[Federal Register Volume 91, Number 5 (Thursday, January 8, 2026)]
[Rules and Regulations]
[Pages 768-886]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-00121]
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Vol. 91
Thursday,
No. 5
January 8, 2026
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Chapter II
Reissuance and Modification of Nationwide Permits; Final Action
Federal Register / Vol. 91, No. 5 / Thursday, January 8, 2026 / Rules
and Regulations
[[Page 768]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
[Docket Number: COE-2025-0002]
RIN 0710-AB56
Reissuance and Modification of Nationwide Permits
AGENCY: Corps of Engineers, Army, DoD.
ACTION: Final action.
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SUMMARY: Nationwide Permits (NWPs) authorize 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. The NWPs help protect the aquatic
environment and the public interest by providing incentives to reduce
impacts to jurisdictional waters. In this final action, the U.S. Army
Corps of Engineers (Corps) is reissuing 56 existing nationwide permits
(NWPs), general conditions, and definitions, with some modifications.
The Corps is also issuing one new NWP.
DATES: The 57 NWPs, the general conditions, and the associated
definitions will go into effect on March 15, 2026. The NWPs will expire
on March 15, 2031.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW, Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Ms. Katherine McCafferty at 513-310-
4196 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:
List of Acronyms
List of Nationwide Permits and General Conditions Issued in This
Final Action
Nationwide Permits (NWPs)
Nationwide Permit General Conditions
I. Background
A. General
B. Overview of Proposed Rule
C. Overview of This Final Action
D. Status of Existing Permits
E. Nationwide Permit Verifications
F. Severability
II. Discussion of Public Comments
A. Overview
B. Responses to General Comments
C. Responses to Comments on Regional Conditions of Nationwide
Permits
D. Responses to Comments on Nature-Based Solutions and the NWP
Program
E. Response to Comments on Notes in the NWPs for Utilities and
Mariculture Activities
F. Responses to Comments on Specific Nationwide Permits
G. Responses to Comments on the Nationwide Permits General
Conditions
H. Responses to Comments on Section D. District Engineer's
Decision
I. Responses to Comments on Section E. Further Information
J. Responses to Comments on Section F. Definitions
III. Compliance With Relevant Statutes
A. National Environmental Policy Act
B. Compliance With 404(e) of the Clean Water Act
C. Compliance With the Endangered Species Act
D. Compliance With Section 106 of the National Historic
Preservation Act
E. Compliance With the Essential Fish Habitat Provisions of the
Magnuson-Stevens Fishery Conservation and Management Act
F. Section 401 of the Clean Water Act
G. Section 307 of the Coastal Zone Management Act (CZMA)
IV. Economic Impact
V. Administrative Requirements
VI. References
Authority
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, District Engineer's
Decision, Further Information, and Definitions
B. Nationwide Permits
C. Nationwide Permit General Conditions
D. District Engineer's Decision
E. Further Information
F. Nationwide Permit Definitions
List of Acronyms
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
FY Fiscal Year
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NWP Nationwide Permit
PCN Pre-Construction Notification
RHA Rivers and Harbors Act of 1899
USCG U.S. Coast Guard
List of Nationwide Permits and General Conditions Issued in This Final
Action
Nationwide Permits (NWPs)
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Ecosystem Restoration, Enhancement, and Establishment
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage and Irrigation Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Mariculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
53. Removal of Low-Head Dams
54. Living Shorelines
55. Seaweed Mariculture Activities
56. [Reserved]
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances
59. Water Reclamation and Reuse Facilities
A. Activities To Improve Passage of Fish and Other Aquatic
Organisms
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
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7. Water Supply Intakes
8. Adverse Effects From Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United
States
32. Pre-Construction Notification
I. Background
A. General
The U.S. Army Corps of Engineers (Corps) may issue nationwide
permits (NWPs) to authorize activities under Section 404 of the Clean
Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899
(RHA) that will result in no more than minimal individual and
cumulative adverse environmental effects. Under Section 404 of the CWA
(33 U.S.C. 1344), Department of the Army (DA) authorization is required
for discharges of dredged or fill material into waters of the United
States. Under Section 10 of the RHA (33 U.S.C. 403), DA authorization
is required for construction of any structure in, over, or under any
navigable water of the United States; the excavating from or depositing
of material in navigable waters of the United States; or the
accomplishment of any other work affecting the course, location,
condition, or capacity of navigable waters of the United States.
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 and streamline the authorization process for
those minor activities. Since1977, 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 and 86 FR 73522).
Section 404(e) of the CWA provides the statutory authority for the
Secretary of the Army, after notice and opportunity for public hearing,
to issue general permits on a nationwide basis for any category of
activities involving discharges of dredged or fill material into waters
of the United States for a period of no more than five years after the
date of issuance (33 U.S.C. 1344 (e)). The Secretary's authority to
issue individual permits and general permits has been delegated to the
Chief of Engineers and his or her designated representatives. NWPs are
a type of general permit issued by the Chief of Engineers and are
designed to regulate activities in federally jurisdictional waters and
wetlands that have no more than minimal adverse environmental effects
(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 (33 U.S.C. 1344(e)(1)). The Corps has
discretionary authority to modify or revoke the NWPs before they
expire. NWPs and other general permits can also be issued to authorize
activities pursuant to Section 10 of the RHA (see 33 CFR 322.2(f) and
330.1(g)). The NWP program is designed to provide timely authorizations
for the regulated public while protecting the Nation's aquatic
resources.
Section 10 of the RHA authorizes the Corps to issue general permits
and after-the-fact permits for structures and work in navigable waters
of the United States. Section 10 (33 U.S.C. 403) prohibits any
obstructions to the navigable capacity of any waters of the United
States ``unless the work has been recommended by the Chief of Engineers
and authorized by the Secretary of the Army prior to beginning the
same.'' Section 10 does not mandate that the Corps specify what form
those authorizations should take and does not limit authorization to
permits, either individual permits or general permits. By using the
word ``authorized,'' a term that is broad in scope, Section 10 gives
the Corps the authority to use different types of permits to approve
structures and work in navigable waters of the United States. Since
1975, the Corps has issued general permits under Section 10 of the RHA
(see 40 FR 31335). The Corps has issued NWPs under the authority of
Section 10 of the RHA since 1977 (see 42 FR 37140).
The NWPs provide incentives for project proponents to design
activities that require DA authorization under Section 404 of the CWA
and/or Section 10 of the RHA to avoid and minimize impacts to the
aquatic environment in order to qualify for NWP authorization, because
in most cases those project proponents can obtain NWP verifications
from Corps districts in less time than it takes to receive standard
individual permits. For some NWPs, project proponents can proceed with
the authorized activities without reporting those activities to Corps
district offices as long as the project proponent complies with all
applicable terms and conditions of those NWPs. Other NWPs require
project proponents to submit pre-construction notifications (PCNs) to
Corps districts prior to proceeding with the authorized activities to
give district engineers the opportunity to determine whether the
project proponents' proposed activities are authorized by an NWP. The
former set of NWPs are called non-reporting NWPs and the latter set of
NWPs are called reporting NWPs.
Activities not authorized by NWPs, or by regional general permits
or programmatic general permits issued by district engineers, require
individual permits from the Corps. Individual permits are DA
authorizations in the form of standard individual permits or letters of
permission, which require an activity-specific public interest review
and the preparation of appropriate environmental documentation in
support of a permit decision for a specific activity. In Fiscal Year
(FY) 2024, the average processing time for an NWP PCN that was required
or voluntarily submitted, was 55 days and the average processing time
for a standard individual permit was 253 days. The reduced processing
time for NWPs creates a substantial incentive for project proponents to
reduce the impacts of their regulated activities on the aquatic
environment to a no more than minimal level. This incentive to minimize
impacts directly benefits the aquatic resources that CWA and RHA
protect.
Section 404(e)(1) of the CWA states that general permits may be
issued on a state, regional, or nationwide basis for any category of
activities involving discharges of dredged or fill material into waters
of the United States if the activities in such a category are similar
in nature, will cause only minimal adverse environmental effects when
performed separately, and will have only minimal cumulative adverse
effects on the environment. The phrase ``minimal adverse environmental
effects when performed separately'' refers to the direct and indirect
adverse environmental effects caused by the specific activity
authorized by an NWP.
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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.
Some NWPs include PCN requirements. When a PCN is submitted, Corps
districts evaluate 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. In most cases an applicant can
begin their regulated activity if the district does not respond within
45 days of receiving a complete PCN. The exceptions to that general
rule are when: general condition 18 (Endangered Species) or general
condition 20 (Historic Properties) require a non-federal permittee to
submit a PCN; activities subject to General Conditions 16 (Wild and
Scenic Rivers) and 31 (Activities Affecting Structures of Works Built
by the United States); activities proposed for authorization under NWP
49 (Coal Remining Activities; or if the proposed activity requires a
written waiver to exceed specified limits of an NWP. When any of these
exceptions apply, the applicant must wait until they are notified in
writing that the activity may proceed under the NWP. District engineers
also have authority under 33 CFR 330.5(d) to modify, suspend, or revoke
the NWP authorization on a case-specific basis.
There are 39 Corps district offices and eight Corps division
offices. The district offices administer the NWP program on a day-to-
day basis by reviewing PCNs for proposed NWP activities. The division
offices oversee district offices and are managed by division engineers.
Division engineers have the authority to modify, suspend, or revoke NWP
authorizations on a regional basis to take into account regional
differences among aquatic resources and ensure that the NWPs authorize
only those activities that result in no more than minimal individual
and cumulative adverse environmental effects in a region (see 33 CFR
330.5(c)).
When a Corps district receives a PCN, the district engineer reviews
the PCN and determines whether the proposed activity will result in no
more than minimal individual and cumulative adverse environmental
effects, consistent with the criteria in paragraph 2 of Section D,
``District Engineer's Decision.'' At this point, the district engineer
may add conditions to the NWP authorization to ensure that the verified
NWP activity results in no more than minimal individual and cumulative
adverse environmental effects consistent with processes and
requirements set out in 33 CFR 330.5(d).
For some NWPs, when submitting a PCN an applicant may request a
waiver of 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 conducting any coordination with
the resource agencies required 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 the PCN, the district engineer prepares a document
explaining the decision on whether to issue a waiver for the proposed
NWP activity. This document discusses the district engineer's findings
as to whether a proposed NWP activity qualifies for NWP authorization,
including compliance with all applicable terms and conditions, and the
rationale for any waivers granted, and activity-specific conditions
needed to ensure that the NWP activity will have only minimal
individual and cumulative adverse environmental effects and will not be
contrary to the public interest (see 33 CFR 330.6(a)(3)(i)). Waivers
are only permissible when they are explicitly provided for by a
specific NWP's terms and conditions.
The case-by-case review of PCNs often results in district engineers
adding activity-specific conditions to NWP authorizations to ensure
that the adverse environmental effects are no more than minimal. These
can include permit conditions such as time-of-year restrictions and use
of best management practices (BMPs) or compensatory mitigation
requirements to offset authorized losses of jurisdictional waters and
wetlands so that the net adverse environmental effects are no more than
minimal. Any compensatory mitigation required for NWP activities must
comply with the Corps' compensatory mitigation regulations at 33 CFR
part 332. Review of a PCN may also result in the district engineer
asserting discretionary authority to require an individual permit from
the Corps for the proposed activity, if he or she determines, based on
the information provided in the PCN and other available information,
that adverse environmental effects will be more than minimal, or
otherwise determines that ``sufficient concerns for the environment or
any other factor of the public interest so requires'' consistent with
33 CFR 330.4(e)(2).
During their reviews of PCNs, district engineers use their
discretion to determine the appropriate regional scale for evaluating
cumulative effects for the purposes of 33 CFR 330.5(d)(1), 33 U.S.C.
