP. The Corps is applying
the same PCN information requirements for proposed sediment releases
from reservoirs that it requires for all other aquatic habitat
restoration, enhancement, and establishment activities authorized by
this NWP. Those other aquatic habitat restoration, enhancement, and
establishment activities, including wetland and stream restoration
activities, can involve substantial amounts of discharges of dredged or
fill material into waters of the United States and other regulated
activities to restore, enhance, or establish aquatic habitats so that
they provide net increases in aquatic resource functions and services
after completion of the authorized activities.
For those activities that require PCNs, paragraph (b)(4)(i) of
general condition 32 requires the following: 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; and a
description of any proposed mitigation measures intended to reduce the
adverse environmental effects caused by the proposed activity. The
amount and type of information to be provided in the description of the
proposed activity in the PCN should be appropriate to the type of
aquatic habitat restoration, enhancement, or establishment activity the
project proponent wants to conduct under the NWP 27 authorization. For
example, for proposed sediment releases to restore downstream aquatic
habitats, in the description of the proposed activity the project
proponent should describe the amount, frequency, timing, and duration
of sediment to be released from the reservoir. A formal study is not
required for a complete PCN. The project description should be in
sufficient detail to provide the district engineer with enough
information to determine whether the proposed activity will result in a
net increase in aquatic resource functions and services.
For releases of sediment from reservoirs that may be authorized by
this NWP, the PCN should also describe any mitigation measures the
project proponent intends to implement to reduce adverse environmental
effects and ensure that the authorized activity results in net gains in
aquatic resource functions and services. Mitigation measures may
include releasing sediment in pulses during periods of sufficient water
flow so that the released sediments restore or enhance, rather than
degrade, downstream habitats. Releases of sediment from reservoirs to
maintain continuity of sediment transport and restore downstream
habitats can have a secondary benefit of helping maintain the water
storage capacity of reservoirs. However, if the PCN or report states
that primary purpose of the sediment releases are for reservoir
maintenance, then the district engineer should notify the project
proponent that the proposed activity is not authorized by NWP 27, and
that another type of DA authorization will be needed for the proposed
reservoir or dam maintenance activities.
The sediment releases from reservoirs authorized by this NWP are
not likely to result in substantial changes in hydrology,
geomorphology, aquatic habitat, or watershed stability because they are
intended to maintain continuity in sediment transport to restore or
enhance downstream habitats that have been adversely affected by the
disruption in sediment transport processes caused by the construction
of a reservoir. The activities authorized by this NWP must result in
net gains in aquatic resource functions and services. These activities
are likely to improve watershed functioning and the sustainability of
aquatic habitats within the watershed to some degree by maintaining the
continuity of sediment transport in rivers within the watershed.
One commenter stated additional clarification on the definition for
the
[[Page 73547]]
term ``release'' is needed to encourage natural sediment transport
downstream if that is the intent of the proposed change to this NWP.
One commenter expressed concern with authorizing sediment releases from
reservoirs under this NWP because of uncertainty of the objectives and
nature of potential sediment releases. One commenter said that
releasing sediment from reservoirs to restore downstream habitat is not
suitable for NWP authorization because while it can improve habitat, it
can also result in adverse effects on wetlands and riparian areas.
The term ``release'' applies to discharges of dredged or fill
material regulated under Section 404 of the Clean Water Act and
``work'' regulated under Section 10 of the Rivers and Harbors Act of
1899 because those are the types of activities authorized by this NWP
under the permitting authorities for NWP 27. There are circumstances
where releases of sediment from reservoirs do not require DA
authorization (see Regulatory Guidance Letter 05-04). The intent of
adding ``releases of sediment from reservoirs to maintain sediment
transport continuity to restore downstream habitats'' to the list of
examples of activities authorized by this NWP is to clarify that this
NWP can be used to authorize sediment releases from reservoirs that
require DA authorization as long as those activities result in net
gains in aquatic resource functions and services and have no more than
minimal adverse environmental effects. The third paragraph of this NWP
is a list of examples of aquatic habitat restoration, enhancement, and
establishment activities that may be authorized by this NWP when those
activities require DA authorization. This addition to the list of
examples of activities authorized by this NWP is highly specific; it is
limited to sediment releases from reservoirs that maintain sediment
transport continuity to restore downstream habitat. It does not cover
sediment releases from reservoirs for other purposes, such as
maintaining the designed water storage capacity of the reservoir. The
objective of this addition to the list of examples of activities
authorized by this NWP is to provide sediment for downstream habitats
that have been adversely affected by the disruption of sediment
transport caused by the dam that created the reservoir, so that
continuity of sediment transport is maintained to a degree that helps
sustain or improve the structure, functions, and dynamics of downstream
riverine and riparian habitats, and in coastal areas, downstream
coastal habitats.
Sediment releases from reservoirs can be conducted in a manner that
does not require DA authorization. Sediment releases from reservoirs
can also be conducted in a manner so that they result in no more than
minimal individual and cumulative adverse environmental effects. This
NWP requires that releases of sediment from reservoirs that require DA
authorization result in net gains in aquatic resource functions and
services. Sediment releases from reservoirs that require DA
authorization but do not result in net gains in aquatic resource
functions and services are not authorized by this NWP. The construction
of reservoirs disrupts sediment transport to downstream habitats,
including wetlands and riparian areas. When sediment transport
processes are disrupted by the construction of a dam across a river,
downstream riverine wetlands and riparian areas may erode when sediment
supplies from upstream waters diminish as sediment is trapped by the
reservoir. Coastal wetlands also require periodic inputs of sediment to
sustain their structure and function, and sediment releases from
reservoirs in coastal areas can help sustain these wetlands (Kondolf et
al. 2014). While this NWP may authorize the removal of small water
control structures, it does not authorize the removal of large dams.
Low-head dam removals may be authorized by NWP 53.
Several commenters stated that the timing, location, and magnitude
of sediment releases are crucial factors, as they could be beneficial
for some species that require turbidity for spawning, or harmful for
species that require clean substrate for nest building. One commenter
said that the Corps' decision document for this NWP should provide
further clarification of the positive and negative impacts on the
aquatic environment downstream from sediment releases and that the NWP
should provide a mechanism that will carefully consider these potential
impacts and offer practices aimed to reduce negative impacts. One
commenter stated that the NWPs are designed for minor discharges with
no more than minimal adverse environmental impacts and that individual
permits should be required for discharges of sediment for habitat
improvement. One commenter said that large amounts of sediments being
released downstream should require full evaluation of best management
options.
The Corps agrees that the timing, location, and magnitude of
sediment releases are crucial factors, and that these activities need
to be carefully planned and implemented to ensure that the sediment
releases from reservoirs result in net increases in aquatic resource
functions and services. The degrees to which some species may benefit
from the sediment released from reservoirs and other species may be
adversely affected weighs into the determination as to whether the
sediment releases result in net gains in aquatic resource functions and
services. As with many aquatic habitat restoration, enhancement, and
establishment activities, there may be short-term, temporary adverse
effects while authorized activities such as discharges of dredged or
fill material into waters of the United States are conducted. But over
the long-term, as the aquatic habitat responds to the restoration,
enhancement, or establishment activities through ecosystem development
processes, there should be more permanent, sustainable gains in aquatic
habitat functions and services. The Corps has revised its national
decision document for this NWP to provide additional discussion of the
positive and negative impacts of releases of sediment from reservoirs
to maintain sediment transport continuity to rehabilitate downstream
aquatic habitats.
If the district engineer reviews the PCN or report and determines
the proposed activity may affect listed species or designated critical
habitats, the district engineer will conduct ESA Section 7 consultation
with the U.S. FWS and/or NMFS as appropriate, unless another federal
agency has conducted ESA Section 7 consultation for the proposed
activity. The information requirements for these activities are similar
to the information requirements for other aquatic habitat restoration,
enhancement, and establishment activities authorized by this NWP, and
project proponents can provide additional information voluntarily if
they think that additional information will help with receiving an NWP
verification letter from the district engineer.
When evaluating PCNs for proposed NWP 27 activities, district
engineers will consider the 10 criteria in paragraph 2 of section D,
District Engineer's Decision to determine whether a proposed activity
will result in no more than minimal individual and cumulative adverse
environmental effects. Aquatic habitat restoration, enhancement, and
establishment activities can vary substantially in size, and in the
amount of dredged or fill material that is discharged into waters of
the United States to conduct those activities. For aquatic habitat
restoration, enhancement, and
[[Page 73548]]
establishment projects, the quantity of discharges of dredged or fill
material into waters of the United States is not indicative of whether
the completed activity will result in net gains in aquatic habitat
functions and services. It is the longer-term outcomes of the aquatic
habitat restoration, enhancement, or establishment activities that
determine whether net gains in aquatic resource functions and services
occur after the temporary impacts associated with the permitted
activities are supplanted by the ecosystem development processes that
occur over time to produce gains in aquatic resource functions and
services. These concepts apply to releases of sediment from reservoirs
to maintain sediment transport continuity to restore downstream
habitats.
Many commenters expressed concern with possible levels of
pollutants and water quality impairments from sediment releases. One
commenter stated that dam removal projects require sediment contaminant
testing to ensure sediment contaminants to be released downstream would
not negatively impact the environment, and that this NWP should have a
similar requirement for sediment releases from reservoirs. One
commenter stated that release of sediments from reservoirs as part of a
restoration activity should not contain actionable levels of pollutants
such as nitrates, phosphorus, metals, or pesticides. Many commenters
said that PCNs for proposed releases of sediment from reservoirs should
require sediment analysis to determine contaminant levels. One
commenter said that sediment load and the concentrations of any
contaminants relative to background levels are key parameters for
determining downstream environmental impacts of these activities. Many
commenters said that there is potential for contaminants and pollutants
that have accumulated in reservoir sediments to be released which may
cause significant ecosystem impacts downstream. A few commenters stated
that sediment releases from reservoirs would result in water quality
violations and disperse contaminated sediments.
Dam removal projects do not always require sediment testing. The
need for sediment testing for sediments to be released via dam removal
project is determined on a case-by-case basis by applying the criteria
at 40 CFR 230.60. The same approach applies to releases of sediment
from reservoirs to maintain sediment transport continuity to restore
downstream habitats. In addition, sediment releases from reservoirs
authorized by this NWP may require water quality certification under
Section 401 of the Clean Water Act. The applicable certifying authority
determines whether a discharge may occur, and if the certifying
authority determines that a discharge into waters of the United States
may occur it notifies the project proponent that water quality
certification or waiver is required before conducting the proposed
discharge.
Decisions to require testing of sediments released from reservoirs
are more appropriately made by the agencies responsible for making
water quality certification decisions under Section 401 of the Clean
Water Act. If the proposed release of sediment from a reservoir
requires DA authorization, the district engineer should defer to the
applicable certifying authority regarding whether sediment testing is
necessary to ensure compliance with applicable water quality
requirements. If a release of sediments from a reservoir will result in
a regulated discharge of dredged or fill material, the district
engineer has the discretion to determine that there is a need to test
sediment that might be stored in the reservoir for contaminants, based
on a ``reason to believe'' approach similar to the EPA's inland testing
manual for dredged material.
One commenter expressed concern for authorizing sediment releases
under an NWP because there is little opportunity for coordination with
natural resource agencies. A few commenters said that the Corps should
develop appropriate general and/or regional conditions for reservoir
sediment releases through coordination with natural resource agencies
and reservoir operators. One commenter stated that the Corps should
require project proponents proposing sediment releases from reservoirs
to notify downstream drinking water utilities of potential sediment
releases when necessary to benefit downstream habitat. One commenter
said that PCNs for proposed sediment releases from reservoirs should
require consultation with state resource agencies to ensure potential
sediment contamination and changes in dissolved oxygen levels are
considered because suspended and embedded sediment has been shown to
affect aquatic species, such as fish, through direct physiological
effects, decreased water clarity, or sediment deposition.
The Corps does not believe it is necessary to require agency
coordination for PCNs or reports submitted to district engineers for
releases of sediment from reservoirs to maintain the continuity of
sediment transport in riverine systems, when those activities are
authorized by this NWP. District engineers have the discretion to
coordinate PCNs and reports with their counterparts at federal, tribal,
state, or local resource agencies. Sediment transport in rivers and
streams is a natural process, with a suspended load conveying finer
sediment in the water column and a bed load conveying coarser sediment
along the river or stream bed. Therefore, the Corps does not believe
that it is necessary to notify downstream drinking water utilities of
proposed releases of sediment from reservoirs. Potential concerns about
sediment contamination and changes in dissolved oxygen levels are more
appropriately addressed by certifying authorities through the Clean
Water Act Section 401 water quality certification process. Sediment
transport is a natural river function, and fish that live in rivers are
adapted to cope with suspended sediments and sediments on the river
bed. The activities authorized by this NWP must result in net gains in
aquatic resource functions and services and result in no more than
minimal individual and cumulative adverse environmental effects.
District engineers will review PCNs and reports for these proposed
activities, and if they determine that adverse effects to fish and
other aquatic organisms will be more than minimal after considering
mitigation proposed by project proponents, they will exercise
discretionary authority and require individual permits for these
activities.
One commenter recommended modifying this NWP to allow longer
reaches of stream be allowed to be temporarily impacted without need
for a permit to help to facilitate more streambank stabilization and
restoration activities, because of the high costs for designing,
engineering, and permitting these activities. This commenter said that
these administrative costs often exceed the actual cost of implementing
the beneficial improvement work. One commenter said that the Corps must
assess the potential for NWP 27 activities to affect ESA-listed
species, and that potential impacts from those activities must be
analyzed through programmatic ESA Section 7 consultations.
This NWP has no quantitative limits, so there are no limits on the
amount of stream bed that can be restored or enhanced by activities
authorized by this NWP. There are no exemptions from Clean Water Act
Section 404 permitting requirements for stream restoration activities.
Paragraph (c) of general condition 18, endangered species, requires
non-federal permittees to submit a pre-construction notification
[[Page 73549]]
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. District engineers
will review those PCNs and determine whether the proposed activity may
affect listed species or designated critical habitat. If the district
engineer determines a proposed activity may affect ESA-listed species
or designated critical habitat, then she or he will conduct ESA Section
7 consultation with the U.S. FWS and/or NMFS as appropriate. Compliance
with ESA Section 7 may be achieved through activity-specific formal or
informal ESA Section 7 consultations or formal or informal regional
programmatic ESA Section 7 consultations.
One commenter stated that the scope of projects authorized by NWP
27 should be broadened to expedite the review and permitting process to
help support the growing ecological restoration industry. One commenter
requested that Corps be required to issue an NWP 27 verification
concurrent with the execution of a mitigation banking instrument in
states where a state has assumed the responsibilities for permitting
discharges of dredged or fill material into waters of the United
States.
This NWP authorizes a wide variety of aquatic habitat restoration,
enhancement, and establishment activities. Those activities can be
conducted by the ecological restoration industry, government agencies,
non-governmental organizations, private individuals, and other
entities. If a state has assumed the responsibilities for implementing
the Clean Water Act Section 404 permit program, this NWP likely cannot
be used to authorize discharges of dredged or fill material into waters
of the United States in waters that have been assumed by that state. A
state permit would be required to authorize those discharges of dredged
or fill material into waters of the United States.
This NWP is reissued, with the modifications discussed above.
NWP 28. Modifications of Existing Marinas. The Corps did not
propose any changes to this NWP. No comments were received on the
proposed reissuance of this NWP. This NWP is reissued as proposed.
NWP 30. Moist Soil Management for Wildlife. The Corps did not
propose any changes to this NWP. One commenter objected to the proposed
reissuance of this NWP because it does not require PCNs for proposed
activities. This commenter said that not requiring PCNs for the
authorized activities prevents the Corps from tracking the use of this
NWP and adding conditions to the authorization.
The purpose of this NWP is to authorize discharges of dredged or
fill material into non-tidal waters of the United States to manage
wildlife habitat and to provide feeding areas for wildlife. The
activities authorized by this NWP cannot cause net losses of aquatic
resource functions and services, and it does not authorize the
conversion of wetlands or streams to other types of habitat. Since this
activities authorized by this NWP help sustain wildlife and cannot
result in net losses of aquatic resource functions and services, the
Corps does not believe it is necessary to require PCNs for authorized
activities. In geographic areas where division engineers have concerns
about the potential uses of this NWP, they can add regional conditions
to require PCNs for some or all activities authorized by this NWP.
This NWP is reissued as proposed.
NWP 31. Maintenance of Existing Flood Control Facilities. The Corps
did not propose any changes to this NWP. A few commenters requested
that the Corps not reissue this NWP because they said it authorizes
activities that cause more than minimal individual and cumulative
adverse environmental effects. A few commenters said that the Corps
should impose quantitative limits on this NWP. One commenter stated
that relatively small acreage losses authorized by this NWP can cause
significant impacts. A few commenters said that the Corps should
restrict this NWP so that it authorizes activities that are similar in
nature.
This NWP authorizes the maintenance of existing flood control
facilities, as long as those activities are conducted within the
maintenance baseline established for each flood control facilities.
While this NWP does not have a quantitative limit, maintenance
activities that require DA authorization are limited to the maintenance
baseline that is approved by the district engineer for each existing
flood control facility. This NWP does not authorize any expansion or
new construction for existing flood control facilities. The existing
flood control facilities covered by this NWP were either previously
authorized by a Corps permit after the Corps conducted an environmental
review (if a Corps permit was required for the original construction of
the flood control facility), or constructed by the Corps after
completing an environmental review process similar to the Corps' permit
review process.
Flood control facilities are located in dynamic environments and
require periodic maintenance to sustain their intended flood risk
management functions. Aquatic resources located in the existing flood
control facilities covered by this NWP provide ecological functions and
services, and while periodic maintenance activities can disrupt those
functions and services to some degree for a period of time, those
aquatic resources usually recover their ability to perform those
ecological functions and services. Since this NWP authorizes only
maintenance activities, and the aquatic resources in these existing
facilities usually recover after disturbances caused by periodic
maintenance activities, the Corps believes the activities authorized by
this NWP result in no more than minimal adverse environmental effects.