1344(e)(1), 33 CFR 322.2(f)(1), and/or 33 CFR 323.2(h)(1). The
appropriate regional scale for evaluating cumulative effects may be a
waterbody, watershed, seascape, county, state, a Corps district, or
other geographic area. The appropriate regional scale is dependent, in
part, on what types of NWP activities are occurring, where they are
occurring, and what types of adverse environmental effects they might
be causing. For example, for NWPs that authorize structures and/or work
in navigable waters of the United States under Section 10 of the RHA,
the appropriate geographic region for assessing cumulative effects may
be a specific navigable waterbody (e.g., a lake), or in the case of
activities in ocean or estuarine waters, a seascape. For NWPs that
authorize discharges of dredged or fill material into non-tidal
wetlands and streams, the appropriate geographic region for assessing
cumulative effects may be a watershed, county, state, or Corps
district. The direct individual adverse environmental effects caused by
activities authorized by NWPs are evaluated within the project
footprint, and the indirect individual adverse environmental effects
caused by activities authorized by NWPs are evaluated within the
geographic area to which those indirect effects may extend.
Through the NWPs, the aquatic environment may also receive
additional protection through regional conditions imposed by division
engineers and activity-specific conditions added to NWPs by district
engineers. These regional conditions and activity-specific conditions
further minimize adverse environmental effects, because these
conditions can only further restrict use of the NWPs. NWPs also allow
district engineers to exercise, on a case-by-case basis, discretionary
authority to require individual permits for proposed activities that
may result in more than minimal individual and cumulative adverse
environmental effects. NWPs help protect the aquatic environment
because they provide incentives to permit applicants to reduce impacts
to jurisdictional waters and wetlands to meet the restrictive
requirements of the NWPs and receive authorization more quickly than
they would through the individual permit process. Regional general
permits issued by district engineers provide similar
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environmental protections and incentives to project proponents.
After the NWPs are issued or reissued, division engineers will
issue supplemental documents to determine whether regional conditions
are necessary to ensure that use of the NWPs on a regional basis (e.g.,
within a Corps district or state) will authorize only those activities
with no more than minimal individual and cumulative adverse
environmental effects (see 33 CFR 330.5(c)(1)). The supplemental
documents are prepared by Corps districts but must be approved and
formally issued by the appropriate division engineer, because 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 her or his 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.
When districts prepare supplemental documents for division approval
of regional conditions, or imposing no regional conditions, they assess
cumulative effects by estimating the number of times a particular NWP
might be used in the region (e.g., Corps district or state) covered by
the supplemental document, along with estimates of impact acreages and
acreages of compensatory mitigation required. 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. See 33 CFR
330.5(c)(1).
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
(see 33 CFR 330.5(d)(1)). 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
Corps district staff believe that the use of an NWP in that geographic
region is approaching a threshold above which the cumulative adverse
environmental effects for that category of activities may be more than
minimal, the district engineer may either make a recommendation to the
division engineer to modify, suspend, or revoke the NWP authorization
in that geographic region in accordance with the procedures in 33 CFR
330.5(c). Alternatively, under the procedures at 33 CFR 330.5(d), the
district engineer may also modify, suspend, or revoke NWP
authorizations on a case-by-case basis to ensure that the NWP does not
authorize activities in that region that result in more than minimal
cumulative adverse environmental effects.
For the NWPs, the assessment of cumulative effects occurs at three
levels: national, regional, and the verification stage. Each national
NWP decision document includes a national-scale cumulative effects
analysis to evaluate whether the issuance or reissuance of the NWP
would result in more than minimal cumulative adverse environmental
effects. For all NWPs, an evaluation of the probable effects, including
cumulative effects, of the proposed activity and its intended use on
the public interest is required (see 33 CFR 320.4(a)(1)). For NWPs that
authorize discharges of dredged or fill material into waters of the
United States, an analysis of cumulative effects conducted in
accordance with 40 CFR 230.7(b)(3) is also required.
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). For the NWPs, the analysis of
cumulative effects would be the accumulation of impacts caused by
activities authorized by an NWP during the period it is in effect
(i.e., no more than five years) in a watershed, ecoregion, or other
appropriate geographic area, and how those accumulated impacts might
affect the current environmental setting or environmental baseline
within that geographic area. The current environmental setting includes
the present effects of other federal, non-federal, and private actions,
including those that do not require DA authorization, as well as the
effects of other federal, non-federal, and private actions that are
occurring at the same time as the activities authorized by the NWP.
In the context of an NWP issued or reissued by Corps Headquarters,
the ``incremental effects of the action'' would be the direct and
indirect effects on the environment caused by activities authorized by
the NWP during the period it is in effect. The incremental effects
caused by NWP activities are to be added to the effects caused by other
past, present, and reasonably foreseeable actions regardless of what
agency (federal or non-federal) or person authorizes or undertakes
those other past, present, and reasonably foreseeable actions. Oceans,
estuaries, lakes, rivers, streams, wetlands, and other aquatic
ecosystems are affected by a wide variety of federal, non-federal, and
private actions in addition to activities authorized by the Corps under
its permitting authorities, including activities authorized by NWPs in
the past and activities authorized by other types of DA permits, such
as regional general permits, standard individual permits, and letters
of permission. Therefore, when evaluating cumulative effects of
activities authorized by NWPs, context is important, and the severity
of those impacts have to be evaluated against the environmental
baseline to determine whether the cumulative adverse environmental
effects caused by the issuance or reissuance of an NWP are likely to be
no more than minimal, or more than minimal.
For an NWP, the cumulative effects are the collective incremental
environmental effects of the activities that are authorized by an NWP,
including the number of times that NWP is used to authorize activities
in a specific geographic area during the five-year period that NWP is
in effect, as well as the estimates of impact acres and acreages of
compensatory mitigation required. For the issuance or reissuance of an
NWP by Corps Headquarters, the geographic scale of the cumulative
effects analysis is the entire United States, including its
territories. The cumulative effects likely to be caused by activities
authorized by an NWP are evaluated against the environmental baseline,
which has been shaped by human activities and natural disturbances and
other events over time, including activities authorized by prior
versions of that NWP, as well as other federal, non-federal, and
private actions that directly or indirectly affect the aquatic
environment and contribute to the overall cumulative effects that have
influenced the structure and function of that aquatic environment over
time.
[[Page 772]]
In the supplemental documentation, the division engineer analyzes
the cumulative effects in a region, which could be defined as a state
or a Corps district. Under 33 CFR 330.5(d)(1), when a district engineer
considers cumulative effects when reviewing a PCN for a proposed NWP
activity, she or he will use a geographic and temporal scale that is
larger than the geographic and temporal scales that were used to
evaluate the direct and indirect adverse environmental effects caused
by the proposed NWP-specific activity. The geographic scope of the
district engineer's consideration of cumulative effects would be the
seascape, watershed, or other appropriate geographic region in which
the proposed NWP activity is located. The district engineer would also
consider other activities that were authorized by that NWP in that
geographic area during the period of time that NWP is in effect, as
well as the other federal, non-federal, and private actions that shaped
the environmental baseline within that geographic region, to determine
whether the incremental contribution of activities authorized by that
NWP in that geographic region during the time it would be in effect
would not be, or would be, more than minimal. The environmental
baseline includes activities conducted in the past under authorizations
provided by prior issuances of that NWP, activities authorized by other
forms of DA authorization, as well as other federal, non-federal, and
private actions not regulated by the Corps that directly or indirectly
caused changes to, or losses of, waters and wetlands subject to the
Corps' jurisdiction under its permitting authorities. In addition, the
environmental baseline includes the ecological functions and services
the waters and wetlands within that watershed, seascape, or other
geographic area provide, as well as the degree to which those waters
and wetlands provide those ecological functions and services.
When a district engineer reviews a PCN and determines that the
proposed activity qualifies for NWP authorization, he or she will issue
a written NWP verification to the permittee (see 33 CFR 330.6(a)(3)).
If an NWP verification includes multiple authorizations using a single
NWP (e.g., linear projects with crossings of separate and distant
waters of the United States authorized by NWPs 12, 14, 57, and 58) or
non-linear projects authorized with two or more different NWPs (e.g.,
an NWP 28 for reconfiguring an existing marina plus an NWP 19 for minor
dredging within that marina), the district engineer will evaluate the
cumulative effects of the applicable NWP authorizations within the
appropriate geographic area. As discussed above, examples of geographic
areas that may be used for cumulative effects analyses for specific
NWPs may be a waterbody, watershed, county, state, Corps district, or
other geographic area, such as a seascape in ocean or estuarine waters.
Corps Headquarters conducted the required cumulative effects
analyses in the national decision documents for the issuance or
reissuance of each of the NWPs. Therefore, district engineers do not
need to replicate the Headquarters national cumulative effects analyses
for NWP verifications for a specific activity authorized by one or more
NWPs. For an NWP verification, the district engineer only needs to
include a brief statement in the administrative record documenting the
NWP PCN review stating her or his determination whether the proposed
NWP activity, plus any required mitigation, will result in no more than
minimal individual and cumulative adverse environmental effects for the
purposes of 33 CFR 330.5(d)(1), as well as 33 U.S.C. 1344(e)(1), 33 CFR
322.2(f)(1), and/or 33 CFR 323.2(h)(1). If the district engineer
determines, after considering mitigation, that a proposed NWP activity
will result in more than minimal cumulative adverse environmental
effects, he or she will exercise discretionary authority and require an
individual permit for the proposed activity.
An activity that requires DA authorization may include discharges
that would occur within more than one state or within more than one
Corps district or division. When the Corps receives an NWP PCN or
individual permit application for such activities, a lead Corps
district will be designated, and that district will serve as a single
point of contact for each permit applicant.
B. Overview of Proposed Rule
On June 18, 2025, the Corps published in the Federal Register (90
FR 26100) a proposed regulation to reissue 56 of 57 existing NWPs with
some modifications and associated general conditions and definitions,
and to create one new NWP (2025 Proposal). The Corps provided a 30-day
comment period, which closed on July 18, 2025. Among other things, the
Corps proposed the following: (1) to reissue 56 of 57 existing permits
(some with proposed modifications); (2) to issue one new NWP to
authorize activities that improve the passage of fish and other aquatic
organisms; (3) not to reissue NWP 56 (finfish mariculture activities);
and (4) to modify some general conditions and definitions. The Corps
requested comment on these and all other aspects of the proposal.
C. Overview of This Final Action
This final action reissues 56 of the 57 existing NWPs, with some
changes, and issues one new NWP (NWP A for activities to improve
passage of fish and other aquatic organisms). This action does not
reissue NWP 56 (finfish mariculture activities). This action also
reissues the general conditions and definitions, with some changes.
This final action reissues 56 of 57 existing NWPs that were issued
or reissued in 2021 and 2022 (collectively the 2021 NWPs). This final
action reissues 15 of the 16 NWPs (i.e., NWPs 12, 21, 29, 39, 40, 42,
43, 44, 48, 50, 51, 52, 55, 57, and 58) that were issued or reissued in
the final rule that was published in the Federal Register on January
13, 2021, and went into effect on March 15, 2021 (86 FR 2744) with some
changes. This action reissues the 41 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, 54, and 59)
that were issued or reissued in the final rule published in the Federal
Register on December 27, 2021, and went into effect on February 25,
2022 (86 FR 73522) with some changes. This action also reissues the NWP
general conditions and definitions that were published in the January
13, 2021, final rule with some changes.