Significant impacts are unlikely to occur as a result of these
recurring maintenance activities because of the ecological recovery
that occurs between each maintenance activity. That ecological recovery
likely is the reason why recurring maintenance is needed, because the
recovery of biotic and abiotic components within an existing flood
control facility, such as vegetation and sediment, may be diminishing
the capacity of the flood control facility to perform its intended
flood control functions. The activities authorized by this NWP are
similar in nature because the NWP is limited to maintenance of existing
flood control facilities, within the constraints of a maintenance
baseline approved by the district engineer.
Several commenters said that the activities authorized by this NWP
can cause adverse impacts to natural and beneficial floodplain
functions, including adjacent and downstream impacts of floodwaters on
communities and properties. One commenter stated that this NWP inhibits
comprehensive basin-wide flood risk management planning and restoration
approaches that will help to safeguard communities and protect the
nation's natural defenses.
The activities authorized by this NWP are limited to maintenance of
existing flood control facilities within a maintenance baseline
established by the district engineer. Therefore, the activities
authorized by this NWP are unlikely to adversely affect natural
floodplain functions because those natural floodplain functions were
previously altered by the original construction of the flood control
facility. Adverse effects to natural and beneficial
[[Page 73550]]
floodplain functions were initially addressed through the authorization
process when the flood control facility was originally constructed if
the construction of the flood control facility required authorization
under Section 404 of the Clean Water Act and/or Section 10 of the
Rivers and Harbors Act of 1899 or through the process for approving
federal water resource development projects. Maintenance of these
existing flood control facilities is necessary to ensure that these
facilities continue to provide their intended flood risk management
objectives and continue to protect local residences, business, and
others from floods. Since this NWP authorizes only maintenance
activities, it does not affect efforts to undertake comprehensive,
watershed-based flood risk management planning and restoration
activities. Watershed-based flood risk management planning and
restoration activities can be conducted through other mechanisms, such
as cooperative efforts between federal, tribal, state, and local
government agencies and interested stakeholders, regardless of whether
the Corps reissues this NWP.
Several commenters stated that mitigation should not be limited to
one-time-only because maintenance activities could be carried out on
multiple occasions and each maintenance activity can cause adverse
impacts. One commenter said that the one-time mitigation limit could
lead to significant harm to the environment.
This NWP authorizes only maintenance activities for existing flood
control facilities that were previously authorized, or did not require
DA authorization at the time they were originally constructed.
Mitigation, including compensatory mitigation, may have been required
for the original construction of the flood control facility. Mitigation
may also be required for the original approval of the maintenance
baseline by the district engineer. Subsequent recurring maintenance
activities to return the existing flood control facility to the
maintenance baseline should not require mitigation because those
maintenance activities generally have temporary impacts.
The aquatic resources within these existing flood control
facilities are likely to recover their ability to perform ecological
functions and services after each maintenance activity is conducted to
return the flood control to the maintenance baseline established by the
district engineer. The one-time maintenance limit recognizes the
temporary nature of the impacts to waters of the United States that
typically occur as a result of these recurring maintenance activities,
including the recovery of aquatic resources that usually occurs between
those recurring maintenance activities. The recovery of those aquatic
resources generally occurs through natural processes, such as sediment
transport and deposition in a waterbody within the existing flood
control facility and the re-establishment and growth of plants after
vegetation is removed from waterbody or lands next to the waterbody.
A few commenters said that vegetation removal should be addressed
by a regional approach based on science and authorized through the
individual permit process, with state and federal interagency
consultation. One commenter stated that the research points to multiple
benefits of vegetation on levees. One commenter said that the Corps'
one-size-fits all approach to removal of levee vegetation is opposed by
a broad array of states, scientists, members of Congress, and members
of the public.
This NWP authorizes discharges of dredge or fill material into
waters of the United States and/or work in navigable waters of the
United States to return an existing flood control facility to its
maintenance baseline so that it can continue to perform its intended
flood control functions. A maintenance baseline is established for each
existing flood control facility regardless of whether this NWP might be
used, and restoring the flood control facility to its maintenance
baseline may require the removal of vegetation. Interagency
consultation is not required for the activities authorized by this NWP
because it is a maintenance activity, and in most cases these
maintenance activities must take place on a recurring basis to ensure
that the existing flood control facility continues to perform its
intended flood control functions and protect the people and property
served by that flood control facility. The presence or absence of
vegetation within the existing flood control facilities may be
addressed through the maintenance baseline. This NWP does not impose
any specific requirements regarding vegetation on levees, and it does
not prescribe any approach to managing (or not managing) levee
vegetation. Whether or not vegetation is allowed to continue to exist
on levees or needs to be removed to ensure the structural integrity and
continuing functioning of the levee is dependent on the maintenance
baseline approved for the flood control facility, as well as any
discretion the entity responsible for maintaining the existing flood
control facility may have regarding vegetation in that facility.
One commenter stated that it is not possible to determine the full
extent of the significance of the impacts caused by activities
authorized by this NWP because the draft decision document provides no
information on the types of waters affected, the location of those
waters, or other activities that have or are likely to affect those
waters. One commenter stated that the draft decision document for this
NWP demonstrates that the activities authorized by this result in more
than minimal impacts, because approximately 225 activities impacted 500
acres of jurisdictional waters and wetlands. One commenter said that
the decision document for this NWP should include impacts quantified in
linear feet.
This NWP can be used to authorize discharges of dredged or fill
material into all waters of the United States and structures and work
in all navigable waters of the United States to return the existing
flood control to its maintenance baseline. Flood control facilities
could be located in any type of waters of the United States, such
riverine, lacustrine, palustrine, estuarine, and marine waters. The
decision document for this NWP discusses, in general terms, the
potential impacts of the authorized activities on all waters of the
United States, including navigable waters of the United States. The
national decision document also considers the potential benefits of
maintaining these existing flood control management facilities so that
they continue to perform their intended functions.
The estimated impact acreages in the national decision document for
this NWP include both permanent and temporary impacts to waters of the
United States, including navigable waters of the United States. Because
this NWP authorizes only maintenance activities within the maintenance
baselines established by district engineers, and the aquatic resources
within the existing flood control facility generally recover after each
maintenance activity is completed in accordance with the maintenance
baseline that was previously approved by the district engineer, the
activities authorized by this NWP generally result in temporary losses
of waters of the United States. Permanent losses of waters of the
United States caused by the original construction of these flood
control facilities would have been addressed in the DA permit or other
the authorization for the federal water resources development project,
if such authorization was required for that construction. Therefore,
most impacts to
[[Page 73551]]
waters of the United States authorized by this NWP will be temporary
impacts to return these existing flood control facilities to their
maintenance baselines.
The impacts of activities authorized by this NWP are more
appropriately and accurately quantified in acres rather than linear
feet, because these maintenance activities occur over areas of waters
of the United States. Accurate quantification of impacts to waters of
the United States is important aspect of tracking the individual and
cumulative impacts of activities authorized by this NWP, to make more
defensible determinations as to whether the individual and cumulative
adverse environmental effects are no more than minimal.
This NWP is reissued as proposed.
NWP 32. Completed Enforcement Actions. The Corps did not propose
any changes to this NWP. No comments were received on the proposed
reissuance of this NWP. This NWP is reissued as proposed.
NWP 33. Temporary Construction, Access, and Dewatering. The Corps
did not propose any changes to this NWP.
One commenter stated that this NWP should be reissued with no
changes. One commenter said that this NWP should have a 1/10-acre limit
for losses of waters of the United States and a 300 linear foot limit
for losses of stream bed. One commenter said that this NWP contains
vague language that gives the permittee discretion to determine how
stringently various provisions will be followed, which may result in
activities that cause more than minimal environmental effects. One
commenter said that this NWP should be modified to include matting as a
temporary fill for access, consistent with NWP 12 and the proposed new
NWP C. One commenter stated that for activities in areas where state
and/or federal threatened or endangered freshwater mussels are known to
occur, this NWP should require pre-construction notification, as well
as coordination with federal and state natural resource agencies.
This NWP authorizes only temporary construction, access, and
dewatering activities, and does not authorize discharges of dredged or
fill material into waters of the United States or structures or work in
navigable waters of the United States that may result in permanent
losses of waters of the United States. Permanent structures in
navigable waters of the United States require separate DA
authorization, either through individual permits, other NWPs, or
regional general permits. The text of the NWP requires, after
completion of construction, the removal of temporary fill material to
an area that has no waters of the United States. If the authorized
activity involves dredged material, the NWP requires the dredged
material to be returned to its original location, and the affected area
restored to pre-constructed elevations. Because of these specific
requirements, the Corps believes that adding quantitative limits to
this NWP is unnecessary. These specific requirements also help ensure
that authorized activities result in no more than minimal individual
and cumulative adverse environmental effects. Because this authorizes
temporary fills for construction access for utility lines, as well as
the use of mats for temporary access for utility lines when such mats
require DA authorization, it is unnecessary to impose quantitative
limits on this NWP.
Paragraph (c) of general condition 18 requires non-federal
permittees to 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. Furthermore, paragraph
(c) states that the permittee cannot 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. Paragraph (c) of
general condition 18 applies to mussel species that are listed, or
proposed for listing, as endangered or threatened under the federal
ESA. Potential effects to state-listed mussel species should be
addressed through the permittee's compliance with state laws and
regulations for state-listed species.
This NWP is reissued as proposed.
NWP 34. Cranberry Production Activities. The Corps did not propose
any changes to this NWP. One commenter objected to the proposed
reissuance of this NWP, stating it authorizes activities that will
result in more than minimal adverse environmental effects and it does
not require wetland functions to be maintained.
Cranberry production activities require maintenance of wetland
conditions because cranberry plants are wetland-dependent species. This
NWP authorizes discharges of dredged or fill material into waters of
the United States that may temporarily disturb wetlands used for
cranberry production, but this NWP does not authorize activities that
may result in losses of wetlands. The wetlands used for cranberry
production will continue to perform wetland functions, especially
hydrologic and biogeochemical cycling functions. The habitat functions
of the affected wetlands may be altered by the management of these
wetlands to produce cranberries, with some species utilizing the
habitat functions performed by cranberry wetlands, and other species
not being able to use the habitat functions in cranberry wetlands. The
species that cannot inhabit the cranberry production wetlands may use
other wetlands in the vicinity of the cranberry farm for habitat.
This NWP is reissued as proposed.
NWP 35. Maintenance Dredging of Existing Basins. The Corps did not
propose any changes to this NWP. One commenter said that permittees
should be required to ensure that toxic substances are not released
back into the water column through re-exposure during dredging
activities. A few commenters stated that maintenance dredging at
existing basins does not result in a discharge into waters of the
United States, and should not require water quality certification from
states. One commenter said that requiring dredged material to be
discharged into areas that do not contain waters of the United States
precludes using the dredged material from enhancing aquatic habitat,
such as coastal marshes and freshwater marshes, through natural
processes or through beneficial use projects. This commenter said that
this NWP should be modified to allow dredged materials to be discharged
into waters of the United States for beneficial uses, after federal and
state natural resource agency coordination.
During dredging activities, chemical substances that were buried by
sediments or attached to dredged sediments may be resuspended in the
water column or may become solutes within the water column. Those
chemical substances may have adverse effects to water quality. Those
adverse effects are likely to be temporary because the suspended
sediments are likely to settle back onto the benthos and chemicals
present as solutes in the water column are likely to be dispersed by
currents, tides, and other causes of water movement. Under Section 401
of the Clean Water Act, certifying authorities may determine that a
dredging activity may result in a discharge into waters of the United
States and require the project proponent to obtain an individual water
quality certification or waiver unless the certifying authority has
issued water quality certification for the issuance of a general permit
that authorizes the dredging activity. Water quality certifications for
activities authorized by this NWP will help ensure that any
[[Page 73552]]
discharges that may be caused by those dredging activities comply with
applicable water quality requirements.
Since it was first issued in 1991 (56 FR 59144), this NWP has been
issued only under the authority of Section 10 of the Rivers and Harbors
Act of 1899. This NWP has never been issued or reissued under the
authority of Section 404 of the Clean Water Act. Therefore, this NWP
does not authorize discharges of dredged or fill material into waters
of the United States, including activities involving redepositing the
dredged material into waters of the United States for beneficial uses
or other purposes. Beneficial use of material dredged under the section
10 authorization provided by NWP 35 may be authorized by other NWPs
issued under the authority of section 404, such as NWP 27, or other
forms of DA authorization under section 404, including individual
permits and regional general permits. If an individual permit is
required for the beneficial use of dredged material, then there will be
coordination with federal and state agencies under the individual
permit review process.
This NWP is reissued as proposed.
NWP 36. Boat Ramps. The Corps did not propose any changes to this
NWP. One commenter recommended reinstating the restriction for one boat
ramp for contiguous properties under the same ownership to reduce the
potential for fragmentation of nearshore habitats. One commenter said
that for previously permitted structures, the Corps should also specify
that repair and replacement activities are limited to the minimum
necessary to accomplish the function of the original boat ramp. This
commenter also stated that for new boat ramps, or for expansions of
existing boat ramps, the Corps should impose conditions to ensure that
new or modified boat ramps result in no more than minimal individual
and cumulative adverse environmental effects.
This NWP was first issued in 1991 (see 56 FR 59144), and it never
had a provision limiting the number of boat ramps to one boat ramp per
set of contiguous properties under the same ownership. Therefore, the
change suggested by the commenter would be a new provision for this
NWP. The Corps does not believe that such a provision is necessary to
ensure that the construction of boat ramps authorized by this NWP will
result in no more than minimal individual and cumulative adverse
environmental effects. During the review of PCNs for proposed NWP 36
activities, district engineers will evaluate potential adverse
environmental effects, including the possible fragmentation of
shoreline habitats and potential disruptions on the movements of
aquatic organisms along the shore.
This NWP has two quantitative limits for authorized activities: A
50 cubic yard limit for discharges of dredged or fill material into
waters of the United States, and a 20-foot limit for the width of the
boat ramp. Both of these quantitative limits can be waived by district
engineers after they review PCNs for proposed boat ramps under this
NWP. Waivers of these quantitative limits may only occur when district
engineers make written determinations, after conducting agency
coordination under paragraph (d) of general condition 32, that the
proposed activities will result in no more than minimal individual and
cumulative adverse environmental effects. The Corps has modified the
first paragraph of this NWP to clarify that in addition to the
construction of new boat ramps, it also authorizes the repair or
replacement of existing boat ramps. As with the construction of new
boat ramps, to be authorized by NWP the repair or replacement of boat
ramps must comply with the requirements of this NWP, including the
quantitative limits, and result in no more than minimal individual and
cumulative adverse environmental effects.
This NWP is reissued with the modification discussed above.
NWP 37. Emergency Watershed Protection and Rehabilitation. The
Corps did not propose any changes to this NWP. No comments were
received on the proposed reissuance of this NWP. This NWP is reissued
as proposed.
NWP 38. Cleanup of Hazardous and Toxic Waste. The Corps did not
propose any changes to this NWP. No comments were received on the
proposed reissuance of this NWP. This NWP is reissued as proposed.
NWP 41. Reshaping Existing Drainage and Irrigation Ditches. The
Corps proposed to modify this NWP by adding irrigation ditches. Several
commenters expressed support for the proposed changes to this NWP.
Several commenters stated that the Corps should make additional changes
to this NWP to ensure that it is consistent with the current regulatory
definition of ``waters of the United States'' for the purposes of the
Clean Water Act at 33 CFR part 328. Several commenters said that the
Corps should clarify in the final rule that the addition of irrigation
ditches to this NWP does not affect the Clean Water Act Section 404(f)
exemption for irrigation ditches. These commenters requested that the
Corps explain how reshaping ditches for the purpose of improving water
quality aligns with the current interpretation of the Clean Water Act
Section 404(f) exemption for ditch maintenance, which allows for minor
changes to cross sections of ditches to conform to current engineering
standards, as long as the ditch modifications do not result in the
drainage, degradation, or destruction of additional jurisdictional
waters.
The purpose of this NWP is to authorize discharges of dredged or
fill material into waters of the United States to reshape existing
drainage and irrigation ditches to improve water quality by regrading
the drainage or irrigation ditch with gentler side slopes that can
reduce erosion, increase growth of vegetation within the ditch, and
increase uptake of nutrients and other substances by vegetation. This
NWP applies to drainage ditches and irrigation ditches that are waters
of the United States. If a drainage ditch or irrigation ditch is not
subject to Clean Water Act jurisdiction under the current regulations
defining ``waters of the United States'' at 33 CFR part 328, then DA
authorization (including the DA authorization provided by this NWP) is
not required for discharges of dredged or fill material that reshape
the drainage or irrigation ditch to improve water quality.
This NWP does not authorize ditch maintenance activities
specifically, because it authorizes discharges of dredged or fill
material into waters of the United States to change the shape of
existing drainage or irrigation ditches to facilitate the removal of
nutrients, other chemicals, and sediments from the water column to
improve water quality. This NWP authorizes discharges of dredged or
fill material into waters of the United States to change the shape of
jurisdictional ditches to improve water quality, which is a different
purpose than the purpose identified in the current memorandum
interpreting the Clean Water Act Section 404(f) exemption for ditch
maintenance (i.e., conforming with current engineering standards to
improve ditch stability). Therefore, the activities authorized by this
NWP are distinct from the activities identified in the current guidance
interpreting the Clean Water Act Section 404(f)(1)(C) exemption for
ditch maintenance.
One commenter said that there may be no projects that might utilize
the proposed changes to this NWP and requested that the Corps provide
specific examples of projects involving the reshaping of irrigation
ditches to improve water quality. One commenter stated that the Corps
should add a provision to this NWP that prohibits the
[[Page 73553]]
reshaping of irrigation ditches that increases diversions of water that
are not allowed under existing water rights or do not conform with
state water law.
As discussed in the Regulatory Impact Analysis for this final rule,
the Corps anticipates that there may be a small number of irrigation
ditches (estimated to be five per year) that may be reshaped to improve
water quality through the authorization provided by this NWP. The Corps
declines to add restrictions to this NWP regarding quantities of
diverted water, potential impacts to existing water rights, or
situations where irrigation ditch reshaping activities might not
conform with state water law. State government authorities are the
appropriate entities for enforcing water rights and other provisions of
state water laws.