These 57 NWPs, the general conditions, and the associated
definitions will go into effect on March 15, 2026. The expiration date
for the NWPs issued or reissued in this final action is March 15, 2031.
D. Status of Existing Permits
When the Corps reissues existing NWPs, the reissued NWPs replace
the prior versions of those NWPs so that there are not two sets of NWPs
in effect at the same time. The expiration date of the 57 NWPs that
went into effect on March 15, 2021, and February 25, 2022, is March 14,
2026. This expiration date was expressly provided for in the
rulemakings establishing these NWPs (see 86 FR 2744 and 86 FR 73522).
An activity completed under the authorization provided by a 2021 NWP
continues to be authorized by that NWP (see 33 CFR part 330.6(b)).
Activities authorized by the 2021 NWPs that have commenced or are under
contract to commence by March 14, 2026, will have one year (i.e., until
March 14, 2027) to complete those activities (see 33 CFR
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330.6(b)). Activities previously authorized by the 2021 NWPs that have
not commenced or are not under contract to commence by March 14, 2026,
or that will not be completed by March 14, 2027, will require
reauthorization under the 2026 NWPs, provided those activities still
comply with the terms and conditions, and qualify for authorization
under the 2026 NWPs. If those activities no longer qualify for NWP
authorization because they do not meet the terms and conditions of the
2026 NWPs (including any regional conditions imposed by division
engineers), the project proponent will need to obtain an individual
permit, or seek authorization under a regional general permit, if such
a general permit is available in the applicable Corps district and can
be used to authorize the proposed activity.
One commenter recommended changing the grandfather period for the
activities authorized under the 2021 NWPs to between two and five years
to allow for additional time to complete activities which receive
verifications from the district engineer in the final year of an NWP
authorization. The one-year grandfathering period in 33 CFR 330.6(b)
was established in the November 22, 1991, final rule amending 33 CFR
part 330 (see 56 FR 59110). Experience since this one-year
grandfathering period was established has shown that it has been
adequate to allow project proponents to complete the activities which
were authorized by the NWP or to plan to seek new authorization under a
newly issued NWP or individual permit. Therefore, the Corps declines to
extend the grandfather period.
E. Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN prior to
commencing the proposed NWP activity. The requirement to submit a PCN
is identified in the NWP text when it applies, as well as certain
general conditions (e.g., general conditions 18 and 20, Endangered
Species and Historic Properties, respectively).
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 CWA and/or Section 10 of the
RHA. 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 requirement: 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 to modify the NWP through the addition of conditions, or to
require 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 letter (i.e., the written confirmation from the
district engineer that the proposed activity is authorized by an NWP),
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 activities conducted by non-
federal permittees that require PCNs under paragraph (c) of general
conditions 18 (Endangered Species) and 20 (Historic Properties),
activities subject to General Conditions 16 (Wild and Scenic Rivers)
and 31 (Activities Affecting Structures of Works Built by the United
States), and activities proposed for authorization under NWP 49 (Coal
Remining Activities), if the Corps district does not respond to the PCN
within 45 days of a receipt of a complete PCN, the project proponent
may assume that the project is authorized, consistent with the
information provided in the PCN. For NWP 49, and activities conducted
by non-federal permittees that require PCNs under paragraph (c) of
general conditions 18 (Endangered Species) and 20 (Historic
Properties), activities subject to General Conditions 16 (Wild and
Scenic Rivers) and 31 (Activities Affecting Structures of Works Built
by the United States), 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.
F. Severability
The purpose of this section is to clarify the Corps' intent with
respect to the severability of the NWPs in this action. Each NWP in
this action operates independently and is an individual agency action.
If any particular NWP of this action is determined by judicial review
or operation of law to be invalid, that partial invalidation will not
render the
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remainder of the NWPs in this action invalid. Likewise, if the
application of any NWP to a specific activity in a particular location
is determined to be invalid, the Corps intends that the NWP remain
applicable to all other eligible activities.
II. Discussion of Public Comments
A. Overview
In response to the 2025 Proposal, the Corps received comments from
more than 450 states, tribes, organizations, and individuals. Many
commenters co-signed joint letters commenting on the 2025 Proposal. The
Corps received around two hundred individual comment letters. One
commenter attached more than 750 documents to their comments. The
attached documents were comments originally submitted in response to
the Department of the Army's March 2022 Federal Register notice (87 FR
17281) and were specific to NWP 12. The individual comment letters,
including the attached comments that were re-submitted from the 2022
docket, are posted on regulations.gov docket (COE-2025-0002) for this
rulemaking action. The Corps reviewed and considered all comments
received in response to the 2025 Proposal.
B. Responses to General Comments
Many commenters expressed general support for the reissuance of the
NWPs and many commenters expressed opposition to the NWP program or to
the use of NWPs to authorize certain activities or activities in
certain locations. Many commenters encouraged the Corps to finalize the
rule to reissue the NWPs before the existing NWPs expire on March 14,
2026. Several commenters stated that the NWPs should be revoked. Many
commenters stated that the NWPs streamline the permit process. One
commenter stated that the NWPs strike a balance between environmental
protection of the aquatic environment and reasonable economic
development. One commenter stated that the Corps should ensure that the
issuance of this final action does not add unnecessary costs to, or
unnecessarily delay, the permitting process.
One commenter stated that the NWP program allows the Corps to focus
its limited resources on reviewing permit applications that would
result in more than minimal environmental impacts. Many commenters
requested that the Corps increase permitting efficiencies in the NWP
program, through this rulemaking, future rulemakings, and other
administrative actions. Many commenters suggested that the Corps
undertake a second rulemaking before the NWPs in this final action
expire. Many commenters suggested changes to the NWPs that should be
considered in future rulemakings. One commenter stated that the NWPs do
not cover routine activities, which causes Corps Districts to use
resources to develop Regional General Permits.
The NWP program provides a mechanism to efficiently authorize
activities that have no more than minimal adverse environmental effects
on the environment. The NWP program is an important part of the
Regulatory program because it allows the Corps to focus its finite
resources on evaluating applications for Department of the Army (DA)
authorization which cause more than minimal adverse environmental
effects. The NWP program furthers the regulatory approach of the Corps
Regulatory program that is articulated in 33 CFR 320.1(a)(3), to avoid
unnecessary regulatory controls, and in 33 CFR 320.1(a)(1), to balance
favorable impacts against detrimental impacts, reflecting the national
concerns for both the protection and utilization of important
resources. In accordance with 33 CFR 330.5(b)(1) anyone may, at any
time, suggest changes to the NWPs to the Chief of Engineers. From time
to time, but at least every 5 years, the Chief of Engineers will
evaluate new NWPs and revocations or modifications to existing NWPs.
Many commenters stated that the proposed NWPs do not comply with
the CWA, the National Environmental Policy Act (NEPA), the Endangered
Species Act, and the National Historic Preservation Act. Many
commenters stated that the NWPs achieve the goals in various Executive
Orders, including Executive Order 14154 ``Unleashing Energy
Dominance'', issued on January 20, 2025. Many commenters stated that
the NWPs do not comply with the Administrative Procedure Act, stating
that the Corps did not allow adequate time to comment or adequately
explain its decision. One commenter stated that all technical
documents, internal documents, regional manuals, document templates,
and other interpretive materials used by the Corps must comply with the
Administrative Procedures Act.
The decision to reissue, modify, or issue the NWPs is made in
compliance with the CWA, NEPA, the Endangered Species Act, the National
Historic Preservation Act, and other federal laws. Comments and
responses to comments on compliance with the CWA, NEPA, ESA, and NHPA
are discussed in more detail in Section III of this final action. The
Administrative Procedure Act governs the process by which federal
agencies issue regulations and publish notices in the Federal Register.
This rulemaking has been conducted in accordance with the
Administrative Procedure Act and Executive Order 12866. The manner in
which unidentified technical documents and other unidentified documents
used by the Corps are developed and approved is beyond the scope of
this rulemaking.
Many commenters stated that the NWPs provide clear guidance. One
commenter requested that the NWPs include precise procedures for how to
apply the NWP program in each circumstance. This final action
incorporates modifications to the NWPs to provide additional clarity to
potential permittees. The application of the terms of each NWP, in
combination with the general conditions and other information in this
final action, as well as any regional conditions, address how an NWP
will be applied to a proposed specific activity.
Many commenters and several tribes stated that the proposed rule
did not allow for adequate time to meaningfully participate in the
rulemaking process and requested extensions to the deadline to comment
on the proposed rule. Some commenters stated that this rulemaking is
procedurally deficient. One commenter objected to extending the comment
period. Several commenters recognized that the Corps had limited time
to complete the current rulemaking and recommended that the future
rulemaking for the NWPs allow for a longer comment period.
For the 2025 proposed rule, the Corps provided a 30-day comment
period. The 2025 Proposal to reissue, issue, or modify the NWPs
described modest changes to the 2021 NWPs. Of the 57 existing NWPs,
changes were proposed to 13 NWPs and one new NWP was proposed. There
were no changes proposed to 43 NWPs. The Corps believes that a 30-day
review period allowed for adequate time to provide substantive comments
on the proposed rule. The Corps sent response letters to entities that
made timely requests for extensions of the comment period for the 2025
Proposal. The process and timing of any future rulemaking for the NWPs
are beyond the scope of this rulemaking.
One commenter requested a public hearing on the 2025 Proposal and
stated that the Corps should offer to hold meetings with the public and
tribes to receive input on the 2025 Proposal. The Corps declined to
hold a public hearing or public meetings on the proposed NWPs because
it determined that a
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public hearing or public meeting was unlikely to provide additional
information that would inform the Corps' decision whether to reissue,
issue, or modify these NWPs. Under the Corps' regulations at 33 CFR
327.4(b), requests for public hearing under this paragraph shall be
granted, unless the Corps determines that the issues raised are
insubstantial or there is otherwise no valid interest to be served by
holding a public hearing. The Corps received around two hundred
comments on the proposed rule, and it is unlikely that any statements
provided during a public hearing would raise issues that are different
than the issues or concerns discussed in the written comments received
in response to the 2025 Proposal.
One commenter stated that the NWPs are useful for development with
minimal impacts to waterways. Many commenters stated that the NWPs
result in more than minimal adverse environmental impacts. Many
commenters stated that the Corps should achieve ``no net loss'' of
wetlands. Many commenters stated that the NWPs promote avoidance and
minimization of environmental impacts. Many commenters opposed the NWPs
because they do not require avoidance and minimization of impacts.
Section 404(e) of the CWA recognizes that activities authorized by
general permits, including NWPs, will result in adverse environmental
impacts, but limits those adverse impacts so that they can only be no
more than minimal. The Corps has adopted terms and conditions for the
NWPs to be sufficiently protective of the aquatic environment while
allowing activities that result in no more than minimal adverse
environmental effects to be conducted. There is no federal statute or
regulation that requires ``no net loss'' of aquatic resources. The ``no
overall net loss'' goal for wetlands articulated in the 1990 U.S. EPA-
Army Memorandum of Agreement for mitigation for CWA Section 404 permits
states that the Section 404 permit program will contribute to that
national goal. The 1990 Memorandum of Agreement only applies to
standard individual permits, not to general permits.
The NWPs authorize impacts with less paperwork and a shorter
processing time for project proponents than standard individual
permits. These differences in burden can incentivize project proponents
to voluntarily reduce the adverse effects of their planned activities
that would otherwise require an individual permit under Section 404 of
the CWA and/or Section 10 of the RHA, 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. General condition
23 (Mitigation) requires permittees to design and construct their
projects 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.
Many commenters suggested removing or raising the \1/2\-acre impact
limit of loss of waters for the NWPs. Many commenters recommended
raising the \1/2\-acre impact limit to three acres.
We are retaining the acreage limits for those NWPs that have
specified acreage limits. Comments suggesting changes to the acreage
limits of a specific NWP are summarized in the section of the preamble
that discusses the comments received on that NWP. The acreage limits,
along with the current PCN thresholds, other terms of the NWPs, in
combination with the general conditions satisfy the requirements of
Section 404(e) of the CWA and ensure that the NWPs authorize no more
than minimal adverse environmental impacts both individually and
cumulatively. In addition, division engineers have the authority to
modify NWPs on a regional basis to reduce acreage limits through
regional conditions and district engineers, upon review of a PCN, can
modify an NWP verification to ensure that a case-specific activity will
have no more than minimal adverse environmental effects.
In areas of the United States where higher acreage limits (e.g.,
one or two acres) would be appropriate for general permit
authorizations, district engineers have the authority to issue regional
general permits. A number of NWPs are self-limiting, in that the
category of activities authorized by that NWP acts as a limit (e.g.,
NWP 10, which authorizes a single, non-commercial mooring buoy). For
those self-limiting NWPs, acreage and linear foot limits are not
necessary to control the adverse environmental effects of those
activities. In NWPs which have impact limits or PCN thresholds, the
acre impact limits, in conjunction with the PCN thresholds, and the \1/
10\-acre loss of wetlands and \3/100\-acre loss of stream bed
compensatory mitigation thresholds are sufficient to protect waters of
the United States to ensure the NWPs cause no more than minimal adverse
environmental effects.
Many commenters stated that the Corps should reinstate the 300
linear foot impact limit for losses of stream bed in NWPs 21 (Surface
Coal Mining Activities), 29 (Residential Developments), 39 (Commercial
and Institutional Facilities), 40 (Agricultural Activities), 42
(Recreational Facilities), 43 (Stormwater Management Facilities), 44
(Mining Activities), 50 (Underground Coal Mining Activities), 51 (Land-
Based Renewable Energy Generation), and 52 (Water-Based Renewable
Energy Generation Pilot Projects). Many commenters stated that removal
of the 300 linear foot limit from NWPs 21, 29, 39, 40, 42, 43, 44, 50,
51 and 52 allows unlimited impacts to streams. One commenter
recommended adding a linear foot impact limit of 500 feet.
The 300 linear foot impact limit was removed from 10 NWPs and the
\3/100\-acre threshold for stream compensatory mitigation for NWP
activities was established in the 2021 NWPs as explained in the final
rule to issue the 2021 NWPs (86 FR 2761-2768) and remains the Corps'
position. The Corps will rely on other, existing protective mechanisms
within the NWPs to ensure that the activities authorized by these NWPs
will result in no more than minimal individual and cumulative adverse
environmental effects. Those mechanisms include the \1/2\-acre impact
limit, the PCN requirements for these NWPs, and the ability of division
and district engineers to further condition or restrict the
applicability of an NWP in situations where they have concerns for the
aquatic environment under the CWA Section 404(b)(1) Guidelines or for
any factor of the public interest (see 33 CFR 330.1(d)).
Many commenters requested that all NWPs require PCNs for all
activities. Many commenters stated that no PCN requirement should be
changed. A few commenters stated that thresholds for PCN requirements
should be lowered. Many commenters stated that the PCN requirements
should be reduced. One commenter stated that the acreage threshold for
triggering PCNs for certain NWPs is arbitrarily determined. One
commenter stated that PCNs create unnecessary work and delay. Many
commenters stated that the Corps should not exempt federal agencies
from requirements to submit PCNs. Many commenters stated that by not
requiring PCNs for every NWP activity, the Corps is failing to meet its
statutory and regulatory obligations.
In this final action, we have retained the PCN thresholds that were
in the 2025 Proposal. PCNs are an important mechanism to ensure that
the NWPs only authorize those activities that have no more than minimal
individual and cumulative adverse environmental effects. Pre-
construction notifications allow district engineers to evaluate the
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activity- and site-specific circumstances of proposed NWP activities to
decide whether those activities are eligible for NWP authorization or
require individual permits. In addition, PCNs provide district
engineers with the opportunity to impose activity-specific conditions
on the NWPs, including mitigation requirements, to ensure that the
regulated activity will cause no more than minimal adverse
environmental effects.
We agree that federal agencies that use the NWPs to authorize their
activities must submit a PCN when required by the terms of the NWP and
certain general conditions. General conditions 18 (Endangered Species)
and 20 (Historic Properties) require federal agencies to follow their
own implementing procedures for complying with the ESA and NHPA.
Federal agencies do not have to submit a PCN to satisfy general
conditions 18 or 20 if no PCN is required by the terms of the NWP which
authorizes the proposed regulated activity or by any other general
condition. Section 404(e) of the CWA does not mandate that the Corps
track all NWP activities. Since the inception of the NWP program in
1977, many of the NWPs have not required PCNs, thus the changes that
are being finalized are not a departure from the Corps' practice or
procedures. The Corps will continue to use reliable data and resources
to analyze the effects of the NWP Program.
One commenter stated that the PCN thresholds should be set to \1/
10\-acre or 300 linear feet. One commenter stated there is no
ecological support for differing thresholds between \1/10\th and \1/2\
acres for cumulative impacts.
For NWPs that have an acreage PCN threshold, the Corps has set that
threshold at \1/10\-acre. The \1/10\-acre threshold is a sufficiently
protective limit to allow district engineers review PCNs and provide
opportunity to impose activity-specific conditions on the NWPs,
including mitigation requirements, to ensure that the regulated
activity will cause no more than minimal adverse environmental effects.
The areal limit is also a more consistently understood measurement of
impact compared to the length limit. The \1/2\-acre limit to loss of
waters of the United States, where NWPs have such a limit, in
combination to the PCN requirements and other terms and condition of
the NWP are sufficient to ensure that the NWPs will cause no more than
minimal adverse environmental effects, individually and cumulatively.
Many commenters requested clarification on how to submit a PCN for
a linear project that spans more than one Corps district. Prospective
permittees of linear projects that cross the boundaries of a Corps
district or division may submit a PCN to one of the districts where
regulated activities in waters of the United States are proposed. When
the Corps receives an NWP PCN for activities that cross the boundary of
a Corps district or division, a lead Corps district will be designated
and serve as a single point of contact for each permit applicant.
Several commenters stated that all NWPs should require PCNs so the
Corps can coordinate or consult with tribes on proposed NWP activities.
Many commenters stated that activities should not be authorized by an
NWP when they interfere with tribal rights. Several commenters stated
that regional conditions should be modified to ensure that the NWPs do
not authorize impacts to any lands or waters ceded in treaties, impacts
to treaty rights, or any sacred/cultural site/landscape.
Consistent with general condition 17 (Tribal Rights), no activities
are authorized by NWP where they impair reserved tribal rights. Corps
districts consulted with tribes during the process for reissuing the
NWPs and those consultation efforts may have resulted in regional
conditions or coordination procedures with tribes to help ensure
compliance with general condition 17. District engineers can develop
regional conditions and develop protocols regarding tribal notification
that build upon the existing Department of Defense, Army, and Corps'
tribal consultation policies. In geographic areas where there are
regional concerns about impacts to a particular waterbody or a
sensitive aquatic resource, division engineers have the discretionary
authority to suspend, modify, or revoke this NWP in a region or
location. During review of a PCN, the district engineer will assess the
proposal for compliance with general condition 17.
One commenter stated that the Corps should audit a sample of NWPs
each year and publish the result of the audit in a report. One
commenter recommended treating commercial and non-commercial project
proponents differently, such as conditioning permits to protect certain
landowners from harsh enforcement actions. Several commenters stated
that the Corps should refuse to authorize activities after-the-fact if
a PCN was not submitted.
If a permittee receives a verification letter, they must certify
their compliance with the NWP, including any conditions to the NWP in
accordance with general condition 30 (Compliance Certification). Corps
districts conduct compliance inspections on a proportion of permit
actions authorized each year, including activities authorized by NWPs.
If a project proponent fails to comply with the terms and conditions of
an NWP, then the activity is not authorized by that NWP and the
district engineer may pursue compliance of an unauthorized action
pursuant to 33 CFR 326. The district engineer has discretion how to
resolve unauthorized actions, including whether to require restoration,
accept an application for an after-the-fact authorization, or other
remedies.
One commenter requested definition of the term ``verification.'' As
described in Section I.E. of this action, when a project proponent
submits a PCN and the district engineer agrees that the proposed
activity is authorized by an NWP, the district engineer sends a
verification letter to the project proponent verifying that the
proposed activity is authorized by an NWP. The district engineer is not
issuing a permit, rather they are verifying that the proposed activity
complies with the terms and conditions of an issued NWP. The NWP PCN
and verification are a streamlined process, intended to be completed by
the project proponent and district engineer with a minimal amount of
paperwork.
Some commenters recommended that the Corps revise the CWA, various
Corps regulations in 33 CFR parts 320 through 332, regional general
permits, and the regulations for implementing Section 401 of the Water
Act.
The Corps does not have authority to amend the statutory provisions
of the CWA. The implementing regulations for Section 401 of the CWA are
under the authority of the EPA and are beyond the scope of the Corps'
authority to modify. Rulemaking for sections of Corps regulations
beyond the reissuance of these NWPs are outside the scope of this
rulemaking. Several commenters provided comments on concerns over
specific impacts or permit actions in various regions or objections to
regional general permits, which are beyond the scope of this review and
will be addressed by the districts that issued them.
Many commenters stated these NWPs support the national priorities
for energy infrastructure development. One commenter stated that
Executive Order 14156 (Declaring a National Energy Emergency) has
reduced statutory protections of natural resources. Many commenters
support the timely reissuance of the NWPs to avoid disruption to energy
infrastructure projects.
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Use of emergency procedures does not obviate legal requirements to
comply with all applicable laws and regulations. Consequently,
compliance with other laws such as the NEPA, Endangered Species Act,
the National Historic Preservation Act, and others are still required.
The NWPs can provide a streamline process to more quickly issue DA
authorization for activities which meet the terms and NWP conditions.
Many commenters stated that the NWPs do not consider climate change
or environmental justice concerns. During the process to reissue or
modify the NWPs, the Corps considers the adverse environmental effects
of the reissuance of these NWPs in accordance Section 404(e) of the
CWA, Section 10 of the RHA, and in compliance with applicable
environmental laws, regulation, guidance and policy, as limited by the
scope of our authority. Executive Order 14148--Initial Rescissions of
Harmful Executive Orders and Actions (January 20, 2025) revoked several
prior executive orders which addressed climate change and environmental
justice concerns. Revoked orders included Executive Order 13990--
Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis (January 20, 2021); Executive Order 14008--
Tackling the Climate Crisis at Home and Abroad (January 27, 2021);
Executive Order 13985--Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government (January 20,
2021); and Executive Order 14096--Revitalizing Our Nation's Commitment
to Environmental Justice for All (April 21, 2023).
Executive Order 14154--Unleashing American Energy (January 20,
2025) provided further policy guidance on the consideration of climate
change in agency regulatory analyses. On May 5, 2025, the Office of
Management and Budget distributed further guidance to agencies (as
required by E.O. 14154) which restricted consideration of greenhouse
gas emissions in agency regulatory and permitting decision-making. In
Executive Order 14151--Ending Radical and Wasteful Government DEI
Programs and Preferencing (20 January 2025), the President of the
United States directed the termination of environmental justice
initiatives. On May 8, 2025, the Acting Assistant Secretary of the Army
(Civil Works) rescinded the Corps' Environmental Justice strategic
plan. The level of analysis and consideration of climate change and
environmental justice concerns in the national decision documents and
this final action comply with these Executive Orders and directives.