One commenter objected to the proposed reissuance of this NWP, as
well as the proposed modification, stating that the activities
authorized by this NWP may adversely affect salmon and trout that
inhabit ditches. This commenter said that PCNs should be required for
all activities authorized by this NWP so that the Corps can evaluate
potential effects on salmon and trout, and if necessary add conditions
to the NWP authorization to protect those species. This commenter also
stated that the Corps should add quantitative limits to this NWP to
limit the length of ditch reshaped and the frequency of ditch reshaping
activities.
Activities authorized by this NWP are subject to the requirements
of general condition 18, which addresses compliance with the federal
ESA. Paragraph (c) of general condition 18 requires a non-federal
permittee to 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. This includes salmon
and trout species listed as endangered or threatened under the ESA, as
well as salmon and trout species that may be proposed for listing under
the ESA. The Corps does not believe it is necessary to impose
quantitative limits on this NWP, because this NWP is limited to
reshaping existing drainage and irrigation ditches to improve water
quality, and these activities do not result in permanent losses of
waters of the United States.
One commenter stated that the Corps should modify the NWP to cite
the statutory exemptions that could apply under Clean Water Act Section
404(f). Several commenters recommended adding a Note to this NWP
similar to the Notes in NWPs 3, 12, 14, 30, and 40, stating that
certain discharges may qualify for an exemption under Section 404(f) of
the Clean Water Act and therefore do not require DA authorization under
section 404.
The purpose of this NWP is to authorize discharges of dredged or
fill material into waters of the United States for reshaping existing
drainage and irrigation ditches when those activities are not eligible
for any of the exemptions in Section 404(f) of the Clean Water Act. The
Corps declines to add the suggested Note to this NWP because it would
be contrary to the reason the NWP was first issued in 2000 (see 65 FR
12891). This NWP was issued to provide an incentive for landowners to
reshape their ditches to improve water quality, rather than maintaining
those ditches in a manner that qualifies for the Clean Water Act
Section 404(f)(1)(C) exemption. Adding the suggested Note may
discourage landowners from reshaping existing ditches to improve water
quality by highlighting the availability of the ditch maintenance
exemption.
This NWP is reissued as proposed.
NWP 45. Repair of Uplands Damaged by Discrete Events. The Corps did
not propose any changes to this NWP. One commenter said that the
restoration of upland areas should be accomplished with fill material
taken from uplands, and limit minor dredging to no more than 25 cubic
yards to be consistent with the limit in NWP 19. One commenter stated
that for shoreline erosion, the establishment of living shorelines
should be encouraged over the reclamation of eroded lands through the
use of fill material and hard structures.
The Corps does not agree that the restoration of uplands damaged by
storms and other discrete events should be required to utilize only
fill material taken from upland sites. Sediment that moved from
adjacent uplands into the waterbody because of erosion or mass wasting
caused by storms or other discrete events should be available for
repairing the damaged uplands. Using that sediment to repair the
affected uplands can help restore the waterbody by removing sediment
that may be blocking the waterbody or covering aquatic habitat within
that waterbody. It can also help reduce downstream sediment loads, by
putting that sediment back onto the damaged upland areas where it can
be stabilized before it is transported downstream and potentially
impair downstream water quality.
The NWP limits dredging to the amount necessary to restore the
damaged upland area, restricting the amount of material dredged so that
it is proportional to the amount of upland damaged by the discrete
event. That dredging limit provides flexibility to address the amount
of damaged uplands, and prevents situations where the amount of
authorized dredging needed to effectively repair the damaged uplands
and the waterbody would require individual permits. In other words,
limiting dredging to 25 cubic yards may discourage effective means of
repairing the damaged uplands and restoring adjacent portions of the
waterbody.
This NWP limits bank stabilization activities to the contours or
ordinary high water mark that existed before the damage to the uplands
occurred. In many circumstances, this limit precludes the use of living
shorelines as a bank stabilization measure in coastal areas. If a
landowner wants to install a living shoreline next to uplands repaired
through activities authorized by NWP 45, then he or she may submit a
PCN under NWP 54, which authorizes living shorelines. Bank
stabilization within the limits of NWP 45 can be accomplished through
other approaches, such as bioengineering or other forms of vegetative
stabilization.
This NWP is reissued as proposed.
NWP 46. Discharges in Ditches. The Corps did not propose any
changes to this NWP. Several commenters stated that the text of this
NWP should clarify when this NWP can be used for discharges of dredged
or fill material into upland ditches because it seems to be
inconsistent with the current definition of ``waters of the United
States'' in the Corps' regulations at 33 CFR part 328. A few commenters
said that the provisions of this NWP should be consistent with the
current regulations defining ``waters of the United States'' and the
current guidance on ditches and the exemptions under Section 404(f) of
the Clean Water Act. Several commenters stated that the Corps should
modify this NWP to acknowledge that certain discharges related to
activities in ditches may qualify for exemptions from permitting under
Section 404(f) of the Clean Water Act. These commenters suggested
adding a Note to this NWP similar to the notes regarding the Clean
Water Act Section 404(f) exemptions in NWPs 3, 12, 14, 30 and 40.
This NWP authorizes discharges of dredged or fill material into
non-tidal ditches that meet the four criteria in the
[[Page 73554]]
first paragraph of the NWP, including the fourth criterion (i.e., the
ditch must be a water of the United States). If the ditch constructed
in uplands is not a water of the United States, in accordance with the
Corps' current regulations at 33 CFR part 328 that define ``waters of
the United States,'' then DA authorization (including the DA
authorization provided by NWP 46) is not necessary to discharge dredged
or fill material into that ditch. This NWP authorizes activities that
are not eligible for any of the exemptions under Section 404(f) of the
Clean Water Act. Therefore, it is not necessary to add a Note to this
NWP that address the section 404(f) exemptions. This NWP was issued in
2007 (see 72 FR 11190) to provide DA authorization to fill a category
of ditches constructed in uplands that meet the four criteria listed in
the first paragraph of the NWP. Filling these ditches to convert them
back to uplands would likely trigger the recapture provision of Section
404(f)(2) of the Clean Water Act and therefore not be exempt from
section 404 permitting requirements. If the project proponent wants to
discharge dredged or fill material to maintain the ditch, and not
convert it into uplands, the proposed discharge might be eligible for
an exemption under section 404(f) depending on case-specific
circumstances. Therefore, the Corps does not believe that there would
be any benefit to adding a Note to this NWP that discusses the section
404(f) exemptions.
One commenter said that the acreage limit of this NWP should be
reduced to 1/2-acre to ensure that the activities authorized by this
NWP result in no more than minimal individual and cumulative adverse
environmental effects. One commenter stated that compensatory
mitigation should be required for losses of waters of the United States
greater than 1/10-acre.
The Corps is retaining the 1-acre limit that was established for
this NWP when it was first issued in 2007. During the years this NWP
has been in effect, the one acre limit has been effective in ensuring
that discharges of dredged or fill material into the non-tidal ditches
that satisfy four criteria in the first paragraph of this NWP result in
losses of waters of the United States that have no more than minimal
individual and cumulative adverse environmental impacts. Division
engineers can add regional conditions to this NWP to impose an acreage
limit that is less than one acre, to ensure that activities authorized
in the region will have no more than minimal individual and cumulative
adverse environmental effects. During the review of PCNs for proposed
NWP 46 activities, district engineers can require compensatory
mitigation to offset the permitted losses of waters of the United
States, in accordance with 33 CFR 330.1(e)(3) and general condition 23.
This NWP is reissued as proposed.
NWP 49. Coal Remining Activities. The Corps proposed to modify this
NWP by removing the provision that requires the permittee to obtain
written verification from the district engineer before proceeding with
the authorized activity to make this NWP consistent with the other NWPs
that have a default authorizations when a district engineer does not
respond to a complete PCN within 45 days of receiving that PCN from the
project proponent. The Corps also proposed to remove the text referring
to integrated permit processing procedures.
One commenter stated support for reissuing this NWP. Many
commenters expressed opposition to the proposal to remove the provision
that requires the permittee to obtain written verification from the
district engineer before commencing the authorized activity. Several
commenters said they support removing the requirement for the permittee
to obtain written verification from the district engineer before
proceeding with the authorized activity, so that a default
authorization occurs if the district engineer does not respond to a
complete PCN within 45 days.
The Corps has retained the provision that requires the permittee to
obtain written authorization from the district engineer prior to
commencing the authorized activity because coal remining activities can
vary substantially in size and can cover large areas. Additional time
may be needed for the project proponent to demonstrate to the district
engineer that the authorized activity will result in a net increase in
aquatic resource functions. This NWP has no acreage limit for losses of
waters of the United States. In contrast, NWP 21 (surface coal mining
activities) and NWP 50 (underground coal mining activities) have a 1/2-
acre limit for losses of waters of the United States. The requirement
for permittees to obtain written authorization before proceeding with
the NWP 21 or 50 activity was removed in the final rule published in
the January 13, 2021, issue of the Federal Register (86 FR 2744)
because these NWPs have the additional safeguard of the 1/2-acre limit
if a default authorization occurs through a district engineer not
responding to a complete PCN within 45 days.
One commenter opposed to the removal of stream mitigation
requirements from this NWP. One commenter said that PCNs should not be
required for the activities authorized by this NWP. One commenter
supported removing the text referring to integrated permit processing
procedures.
The Corps did not propose to remove any stream mitigation
requirements from this NWP. The activities authorized by this NWP must
result in net increases in aquatic resource functions. Stream or
wetland rehabilitation or enhancement may be a component of the coal
remining activity that helps achieve the required net increase in
aquatic resource functions. Mitigation requirements for NWP activities
is determined by district engineers on a case-by-case basis through the
provisions of 33 CFR 330.1(e)(3) and general condition 23. The Corps
believes that PCNs are necessary for all activities authorized by this
NWP to provide district engineers the opportunity to review proposed
activities and ensure that the activities that comprise the overall
mining plan result in net increases in aquatic resource functions. The
Corps has removed the text that refers to integrated permit processing
procedures because those procedures were not developed for past
versions of NWP 49.
One commenter recommended modifying the text of this NWP to state
that new mining must not exceed 40 percent of the remined area and the
additional area necessary to carry out the reclamation of a previously
mined area. One commenter noted that no work can begin under this NWP
unless the coal remining activity is approved by the Department of the
Interior Office of Surface Mining Reclamation or Enforcement, or by
states with approved programs under Title IV or V of the Surface Mining
Control and Reclamation Act of 1977, and that final approval by these
agencies is not necessary before submitting a PCN to the district
engineer.
The Corps is retaining the text in the NWP that states that the
total area disturbed by new mining must not exceed 40 percent of the
total acreage covered by both the remined area and the additional area
necessary to carry out the reclamation of the previously mined area.
The Corps acknowledges that permittees should not begin the authorized
work if the activities authorized by this NWP also require
authorization by other federal, state, or local government agencies
(see paragraph 2 of Section E, Further Information) and those other
required authorizations have not been issued. The project proponent can
submit a PCN for a proposed NWP 49 activity to the district engineer
prior to obtaining
[[Page 73555]]
required authorizations from either the Office of Surface Mining
Reclamation or Enforcement, or a state with an approved program under
Title IV or V of the Surface Mining Control and Reclamation Act of
1977.
This NWP is reissued with the modification discussed above.
NWP 53. Removal of Low-Head Dams. The Corps did not propose any
changes to this NWP. Several commenters expressed support for the
reissuance of this NWP. One commenter said that the Corps should revise
this NWP so that it clearly states that it may be used to authorize
compensatory mitigation projects that generate stream mitigation
credits, because dam removal and stream restoration projects help spur
economic activity in rural regions, improve water quality, and deliver
resiliency benefits to communities. One commenter said that the removal
of low-head dams could affect water rights determined by the state. One
commenter stated that this NWP should be modified to include
requirements for management of accumulated sediment prior to and during
removal of low-head dams to ensure that downstream water quality is
minimally adversely impacted by the removal of low-head dams.
The Corps does not believe it is necessary to modify this NWP to
state that it can be used to authorize discharges of dredged or fill
material into waters of the United States and/or structures and work in
navigable waters of the United States for low-head dam removals
conducted to rehabilitate rivers and streams to provide compensatory
mitigation for DA permits. Low-head dam removals can be conducted for
permittee-responsible mitigation, mitigation banks, or in-lieu fee
projects to generate compensatory mitigation credits that offset losses
of aquatic resource functions and services caused by activities
authorized by DA permits. The Corps recognizes that stream restoration
projects, including removals of low-head dams, provide a variety of
ecological and economic benefits to communities. However, it is not
necessary to explicitly identify those benefits in the text of the
NWPs. Concerns about potential impacts of low-head dam removals on
state issued water rights are more appropriately addressed through the
state laws and regulations that govern those water rights, and the
effects that specific activities may have on water rights. Permittees
are responsible for complying with applicable federal, tribal, state,
and local government laws, regulations, and other requirements.
The text of this NWP does not include requirements for the
management of sediments that may be released after the removal of a
low-head dam. Requirements for the management of sediments that may be
released downstream after the low-head dam is removed is more
appropriately determined on a case-by-case basis when the district
engineer reviews the PCN for the proposed NWP 53 activity. In general,
low-head dams have low storage capacities and large amounts of sediment
are unlikely to be released to downstream waters when the low-head dam
is partially or completely removed. In addition, sediment releases
caused by the removal of low-head dams generally have temporary impacts
because the sediment is transported downstream by flowing water and
over time those sediments will be distributed throughout downstream
tributaries as the stream network recovers from the removal of the low-
head dam.
Water quality concerns, including water quality concerns regarding
sediment releases that may occur during the removal of the low-head dam
and after the low-head dam is removed, are more appropriately addressed
through the water quality certification process under Section 401 of
the Clean Water Act. For those activities where the certifying
authority denied water quality certification for the reissuance of NWP
53, the project proponent must obtain a water quality certification or
waiver for any discharges into waters of the United States that may
occur as a result of the removal of the low-head dam (see general
condition 25). The water quality certification may include conditions,
such as sediment management requirements, to ensure that those
discharges comply with applicable water quality requirements.
A few commenters stated that the Corps should clarify the
definition of low-head dam to be more expansive in the types of
structures that can be removed under this NWP. One of these commenters
suggested broadening the definition of ``low-head dam'' to include
different low-head dam configurations or to add a specific height to
the definition of ``low-head dam.'' Two of these commenters suggested
modifying the definition of ``low-head dam'' as follows:
For the purposes of this NWP, the term ``low-head dam'' is
generally defined as a dam or weir built across a stream to pass flows
from upstream over all, or nearly all, of the width of the dam crest
and does not have a separate spillway or spillway gates, but it may
have an uncontrolled spillway. The dam crest is the top of the dam from
left abutment to right abutment and will most often be less than 15
feet in height for small streams and 25 feet in height for medium-sized
tributaries. A low-head dam may have been built for a range of purposes
(e.g., check dam, mill dam, irrigation, water supply, recreation,
hydroelectric, or cooling pond), but in all cases, it provides little
to no storage function.
In response to these comments, the Corps has modified the
definition of ``low-head dam'' that is in the text of this NWP. The
Corps has adopted much of the definition suggested above, except for
the recommended maximum height requirements for dams in small streams
and medium-sized tributaries. The Corps declines to include maximum
height requirements because the heights suggested by commenters might
apply to dams that are not low-head dams. In addition, the terms
``small stream'' and ``medium-sized tributary'' are difficult to
define. ``Small'' versus ``medium'' are relative terms and are likely
to pose additional challenges in implementing a clear, consistent
definition of ``low-head dam.'' The definition of ``low-head dam'' with
the modifications made in response to public comments focuses on
structural features characteristic of most low-head dams, instead of
dimensions that represent types of dams other than low-head dams.
District engineers have discretion in determining whether proposed dam
removal involves a low-head dam and thus qualifies for NWP 53
authorization. Even with the exclusion of the suggested maximum height
requirements, the revised definition of ``low-head dam'' may broaden
the utility of this NWP to facilitate the removal of low-head dams that
may not have been covered by the 2017 version of this NWP.
One commenter stated that other federal and state natural resource
agencies should be provided opportunities for review and comment on all
PCNs for this NWP that are submitted to district engineers. One
commenter requested clarification on whether any specific removals of
low-head dams have resulted in increases in ecological functions. One
commenter asked that the Corps explain the basis for establishing the
1/2-acre limit for this NWP. This commenter asked whether there is a
limit to either the area of the impoundment that is dewatered as a
result of the removal of a low-head dam, or the area where significant
hydrological changes would occur as a result of the removal of a low-
head dam. This commenter also requested clarification on how the Corps
calculates the impact acreage for activities authorized by this NWP,
including impacts that may occur upstream and downstream of the low-
[[Page 73556]]
head dam and its impoundment after the low-head dam is removed.
The Corps declines to modify this NWP to require district engineers
to coordinate PCNs for this NWP with federal and state natural resource
agencies. Corps district staff have the capability to review these
proposed activities and determine whether they qualify for NWP
authorization. District engineers have the discretion to coordinate
with federal and state resource agencies on a case-by-case basis, if
they believe such coordination would be beneficial in reaching a
decision on a particular PCN. Coordination with federal and state
agencies may also occur in other circumstances, such as the water
quality certification process for discharges into waters of the United
States authorized by this NWP. District engineers will review PCNs for
proposed activities, and if a district engineer determines that the
proposed removal of a low-head dam may affect endangered or threatened
species or designated critical habitat, he or she will conduct ESA
Section 7 consultation with the U.S. Fish and Wildlife Service and/or
the National Marine Fisheries Service, as appropriate.
The potential increases in ecological functions that may result
from the removal of low-head dams are discussed in the national
decision document for the reissuance of this NWP. The national decision
document cites a number of reviews and studies that have evaluated the
ecological benefits that can result from the removal of low-head dams.