C. Responses to Comments on Regional Conditions of Nationwide Permits
Under Section 404(e) of the CWA, NWPs can only be issued for those
activities that result in no more than minimal individual and
cumulative adverse environmental effects. Corps regulations impose the
same standard for general permits that authorize activities under
Section 10 of the RHA (33 U.S.C. 403) (33 CFR 330.1(b), (g)). The NWP
terms and general conditions to the NWPs may not account for regional
differences; therefore, regional conditions imposed by division
engineers are an important mechanism for addressing those regional
differences and ensuring compliance with statutory requirements.
Effective regional conditions help protect local aquatic ecosystems and
other resources and the functions and services they provide. They also
help ensure that the NWPs authorize only those activities that result
in no more than minimal individual and cumulative adverse effects on
the aquatic environment and are not contrary to the public interest.
There are two types of regional conditions: (1) Corps regional
conditions and (2) water quality certification/CZMA consistency
concurrence regional conditions. Corps regional conditions are added to
the NWPs by division engineers in accordance with the procedures at 33
CFR 330.5(c). Water quality certification and Coastal Zone Management
Act consistency concurrence regional conditions are also added to the
NWPs if an appropriate authority grants a water quality certification
or CZMA consistency concurrence with conditions for the issuance,
reissuance, or modification of the NWPs prior to the effective date of
the issued, reissued, or modified NWPs.
Examples of Corps regional conditions include:
Restricting the types of waters of the United States where
the NWPs may be used (e.g., fens, bogs, bottomland hardwood forests,
etc.) or prohibiting the use of some or all of the NWPs in those types
of waters or in specific watersheds.
Restricting or prohibiting the use of NWPs in an area
covered by a Special Area Management Plan, where regional general
permits are issued to authorize activities that have no more than
minimal individual and cumulative adverse environmental effects and are
consistent with that plan.
Revoking certain NWPs in a watershed or other type of
geographic area (e.g., a state or county) to require other forms of DA
authorization (e.g., individual permits) for those activities.
Adding PCN requirements to NWPs in certain watersheds or
other types of geographic areas, or in certain types of waters of the
United States, to require notification for all activities or impose
lower PCN thresholds.
Reducing NWP acreage limits for activities in certain
types of waters of the United States (e.g., streams) or specific
waterbodies, or in specific watersheds or other types of geographic
regions.
Restricting activities authorized by NWPs to certain times
of the year in a particular waterbody, to minimize the adverse effects
of those activities on fish or shellfish spawning, wildlife nesting, or
other ecologically cyclical events.
Conditions necessary to facilitate compliance with the
``Endangered Species'' general condition, to enhance protection of
listed species or designated critical habitat under the Endangered
Species Act.
Conditions necessary to facilitate compliance with the
``Tribal Rights'' general condition, to enhance protection of tribal
trust resources, including natural and cultural resources and tribal
lands.
Conditions necessary for ensuring compliance with the
``Historic Properties'' general condition, to enhance protection of
historic properties.
Conditions necessary to ensure that activities authorized
by NWP will have no more than minimal individual and cumulative adverse
effects on Essential Fish Habitat.
Regional conditions are modifications of the NWPs that are made by
division engineers. Regional conditions can only add conditions to, or
further restrict the applicability of, an NWP (see 33 CFR 330.1(d)).
Corps regional conditions approved by division engineers cannot remove
any of the terms and conditions of the NWPs, including general
conditions. Corps regional conditions cannot increase PCN thresholds or
remove notification requirements, but they can lower PCN thresholds to
require PCNs for more activities authorized by a specific NWP. In
summary, Corps regional conditions can only be more restrictive than
the NWP terms and conditions established by Corps Headquarters when it
issues or reissues an NWP.
Corps regional conditions may be added to NWPs by division
engineers after a public notice and comment process and coordination
with appropriate federal, state, and local agencies, as well as tribes.
After Corps
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Headquarters published, in the Federal Register, the proposed rule to
issue, reissue, or modify NWPs, district engineers issued local public
notices to announce the availability of the proposed rule for review
and comment and to solicit public comment on proposed regional
conditions and/or proposed suspensions or revocations of NWP
authorizations for specific geographic areas, classes of activities, or
classes of waters (see 33 CFR 330.5(b)(2)(ii)). These local public
notices usually have a 45-day comment period. The local public notices
also solicited suggestions from the public and interested agencies on
additional regional conditions that they believe are necessary to
ensure that the NWPs authorize only those activities that have no more
than minimal adverse environmental effects.
Comments on proposed regional conditions were evaluated by the
Corps district that issued the public notice. Corps districts also
consulted or coordinated with tribes to identify and propose regional
conditions to ensure compliance with general condition 17 (Tribal
Rights) and fulfill the Corps' tribal trust responsibilities. The
process for adding Corps regional conditions to the NWPs is described
at 33 CFR 330.5(c). The regulations for the regional conditioning
process were promulgated in 1991, with the proposed rule published in
the Federal Register on April 10, 1991 (56 FR 14598) and the final rule
published in the Federal Register on November 22, 1991 (56 FR 59110).
In response to the districts' local public notice, interested
parties suggested additional Corps regional conditions or changes to
Corps regional conditions. Interested parties also suggested suspension
or revocation of NWPs in certain geographic areas, such as specific
watersheds or waterbodies. Such comments should include data to support
the need for the suggested modifications, suspensions, or revocations
of NWPs.
After the public comment period ended for the districts' local
public notices, each Corps district evaluated the comments received in
response to their local public notice and began preparing, as required
by 33 CFR 330.5(c)(1)(iii), supplemental documents for each NWP. Each
supplemental document evaluates the NWP on a regional basis (e.g., by
Corps district geographic area of responsibility or by state) and
discusses whether regional conditions are needed for that NWP to ensure
that authorized activities result in no more than minimal individual
and cumulative adverse environmental effects. Each supplemental
document will also include a statement by the division engineer that
will certify that the NWP, with approved regional conditions, will
authorize only those activities that will have no more than minimal
individual and cumulative adverse environmental effects.
The supplemental documents may cover a Corps district, especially
in cases where the geographic area of responsibility for the Corps
district covers an entire state. The supplemental documents may also
cover portions of multiple Corps districts in cases where more than one
Corps district has a geographic area of responsibility in a single
state. The supplemental documents include an evaluation of public and
agency comments on proposed and suggested regional conditions, with
responses to those comments, to show that the views of potentially
affected parties were fully considered (33 CFR 330.5(c)(1)(ii)). Each
supplemental document also explains how substantive comments submitted
in response to the local public notice were considered. After the
supplemental documents for the NWPs are drafted by the district, they
are sent to the division engineer for review along with the district's
recommendations for regional conditions. The division engineer may
approve the supplemental documents and the district's recommended
regional conditions. Alternatively, the division engineer may also
request changes to one or more supplemental documents, including
changes to the regional conditions recommended by the district in those
supplemental documents.
After the division engineer approves regional conditions for the
NWPs by signing the supplemental documents, the district issues a
public notice announcing the final Corps regional conditions and when
those regional conditions go into effect (see 33 CFR 330.5(c)(1)(v)).
The district's public notice will be posted on its website. Copies of
the district's public notice are also sent to interested parties that
are on the district's public notice mailing list via email or the U.S.
mail. The public notice will also describe, if appropriate, a
grandfathering period as specified by 33 CFR 330.6(b) for those project
proponents who have already commenced work under the NWP or are under
contract to commence work under the NWP (see 33 CFR 330.5(c)(1)(iv)).
Copies 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)).
The purpose of regional conditions is to tailor the NWPs to account
for regional differences in aquatic resource types, the functions they
provide, and their value to the region so that the NWPs in a particular
geographic area authorize only those activities that result in no more
than minimal individual and cumulative adverse environmental effects.
Requiring consistency among regional conditions at a national level
would be contrary to the purpose of regional conditions and would
reduce the utility of the NWPs. In other words, the ability to add
restrictions to one or more NWPs at a regional level to ensure that
those activities result in no more than minimal individual and
cumulative adverse environmental effects, allows the national terms and
conditions to be less restrictive in other areas of the country where
additional restrictions may not be necessary or relevant to the aquatic
ecosystem.
The ability to tailor the NWP program in specific areas of the
country allows the NWPs to authorize more activities than would be
possible if the need for greater restrictions in one part of the
country had to be applied to the nation as a whole. Corps regional
conditions should be written clearly and provide only the additional
restrictions that are necessary to ensure that NWP activities in the
applicable geographic region result only in minimal individual and
cumulative adverse environmental effects, consistent with the
requirements of Section 404(e) of the CWA.
Under 33 CFR 330.5(c), the authority to approve Corps regional
conditions is assigned to division engineers. A division engineer can
take steps to provide consistency in Corps regional conditions for the
districts within her or his division. However, it should also be noted
that the eight Corps divisions encompass large geographic regions and
there can be substantial differences in aquatic resource types,
functions, services, and values within a Corps division. For example,
the Corps' Northwestern Division extends from the northwest coast to
the Midwest, with oceanic and estuarine waters along the coasts of
Oregon and Washington, to inland wetlands and rivers in Missouri and
Nebraska. As another example, the Mississippi Valley Division extends
from Louisiana, with its extensive coastal wetlands and bottomland
hardwood forests to Minnesota, which has many lakes, bogs, marshes, and
swamps.
In addition, there are usually also substantial differences in
other resources that are subject to regional conditions that may be
developed to
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assist in the Corps' compliance with other applicable federal laws,
such as Section 7 of the Endangered Species Act, the Essential Fish
Habitat provisions of the Magnuson-Stevens Fishery Conservation and
Management Act, Section 106 of the National Historic Preservation Act,
and the Wild and Scenic Rivers Act. The presence and ranges of
endangered and threatened species, and the locations of designated
critical habitat often vary substantially within a Corps division. Most
coastal Corps districts have essential fish habitat in their geographic
areas of responsibility, whereas inland districts do not.
Regional conditions may also be developed to address tribal treaty
rights and trust resources, which likely vary from tribe to tribe.
Therefore, because of these factors, consistency in regional conditions
necessary to ensure that NWPs only authorize activities that have no
more than minimal adverse environmental effects cannot be practicably
achieved at a national or division level without reducing the
availability of NWPs in other areas of the country.
Consistent with the Corps' approach to providing more transparency
in the process for proposing and adding regional conditions to the NWPs
that was adopted for the 2021 NWPs, the Corps posted copies of the
district public notices soliciting input for proposed and suggested
regional conditions in the www.regulations.gov docket for this
rulemaking action (docket number COE-2025-0002), under ``Supporting and
Related Material.'' In addition, after publication of this final action
to reissue the NWPs, the Corps will post copies of all district public
notices announcing the final regional conditions in the
www.regulations.gov docket for this rulemaking action, so that copies
of all these district public notices are available in a single
location. This docket is intended to provide a central location for
interested parties to obtain information on proposed and finalized
Corps regional conditions, as well as the WQC/CZMA regional conditions
added through the water quality certification process and Coastal Zone
Management Act consistency concurrence process for the issuance and
reissuance process for the NWPs.
If, after the NWPs go into effect, division or district engineers
receive new information that calls for new or modified Corps regional
conditions to ensure that authorized activities cause no more than
minimal individual and cumulative adverse environmental effects, Corps
division and district engineers may work together to propose and
approve new or modified regional conditions after following the
procedures in 33 CFR 330.5(c). Adding new Corps regional conditions, or
modifying existing Corps regional conditions, after the final action
issuing or reissuing the NWPs go into effect includes a public notice
and comment process and amending supplemental documents for those Corps
regional conditions. Information on regional conditions for the NWPs,
and on the suspension or revocation of one or more NWPs in a particular
area, can be obtained from the appropriate district engineer.
A few commenters recommended eliminating regional conditions or
objected to applying regional conditions the NWPs. Many commenters
stated the Corps should make PCN requirements and interpretations among
the Corps districts standardized. A few commenters expressed support
for applying regional conditions to ensure the NWPs result in no more
than minimal adverse environmental effects in a region. One commenter
stated that regional conditions are the most effective way to ensure
compliance with an NWP. One commenter stated that the Corps should
publish the justifications for each regional condition. One commenter
stated that the Corps Headquarters should review and approve regional
conditions.
The NWPs establish terms and conditions for authorization of
regulated activities for the nation. Regional conditions provide
flexibility to consider the variety of waters of the United States,
quality of the aquatic resources, or regional concerns for specific
types of impacts to waters of the United States while continuing to
ensure that the NWPs will cause no more than minimal adverse
environmental effects. Supplemental documentation is publicly
available, and division engineers may make supplemental documents
available on their websites, at their discretion. After this action is
finalized, district engineers will issue public notices to notify the
public of the final regional conditions to the NWPs.
Water Quality Certification and Coastal Zone Management Authorization
Regional Reviews
The processes for states, approved tribes, and EPA to issue water
quality certifications (WQCs) for the issuance of the NWPs, and for
states to issue general CZMA consistency concurrences for the NWPs are
separate from the Corps' process in 33 CFR 330.5(c) for division
engineers adding Corps regional conditions to the NWPs. The WQC process
is governed by EPA's regulations at 40 CFR part 121, and by the
regulations and policies of certifying authorities, such as states,
tribes approved by EPA to administer their own water quality
certification programs, or EPA regions. EPA regions act as the
certifying authorities where no state or tribe has authority to issue
certification (33 U.S.C. 1341(a)(1)). Currently, EPA acts as the
certifying authority in two scenarios: (1) on behalf of tribes without
``treatment in a similar manner as a state'' (TAS) for CWA Section 401
and (2) on lands of exclusive federal jurisdiction in relevant
respects.
The CZMA consistency process is governed by regulations issued by
the Department of Commerce at 15 CFR part 930. Individuals who are
interested in providing comments specific to WQCs and CZMA consistency
determinations for the issuance or reissuance of the NWPs should submit
their comments directly to the appropriate state, authorized tribe, or
EPA regional office. Because these processes are separate from the
Corps' regional conditioning process, the public notices issued by
states, authorized tribes, and EPA regions during the WQC and CZMA
consistency determination processes will not be included in the docket
for this rulemaking action.
The Corps' regulations for establishing WQC regional conditions for
the NWPs are provided at 33 CFR 330.4(c)(2). If, prior to the issuance
or reissuance of NWPs, a state, authorized tribe, or EPA region issues
a CWA Section 401 water quality certification with conditions, the
division engineer will make those water quality certification
conditions regional conditions for the applicable NWPs, unless she or
he determines those conditions do not comply with 33 CFR 325.4 (see 33
CFR 330.4(c)(2)).
If the division engineer determines those water quality
certification conditions do not comply with 33 CFR 325.4, then the
conditioned water quality certification will be considered denied, and
the project proponent will need to request an activity-specific water
quality certification for the proposed activity which may result in any
discharge from a point source into waters of the United States from the
certifying authority. That certification request must satisfy the
requirements of 40 CFR 121.5. The certifying authority may grant, grant
with conditions, or deny water quality certification for an individual
license or permit, for any activity which may result in any discharge
into waters of the United
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States (see 40 CFR 121.7), including an activity-specific discharge
into waters of the United States that may be authorized by an NWP.
A similar process applies to a CZMA consistency concurrence issued
by a state for the issuance of an NWP (see 33 CFR 330.4(d)(2)). If the
division engineer determines those CZMA concurrence conditions do not
comply with 33 CFR 325.4, then the conditioned CZMA consistency
certification will be considered an objection (see 15 CFR 930.4(b)),
and the project proponent will need to request an activity-specific
CZMA consistency concurrence from the state under subpart D of 15 CFR
part 930.
After division engineers finalize Corps regional conditions and
determined whether conditions in WQCs and CZMA consistency concurrences
for the issuance or reissuance of the NWPs are WQC/CZMA regional
conditions for the NWPs, Corps districts will issue public notices
announcing the final Corps and WQC/CZMA regional conditions, and the
status of WQCs and CZMA consistency concurrences for the final NWPs.
Corps Headquarters will post copies of these district public notices in
the regulations.gov docket (docket number COE-2025-0002), under
``Supporting and Related Material.''
D. Responses to Comments on Nature-Based Solutions and the NWP Program
In the 2025 Proposal, the Corps proposed to add a definition for
``nature-based solutions'' to the NWPs, in Section F, Definitions.
Nature-based solutions can be incorporated into regulated activities
authorized by NWP 13 (bank stabilization activities), NWP 27 (aquatic
ecosystem restoration, enhancement, and establishment activities), NWP
31 (maintenance of existing flood control facilities), NWP 41
(reshaping existing drainage and irrigation ditches), NWP 43
(stormwater management facilities), NWP 54 (living shorelines), NWP 55
(seaweed mariculture activities), NWP 59 (water reclamation and reuse
facilities), and NWP A (Activities to Improve Passage of Fish and Other
Aquatic Organisms). The Corps also proposed modifications to some NWPs
(e.g., NWPs 13 and 43) to enhance the ability of those NWPs to
authorize regulated activities associated with nature-based solutions.
Many commenters expressed support for the addition of this
definition. One commenter recommended that the Corps consider including
the phrases ``best management practices'' and ``stormwater control
measures'' in the definition of ``nature-based solutions'' or instead
of ``nature-based solutions.'' One commenter objected to the inclusion
of ``regenerative stormwater conveyances'' and ``natural channel
design'' as acceptable practices of ``nature-based solutions.'' One
commenter recommended using more commonly known terms such as ``green
infrastructure'' or ``low-impact development'' instead of ``nature-
based solutions.''
``Best management practices,'' ``stormwater management,'' ``green
infrastructure,'' and ``low-impact development'' are subcategories of
nature-based solutions. The terms ``best management practices,''
``stormwater management,'' and ``stormwater management facilities'' are
already defined in Section F (Definitions) of this action. Nature-based
solutions can include ``regenerative stormwater conveyances,'' which
can result in benefits to an ecosystem, however these types of
activities may not result in a project that meets an ecological
reference and therefore may not be authorized by NWP 27 (Aquatic
Ecosystem Restoration, Enhancement, and Establishment). Nature-based
solutions include a wider range of actions, protection, management,
restoration of ecosystems resulting in a broader range of benefits.
Nature-based solutions can vary in the degree to which they involve
natural or restored ecosystems and engineered components. We have not
included ``natural channel design'' as an example of a nature-based
solution.
One commenter recommended revising this definition to be consistent
with the definition of ``nature-based solutions'' used by other Corps
and federal agency programs. Many commenters recommended deleting
overly broad language from the definition relating to societal
challenges, suggesting that they could lead to challenges in
interpretation and are aspirational. One commenter suggested adding
``that ensure no net loss of ecological function'' to the end of the
definition.
The Corps declines to adopt a different definition of nature-based
solutions than was proposed, and will include the language in the new
definition referring to societal challenges. Societal challenges can be
environmental and include water security and disaster-risk reduction.
District engineers have the discretion to determine whether a proposed
activity may be authorized by an NWP. Definitions for nature-based
solutions generally have the elements of conservation, restoration, or
management of natural systems for the benefit of people and
environments. We have adopted the definition of nature-based solutions
from Cohen-Shacham and others (2016). The Corps declines to require
that nature-based solutions ensure no net loss of ecological function
as inclusion of that requirement would discourage the use of nature-
based solutions. Nature-based solutions provide benefits to the
ecosystem but may not result in no net loss of ecological function.
One commenter suggested incorporating a list of examples of nature-
based solutions in the definition. One commenter stated that the term
``nature-based solutions'' is used differently in NWPs 13 and 43. One
commenter suggested expanding the list of nature-based solutions
examples to include vegetative stabilization and bioengineering. One
commenter recommended removing thin-layer placement of sediment as an
example of nature-based solutions out of concern that use of such an
example would create a perceived narrowing of the types of sediment
placement activities that may be authorized by NWP 27.
In this action, the Corps has proposed a new definition of
``nature-based solutions.'' Nature-based solutions can vary in the
degree to which they involve natural or restored ecosystems and
engineered components. Nature-based solutions may result in avoidance
or minimization of adverse effects of authorized activities. They may
also cause adverse effects to waters of the United States while
providing other benefits to the aquatic ecosystem.
Some nature-based solutions will not qualify for authorization
under certain NWPs which authorize nature-based solutions because the
proposed activity does not meet the terms and conditions of that NWP.
For instance, a proposed activity that is a nature-based solution may
not be authorized by NWP 27 (aquatic ecosystem restoration,
enhancement, and establishment activities) because it involves
engineered features that do not resemble ecological references.
Examples of nature-based solutions are listed in the terms of NWP 13
(bank stabilization activities) and NWP 43 (stormwater management
facilities). The list of examples in each of these NWPs will be
necessarily different because of the difference in the purpose of the
regulated activities authorized by each of those NWPs.
Nature-based solutions associated with bank stabilization
activities can include use of seawalls and bulkheads that are
constructed with materials that have textured surfaces (e.g., crevices,
depressions, pits, grooves, gaps) that
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provide structural complexity and microhabitats that habitat-forming
sessile organisms such as barnacles, branching coralline algae,
bivalves, algae, and corals can attach to, grow on, and further enhance
habitat structure (Strain et al. 2017) for other aquatic organisms.
Fish may feed on the aquatic organisms attached to these seawalls and
bulkheads, and aquatic organisms can be attracted to the structural
habitat on these seawalls and bulkheads. Seawalls and bulkheads
constructed with textured surfaces and other features to increase
habitat complexity and are colonized by benthic organisms, such as
seaweeds and sessile animals, and may attract and support populations
of juvenile fish, including salmon species (Morris et al. 2018).
Habitat complexity at seawalls and bulkheads that supports more diverse
aquatic organism assemblages can also be enhanced at seawalls by
incorporating water retaining features such as rock or tidal pools
(O'Shaughnessy et al. 2020), ``flower pots'' (Morris et al. 2018), and
benches (Toft et al. 2013), or large or small ledges (Strain et al.
2017).
Nature based solutions associated with bank stabilization may also
include rocks placed in subtidal and intertidal areas next to seawalls
and bulkheads, or in clusters next to seawalls and bulkheads, to
provide habitat for aquatic organisms (Suedel et al. 2022). Rock piles
next to seawalls and bulkheads can be constructed from rocks of
different sizes or rocks of similar size, and gaps between these rocks
can provide habitat and refuge areas for aquatic organisms. Another
nature-based solution that may increase habitat and biodiversity next
to seawalls, bulkheads, and revetments involves the placement of bags
of molluscs or the placement of small reef structures to provide
habitat for molluscs and other sessile aquatic organisms next to a
seawall, bulkhead, or revetment (Suedel et al. 2022).