This NWP has no acreage limit because the removal of low-head dams
helps restore the structure, functions, and dynamics of rivers and
streams. The removal of low-head dams also benefits public safety by
reducing potential drowning risks for swimmers and users of small
watercraft, such as kayaks. The 1/2-acre limit that is in other NWPs,
such as NWP 29 for residential developments and NWP 39 for commercial
and institutional developments, does not apply to this NWP. The impact
acreages for activities authorized by this NWP are generally calculated
by determining the acreage of the footprint of the low-head dam, the
acreage of the former impoundment that will be restored to a free-
flowing river or stream channel, and any additional acreage of the
impoundment that will dewatered after the low-head dam is removed. The
dewatered areas of the former impoundment may develop riparian areas
and floodplains, including adjacent riverine wetlands. There may be
other indirect effects upstream and downstream of the low-head dam and
its impoundment, but the acreage of waters subject to those indirect
effects would not normally be calculated because of the difficulties in
quantifying those indirect effects.
This NWP is reissued with the modification discussed above.
NWP 54. Living Shorelines. The Corps did not propose any changes to
this NWP. One commenter stated support for the reissuance of this NWP
because living shorelines provide environmental, societal, and economic
benefits that are not provided by hard bank stabilization structures.
One commenter stated that paragraph (d) of this NWP should be modified
to add elevation as a factor for determining which native plants are
appropriate for current site conditions if the permittee is planting
the living shoreline. One commenter said that the requirement for
living shorelines to include a substantial biological component
provides no meaningful guidance and would result in the authorization
of any project that includes a minor amount of vegetation planting.
The Corps is reissuing this NWP with minor changes made in response
to comments received on the 2020 Proposal. The Corps has added
``elevation'' to paragraph (d) of this NWP because elevation is another
factor to consider when deciding which native species to plant in a
living shoreline if the biological component of the living shoreline
consists of plants. The NWP takes a qualitative approach to
characterizing living shorelines (i.e., having a substantial biological
component) rather than specifying a minimum quantitative requirement
because there can be considerable variability in the designs for living
shorelines. The types of biological components used for living
shorelines can also vary, from various types of plants (e.g., marsh
grasses, mangroves) and different types of animals (e.g., oysters).
There is no one-size-fits-all approach to living shorelines that would
support a stringent quantitative approach for the determining the
minimum amount of biological components in a bank stabilization
activity to be considered for a living shoreline.
A few commenters objected to the proposed reissuance of this NWP,
stating that it has the potential to cause extensive destruction and
alteration of irreplaceable nearshore habitats. These commenters said
that these activities should require individual permits. One commenter
said that this NWP violates Section 404(e) of the Clean Water Act
because it authorizes activities that are not similar in nature.
This NWP provides DA authorization for an approach to managing
shoreline erosion that can provide more aquatic resource functions and
services than other approaches to managing shoreline erosion control,
such as bulkheads and revetments. While the construction of living
shorelines can involve placing considerable amounts of dredged or fill
material into jurisdictional waters and wetlands, completed living
shorelines can provide habitat functions, as well as other ecological
functions such as biogeochemical cycling functions. There may be trade-
offs when the construction of living shorelines changes subtidal
habitats (e.g., unvegetated shallow waters) into intertidal habitats
(e.g., intertidal marshes). Riparian landowners have an inherent right
to protect their properties from erosion (see 33 CFR 320.4(g)(2), and
living shorelines provide an alternative means of managing shore
erosion that can provide greater environmental benefits such as
intertidal wetland habitat and shellfish reef habitat compared to
bulkheads and revetments.
This NWP authorizes a specific category of activities: discharges
of dredged or fill material into waters of the United States and
structures or work in navigable waters of the United States for the
construction and maintenance of living shorelines. Those activities are
similar in nature because they serve a common purpose (i.e., managing
shoreline erosion) and involve a common set of activities (e.g., fills
to construct wetlands, fills to protect constructed and existing
wetlands, and fills and structures to construct reefs) that dissipate
wave energy and reduce erosion. In addition, these fills and structures
are generally limited to nearshore areas, where they help manage
shoreline erosion.
One commenter said that this NWP should be modified to include the
authorization of temporary structures, fill, and work, similar to the
text provided in NWP 13. One commenter stated that the text of the NWP
allows concrete and other artificial structures, which are not native
materials. One commenter said that the NWP should require the permittee
to ensure that the activity maintain the natural continuity of the
land-water interface, retain, or enhance shoreline ecological
processes, and not result in undue harm to recognized aquatic resources
located within or adjacent to the proposed project sites.
Nationwide permit 33 can be used to authorize temporary structures,
fill, and work to assist in the construction of living shorelines
authorized by NWP 54. All NWP 54 activities involving the
[[Page 73557]]
construction of new living shorelines require PCNs, whereas the
construction of bank stabilization measures under NWP 13 require PCNs
only in certain circumstances, such as discharges of dredged or fill
material into special aquatic sites or bank stabilization activities
greater than 500 linear feet in length. The text authorizing temporary
structures, fills, and work was added to NWP 13 because not all NWP 13
activities require PCNs, and that text provides efficiency because
permittees no longer need to use NWP 33 (which may require PCNs) with
the NWP 13 authorization to construct the bank stabilization activity.
Retaining the ability to use NWP 33 to authorize temporary structures,
fills, and work for new living shorelines authorized by NWP 54 does not
impose additional burdens on the regulated public.
The text of this NWP requires that the living shoreline consist
mostly of native material. It does not completely prohibit the use of
artificial materials. While the text of the NWP does not explicitly
identify concrete as an acceptable material for use in living
shorelines, it does not prohibit the use of concrete because concrete
may be a component of artificial reef structures that are used for some
types of living shorelines. Living shorelines may include artificial
structures (e.g., sills, reefs, coir logs or mats) that do not
completely resemble structural features found in nature, but those
artificial structures can consist of native materials (e.g., stone,
oyster shells, natural fibers) to a large degree.
Living shorelines are an example of nature-based solutions, which
are actions to address societal problems such as erosion in coastal
communities using natural or modified ecosystems. Living shorelines are
modified ecosystems that are comprised of a combination of living and
engineered components. Living shorelines provide varying degrees of
ecological functions and services and help maintain to some extent the
natural continuity of the interface between coastal lands and coastal
waters. With the exception of maintenance activities, all activities
authorized by this NWP requires PCNs to district engineers. District
engineers will review those PCNs to determine whether the proposed
activities will result in no more than minimal individual and
cumulative adverse environmental effects, including adverse effects to
coastal aquatic resources.
One commenter stated that the 30 foot limit for structures and
filled areas extending into the waterway from the mean low water line
in tidal waters or the ordinary high water mark in non-tidal waters is
arbitrary, and that the Corps should establish the limit for structures
and fills extending into the waterway to a depth contour appropriate
for attenuating wave energy consistent with the slope of the shoreline.
One commenter said that the Corps should replace the 30-foot and 500
linear foot limits with a 1/2-acre limit.
The Corps is retaining the 30 foot limit for structures and fills
extending into the waterway and the 500 linear foot limit for the
length of shoreline along which a living shoreline can be constructed.
The Corps is also retaining the ability for district engineers to waive
these 30-foot and 500 linear foot limits when a district engineer
reviews the PCN for a proposed NWP 54 activity and determines that the
proposed activity will result in no more than minimal individual and
cumulative adverse environmental effects. These quantitative limits and
the ability of district engineers to waive these limits are intended to
provide flexibility for the design and construction of living
shorelines that are expected to be effective in reducing erosion at a
specific site, taking into numerous variables. For living shorelines,
those variables include, but are not limited to: Fetch, water depths
near the shore, substrate characteristics, site topography, and the
extent of coastal development in the project area (Saleh and Weinstein
2016). Activities authorized by this NWP must comply with paragraph (a)
of general condition 23, which requires permittees to design and
construct authorized activities 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).
The Corps believes the 30 foot and 500 linear foot limits are more
appropriate for living shorelines than a 1/2-acre limit because living
shorelines are constructed along the shore. In addition, paragraph (e)
of the NWP requires discharges of dredged or fill material into waters
of the United States and the construction of structures in navigable
waters of the United States to be the minimum necessary for the
establishment and maintenance of the living shoreline, to reduce the
amount of encroachment into the waterway.
One commenter said that while the NWP might be beneficial for
coastal resources found along the Gulf of Mexico or the Atlantic Coast,
it is not appropriate for the Puget Sound or the Washington coast
because it allows for construction of structures and fill that would
adversely affect significant nearshore resources and habitats and does
not have minimal direct, indirect, or cumulative impacts. This
commenter expressed support for streamlining a process to install
shoreline stabilization that protects nearshore habitat for salmon and
shellfish.
Landowners that want to reduce erosion at their shorelines are not
required to construct living shorelines. They can choose to use other
techniques to manage erosion at their waterfront properties. Potential
adverse effects to nearshore resources and habitats caused by
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States are
similar along the various coasts of the United States in terms of
functional impacts (e.g., filling or altering nearshore habitats or
installing reef structures that alter subtidal habitat), although the
species that may be affected by these activities may differ by region.
If a landowner on the west coast wants to construct a living shoreline
to manage erosion at his or her property, a PCN must be submitted to
the district engineer. The district engineer will review the PCN and
determine whether the proposed activity will result in no more than
minimal individual and cumulative adverse environmental effects.
Living shorelines have been used in the west coast of the United
States, including Washington State. NOAA has established a living
shorelines project map to provide information on more than 150 living
shoreline projects around the country.\2\ Three living shoreline
projects in Washington State were shown on that map when it was viewed
by the Corps on July 14, 2021. In other areas of the west coast, living
shorelines consisting of eelgrass and Olympia oysters have been
implemented in San Francisco Bay (Boyer et al. 2017). Green shores
(Emmett et al. 2017) is another approach to shore erosion management
has been implemented in Washington State, and green shore projects may
qualify for authorization under NWP 54 if they include a substantial
biological component, such as plantings in tidal waters subject to the
Corps' jurisdiction. Green shores use materials such as coarse sand,
gravel, cobbles, logs, and plantings, as well as slope modifications to
dissipate wave energy, to control shoreline erosion while providing
habitat and other ecological functions along the shoreline while
reducing erosion and potential risks to buildings and infrastructure.
Proposed green
[[Page 73558]]
shores activities that do not have the substantial biological component
required for authorization under NWP 54 may be authorized by NWP 13,
which authorizes a variety of techniques for bank stabilization.
---------------------------------------------------------------------------
\2\ https://www.habitatblueprint.noaa.gov/living-shorelines/project-map/ (accessed July 14, 2021).
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Living shorelines can provide habitat that is utilized by salmon
and shellfish. Bank stabilization activities can be designed to provide
intertidal habitat (e.g., pocket beaches) and subtidal habitat that is
utilized by salmon and other fish species for foraging and nursery
activities (e.g., Toft et al. 2013). Living shorelines can include
pocket beaches and may have unvegetated beaches protected by reef
structures inhabited by oysters or other aquatic organisms. Living
shorelines can be another means of managing shore erosion while
providing intertidal habitat and shallow subtidal habitat for fish and
other aquatic species for refuge, feeding, and nursery functions
(Gittman et al. 2016). Reef structures used as part of a living
shoreline, as well as other habitats such as wetlands that may be
components of living shorelines, can provide habitat for colonization
by bivalve molluscs (Bilkovic and Mitchell 2013).
One commenter said that PCNs should be required for the repair and
maintenance of existing living shorelines. One commenter stated that
waivers should not be issued by district engineers without coordination
with federal and state natural resource agencies. One commenter
expressed concern about waivers because they would remove any limits on
how far living shorelines can extend into the waterway, how long those
living shorelines are, and how much dredged or fill material is placed
into special aquatic sites.
The Corps maintains its position that PCNs should not be required
for maintenance of existing living shorelines because the adverse
environmental effects caused by these maintenance activities are likely
to be no more than minimal, individually and cumulatively. In addition,
periodic maintenance is an important component of sustaining the
effectiveness of living shorelines in managing erosion and sustaining
the living components of a living shoreline. An exception occurs for
maintenance activities that require DA authorization that trigger the
PCN requirements in paragraph (c) of general condition 18, which
addresses compliance with the ESA. Paragraph (c) of general condition
18 requires non-federal permittees to 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.
For proposed NWP 54 activities in which the project proponent is
requesting a waiver of the 30 foot or 500 linear foot limits, district
engineers will coordinate the PCNs with federal and state agencies in
accordance with the procedures in paragraph (d) of general condition
32. The federal and state agencies will provide their views on whether
the proposed activity will result in no more than minimal individual
and cumulative adverse environmental effects. For NWP 54 activities
where agency coordination is not required, district engineers will
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.
This NWP is reissued with the modification discussed above.
NWP E. Water Reclamation and Reuse Facilities. The Corps proposed
to issue this new NWP to authorize discharges of dredged or fill
material into waters of the United States for the construction,
expansion, and maintenance of water reclamation and reuse facilities.
Several commenters stated that although discharges of dredged or
fill material into waters of the United States for the construction,
expansion, and maintenance of water reclamation and reuse facilities
may be authorized by other existing NWPs, they support the issuance of
proposed new NWP E because it provides additional clarity and
streamlines the authorization process for these facilities. A few
commenters said that there is no need to issue proposed new NWP E
because water reclamation and reuse facilities may be constructed,
expanded, or maintained through existing NWPs. One commenter stated
that water reuse facilities are typically attendant features of larger
developments and should be permitted as part of the overall
development. Several commenters expressed their support for the
issuance of proposed NWP E as long as it applies to groundwater
recharge and replenishment projects without restrictions on the origin
or mix of sources of water being recharged, including water from
outside of the watershed.
The Corps is issuing this new NWP to authorize discharges of
dredged or fill material into waters of the United States for water
reclamation and reuse facilities, to help streamline the authorization
process for the construction, expansion, and maintenance of these
facilities. The water reclamation and reuse facilities constructed,
expanded, or maintained through the discharges of dredged or fill
material into waters of the United States authorized this NWP may be
for non-potable water reuse and potable water reuse. Water reclamation
and reuse facilities can be an important tool for adapting to the
effects of climate change, such as changes in precipitation patterns
that may affect water availability in areas of the country. Water
reclamation and reuse facilities help conserve water, which may be
beneficial as water availability changes or increases in water demand
occur. The Corps recognizes that water reclamation and reuse facilities
can be authorized as attendant features of other activities authorized
by NWP, such as residential developments (NWP 29), commercial and
institutional developments (NWP 39), agricultural activities (NWP 40),
and recreational facilities (NWP 42). Despite the potential for water
reclamation and reuse facilities to be authorized along with buildings
and other features authorized by other NWPs, the Corps believes that
issuing a new NWP to authorize discharges of dredged or fill material
into waters of the United States for water reclamation and reuse
facilities would be beneficial to the regulated public, especially when
these facilities are stand-alone facilities and not attendant features
of resident developments, commercial developments, or other activities.
For water reclamation and reuse facilities, the Corps regulates
discharges of dredged or fill material into waters of the United States
for the construction, expansion, or maintenance of those facilities. In
general, the Corps does not have the authority to regulate the
operation of these facilities after they are constructed, expanded, or
maintained through discharges of dredged or fill material into waters
of the United States authorized by this NWP. The Corps does not have
the authority to regulate releases of water to recharge or replenish
groundwater, to regulate the mixing of water from various sources, or
to regulate the movement of water between watersheds. The Corps reminds
project proponents that any project including underground injection may
be subject to permit requirements of the Underground Injection Control
Program, administered under the Safe Drinking Water Act by the U.S.
Environmental Protection
[[Page 73559]]
Agency or states, territories, or tribes to which it has delegated
primacy.
One commenter objected to the proposed 1/2-acre limit for proposed
new NWP E. A commenter recommended adding a 300 linear foot limit for
losses of stream bed. One commenter said that this NWP should not be
limited to non-tidal waters, and it should not prohibit discharges of
dredged or fill material into non-tidal wetlands adjacent to tidal
waters. This commenter stated that proposed new NWP E should also
authorize discharges of dredged or fill material into non-tidal
wetlands adjacent to tidal waters as well as tidal waters. One
commenter said that mitigation should not be required for activities
authorized by this NWP because the NWP authorizes beneficial
activities.
The Corps is issuing this new NWP with a 1/2-acre limit to be
consistent with other NWPs that may be used to authorizes discharges of
dredged or fill material into waters of the United States to construct,
expand, or maintain water reclamation and reuse facilities as attendant
features of other activities authorized by NWP, such as NWP 29
(residential developments), NWP 39 (commercial and institutional
developments), NWP 40 (agricultural activities), and NWP 42
(recreational facilities). Losses of stream bed caused by discharges of
dredged or fill material into waters of the United States are also
subject to the 1/2-acre limit.
Pre-construction notification is required for all activities
authorized by this NWP, and district engineers will evaluate proposed
losses of stream bed to determine whether those losses, plus any other
losses of waters of the United States caused by discharges of dredged
or fill material, will result in no more than minimal individual and
cumulative adverse environmental effects, and thus eligible for
authorization under this NWP. Because of the PCN requirement and the
ability of district and division engineers to modify, suspend, or
revoke this NWP when appropriate, the Corps does not believe that it is
necessary to impose an additional quantitative limit on this NWP that
is specific to losses of stream bed. In geographic areas where there
are regional concerns about cumulative losses of stream bed, division
engineers can add regional conditions to this NWP to impose smaller
acreage limits on losses of stream bed. If, during the review of a PCN
for a proposed activity, the district engineer determines the proposed
activity will result in more than minimal individual and cumulative
adverse environmental effects after considering mitigation proposed by
the applicant, he or she will exercise discretionary authority and
require an individual permit for the proposed losses of stream bed and
any other losses of non-tidal waters and wetlands caused by discharges
of dredged or fill material.
The Corps is issuing this NWP with the same scope of applicable
waters (i.e., non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters) as some other NWPs that can be
used to authorize discharges of dredged or fill material into waters of
the United States for water reclamation and reuse facilities. The scope
of applicable waters is consistent with NWPs 29, 39, 40, and 42. This
NWP does not authorize discharges of dredged or fill material into
tidal waters of the United States and non-tidal wetlands adjacent to
tidal waters because discharges into those waters have greater
potential to result in adverse environmental effects that are more than
minimal, individually and cumulatively. Project proponents that want to
discharge dredged or fill material into tidal waters of the United
States and non-tidal wetlands adjacent to tidal waters to construct,
expand, or maintain water reclamation and reuse facilities can seek DA
authorization through the individual permit process, unless a Corps
district has issued a regional general permit to authorize those
activities. General condition 23 addresses the mitigation requirements
for this NWP and other NWPs. District engineers have discretion to
require mitigation, including compensatory mitigation, for activities
authorized by this NWP when they determine that such mitigation is
necessary to ensure that the authorized activities result in no more
than minimal individual and cumulative adverse environmental effects.
Proposed new NWP E is issued as NWP 59.
E. Responses to Comments on the Nationwide Permit General Conditions
The NWPs issued in this final rule are subject to the NWP general
conditions in the final rule that was published in the January 13,
2021, issue of the Federal Register (86 FR 2867-2874). The final rule
published in the January 13, 2021, issue of the Federal Register
includes summaries of comments received on the NWP general conditions
for the 2020 Proposal, as well as responses to those comments. See 86
FR 2820-2838 for the comment summaries and responses to comments on the
general conditions for the 2021 NWPs.
F. Responses to Comments on the District Engineer's Decision
The NWPs issued in this final rule are subject to the District
Engineer's Decision section (section D) in the final rule that was
published in the January 13, 2021, issue of the Federal Register (86 FR
2874-2875). The final rule published in the January 13, 2021, issue of
the Federal Register includes summaries of comments received on the NWP
general conditions for the 2020 Proposal, as well as responses to those
comments. See 86 FR 2838 for the comment summaries and responses to
comments on the ``District Engineer's Decision'' section for the 2021
NWPs.
G. Discussion of Proposed Modifications to Section F, Definitions
The NWPs issued in this final rule are subject to the NWP
definitions in the final rule that was published in the January 13,
2021, issue of the Federal Register (86 FR 2875-2877). The final rule
published in the January 13, 2021, issue of the Federal Register
includes summaries of comments received on the NWP general conditions
for the 2020 Proposal, as well as responses to those comments. See 86
FR 2838-2841 for the comment summaries and responses to comments on the
definitions for the 2021 NWPs.
III. Compliance With Relevant Statutes
A. National Environmental Policy Act Compliance
The Corps has prepared a decision document for each NWP issued in
this final rule. Each decision document contains an environmental
assessment (EA) to fulfill the requirements of NEPA. The EA includes
the public interest review described in 33 CFR part 320.4. 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. The final
decision documents prepared for each NWP fulfill the environmental
documentation requirements of NEPA.
[[Page 73560]]
Before the 41 NWPs in this final rule 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 documents for all of the NWPs. The supplemental documents
will also discuss regional conditions imposed by division engineers to
protect the aquatic environment and other public interest review
factors and ensure that any adverse environmental effects resulting
from NWP activities in that region will be no more than minimal,
individually and cumulatively.
The Corps solicited comments on the draft national decision
documents for each proposed NWP, 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 document that explains the decision on whether to
issue a verification letter for the proposed NWP activity or exercise
discretionary authority to require an individual permit for that
proposed activity. The district engineer's 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 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.
Comments on compliance with NEPA for the 2020 Proposal are
addressed in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2842-2843.
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. The Corps believes 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. The Corps has applied
this interpretation for many years (see the NWPs issued in 2000 (64 FR
39263-39264 and 65 FR 12821), 2007 (72 FR 11095), 2012 (77 FR 10186),
and 2017 (82 FR 1868)).
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, specifically 33
U.S.C. 1344(e). 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
[[Page 73561]]
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 document prepared by Corps
Headquarters includes a 404(b)(1) Guidelines analysis. A 404(b)(1)
Guidelines analysis is not required when a specific activity is
authorized by an NWP (see 40 CFR 230.6(d)).
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 (NWPR) which became effective on June 22, 2020,\3\
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.
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\3\ On June 22, 2020, the NWPR became effective except in the
State of Colorado due to a federal district court-issued stay in
that state. The stay in Colorado has since been lifted so the NWPR
is now in effect in all 50 states and U.S. territories. The rule has
also been challenged in several other federal district courts.
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On January 21, 2021, President Biden signed the E.O. 13990,
``Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis,'' which directs federal agencies to
``immediately review and, as appropriate and consistent with applicable
law, take action to address the promulgation of Federal regulations and
other actions during the last 4 years that conflict with these
important national objectives, and to immediately commence work to
confront the climate crisis.'' EPA and the Department of the Army have
completed their review of the NWPR and announced in June 2021 their
intention to initiate a new rulemaking process that restores the
protections in place prior to the 2015 WOTUS implementation, and
develops a new rule to establish a durable definition of ``waters of
the United States.'' As authorization under Section 404 of the Clean
Water Act is only needed when regulated activities occur in WOTUS, any
new definition of ``Waters of the United States'' could impact when an
NWP may or may not be needed; however, it would not alter the terms and
conditions in either this final rule or the NWP rule issued January 13,
2021.
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 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. A person with legal
interest in a parcel (e.g., a permit applicant, landowner, or a lease,
easement, or option holder) has the opportunity to request an approved
jurisdictional determination from the Corps if that person 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 ESA section 7. 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 ESA 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
[[Page 73562]]
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 ESA
Section 7.
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 ESA 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 ESA Section 7 (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 ESA Section 7. 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 ESA Section 7.
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 ESA 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 ESA Section 7 regulations to
the NWP program, consequences to listed species and designated critical
habitat caused by proposed NWP activities must be reasonably certain to
occur. In the preamble to their final rule, the FWS and NMFS stated
that for a ``consequence 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 ESA 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
[[Page 73563]]
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 ESA Section 7 consultations
and regional programmatic ESA 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 ESA 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 any endangered species or threatened species
or result in the destruction or adverse modification of habitat of such
species.'' (See 16 U.S.C. 1536(a)(2).) Accordingly, the Services' ESA
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 ESA 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 ESA Section 7 consultation. Specifically,
while ESA 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 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 (g) 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
[[Page 73564]]
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/.
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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 ESA 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
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
[[Page 73565]]
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 ESA Section 7.
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 ESA 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 ESA 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, 14,
57, or 58 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 ESA 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 ESA 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. ESA Section 7
consultation on regional conditions occurs only when a Corps districts
makes a ``may affect'' determination and initiates formal or informal
ESA 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.
Comments on compliance with the ESA for the 2020 Proposal are
addressed in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2848-2849.
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.
Comments on compliance with the essential fish habitat (EFH)
consultation requirements of the Magnuson-Stevens Fishery Conservation
and Management Act for the 2020 Proposal are addressed in the final
rule published in the January 13, 2021, issue of the Federal Register
at 86 FR 2849.
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. The Corps 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 NHPA Section 106 consultation.
If the project proponent is required to submit a PCN and the
proposed activity might have the potential to cause effects to historic
properties, the activity is not authorized by an NWP until either the
Corps district makes a ``no potential to cause effects'' determination
or completes NHPA Section 106 consultation.
[[Page 73566]]
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, the district engineer
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 NHPA Section
106 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 NHPA 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 NHPA 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 (d) 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.
Comments on compliance with Section 106 of the NHPA for the 2020
Proposal are addressed in the final rule published in the January 13,
2021, issue of the Federal Register at 86 FR 2851.
[[Page 73567]]
G. Section 401 of the Clean Water Act
A water quality certification (WQC) 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. The water quality
certification process for the 2020 Proposal was described in the
preamble to the September 15, 2020, proposed rule at 85 FR 57362--
57363. A summary of comments received on the water quality
certification process for the 2020 Proposal, and the Corps' responses
to those comments, are provided in the final rule that was published in
the Federal Register on January 13, 2021, at 86 FR 2851--2853.
Nationwide permits numbered 15, 16, 17, 18, 25, 30, 34, 41, 46, 49,
and 59 would authorize activities that may result in discharges and
therefore water quality certification is required for those NWPs.
Nationwide permits numbered 3, 4, 5, 6, 7, 13, 14, 19, 20, 22, 23, 27,
31, 32, 33, 36, 37, 38, 45, 53, and 54 would authorize various
activities, some of which may result in a discharge and require water
quality certification, and others which may not. Nationwide permits
numbered 1, 2, 8, 9, 10, 11, 24, 28, and 35 do not require 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
authorizes only activities seaward of the territorial seas.
In October 2020, Corps districts requested WQC from certifying
authorities for the proposed issuance of the NWPs, including the 41
NWPs being issued in this final rule. Many certifying authorities
requested an extension to the 60-day reasonable period of time
established by the Corps to review and certify the proposed NWPs (see
86 FR 2744, 2852). Commenters noted various reasons for such extension
requests, including that certifying authorities could not comply with
the reasonable period of time due to public participation requirements
and the need for more time to review in light of recent changes to the
EPA's regulation for Section 401 of the Clean Water Act and the
issuance of the final Navigable Waters Protection Rule. In light of
concerns noted by commenters, the Corps extended the reasonable period
of time for certification of the 41 NWPs in this final rule. Corps
districts sent letters to certifying authorities notifying them of the
extended reasonable period of time for the 41 NWPs in this final rule.
For the extended reasonable period of time, Corps districts gave the
certifying authorities the opportunity to take different courses of
action on the certification requests for the proposed issuance of these
41 NWPs. Certifying authorities also had the option to take no further
action during the extended reasonable period of time. If a certifying
authority took no further action during the extended reasonable period
of time, the Corps would consider the certifying authority's prior
action on the certification request to be their final position on WQC
for the issuance of these 41 NWPs: that is to issue with or without
conditions, deny, or waive WQC for those 41 NWPs.
Under EPA's 401 regulations, a ``[f]ederal agency may extend the
reasonable period of time at the request of a certifying authority or a
project proponent'' so long as the reasonable period of time does not
exceed one year from receipt of the certification request.'' (See 40
CFR 121.6(d).) In the October 2020 certification requests, the Corps
established the reasonable period of time to be 60 days. Although the
original reasonable period of time of 60 days has passed, EPA's 401
regulations do not prohibit federal agencies from granting certifying
authorities more time to take action on certification requests, as long
as no more than one year has passed since the original certification
request was submitted to a certifying authority. Additionally, the
Corps' NWP regulations do not prohibit reopening the reasonable period
of time as long as the one-year limit in Section 401 of the Clean Water
Act is not exceeded. Therefore, in response to concerns expressed by
certifying authorities and various commenters, the Corps extended the
reasonable period of time to give certifying authorities the one-year
maximum in the statute to act on the certification requests on the
remaining 41 NWPs. To be clear, this extension of the reasonable period
of time does not constitute the submittal of new certification requests
by Corps districts to certifying authorities. If certifying authorities
need additional time, the Corps will work with certifying authorities
as necessary, as long as the statutory one-year limit is not exceeded.
Furthermore, because the Corps is simply extending the reasonable
period of time (and not re-requesting certification) certifying
authorities were not required to reinitiate the certification process.
Although certifying authorities previously submitted certifications
on the 41 NWPs, the Corps finds that submission of new or revised
certifications during this extended reasonable period of time would not
be ``modifications'' of the earlier certifications or otherwise
inconsistent with 40 CFR 121.6(e). Instead, any new or revised
certifications submitted during the extended reasonable period of time
will be deemed to supersede the earlier certifications or other actions
(such as denials or waivers) that certifying authorities may have taken
during the original reasonable period of time. See also Memorandum from
Radhika Fox, Assistant Administrator, Office of Water, and Jaime
Pinkham, Acting Assistant Secretary of the Army (Civil Works), Clean
Water Act Section 401 Certification Implementation, at 6-7 (August 19,
2021), available at https://www.epa.gov/system/files/documents/2021-08/8-19-21-joint-epa-army-memo-on-cwa-401-implementation_508.pdf
(providing that ``EPA's 2020 Rule does not limit certifying authorities
from issuing an updated certification within the reasonable period of
time when this is authorized by the federal permitting agency. . . . In
EPA's view, this outcome does not change if the new or revised
certification is issued during an extended reasonable period of
time.'') Certifying authorities that want to retain their prior
certification decisions can confirm their prior positions affirmatively
by sending confirmation to the Corps district prior the expiration of
the extended reasonable period of time, If a certifying authority
chooses not to respond to the Corps district during the extended
reasonable period of time, the previous certification decisions will
govern in the absence of an updated certification, affirmative
confirmation, or other action, such as a denial or waiver.
EPA was available to provide technical assistance to the Corps and
certifying authorities pursuant to 40 CFR 121.16 during this extended
reasonable period of time.
Consistent with EPA's 401 regulations at 40 CFR part 121,
certifying authorities may take one of four actions on a certification
request: To issue with or without conditions, deny, or waive WQC for
the issuance of the NWPs. If a certifying authority issues water
quality certifications with conditions for the issuance of these NWPs,
district engineers reviews 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
[[Page 73568]]
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.
The Corps' regulations for reviewing WQCs issued for the issuance
of the NWPs are located at 33 CFR 330.4(c)(2). If, prior to the
issuance or reissuance of NWPs, a certifying authority issues a WQC for
the issuance of an NWP, and that WQC includes conditions, the division
engineer will make those conditions regional conditions of the NWP for
activities which may result in a discharge into waters of United States
in the geographic area covered by that WQC unless the division engineer
determines that those conditions do not comply with the provisions of
33 CFR 325.4. If the district engineer determines that the conditions
in a WQC provided for the issuance of an NWP do not comply with 33 CFR
325.4 the Corps will decline to rely on the WQC issued for the issuance
of the NWP. In practice, this means the Corps will consider that
decision to be a denial of the certification. In such cases, the
proposed discharges are not authorized by that NWP and the Corps will
require project proponents to obtain WQCs for individual discharges
authorized by that NWP.
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.
After division engineers have approved the final regional
conditions for the 41 NWPs published in this final rule, Corps
districts will issue public notices announcing the final regional
conditions for the 41 NWPs and the status of water quality
certifications and Coastal Zone Management Act (CZMA) consistency
concurrences for those 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).
Further discussion of comments on compliance with Section 401 of
the Clean Water Act for the 2020 Proposal are addressed in the final
rule published in the January 13, 2021, issue of the Federal Register
at 86 FR 2852-2853.
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 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).
Comments on compliance with the Coastal Zone Management Act for the
2020 Proposal are addressed in the final rule published in the January
13, 2021, issue of the Federal Register at 86 FR 2854.
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 NWPs in this final
rule will authorize 52 activities each year that would have otherwise
required individual permits. For the combination
[[Page 73569]]
of this final rule with the final rule issued in January 2021, the
Corps estimates that the 2021 NWPs will authorize 261 activities each
year that would have otherwise required individual permits. 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 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 41 final NWPs, when compared with the 2017 NWPs,
will decrease compliance costs for the regulated public by
approximately $1.1 million (low end estimate) to $3.2 million per year
(high end estimate). The Corps estimates that the 41 final NWPs in this
final rule plus the 16 NWPs issued in the January 13, 2021, final rule,
when compared with the 2017 NWPs, will decrease compliance costs for
the regulated public by approximately $5.4 million (low end estimate)
to $16.2 million per year (high end estimate). 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 14............. Add ``driveways'' to Increase number of
examples of activities
activities authorized by NWP;
authorized by this decrease number of
NWP. activities
requiring
individual permits.
NWP 27............. Add coral Increase number of
restoration and activities
relocation to the authorized by NWP;
list of examples of decrease number of
authorized activities
activities. Add requiring
``releases of individual permits.
sediment from
reservoirs to
maintain sediment
transport
continuity to
restore downstream
habitats'' to the
list of examples of
authorized
activities.
NWP 41............. Add irrigation Increased number of
ditches. activities
authorized by NWP;
decreased number of
activities
requiring
individual permits.
NWP 53............. Change definition of Slight increase in
low-head dam. number of low-head
dams removed each
year.
NWP 59............. Issued new NWP to Increased number of
authorize activities
discharges of authorized by NWP;
dredged or fill decreased number of
material into activities
waters of the requiring
United States to individual permits.
construct, expand,
and maintain water
reclamation and
reuse facilities.
------------------------------------------------------------------------
Comments on the potential economic impacts of the 2020 Proposal,
and the Corps' responses to those comments, are provided in the final
rule published in the January 13, 2021, issue of the Federal Register
at 86 FR 2855-2856.
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 41 NWPs issued in this final rule
would decrease the total paperwork burden associated with this program
because the Corps estimates that under this final rule 47 more PCNs
would be required each year. This increase is due to the number of
activities that would be authorized under the 41 2021 NWPs that
previously required individual permits. The paperwork burden associated
with the 41 final NWPs is expected to increase by approximately 1,517
hours per year from 198,397 hours to 199,914 hours.
The following table summarizes the projected changes in paperwork
burden from the 40 2017 NWPs to the 41 NWPs issued in this final rule.
----------------------------------------------------------------------------------------------------------------
Estimated
Estimated changes in
Number of NWP Estimated changes in number of
Number of NWP activities not changes in NWP number of standard
PCNs per year requiring PCNs PCNs per year authorized NWP individual
per year activities permits per
year
----------------------------------------------------------------------------------------------------------------
40 2017 NWPs.................... 18,127 29,265 .............. .............. ..............
[[Page 73570]]
41 2021 NWPs.................... 18,164 29,280 +37 +52 -52
----------------------------------------------------------------------------------------------------------------
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 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 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 these NWPs.
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 statutes 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, 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 40 2017 NWPs that were not included
in the final rule published in the January 13, 2021, issue of the
Federal Register 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
[[Page 73571]]
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 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.
Comments on compliance of the 2020 Proposal with E.O. 13175, and
the Corps' responses to those comments, are provided in the final rule
published in the January 13, 2021, issue of the Federal Register at 86
FR 2858-2859.
Environmental Documentation
A decision document has been prepared for each of the 41 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 41
NWPs and other required information to
[[Page 73572]]
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 41 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.
In response to the 2020 Proposal, the Corps received one comment
concerning environmental justice. One commenter said that the proposed
NWPs would diminish protections for subsistence hunting and fishing
rights for tribes, and that the proposed rule does not comply with E.O.