Other nature-based solutions associated with bank stabilization
include revetments designed and constructed to increase structural
complexity that can provide habitat for benthic and motile aquatic
organisms. Rocks of different sizes can be used to construct revetments
and provide cracks and holes of different sizes that can be used as
habitat by aquatic organisms and plants (Suedel et al. 2022). Another
nature-based solution that can add structural complexity in marine
waters, is the placement of pieces of large wood in front seawalls,
bulkheads, and revetments.
In waterbodies with soft substrates such as sand, the large wood
pieces can attract benthic and pelagic organisms and enhance local
biodiversity (Dickson et al. 2023). Installing large pieces of wood
into marine and estuarine waters seaward of seawalls, bulkheads, and
revetments can provide habitat for a variety of aquatic organisms,
increase the number of trophic connections among aquatic species, and
contribute to local nutrient cycling, and may help lessen changes in of
biodiversity that may occur as a result of the construction of a
seawall, bulkhead, or revetment (Witte et al. 2024, Dickson et al.
2023). Nature-based solutions which may be authorized by NWP 13 and may
also be authorized by NWP 54 (living shorelines), include vegetative
stabilization, bioengineering, or other types of soft bank
stabilization.
Examples of nature-based solutions can be incorporated into
regulated activities that may be authorized by NWP 27 (aquatic
ecosystem restoration, enhancement, and establishment activities)
include thin-layer placement of dredged material to sustain wetlands
and other aquatic habitats; placement of spoil material to elevate a
degraded riverbed and restore geomorphic processes; alignments of river
channels within the existing floodway to enhance riverine function and
connectivity; and reservoir sediment management activities to maintain
continuity of sediment transport through the river network to sustain
downstream aquatic habitats (e.g., downstream geomorphology) and
terrestrial habitats (non-wetland riparian areas and floodplains) (see
86 FR 73544-73548). Thin layer placement of dredged material is one of
a number of nature-based solutions that may involve the discharge of
sediments into waters of the United States for the purpose of restoring
wetlands, streams and other waters. Placement of sediments for the
purpose of restoration, enhancement, or establishment, may occur in a
variety of depths or configurations and may be authorized by NWP 27
provided the activity results in in net increases in aquatic ecosystem
functions and services and resembles an ecological reference.
Other examples of nature-based solutions that might be associated
with activities authorized by NWP 27 include restoration of fringe
wetlands in estuaries and lakes to reduce bank erosion; restoration of
oyster reefs, coral reefs, and other types of subtidal or intertidal
habitats to provide habitat, support biodiversity, and provide a
variety of co-benefits (e.g., reduced shoreline or bank erosion); the
re-establishment, rehabilitation, establishment, or enhancement of
riparian areas and wetlands to trap or transform sediments and
pollutants carried by surface run-off or shallow subsurface flows
before that water reaches rivers, streams, lakes, estuaries, ocean
waters; and the use of dredged material to reestablish, rehabilitate,
enhance, or establish wetlands or other aquatic habitats. Another
nature-based solution includes process-based restoration of river
corridors (i.e., river and stream channels and their associated
floodplains, riparian areas, and wetlands) to increase the functions
and services provided by river corridors and provide increased
resilience to drought and wildfires.
NWP 43 (Stormwater Management Facilities) may authorize regulated
activities which incorporate nature-based solutions for the
construction and maintenance of stormwater management and pollution
abatement facilities if they involve discharges of dredged or fill
material into non-tidal waters of the United States, such as stream
biofilters, bioretention ponds or swales, rain gardens, vegetated
filter strips, vegetated swales (bioswales), constructed wetlands,
infiltration trenches, and regenerative stormwater conveyances. Other
regulated activities that incorporate nature-based solutions that are
conducted to meet pollutant discharge targets established under the CWA
may also be authorized by NWP 43 as long as they comply with the
applicable terms and conditions of this NWP.
Proposed new NWP A (Activities to Improve Passage of Fish and Other
Organisms) may authorize regulated activities that incorporate nature-
based solutions such as nature-like fishways, which use ecological
engineering principles to provide nature-based solutions to improve the
ability of fish and other aquatic organisms to pass around obstacles to
access other aquatic habitats.
Other NWPs, such as NWP 31 (maintenance of existing flood control
facilities), NWP 41 (reshaping existing drainage and irrigation
ditches), NWP 55 (seaweed mariculture activities), and NWP 59 (water
reclamation and reuse facilities) may also authorize regulated
activities that incorporate nature-based solutions, including some of
the examples listed in this section. Examples of regulated activities
associated with nature-based solutions that may be authorized by these
NWPs include bioretention ponds, biofilters, placement of bags of
molluscs, and constructed wetlands.
[[Page 782]]
One commenter suggested including a clear definition of soft bank
stabilization. One commenter recommended adding a definition of
bioengineering. Many commenters recommended that the Corps add language
to each NWP to require prioritization of the use of nature-based
solutions wherever possible.
Soft bank stabilization includes bioengineering and vegetative
stabilization. Bioengineering is a longstanding concept in the
discipline of soil and bank stabilization. We decline to add a
definition of ``soft bank stabilization'' or ``bioengineering'' to the
NWPs to maintain the flexibility to apply those definitions as the
science around each concept evolves. We will rely on the new definition
of nature-based solutions as an overarching term that encompasses both
soft-bank stabilization and bioengineering activities. Prospective
permittees are encouraged to incorporate nature-based solutions into
regulated activities. The incorporation of nature-based solutions into
an NWP-specific activity may not be possible or appropriate in all
situations, depending on the purpose of the activity, site specific
characteristics and other factors.
In this action, the Corps has modified the NWPs which may provide
the most opportunity to incorporate nature-based solutions into the
activity which requires DA authorization to provide examples of nature-
based solutions. The Corps has also added the definition of ``nature-
based solutions'' to Section F (Definitions) as a guide to prospective
permittees and districts in the incorporation of nature-based solutions
into NWP-specific activities.
E. Response to Comments on Notes in the NWPs for Utilities and
Mariculture Activities
In the 2025 Proposal, the Corps proposed to modify the NWPs that
authorize activities associated with utilities and the activities
associated with mariculture. The Corps proposed to add or modify two
Notes in each NWP to add language to clarify the intent of each Note,
to identify information that should be provided to National Oceanic and
Atmospheric Administration (NOAA), National Ocean Service (NOS) or U.S.
Coast Guard (USCG), and to provide contact information for both NOS and
USCG.
The Corps proposed to modify an existing note in NWP 12 (Oil or
Natural Gas Pipeline Activities), NWP 52 (Water-Based Renewable Energy
Generation Pilot Projects), NWP 57 (Electric Utility Line and
Telecommunications Activities), and NWP 58 (Utility Line Activities for
Water and Other Substances) to encourage project proponents to contact
NOS and to add a note to advise the permittee to contact USCG. The
Corps proposed to modify an existing Note in NWP 48 (Commercial
Shellfish Mariculture Activities) and NWP 55 (Seaweed Mariculture
Activities) to advise the permittee to contact the USCG and to add a
note that encourages project proponents to contact NOS. The Corps also
requested comments on adding both Notes to NWP 4 (Fish and Wildlife
Harvesting, Enhancement, and Attraction Devices and Activities) and NWP
27 (Aquatic Habitat Restoration, Enhancement, and Establishment
Activities).
Many commenters supported or stated they did not object to the
modified or added Notes. One commenter noted that the responsibility to
provide information to the USCG and NOS was being moved from the Corps
to the permittee. One commenter recommended that the Corps research a
technology-based solution to provide the requested information to the
NOS and USCG. A few commenters recommended that the Notes include a
more detailed list of information that should be provided or should not
be provided to USCG or NOS. One commenter requested clarification if
district engineers must wait for a response from USCG before reviewing
a PCN. One commenter stated that notification to NOS should only be
required if a structure would obstruct navigation. Several commenters
recommended adding language to the Notes to state that the information
should be submitted to NOS within 1-year of completion. Several
commenters recommended that the Notes be clarified to state that
proponents of activities which do not require a PCN should also contact
USCG. One commenter stated that the information provided to NOS for
activities authorized under NWPs 12, 48, 52, 55, 57, and 58 should be
provided to affected tribes upon request.
The purpose of these Notes is to encourage the permittee to contact
USCG and NOS regarding the location and marking of proposed structures
in navigable waters of the United States to avoid conflicts with
navigation. Prospective permittees are encouraged to contact the USCG
and NOS for activities in navigable waters of the United States subject
to authorization by NWPs 12, 48, 52, 55, 57, and 58 regardless of
whether the NWP requires submittal of a PCN to the district engineer.
Prospective permittees are not required to wait for a response from
USCG before submitting a PCN. District engineers should not delay
review of a PCN if the prospective permittee has not engaged with or
received a response from USCG.
The Notes cannot detail all of the information that the USCG or NOS
might prefer or request to receive from a permittee. Prospective
permittees should coordinate with USCG and NOS regarding information
necessary to inform the reviews or actions that are the responsibility
of USCG or NOS. Tribes may, at any time, request such information from
the district engineer that the district engineer has in his or her
possession.
One commenter expressed objections to adding the Notes to NWP 4 and
NWP 27. One commenter stated that it is impractical to notify NOS of
structures or devices that are temporary in nature.
NWP 4 authorizes temporary structures and small fish attraction
devices, but does not authorize artificial reefs or other large
permanent structures in navigable water of the U.S. NWP 27 authorizes
activities to restore aquatic ecosystems, and does not authorize the
installation of engineered structures in waters of the United States
NWP 27 can be used to authorize the removal of culverts and other
obstructions from waters, but it cannot be used to add or replace
existing structures with new structures. After consideration of these
comments, the Corps has determined that it is not necessary to add
either Note to NWP 4 or NWP 27.
After reviewing the comments received in response to the proposed
rule, the Corps has decided to adopt the Notes as proposed.
F. Responses to Comments on Specific Nationwide Permits
NWP 1. Aids to Navigation. 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 2. Structures in Artificial Canals. The Corps did not propose
any changes to this NWP. Several commenters stated that all NWP 2
should require a PCN because the activities authorized by this NWP have
the potential to cause harmful sedimentation by impacting the flow of
water.
This NWP only authorizes the construction of structures in
navigable waters of the United States. Discharges of dredge or fill
material requiring authorization under Section 404 of the CWA are not
authorized by this NWP. Permittees are required to comply with the
general conditions to the NWP and regional conditions, including
conditions included in any issued water
[[Page 783]]
quality certifications. If an activity constructed in an artificial
canal affects navigation, movement of aquatic species, or creates an
impoundment (where the purpose of the activity is not to impound
waters) or has improperly installed and maintained erosion and
sedimentation controls, contrary to general conditions, the activity is
not compliant with the NWP and is not authorized by this NWP. If a
structure is not authorized, the district engineer will address the
potential unauthorized activity in accordance with 33 CFR 326. This NWP
is reissued as proposed.
NWP 3. Maintenance. The Corps did not propose any changes to this
NWP. Many commenters supported the reissuance of this NWP. Many
commenters stated that this NWP authorizes activities that are not
similar in nature. Many commenters stated that this NWP should not be
modified to add any additional PCN requirements or acreage limits. Many
commenters stated that this NWP should have an acreage limit for ``loss
of waters of the United States.'' One commenter stated that NWP 3
should always require a PCN because currently serviceable structures
may be historic properties. One commenter suggested that the
Notification paragraph for NWP 3 be modified to require documentation
on how alternatives were considered. One commenter suggested that NWP 3
prohibit the emergency use of NWP 3 when the permittee has no
documentation of monitoring, maintenance, or inspection activities.