12898. This commenter concluded that the final rule should not be
issued.
Activities authorized by the NWPs must comply with general
condition 17, tribal rights. General condition 17 states 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. For the 2021 NWPs, Corps districts conducted
consultation or coordination with tribes to identify regional
conditions that protect reserved tribal rights and to develop
coordination procedures for specific NWP activities to ensure that
those activities do not impair reserved tribal rights.
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. The NWPs can
only be used to authorize activities that require DA authorization and
result in no more than minimal individual and cumulative adverse
environmental effects. The NWPs may be used by people who live in
communities with environmental justice interests and undertake
activities that require DA authorization. The NWPs are available in all
communities to authorize discharges of dredged or fill material into
waters of the United States and/or structures and work in navigable
waters of the United States that result in no more than minimal
individual and cumulative adverse environmental effects, as long as
those NWPs have not been suspended or revoke by a division engineer on
a regional basis. Those NWP activities may help provide goods and
services (e.g., housing, energy, food production, internet access) that
benefit members of communities with environmental justice interests.
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 40 existing NWPs and issuing one new NWP
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, Jr.,
Major General, U.S. Army, Deputy Commanding General for Civil and
Emergency Operations.
A. Index of Nationwide Permits Issued in This Final Rule
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities
28. Modifications of Existing Marinas
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
41. Reshaping Existing Drainage Ditches
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
49. Coal Remining Activities
53. Removal of Low-Head Dams
54. Living Shorelines
59. Water Reclamation and Reuse Facilities
B. Nationwide Permits
1. Aids to Navigation. The placement of aids to navigation and
regulatory markers that are approved by and installed in accordance
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I,
subchapter C, part 66). (Authority: Section 10 of the Rivers and
Harbors Act of 1899 (Section 10)).
2. Structures in Artificial Canals. Structures constructed in
artificial canals within principally residential developments where the
connection of the canal to a navigable water of the United States has
been previously
[[Page 73573]]
authorized (see 33 CFR 322.5(g)). (Authority: Section 10).
3. Maintenance. (a) The repair, rehabilitation, or replacement of
any previously authorized, currently serviceable structure or fill, or
of any currently serviceable structure or fill authorized by 33 CFR
330.3, provided that the structure or fill is not to be put to uses
differing from those uses specified or contemplated for it in the
original permit or the most recently authorized modification. Minor
deviations in the structure's configuration or filled area, including
those due to changes in materials, construction techniques,
requirements of other regulatory agencies, or current construction
codes or safety standards that are necessary to make the repair,
rehabilitation, or replacement are authorized. This NWP also authorizes
the removal of previously authorized structures or fills. Any stream
channel modification is limited to the minimum necessary for the
repair, rehabilitation, or replacement of the structure or fill; such
modifications, including the removal of material from the stream
channel, must be immediately adjacent to the project. This NWP also
authorizes the removal of accumulated sediment and debris within, and
in the immediate vicinity of, the structure or fill. This NWP also
authorizes the repair, rehabilitation, or replacement of those
structures or fills destroyed or damaged by storms, floods, fire or
other discrete events, provided the repair, rehabilitation, or
replacement is commenced, or is under contract to commence, within two
years of the date of their destruction or damage. In cases of
catastrophic events, such as hurricanes or tornadoes, this two-year
limit may be waived by the district engineer, provided the permittee
can demonstrate funding, contract, or other similar delays.
(b) This NWP also authorizes the removal of accumulated sediments
and debris outside the immediate vicinity of existing structures (e.g.,
bridges, culverted road crossings, water intake structures, etc.). The
removal of sediment is limited to the minimum necessary to restore the
waterway in the vicinity of the structure to the approximate dimensions
that existed when the structure was built, but cannot extend farther
than 200 feet in any direction from the structure. This 200 foot limit
does not apply to maintenance dredging to remove accumulated sediments
blocking or restricting outfall and intake structures or to maintenance
dredging to remove accumulated sediments from canals associated with
outfall and intake structures. All dredged or excavated materials must
be deposited and retained in an area that has no waters of the United
States unless otherwise specifically approved by the district engineer
under separate authorization.
(c) This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to conduct the
maintenance activity. Appropriate measures must be taken to maintain
normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges 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 conducting the
maintenance activity, temporary fills must be removed in their entirety
and the affected areas returned to pre-construction elevations. The
areas affected by temporary fills must be revegetated, as appropriate.
(d) This NWP does not authorize maintenance dredging for the
primary purpose of navigation. This NWP does not authorize beach
restoration. This NWP does not authorize new stream channelization or
stream relocation projects.
Notification: For activities authorized by paragraph (b) of this
NWP, the permittee must submit a pre-construction notification to the
district engineer prior to commencing the activity (see general
condition 32). The pre-construction notification must include
information regarding the original design capacities and configurations
of the outfalls, intakes, small impoundments, and canals. (Authorities:
Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the
Clean Water Act (Sections 10 and 404)).
Note: This NWP authorizes the repair, rehabilitation, or
replacement of any previously authorized structure or fill that does
not qualify for the Clean Water Act Section 404(f) exemption for
maintenance.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. Fish and wildlife harvesting devices and
activities such as pound nets, crab traps, crab dredging, eel pots,
lobster traps, duck blinds, and clam and oyster digging, fish
aggregating devices, and small fish attraction devices such as open
water fish concentrators (sea kites, etc.). This NWP does not authorize
artificial reefs or impoundments and semi-impoundments of waters of the
United States for the culture or holding of motile species such as
lobster, or the use of covered oyster trays or clam racks.
(Authorities: Sections 10 and 404).
5. Scientific Measurement Devices. Devices, whose purpose is to
measure and record scientific data, such as staff gages, tide and
current gages, meteorological stations, water recording and biological
observation devices, water quality testing and improvement devices, and
similar structures. Small weirs and flumes constructed primarily to
record water quantity and velocity are also authorized provided the
discharge of dredged or fill material is limited to 25 cubic yards.
Upon completion of the use of the device to measure and record
scientific data, the measuring device and any other structures or fills
associated with that device (e.g., foundations, anchors, buoys, lines,
etc.) must be removed to the maximum extent practicable and the site
restored to pre-construction elevations. (Authorities: Sections 10 and
404).
6. Survey Activities. Survey activities, such as core sampling,
seismic exploratory operations, plugging of seismic shot holes and
other exploratory-type bore holes, exploratory trenching, soil surveys,
sampling, sample plots or transects for wetland delineations, and
historic resources surveys. For the purposes of this NWP, the term
``exploratory trenching'' means mechanical land clearing of the upper
soil profile to expose bedrock or substrate, for the purpose of mapping
or sampling the exposed material. The area in which the exploratory
trench is dug must be restored to its pre-construction elevation upon
completion of the work and must not drain a water of the United States.
In wetlands, the top 6 to 12 inches of the trench should normally be
backfilled with topsoil from the trench. This NWP authorizes the
construction of temporary pads, provided the discharge of dredged or
fill material does not exceed 1/10-acre in waters of the U.S.
Discharges of dredged or fill material and structures associated with
the recovery of historic resources are not authorized by this NWP.
Drilling and the discharge of excavated material from test wells for
oil and gas exploration are not authorized by this NWP; the plugging of
such wells is authorized. Fill placed for roads and other similar
activities is not authorized by this NWP. The NWP does not authorize
any permanent structures. The discharge of drilling mud and cuttings
may require a permit under Section 402 of the Clean Water Act.
(Authorities: Sections 10 and 404).
[[Page 73574]]
7. Outfall Structures and Associated Intake Structures. Activities
related to the construction or modification of outfall structures and
associated intake structures, where the effluent from the outfall is
authorized, conditionally authorized, or specifically exempted by, or
otherwise in compliance with regulations issued under the National
Pollutant Discharge Elimination System Program (Section 402 of the
Clean Water Act). The construction of intake structures is not
authorized by this NWP unless they are directly associated with an
authorized outfall structure.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404).
8. Oil and Gas Structures on the Outer Continental Shelf.
Structures for the exploration, production, and transportation of oil,
gas, and minerals on the outer continental shelf within areas leased
for such purposes by the Department of the Interior, Bureau of Ocean
Energy Management. Such structures shall not be placed within the
limits of any designated shipping safety fairway or traffic separation
scheme, except temporary anchors that comply with the fairway
regulations in 33 CFR 322.5(l). The district engineer will review such
proposals to ensure compliance with the provisions of the fairway
regulations in 33 CFR 322.5(l). Any Corps review under this NWP will be
limited to the effects on navigation and national security in
accordance with 33 CFR 322.5(f), as well as 33 CFR 322.5(l) and 33 CFR
part 334. Such structures will not be placed in established danger
zones or restricted areas as designated in 33 CFR part 334, nor will
such structures be permitted in EPA or Corps-designated dredged
material disposal areas.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 10).
9. Structures in Fleeting and Anchorage Areas. Structures, buoys,
floats, and other devices placed within anchorage or fleeting areas to
facilitate moorage of vessels where such areas have been established
for that purpose. (Authority: Section 10).
10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.
(Authority: Section 10).
11. Temporary Recreational Structures. Temporary buoys, markers,
small floating docks, and similar structures placed for recreational
use during specific events such as water skiing competitions and boat
races or seasonal use, provided that such structures are removed within
30 days after use has been discontinued. At Corps of Engineers
reservoirs, the reservoir managers must approve each buoy or marker
individually. (Authority: Section 10).
13. Bank Stabilization. Bank stabilization activities necessary for
erosion control or prevention, such as vegetative stabilization,
bioengineering, sills, rip rap, revetment, gabion baskets, stream
barbs, and bulkheads, or combinations of bank stabilization techniques,
provided the activity meets all of the following criteria:
(a) No material is placed in excess of the minimum needed for
erosion protection;
(b) The activity is no more than 500 feet in length along the bank,
unless the district engineer waives this criterion by making a written
determination concluding that the discharge of dredged or fill material
will result in no more than minimal adverse environmental effects (an
exception is for bulkheads--the district engineer cannot issue a waiver
for a bulkhead that is greater than 1,000 feet in length along the
bank);
(c) The activity will not exceed an average of one cubic yard per
running foot, as measured along the length of the treated bank, below
the plane of the ordinary high water mark or the high tide line, unless
the district engineer waives this criterion by making a written
determination concluding that the discharge of dredged or fill material
will result in no more than minimal adverse environmental effects;
(d) The activity does not involve discharges of dredged or fill
material into special aquatic sites, unless the district engineer
waives this criterion by making a written determination concluding that
the discharge of dredged or fill material will result in no more than
minimal adverse environmental effects;
(e) No material is of a type, or is placed in any location, or in
any manner, that will impair surface water flow into or out of any
waters of the United States;
(f) No material is placed in a manner that will be eroded by normal
or expected high flows (properly anchored native trees and treetops may
be used in low energy areas);
(g) Native plants appropriate for current site conditions,
including salinity, must be used for bioengineering or vegetative bank
stabilization;
(h) The activity is not a stream channelization activity; and
(i) The activity must be properly maintained, which may require
repairing it after severe storms or erosion events. This NWP authorizes
those maintenance and repair activities if they require authorization.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to construct the bank
stabilization activity. Appropriate measures must be taken to maintain
normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges 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 the bank stabilization activity: (1) Involves discharges of dredged
or fill material into special aquatic sites; or (2) is in excess of 500
feet in length; or (3) will involve the discharge of dredged or fill
material of greater than an average of one cubic yard per running foot
as measured along the length of the treated bank, below the plane of
the ordinary high water mark or the high tide line. (See general
condition 32.) (Authorities: Sections 10 and 404)
Note: In coastal waters and the Great Lakes, living shorelines may
be an appropriate option for bank stabilization, and may be authorized
by NWP 54.
14. Linear Transportation Projects. Activities required for
crossings of waters of the United States associated with the
construction, expansion, modification, or improvement of linear
transportation projects (e.g., roads, highways, railways, trails,
driveways, airport runways, and taxiways) in waters of the United
States. For linear transportation projects in non-tidal waters, the
discharge of dredged or fill material cannot cause the loss of greater
than \1/2\-acre of waters of the United States. For linear
transportation projects in tidal waters, the discharge of dredged or
fill material cannot cause the loss of greater than \1/3\-acre of
waters of the United States. Any stream channel modification, including
bank stabilization, is limited to the minimum
[[Page 73575]]
necessary to construct or protect the linear transportation project;
such modifications must be in the immediate vicinity of the project.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to construct the linear
transportation project. Appropriate measures must be taken to maintain
normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges 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. Temporary fills must be
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be
revegetated, as appropriate.
This NWP cannot be used to authorize non-linear features commonly
associated with transportation projects, such as vehicle maintenance or
storage buildings, parking lots, train stations, or aircraft hangars.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The loss of waters of the United States exceeds \1/10\ acre; or
(2) there is a discharge of dredged or fill material in a special
aquatic site, including wetlands. (See general condition 32.)
(Authorities: Sections 10 and 404).
Note 1: For linear transportation projects crossing a single
waterbody more than one time at separate and distant locations, or
multiple waterbodies at separate and distant locations, each crossing
is considered a single and complete project for purposes of NWP
authorization. Linear transportation projects must comply with 33 CFR
330.6(d).
Note 2: Some discharges of dredged or fill material for the
construction of farm roads or forest roads, or temporary roads for
moving mining equipment, may qualify for an exemption under Section
404(f) of the Clean Water Act (see 33 CFR 323.4).
Note 3: For NWP 14 activities that require pre-construction
notification, the PCN must include any other NWP(s), regional general
permit(s), or individual permit(s) used or intended to be used to
authorize any part of the proposed project or any related activity,
including other separate and distant crossings that require Department
of the Army authorization but do not require pre-construction
notification (see paragraph (b)(4) of general condition 32). The
district engineer will evaluate the PCN in accordance with Section D,
``District Engineer's Decision.'' The district engineer may require
mitigation to ensure that the authorized activity results in no more
than minimal individual and cumulative adverse environmental effects
(see general condition 23).
15. U.S. Coast Guard Approved Bridges. Discharges of dredged or
fill material incidental to the construction of a bridge across
navigable waters of the United States, including cofferdams, abutments,
foundation seals, piers, and temporary construction and access fills,
provided the construction of the bridge structure has been authorized
by the U.S. Coast Guard under Section 9 of the Rivers and Harbors Act
of 1899 or other applicable laws. Causeways and approach fills are not
included in this NWP and will require a separate Clean Water Act
Section 404 permit. (Authority: Section 404 of the Clean Water Act
(Section 404)).
16. Return Water From Upland Contained Disposal Areas. Return water
from an upland contained dredged material disposal area. The return
water from a contained disposal area is administratively defined as a
discharge of dredged material by 33 CFR 323.2(d), even though the
disposal itself occurs in an area that has no waters of the United
States and does not require a section 404 permit. This NWP satisfies
the technical requirement for a section 404 permit for the return water
where the quality of the return water is controlled by the state
through the Clean Water Act Section 401 certification procedures. The
dredging activity may require a section 404 permit (33 CFR 323.2(d)),
and will require a section 10 permit if located in navigable waters of
the United States. (Authority: Section 404).
17. Hydropower Projects. Discharges of dredged or fill material
associated with hydropower projects having: (a) Less than 10,000 kW of
total generating capacity at existing reservoirs, where the project,
including the fill, is licensed by the Federal Energy Regulatory
Commission (FERC) under the Federal Power Act of 1920, as amended; or
(b) a licensing exemption granted by the FERC pursuant to Section 408
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and
Section 30 of the Federal Power Act, as amended.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 404)
18. Minor Discharges. Minor discharges of dredged or fill material
into all waters of the United States, provided the activity meets all
of the following criteria:
(a) The quantity of discharged dredged or fill material and the
volume of area excavated do not exceed 25 cubic yards below the plane
of the ordinary high water mark or the high tide line;
(b) The discharge of dredged or fill material will not cause the
loss of more than \1/10\ acre of waters of the United States; and
(c) The discharge of dredged or fill material is not placed for the
purpose of a stream diversion.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge of dredged or fill material or the volume of area
excavated exceeds 10 cubic yards below the plane of the ordinary high
water mark or the high tide line, or (2) the discharge of dredged or
fill material is in a special aquatic site, including wetlands. (See
general condition 32.) (Authorities: Sections 10 and 404).
19. Minor Dredging. Dredging of no more than 25 cubic yards below
the plane of the ordinary high water mark or the mean high water mark
from navigable waters of the United States (i.e., section 10 waters).
This NWP does not authorize the dredging or degradation through
siltation of coral reefs, sites that support submerged aquatic
vegetation (including sites where submerged aquatic vegetation is
documented to exist but may not be present in a given year), anadromous
fish spawning areas, or wetlands, or the connection of canals or other
artificial waterways to navigable waters of the United States (see 33
CFR 322.5(g)). All dredged material must be deposited and retained in
an area that has no waters of the United States unless otherwise
specifically approved by the district engineer under separate
authorization. (Authorities: Sections 10 and 404).
20. Response Operations for Oil or Hazardous Substances. Activities
conducted in response to a discharge or release of oil or hazardous
substances that are subject to the National Oil and Hazardous
Substances Pollution Contingency Plan (40 CFR part 300) including
containment, cleanup, and mitigation efforts, provided that the
activities are done under either: (1) The Spill Control and
Countermeasure Plan required by 40 CFR 112.3; (2) the direction or
oversight of the federal on-scene coordinator designated by 40 CFR part
300; or (3) any approved existing state, regional or local contingency
plan provided that the Regional Response
[[Page 73576]]
Team (if one exists in the area) concurs with the proposed response
efforts. This NWP also authorizes activities required for the cleanup
of oil releases in waters of the United States from electrical
equipment that are governed by EPA's polychlorinated biphenyl spill
response regulations at 40 CFR part 761. This NWP also authorizes the
use of temporary structures and fills in waters of the U.S. for spill
response training exercises. (Authorities: Sections 10 and 404).
22. Removal of Vessels. Temporary structures or minor discharges of
dredged or fill material required for the removal of wrecked,
abandoned, or disabled vessels, or the removal of man-made obstructions
to navigation. This NWP does not authorize maintenance dredging, shoal
removal, or riverbank snagging.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The vessel is listed or eligible for listing in the National
Register of Historic Places; or (2) the activity is conducted in a
special aquatic site, including coral reefs and wetlands. (See general
condition 32.) If the vessel is listed or eligible for listing in the
National Register of Historic Places, the permittee cannot commence the
activity until informed by the district engineer that compliance with
the ``Historic Properties'' general condition is completed.
(Authorities: Sections 10 and 404).
Note 1: Intentional ocean disposal of vessels at sea requires a
permit from the U.S. EPA under the Marine Protection, Research and
Sanctuaries Act, which specifies that ocean disposal should only be
pursued when land-based alternatives are not available. If a Department
of the Army permit is required for vessel disposal in waters of the
United States, separate authorization will be required.
Note 2: Compliance with general condition 18, Endangered Species,
and general condition 20, Historic Properties, is required for all
NWPs. The concern with historic properties is emphasized in the
notification requirements for this NWP because of the possibility that
shipwrecks may be historic properties.
23. Approved Categorical Exclusions. Activities undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another Federal agency or department where:
(a) That agency or department has determined, pursuant to the
Council on Environmental Quality's implementing regulations for the
National Environmental Policy Act (40 CFR part 1500 et seq.), that the
activity is categorically excluded from the requirement to prepare an
environmental impact statement or environmental assessment analysis,
because it is included within a category of actions which neither
individually nor cumulatively have a significant effect on the human
environment; and
(b) The Office of the Chief of Engineers (Attn: CECW-CO) has
concurred with that agency's or department's determination that the
activity is categorically excluded and approved the activity for
authorization under NWP 23.
The Office of the Chief of Engineers may require additional
conditions, including pre-construction notification, for authorization
of an agency's categorical exclusions under this NWP.
Notification: Certain categorical exclusions approved for
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing
the activity (see general condition 32). The activities that require
pre-construction notification are listed in the appropriate Regulatory
Guidance Letter(s). (Authorities: Sections 10 and 404).
Note: The agency or department may submit an application for an
activity believed to be categorically excluded to the Office of the
Chief of Engineers (Attn: CECW-CO). Prior to approval for authorization
under this NWP of any agency's activity, the Office of the Chief of
Engineers will solicit public comment. As of the date of issuance of
this NWP, agencies with approved categorical exclusions are: the Bureau
of Reclamation, Federal Highway Administration, and U.S. Coast Guard.
Activities approved for authorization under this NWP as of the date of
this notice are found in Corps Regulatory Guidance Letter 05-07. Any
future approved categorical exclusions will be announced in Regulatory
Guidance Letters and posted on this same website.
24. Indian Tribe or State Administered Section 404 Programs. Any
activity permitted by a state or Indian Tribe administering its own
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899.
(Authority: Section 10).
Note 1: As of the date of the promulgation of this NWP, only
Florida, New Jersey and Michigan administer their own Clean Water Act
Section 404 permit programs.
Note 2: Those activities that do not involve an Indian Tribe or
State Clean Water Act Section 404 permit are not included in this NWP,
but certain structures will be exempted by Section 154 of Public Law
94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).
25. Structural Discharges. Discharges of dredged or fill material
such as concrete, sand, rock, etc., into tightly sealed forms or cells
where the material will be used as a structural member for standard
pile supported structures, such as bridges, transmission line footings,
and walkways, or for general navigation, such as mooring cells,
including the excavation of bottom material from within the form prior
to the discharge of concrete, sand, rock, etc. This NWP does not
authorize filled structural members that would support buildings,
building pads, homes, house pads, parking areas, storage areas and
other such structures. The structure itself may require a separate
section 10 permit if located in navigable waters of the United States.
(Authority: Section 404).
27. Aquatic Habitat Restoration, Enhancement, and Establishment
Activities. Activities in waters of the United States associated with
the restoration, enhancement, and establishment of tidal and non-tidal
wetlands and riparian areas, the restoration and enhancement of non-
tidal streams and other non-tidal open waters, and the rehabilitation
or enhancement of tidal streams, tidal wetlands, and tidal open waters,
provided those activities result in net increases in aquatic resource
functions and services.
To be authorized by this NWP, the aquatic habitat restoration,
enhancement, or establishment activity must be planned, designed, and
implemented so that it results in aquatic habitat that resembles an
ecological reference. An ecological reference may be based on the
characteristics of one or more intact aquatic habitats or riparian
areas of the same type that exist in the region. An ecological
reference may be based on a conceptual model developed from regional
ecological knowledge of the target aquatic habitat type or riparian
area.
To the extent that a Corps permit is required, activities
authorized by this NWP include, but are not limited to the removal of
accumulated sediments; releases of sediment from reservoirs to maintain
sediment transport continuity to restore downstream habitats; the
installation, removal, and maintenance of small water control
structures, dikes, and berms, as well as discharges of dredged or fill
material to restore appropriate stream channel configurations after
small water control structures, dikes, and berms are
[[Page 73577]]
removed; the installation of current deflectors; the enhancement,
rehabilitation, or re-establishment of riffle and pool stream
structure; the placement of in-stream habitat structures; modifications
of the stream bed and/or banks to enhance, rehabilitate, or re-
establish stream meanders; the removal of stream barriers, such as
undersized culverts, fords, and grade control structures; the
backfilling of artificial channels; the removal of existing drainage
structures, such as drain tiles, and the filling, blocking, or
reshaping of drainage ditches to restore wetland hydrology; the
installation of structures or fills necessary to restore or enhance
wetland or stream hydrology; the construction of small nesting islands;
the construction of open water areas; the construction of oyster
habitat over unvegetated bottom in tidal waters; coral restoration or
relocation activities; shellfish seeding; activities needed to
reestablish vegetation, including plowing or discing for seed bed
preparation and the planting of appropriate wetland species; re-
establishment of submerged aquatic vegetation in areas where those
plant communities previously existed; re-establishment of tidal
wetlands in tidal waters where those wetlands previously existed;
mechanized land clearing to remove non-native invasive, exotic, or
nuisance vegetation; and other related activities. Only native plant
species should be planted at the site.
This NWP authorizes the relocation of non-tidal waters, including
non-tidal wetlands and streams, on the project site provided there are
net increases in aquatic resource functions and services.
Except for the relocation of non-tidal waters on the project site,
this NWP does not authorize the conversion of a stream or natural
wetlands to another aquatic habitat type (e.g., the conversion of a
stream to wetland or vice versa) or uplands. Changes in wetland plant
communities that occur when wetland hydrology is more fully restored
during wetland rehabilitation activities are not considered a
conversion to another aquatic habitat type. This NWP does not authorize
stream channelization. This NWP does not authorize the relocation of
tidal waters or the conversion of tidal waters, including tidal
wetlands, to other aquatic uses, such as the conversion of tidal
wetlands into open water impoundments.
Compensatory mitigation is not required for activities authorized
by this NWP since these activities must result in net increases in
aquatic resource functions and services.
Reversion. For enhancement, restoration, and establishment
activities conducted: (1) In accordance with the terms and conditions
of a binding stream or wetland enhancement or restoration agreement, or
a wetland establishment agreement, between the landowner and the U.S.
Fish and Wildlife Service (FWS), the Natural Resources Conservation
Service (NRCS), the Farm Service Agency (FSA), the National Marine
Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest
Service (USFS), or their designated state cooperating agencies; (2) as
voluntary wetland restoration, enhancement, and establishment actions
documented by the NRCS or USDA Technical Service Provider pursuant to
NRCS Field Office Technical Guide standards; or (3) on reclaimed
surface coal mine lands, in accordance with a Surface Mining Control
and Reclamation Act permit issued by the Office of Surface Mining
Reclamation and Enforcement (OSMRE) or the applicable state agency,
this NWP also authorizes any future discharge of dredged or fill
material associated with the reversion of the area to its documented
prior condition and use (i.e., prior to the restoration, enhancement,
or establishment activities). The reversion must occur within five
years after expiration of a limited term wetland restoration or
establishment agreement or permit, and is authorized in these
circumstances even if the discharge of dredged or fill material occurs
after this NWP expires. The five-year reversion limit does not apply to
agreements without time limits reached between the landowner and the
FWS, NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating
agency. This NWP also authorizes discharges of dredged or fill material
in waters of the United States for the reversion of wetlands that were
restored, enhanced, or established on prior-converted cropland or on
uplands, in accordance with a binding agreement between the landowner
and NRCS, FSA, FWS, or their designated state cooperating agencies
(even though the restoration, enhancement, or establishment activity
did not require a section 404 permit). The prior condition will be
documented in the original agreement or permit, and the determination
of return to prior conditions will be made by the Federal agency or
appropriate state agency executing the agreement or permit. Before
conducting any reversion activity, the permittee or the appropriate
Federal or state agency must notify the district engineer and include
the documentation of the prior condition. Once an area has reverted to
its prior physical condition, it will be subject to whatever the Corps
Regulatory requirements are applicable to that type of land at the
time. The requirement that the activity results in a net increase in
aquatic resource functions and services does not apply to reversion
activities meeting the above conditions. Except for the activities
described above, this NWP does not authorize any future discharge of
dredged or fill material associated with the reversion of the area to
its prior condition. In such cases a separate permit would be required
for any reversion.
Reporting. For those activities that do not require pre-
construction notification, the permittee must submit to the district
engineer a copy of: (1) The binding stream enhancement or restoration
agreement or wetland enhancement, restoration, or establishment
agreement, or a project description, including project plans and
location map; (2) the NRCS or USDA Technical Service Provider
documentation for the voluntary stream enhancement or restoration
action or wetland restoration, enhancement, or establishment action; or
(3) the SMCRA permit issued by OSMRE or the applicable state agency.
The report must also include information on baseline ecological
conditions on the project site, such as a delineation of wetlands,
streams, and/or other aquatic habitats. These documents must be
submitted to the district engineer at least 30 days prior to commencing
activities in waters of the United States authorized by this NWP.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing any activity
(see general condition 32), except for the following activities:
(1) Activities conducted on non-Federal public lands and private
lands, in accordance with the terms and conditions of a binding stream
enhancement or restoration agreement or wetland enhancement,
restoration, or establishment agreement between the landowner and the
FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating
agencies;
(2) Activities conducted in accordance with the terms and
conditions of a binding coral restoration or relocation agreement
between the project proponent and the NMFS or any of its designated
state cooperating agencies;
(3) Voluntary stream or wetland restoration or enhancement action,
or wetland establishment action, documented by the NRCS or USDA
Technical Service Provider pursuant to
[[Page 73578]]
NRCS Field Office Technical Guide standards; or
(4) The reclamation of surface coal mine lands, in accordance with
an SMCRA permit issued by the OSMRE or the applicable state agency.
However, the permittee must submit a copy of the appropriate
documentation to the district engineer to fulfill the reporting
requirement. (Authorities: Sections 10 and 404).
Note: This NWP can be used to authorize compensatory mitigation
projects, including mitigation banks and in-lieu fee projects. However,
this NWP does not authorize the reversion of an area used for a
compensatory mitigation project to its prior condition, since
compensatory mitigation is generally intended to be permanent.
28. Modifications of Existing Marinas. Reconfiguration of existing
docking facilities within an authorized marina area. No dredging,
additional slips, dock spaces, or expansion of any kind within waters
of the United States is authorized by this NWP. (Authority: Section
10).
30. Moist Soil Management for Wildlife. Discharges of dredged or
fill material into non-tidal waters of the United States and
maintenance activities that are associated with moist soil management
for wildlife for the purpose of continuing ongoing, site-specific,
wildlife management activities where soil manipulation is used to
manage habitat and feeding areas for wildlife. Such activities include,
but are not limited to, plowing or discing to impede succession,
preparing seed beds, or establishing fire breaks. Sufficient riparian
areas must be maintained adjacent to all open water bodies, including
streams, to preclude water quality degradation due to erosion and
sedimentation. This NWP does not authorize the construction of new
dikes, roads, water control structures, or similar features associated
with the management areas. The activity must not result in a net loss
of aquatic resource functions and services. This NWP does not authorize
the conversion of wetlands to uplands, impoundments, or other open
water bodies. (Authority: Section 404).
Note: The repair, maintenance, or replacement of existing water
control structures or the repair or maintenance of dikes may be
authorized by NWP 3. Some such activities may qualify for an exemption
under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).
31. Maintenance of Existing Flood Control Facilities. Discharges of
dredged or fill material resulting from activities associated with the
maintenance of existing flood control facilities, including debris
basins, retention/detention basins, levees, and channels that: (i) Were
previously authorized by the Corps by individual permit, general
permit, or 33 CFR 330.3, or did not require a permit at the time they
were constructed, or (ii) were constructed by the Corps and transferred
to a non-Federal sponsor for operation and maintenance. Activities
authorized by this NWP are limited to those resulting from maintenance
activities that are conducted within the ``maintenance baseline,'' as
described in the definition below. Discharges of dredged or fill
materials associated with maintenance activities in flood control
facilities in any watercourse that have previously been determined to
be within the maintenance baseline are authorized under this NWP. To
the extent that a Corps permit is required, this NWP authorizes the
removal of vegetation from levees associated with the flood control
project. This NWP does not authorize the removal of sediment and
associated vegetation from natural water courses except when these
activities have been included in the maintenance baseline. All dredged
and excavated material must be deposited and retained in an area that
has no waters of the United States unless otherwise specifically
approved by the district engineer under separate authorization. Proper
sediment controls must be used.
Maintenance Baseline: The maintenance baseline is a description of
the physical characteristics (e.g., depth, width, length, location,
configuration, or design flood capacity, etc.) of a flood control
project within which maintenance activities are normally authorized by
NWP 31, subject to any case-specific conditions required by the
district engineer. The district engineer will approve the maintenance
baseline based on the approved or constructed capacity of the flood
control facility, whichever is smaller, including any areas where there
are no constructed channels but which are part of the facility. The
prospective permittee will provide documentation of the physical
characteristics of the flood control facility (which will normally
consist of as-built or approved drawings) and documentation of the
approved and constructed design capacities of the flood control
facility. If no evidence of the constructed capacity exists, the
approved capacity will be used. The documentation will also include
best management practices to ensure that the adverse environmental
impacts caused by the maintenance activities are no more than minimal,
especially in maintenance areas where there are no constructed
channels. (The Corps may request maintenance records in areas where
there has not been recent maintenance.) Revocation or modification of
the final determination of the maintenance baseline can only be done in
accordance with 33 CFR 330.5. Except in emergencies as described below,
this NWP cannot be used until the district engineer approves the
maintenance baseline and determines the need for mitigation and any
regional or activity-specific conditions. Once determined, the
maintenance baseline will remain valid for any subsequent reissuance of
this NWP. This NWP does not authorize maintenance of a flood control
facility that has been abandoned. A flood control facility will be
considered abandoned if it has operated at a significantly reduced
capacity without needed maintenance being accomplished in a timely
manner. A flood control facility will not be considered abandoned if
the prospective permittee is in the process of obtaining other
authorizations or approvals required for maintenance activities and is
experiencing delays in obtaining those authorizations or approvals.
Mitigation: The district engineer will determine any required
mitigation one-time only for impacts associated with maintenance work
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse
environmental effects are no more than minimal, both individually and
cumulatively. Such mitigation will only be required once for any
specific reach of a flood control project. However, if one-time
mitigation is required for impacts associated with maintenance
activities, the district engineer will not delay needed maintenance,
provided the district engineer and the permittee establish a schedule
for identification, approval, development, construction and completion
of any such required mitigation. Once the one-time mitigation described
above has been completed, or a determination made that mitigation is
not required, no further mitigation will be required for maintenance
activities within the maintenance baseline (see Note, below). In
determining appropriate mitigation, the district engineer will give
special consideration to natural water courses that have been included
in the maintenance baseline and require mitigation and/or best
management practices as appropriate.
Emergency Situations: In emergency situations, this NWP may be used
to authorize maintenance activities in flood control facilities for
which no maintenance baseline has been
[[Page 73579]]
approved. Emergency situations are those which would result in an
unacceptable hazard to life, a significant loss of property, or an
immediate, unforeseen, and significant economic hardship if action is
not taken before a maintenance baseline can be approved. In such
situations, the determination of mitigation requirements, if any, may
be deferred until the emergency has been resolved. Once the emergency
has ended, a maintenance baseline must be established expeditiously,
and mitigation, including mitigation for maintenance conducted during
the emergency, must be required as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer before any maintenance work is
conducted (see general condition 32). The pre-construction notification
may be for activity-specific maintenance or for maintenance of the
entire flood control facility by submitting a five-year (or less)
maintenance plan. The pre-construction notification must include a
description of the maintenance baseline and the disposal site for
dredged or excavated material. (Authorities: Sections 10 and 404)
Note: If the maintenance baseline was approved by the district
engineer under a prior version of NWP 31, and the district engineer
imposed the one-time compensatory mitigation requirement on maintenance
for a specific reach of a flood control project authorized by that
prior version of NWP 31, during the period this version of NWP 31 is in
effect, the district engineer will not require additional compensatory
mitigation for maintenance activities authorized by this NWP in that
specific reach of the flood control project.
32. Completed Enforcement Actions. Any structure, work, or
discharge of dredged or fill material remaining in place or undertaken
for mitigation, restoration, or environmental benefit in compliance
with either:
(i) The terms of a final written Corps non-judicial settlement
agreement resolving a violation of Section 404 of the Clean Water Act
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms
of an EPA 309(a) order on consent resolving a violation of Section 404
of the Clean Water Act, provided that:
(a) The activities authorized by this NWP cannot adversely affect
more than 5 acres of non-tidal waters or 1 acre of tidal waters;
(b) The settlement agreement provides for environmental benefits,
to an equal or greater degree, than the environmental detriments caused
by the unauthorized activity that is authorized by this NWP; and
(c) The district engineer issues a verification letter authorizing
the activity subject to the terms and conditions of this NWP and the
settlement agreement, including a specified completion date; or
(ii) The terms of a final Federal court decision, consent decree,
or settlement agreement resulting from an enforcement action brought by
the United States under Section 404 of the Clean Water Act and/or
Section 10 of the Rivers and Harbors Act of 1899; or
(iii) The terms of a final court decision, consent decree,
settlement agreement, or non-judicial settlement agreement resulting
from a natural resource damage claim brought by a trustee or trustees
for natural resources (as defined by the National Contingency Plan at
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107
of the Comprehensive Environmental Response, Compensation and Liability
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002
of the Oil Pollution Act of 1990, or the Park System Resource
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is
required.
Compliance is a condition of the NWP itself; non-compliance of the
terms and conditions of an NWP 32 authorization may result in an
additional enforcement action (e.g., a Class I civil administrative
penalty). Any authorization under this NWP is automatically revoked if
the permittee does not comply with the terms of this NWP or the terms
of the court decision, consent decree, or judicial/non-judicial
settlement agreement. This NWP does not apply to any activities
occurring after the date of the decision, decree, or agreement that are
not for the purpose of mitigation, restoration, or environmental
benefit. Before reaching any settlement agreement, the Corps will
ensure compliance with the provisions of 33 CFR part 326 and 33 CFR
330.6(d)(2) and (e). (Authorities: Sections 10 and 404)
33. Temporary Construction, Access, and Dewatering. Temporary
structures, work, and discharges of dredged or fill material, including
cofferdams, necessary for construction activities or access fills or
dewatering of construction sites, provided that the associated primary
activity is authorized by the Corps of Engineers or the U.S. Coast
Guard. This NWP also authorizes temporary structures, work, and
discharges of dredged or fill material, including cofferdams, necessary
for construction activities not otherwise subject to the Corps or U.S.
Coast Guard permit requirements. Appropriate measures must be taken to
maintain near normal downstream flows and to minimize flooding. Fill
must consist of materials, and be placed in a manner, that will not be
eroded by expected high flows. The use of dredged material may be
allowed if the district engineer determines that it will not cause more
than minimal adverse environmental effects. Following completion of
construction, temporary fill must be entirely removed to an area that
has no waters of the United States, dredged material must be returned
to its original location, and the affected areas must be restored to
pre-construction elevations. The affected areas must also be
revegetated, as appropriate. This permit does not authorize the use of
cofferdams to dewater wetlands or other aquatic areas to change their
use. Structures left in place after construction is completed require a
separate section 10 permit if located in navigable waters of the United
States. (See 33 CFR part 322.)
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if the activity is conducted in navigable waters of the United States
(i.e., section 10 waters) (see general condition 32). The pre-
construction notification must include a restoration plan showing how
all temporary fills and structures will be removed and the area
restored to pre-project conditions. (Authorities: Sections 10 and 404)
34. Cranberry Production Activities. Discharges of dredged or fill
material for dikes, berms, pumps, water control structures or leveling
of cranberry beds associated with expansion, enhancement, or
modification activities at existing cranberry production operations.
The cumulative total acreage of disturbance per cranberry production
operation, including but not limited to, filling, flooding, ditching,
or clearing, must not exceed 10 acres of waters of the United States,
including wetlands. The activity must not result in a net loss of
wetland acreage. This NWP does not authorize any discharge of dredged
or fill material related to other cranberry production activities such
as warehouses, processing facilities, or parking areas. For the
purposes of this NWP, the cumulative total of 10 acres will be measured
over the period that this NWP is valid.
Notification: The permittee must submit a pre-construction
notification to the district engineer once during the period that this
NWP is valid, and the NWP will then authorize discharges of dredge or
fill material at an existing operation for the permit term, provided
[[Page 73580]]
the 10-acre limit is not exceeded. (See general condition 32.)
(Authority: Section 404)
35. Maintenance Dredging of Existing Basins. The removal of
accumulated sediment for maintenance of existing marina basins, access
channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever
is less. All dredged material must be deposited and retained in an area
that has no waters of the United States unless otherwise specifically
approved by the district engineer under separate authorization. Proper
sediment controls must be used for the disposal site. (Authority:
Section 10)
36. Boat Ramps. Activities required for the construction, repair,
or replacement of boat ramps, provided the activity meets all of the
following criteria:
(a) The discharge of dredged or fill material into waters of the
United States does not exceed 50 cubic yards of concrete, rock, crushed
stone or gravel into forms, or in the form of pre-cast concrete planks
or slabs, unless the district engineer waives the 50 cubic yard limit
by making a written determination concluding that the discharge of
dredged or fill material will result in no more than minimal adverse
environmental effects;
(b) The boat ramp does not exceed 20 feet in width, unless the
district engineer waives this criterion by making a written
determination concluding that the discharge of dredged or fill material
will result in no more than minimal adverse environmental effects;
(c) The base material is crushed stone, gravel or other suitable
material;
(d) The excavation is limited to the area necessary for site
preparation and all excavated material is removed to an area that has
no waters of the United States; and,
(e) No material is placed in special aquatic sites, including
wetlands.
The use of unsuitable material that is structurally unstable is not
authorized. If dredging in navigable waters of the United States is
necessary to provide access to the boat ramp, the dredging must be
authorized by another NWP, a regional general permit, or an individual
permit.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge of dredged or fill material into waters of the
United States exceeds 50 cubic yards, or (2) the boat ramp exceeds 20
feet in width. (See general condition 32.) (Authorities: Sections 10
and 404)
37. Emergency Watershed Protection and Rehabilitation. Work done by
or funded by:
(a) The Natural Resources Conservation Service for a situation
requiring immediate action under its emergency Watershed Protection
Program (7 CFR part 624);
(b) The U.S. Forest Service under its Burned-Area Emergency
Rehabilitation Handbook (FSH 2509.13);
(c) The Department of the Interior for wildland fire management
burned area emergency stabilization and rehabilitation (DOI Manual part
620, Ch. 3);
(d) The Office of Surface Mining, or states with approved programs,
for abandoned mine land reclamation activities under Title IV of the
Surface Mining Control and Reclamation Act (30 CFR subchapter R), where
the activity does not involve coal extraction; or
(e) The Farm Service Agency under its Emergency Conservation
Program (7 CFR part 701).
In general, the permittee should wait until the district engineer
issues an NWP verification or 45 calendar days have passed before
proceeding with the watershed protection and rehabilitation activity.
However, in cases where there is an unacceptable hazard to life or a
significant loss of property or economic hardship will occur, the
emergency watershed protection and rehabilitation activity may proceed
immediately and the district engineer will consider the information in
the pre-construction notification and any comments received as a result
of agency coordination to decide whether the NWP 37 authorization
should be modified, suspended, or revoked in accordance with the
procedures at 33 CFR 330.5.
Notification: Except in cases where there is an unacceptable hazard
to life or a significant loss of property or economic hardship will
occur, the permittee must submit a pre-construction notification to the
district engineer prior to commencing the activity (see general
condition 32). (Authorities: Sections 10 and 404)
38. Cleanup of Hazardous and Toxic Waste. Specific activities
required to effect the containment, stabilization, or removal of
hazardous or toxic waste materials that are performed, ordered, or
sponsored by a government agency with established legal or regulatory
authority. Court ordered remedial action plans or related settlements
are also authorized by this NWP. This NWP does not authorize the
establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note: Activities undertaken entirely on a Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) site
by authority of CERCLA as approved or required by EPA, are not required
to obtain permits under Section 404 of the Clean Water Act or Section
10 of the Rivers and Harbors Act.
41. Reshaping Existing Drainage and Irrigation Ditches. Discharges
of dredged or fill material into non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters, to modify the
cross-sectional configuration of currently serviceable drainage and
irrigation ditches constructed in waters of the United States, for the
purpose of improving water quality by regrading the drainage or
irrigation ditch with gentler slopes, which can reduce erosion,
increase growth of vegetation, and increase uptake of nutrients and
other substances by vegetation. The reshaping of the drainage ditch
cannot increase drainage capacity beyond the original as-built capacity
nor can it expand the area drained by the drainage ditch as originally
constructed (i.e., the capacity of the drainage ditch must be the same
as originally constructed and it cannot drain additional wetlands or
other waters of the United States). Compensatory mitigation is not
required because the work is designed to improve water quality.
This NWP does not authorize the relocation of drainage or
irrigation ditches constructed in waters of the United States; the
location of the centerline of the reshaped drainage or irrigation ditch
must be approximately the same as the location of the centerline of the
original drainage or irrigation ditch. This NWP does not authorize
stream channelization or stream relocation projects. (Authority:
Section 404)
45. Repair of Uplands Damaged by Discrete Events. This NWP
authorizes discharges of dredged or fill material, including dredging
or excavation, into all waters of the United States for activities
associated with the restoration of upland areas damaged by storms,
floods, or other discrete events. This NWP authorizes bank
stabilization to protect the restored uplands. The restoration of the
damaged areas, including any bank stabilization, must not exceed the
contours, or ordinary high water mark, that existed before the damage
occurred. The district engineer
[[Page 73581]]
retains the right to determine the extent of the pre-existing
conditions and the extent of any restoration work authorized by this
NWP. The work must commence, or be under contract to commence, within
two years of the date of damage, unless this condition is waived in
writing by the district engineer. This NWP cannot be used to reclaim
lands lost to normal erosion processes over an extended period.
This NWP does not authorize beach restoration or nourishment.
Minor dredging is limited to the amount necessary to restore the
damaged upland area and should not significantly alter the pre-existing
bottom contours of the waterbody.
Notification: The permittee must submit a pre-construction
notification to the district engineer (see general condition 32) within
12 months of the date of the damage; for major storms, floods, or other
discrete events, the district engineer may waive the 12-month limit for
submitting a pre-construction notification if the permittee can
demonstrate funding, contract, or other similar delays. The pre-
construction notification must include documentation, such as a recent
topographic survey or photographs, to justify the extent of the
proposed restoration. (Authorities: Sections 10 and 404)
Note: The uplands themselves that are lost as a result of a storm,
flood, or other discrete event can be replaced without a Clean Water
Act Section 404 permit, if the uplands are restored to the ordinary
high water mark (in non-tidal waters) or high tide line (in tidal
waters). (See also 33 CFR 328.5.) This NWP authorizes discharges of
dredged or fill material into waters of the United States associated
with the restoration of uplands.
46. Discharges in Ditches. Discharges of dredged or fill material
into non-tidal ditches that are (1) constructed in uplands, (2) receive
water from an area determined to be a water of the United States prior
to the construction of the ditch, (3) divert water to an area
determined to be a water of the United States prior to the construction
of the ditch, and (4) determined to be waters of the United States. The
discharge of dredged or fill material must not cause the loss of
greater than one acre of waters of the United States.
This NWP does not authorize discharges of dredged or fill material
into ditches constructed in streams or other waters of the United
States, or in streams that have been relocated in uplands. This NWP
does not authorize discharges of dredged or fill material that increase
the capacity of the ditch and drain those areas determined to be waters
of the United States prior to construction of the ditch.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 404)
49. Coal Remining Activities. Discharges of dredged or fill
material into non-tidal waters of the United States associated with the
remining and reclamation of lands that were previously mined for coal.
The activities must already be authorized, or they must currently be in
process by the Department of the Interior Office of Surface Mining
Reclamation and Enforcement, or by states with approved programs under
Title IV or Title V of the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). Areas previously mined include reclaimed mine sites,
abandoned mine land areas, or lands under bond forfeiture contracts.
As part of the project, the permittee may conduct new coal mining
activities in conjunction with the remining activities when he or she
clearly demonstrates to the district engineer that the overall mining
plan will result in a net increase in aquatic resource functions. The
Corps will consider the SMCRA agency's decision regarding the amount of
currently undisturbed adjacent lands needed to facilitate the remining
and reclamation of the previously mined area. The total area disturbed
by new mining must not exceed 40 percent of the total acreage covered
by both the remined area and the additional area necessary to carry out
the reclamation of the previously mined area.
Notification: The permittee must submit a pre-construction
notification and a document describing how the overall mining plan will
result in a net increase in aquatic resource functions to the district
engineer and receive written authorization prior to commencing the
activity. (See general condition 32.) (Authorities: Sections 10 and
404)
53. Removal of Low-Head Dams. Structures and work in navigable
waters of the United States and discharges of dredged or fill material
into waters of the United States associated with the removal of low-
head dams.
For the purposes of this NWP, the term ``low-head dam'' is
generally defined as a dam or weir built across a stream to pass flows
from upstream over all, or nearly all, of the width of the dam crest
and does not have a separate spillway or spillway gates, but it may
have an uncontrolled spillway. The dam crest is the top of the dam from
left abutment to right abutment. A low-head dam may have been built for
a range of purposes (e.g., check dam, mill dam, irrigation, water
supply, recreation, hydroelectric, or cooling pond), but in all cases,
it provides little or no storage function.
The removed low-head dam structure must be deposited and retained
in an area that has no waters of the United States unless otherwise
specifically approved by the district engineer under separate
authorization.
Because the removal of the low-head dam will result in a net
increase in ecological functions and services provided by the stream,
as a general rule compensatory mitigation is not required for
activities authorized by this NWP. However, the district engineer may
determine for a particular low-head dam removal activity that
compensatory mitigation is necessary to ensure that the authorized
activity results in no more than minimal adverse environmental effects.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note: This NWP does not authorize discharges of dredged or fill
material into waters of the United States or structures or work in
navigable waters to restore the stream in the vicinity of the low-head
dam, including the former impoundment area. Nationwide permit 27 or
other Department of the Army permits may authorize such activities.
This NWP does not authorize discharges of dredged or fill material into
waters of the United States or structures or work in navigable waters
to stabilize stream banks. Bank stabilization activities may be
authorized by NWP 13 or other Department of the Army permits.
54. Living Shorelines. Structures and work in navigable waters of
the United States and discharges of dredged or fill material into
waters of the United States for the construction and maintenance of
living shorelines to stabilize banks and shores in coastal waters,
which includes the Great Lakes, along shores with small fetch and
gentle slopes that are subject to low- to mid-energy waves. A living
shoreline has a footprint that is made up mostly of native material. It
incorporates vegetation or other living, natural ``soft'' elements
alone or in combination with some type of harder shoreline structure
(e.g., oyster or mussel reefs or rock sills) for added protection and
stability. Living shorelines should maintain the natural continuity of
the land-water interface, and retain or enhance shoreline ecological
processes. Living
[[Page 73582]]
shorelines must have a substantial biological component, either tidal
or lacustrine fringe wetlands or oyster or mussel reef structures. The
following conditions must be met:
(a) The structures and fill area, including sand fills, sills,
breakwaters, or reefs, cannot extend into the waterbody more than 30
feet from the mean low water line in tidal waters or the ordinary high
water mark in the Great Lakes, unless the district engineer waives this
criterion by making a written determination concluding that the
activity will result in no more than minimal adverse environmental
effects;
(b) The activity is no more than 500 feet in length along the bank,
unless the district engineer waives this criterion by making a written
determination concluding that the activity will result in no more than
minimal adverse environmental effects;
(c) Coir logs, coir mats, stone, native oyster shell, native wood
debris, and other structural materials must be adequately anchored, of
sufficient weight, or installed in a manner that prevents relocation in
most wave action or water flow conditions, except for extremely severe
storms;
(d) For living shorelines consisting of tidal or lacustrine fringe
wetlands, native plants appropriate for current site conditions,
including salinity and elevation, must be used if the site is planted
by the permittee;
(e) Discharges of dredged or fill material into waters of the
United States, and oyster or mussel reef structures in navigable
waters, must be the minimum necessary for the establishment and
maintenance of the living shoreline;
(f) If sills, breakwaters, or other structures must be constructed
to protect fringe wetlands for the living shoreline, those structures
must be the minimum size necessary to protect those fringe wetlands;
(g) The activity must be designed, constructed, and maintained so
that it has no more than minimal adverse effects on water movement
between the waterbody and the shore and the movement of aquatic
organisms between the waterbody and the shore; and
(h) The living shoreline must be properly maintained, which may
require periodic repair of sills, breakwaters, or reefs, or replacing
sand fills after severe storms or erosion events. Vegetation may be
replanted to maintain the living shoreline. This NWP authorizes those
maintenance and repair activities, including any minor deviations
necessary to address changing environmental conditions.
This NWP does not authorize beach nourishment or land reclamation
activities.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the
construction of the living shoreline. (See general condition 32.) The
pre-construction notification must include a delineation of special
aquatic sites (see paragraph (b)(4) of general condition 32). Pre-
construction notification is not required for maintenance and repair
activities for living shorelines unless required by applicable NWP
general conditions or regional conditions. (Authorities: Sections 10
and 404)
Note: In waters outside of coastal waters, nature-based bank
stabilization techniques, such as bioengineering and vegetative
stabilization, may be authorized by NWP 13.
59. Water reclamation and reuse facilities. Discharges of dredged
or fill material into non-tidal waters of the United States for the
construction, expansion, and maintenance of water reclamation and reuse
facilities, including vegetated areas enhanced to improve water
infiltration and constructed wetlands to improve water quality.
The discharge of dredged or fill material must not cause 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.
This NWP also authorizes temporary fills, including the use of
temporary mats, necessary to construct the water reuse project and
attendant features. Appropriate measures must be taken to maintain
normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges 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.
(See general condition 32.) (Authorities: Sections 10 and 404)
C. Nationwide Permit General Conditions
See the final rule published in the January 13, 2021, issue of the
Federal Register at 86 FR 2867-2874 for the text of section C, 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
D. District Engineer's Decision
See the final rule published in the January 13, 2021, issue of the
Federal Register at 86 FR 2874-2875 for the text of section D, District
Engineer's Decision:
E. Further Information
See the final rule published in the January 13, 2021, issue of the
Federal Register at 86 FR 2875 for the text of section E, Further
Information.
F. Definitions
See the final rule published in the January 13, 2021, issue of the
Federal Register at 86 FR 2875-2877 for the text of section F,
Definitions:
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Ecological reference
[[Page 73583]]
Enhancement
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Loss of waters of the United States
Navigable waters
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Tribal lands
Tribal rights
Vegetated shallows
Waterbody
[FR Doc. 2021-27441 Filed 12-23-21; 8:45 am]
BILLING CODE 3720-58-P