The activities authorized by NWP 3 are similar in nature because
they authorize the discharge of dredged or fill material in waters of
the United States and work or structures, in navigable waters of the
United States that 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. This NWP authorizes regulated
activities for the repair, rehabilitation, or replacement of existing,
currently serviceable structures or fills, and only authorizes minor
deviations to the structure's configuration or filled area. The Corps
declines to require PCNs for activities authorized by paragraph (a)
because 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. Paragraph (a) of this NWP authorizes only
minor deviations to previously authorized structures or fills.
If a non-federal permittee proposes an activity that might have the
potential to effect a historic property or a property eligible for
listing on the National Register of Historic Places, general condition
20 requires the prospective permittee to submit a PCN and the non-
federal permittee is not authorized to begin construction until they
receive written authorization from the district engineer. If the non-
federal project proponent does not comply with 33 CFR 330.4(g)(2) and
general condition 20, 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 district engineer will determine an
appropriate course of action under the regulations at 33 CFR part 326
if and when the Corps learns about that unauthorized activity. Because
this NWP is limited to regulated activities associated with the repair,
rehabilitation, and replacement of existing, currently serviceable
structures or fills, there are usually no practicable off-site
alternatives for repairing, rehabilitating, or replacing these
structures or fills.
Paragraph (a) of general condition 23 (Mitigation) requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable at the project site.
Permittees are required to maintain structures or fills authorized by
an NWP in accordance with general condition 14 (Proper Maintenance).
The prompt need for repair could result from changes to a fill or
structure that happen gradually, or as a result of an abrupt change, as
from a natural disaster. Corps' regulations at 33 CFR 325.2(e)(4)
govern the use of emergency procedures to authorize activities in
emergency situations. The Corps does not require documentation from the
permittee to justify the need for an emergency repair, or any other
project purpose; therefore, the Corps declines to require documentation
from the permittee justifying the need for the emergency repair.
Several commenters requested that the Corps define the term ``minor
deviations.'' One commenter stated that this NWP should indicate what
should be considered maintenance and what should be considered a new
project. One commenter stated that NWP 3 should prohibit any increases
in the size of the structure. Many commenters stated that this NWP
authorizes large infrastructure repairs without Corps review.
This NWP authorizes regulated activities associated with the
repair, rehabilitation, or replacement of existing infrastructure while
allowing minor deviations to the structure or fill due to changes in
materials, construction techniques, requirements of other regulatory
agencies, or current construction codes or safety standards. What
constitutes a ``minor deviation'' varies and 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. Minor deviations may also be necessary because of changes in
materials, construction techniques, the requirements of other
regulatory agencies, or current construction codes or safety standards.
The NWP requires the structure or fill not be put to uses that
differ from the uses originally contemplated 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. Discharges of dredged or fill material associated with
maintenance activities which do not modify the character, scope, or
size of the original fill design may be exempted from regulation under
Section 404(f) of the CWA.
Many commenters stated that this NWP should be modified to
authorize maintenance activities on currently serviceable structures or
fill that did not require a permit at the time it was constructed. Many
commenters requested that the NWP be modified to authorize new or
additional riprap to protect the repaired structure or fill, provided
that riprap is the minimum necessary to achieve protection. One
commenter objected to the use of NWP to authorize new or additional rip
rap.
For the reasons explained in the 2021 final rule (86 FR 73528), the
Corps declines to modify the NWP to authorize maintenance activities
for structures that did not require a permit at the time it was
constructed and also declines to reissue this NWP with modifications
that would authorize the placement of new or additional riprap to
protect the existing structure or fill.
One commenter stated that the term ``previously authorized
structure'' is applied inconsistently across the Districts and
requested that the phrase be defined. Many commenters stated that work
to repair structures or fill that are damaged by storms, floods, fire
or other discrete events is inconsistent with the definition of
``currently serviceable.''
The term ``previously authorized'' means the structure or fill was
[[Page 784]]
authorized by an individual permit or a general permit, or the
structure or fill was authorized under the provisions of 33 CFR 330.3.
To qualify for NWP 3 authorization, it is not necessary for the project
proponent to produce a copy of the prior authorization. In many cases
it might not be possible to produce a copy of a written authorization
because the discharge, structure, or work may have been authorized by a
general permit that does not require a PCN, or it was authorized by
regulation without a reporting requirement. Once a structure or fill is
authorized, it remains authorized unless the district engineer suspends
or revokes the authorization (see 33 CFR 325.6).
The term ``currently serviceable'' is defined in Section F of the
NWPs (Definitions). This NWP 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.
The term currently serviceable is not included in the list of actions
authorized after destruction or damage by storms, floods, fire or other
discrete events. If a district engineer determines that an activity,
including an activity conducted to respond to an emergency, did not
comply with the terms and conditions of NWP 3, he or she can take
action to address the alleged non-compliance.
One commenter recommended that paragraph (b) be modified to limit
the removal of sediments to 25 cubic yards or within 25 feet of the
structure. One commenter stated that activities authorized under
paragraph (c) should require a PCN to ensure the activities are truly
temporary. One commenter requested that a new Note be added to require
that vegetation that is removed must be replaced.
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 in any direction from the structure.
All activities authorized by paragraph (b) of this NWP require
submittal of a PCN to the district engineer. 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
effects.
Paragraph (c) of NWP 3 does not authorize permanent discharges of
dredged or fill material into waters of the United States. Permittees
must comply with the requirements of paragraph (c) as well as general
conditions 11 (Equipment) and 13 (Removal of Temporary Structures of
Fills) and remove temporary fills in order for an activity to be
authorized by NWP 3. The Corps believes that the limitation in
paragraph (c) and the general conditions are adequate to ensure that
impacts from temporary fills will cause no more than minimal adverse
environmental effects. Paragraph (c) as well as general conditions 11
and 13 require areas to be restored to pre-construction elevations and
revegetated, as appropriate. The Corps declines to add a new Note to
this NWP.
Many commenters stated that this NWP authorizes activities that
cause significant adverse environmental impacts. One commenter stated
that the decision document for this NWP fails to consider impacts as a
results of emergency reconstruction activities as a result of natural
disasters.
The final decision document for this NWP provides an assessment of
activities that may be authorized by this NWP during the five-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 NEPA, the Corps' public interest review regulations, and the CWA
Section 404(b)(1) Guidelines. As discussed in this final action and the
final decision document, the Corps has determined that the NWP 3 will
cause no more than minimal adverse environmental effects, both
individually and cumulatively. The activities that are authorized by
this NWP are considered in this final action and in the decision
document, including all activities that may be authorized by paragraph
(a) of the NWP.
This NWP is reissued as proposed.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. The Corps sought comment on adding two notes to
this NWP to protect navigation. These Notes identify information that
should be provided to NOS or USCG and provide contact information for
both NOS and USCG. Comments received on the proposed addition of the
two Notes are summarized in Section II.E of this final action, and in
that section the Corps provided responses to those comments. As
discussed in Section II.E. the Corps declines to add the Notes to this
NWP. This NWP is reissued as proposed.
NWP 5. Scientific Measurement Devices. The Corps did not propose
any changes to this NWP. One commenter supported reissuance of NWP 5.
One commenter stated that a PCN should be required for weirs and
flumes. One commenter suggested modifying the NWP 5 to prohibit the
placement of any device which cannot be removed in its entirety. Many
commenters stated that weirs or flumes authorized by NWP 5 should be
designed to maintain unimpeded fish passage. One commenter recommended
modifying NWP 5 to protect treaty-reserved resources.
No PCN is required for activities authorized by this NWP. Adverse
effects from the structures or fills authorized by this NWP should
generally be temporary. NWP 5 requires devices and structures or fills
associated with that device be removed to the maximum extent
practicable. There may be situations where the removal of the device or
some part of a device or structures or fills associated with that
device would cause more adverse environmental effects to aquatic
resources than leaving it in place. For instance, it may be preferable
to cut off an anchor piling at the mud line rather than disturb the
substrate in order to retrieve the entirety of the structure.
The language in NWP 5 is consistent with the language in general
condition 5 (Removal of Temporary Structures and Fills). General
condition 2 (Aquatic Life Movement) prohibits substantial disruption of
necessary life cycle movements of aquatic life indigenous to the
waterbody. Weirs and flumes may have some adverse impact to the
movement of aquatic species while they are in place. If the regulated
activity might affect, or is in the vicinity of a species listed (or
proposed for listing) or designated critical habitat (or habitat
proposed for such designation) under the ESA, general condition 18
(Endangered Species) requires non-federal permittees to submit a PCN
and states the permittee cannot begin work until the district engineer
has provided notification that the proposed activity will have ``no
effect'' on listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such
designation), or until ESA Section 7 consultation or conference has
been completed.
If a PCN is required for the proposed NWP activity, the Federal
permittee must provide the district engineer with the appropriate
documentation to demonstrate compliance with the ESA. District
engineers can develop regional conditions and develop protocols
regarding tribal notification that build
[[Page 785]]
upon the existing Department of Defense, Army, and Corps' tribal
consultation policies. The terms of this NWP, as well as the NWP
general conditions will ensure that the authorized activities will
cause no more than minimal adverse environmental effects. The Corps
declines to require PCNs for weirs and flumes.
This NWP is reissued as proposed.
NWP 6. Survey Activities. The Corps did not propose any changes to
this NWP. Many commenters recommended that the 1/10-acre limit be
raised to 1/2-acre. One commenter recommended modifying this NWP to
require a PCN for exploratory trenching because trenching has the
potential to affect historic properties.
NWP 6 authorizes discharges of dredged or fill material that do not
exceed 1/10-acre into waters of the United States for the purpose of
constructing temporary pads. Temporary pads must be removed in
accordance with general condition 5 (Removal of Temporary Structures
and Fills). The Corps believes that the limits in this NWP are
appropriate to ensure impacts from these activities cause no more than
minimal adverse environmental effects. If a non-federal permittee
proposes an activity that might have the potential to effect a historic
property or a property eligible for listing on the National Register of
Historic Places, general condition 20 (historic properties) requires
the prospective permittee to submit a PCN and the permittee may not
begin the activity until they receive written authorization from the
district engineer. If the non-federal project proponent does not comply
with 33 CFR 330.4(g)(2) and general condition 20, and does not submit
the required PCN, then the activity is not authorized by an NWP.
This NWP is reissued as proposed.
NWP 7. Outfall Structures and Associated Intake Structures. The
Corps did not propose any changes to this NWP. Many commenters stated
that NWP authorization should not be available to project proponents
who have violated National Pollutant Discharge Elimination System
(NPDES) regulations or who are seeking to modify a structure due to
improper design or installation of the outfall or intake structures.
This NWP authorizes work and structures, and discharges of dredged
or fill material for the purpose of constructing or modifying outfall
structures and associated intake structures where the effluent from the
outfall is authorized or otherwise in compliance with the NPDES Program
(Section 402 of the CWA). It is the responsibility of EPA, or
authorized states or tribes, pursuant to Section 402 of the CWA to
enforce NPDES regulations that are applicable to the effluent of
outfall structures. Discharges of dredged or fill material, or work or
structures, which are not in compliance with the terms and conditions
of an NWP are not authorized by that NWP. District engineers may
address an unauthorized action that requires authorization by Section
404 of the CWA or Section 10 of the RHA pursuant to 33 CFR 326.
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. No comments were
received on the proposed reissuance of this NWP. This NWP is reissued
as proposed.
NWP 9. Structures in Fleeting and Anchorage Areas. The Corps did
not propose any changes to this NWP. Many commenters stated that NWP 9
should require a mooring buoy and anchoring structure maintenance
agreement and that midline floats on mooring/anchor lines should be
mandatory.
We do not agree that a maintenance agreement and a midline float is
required for every mooring buoy and anchoring structure. The design of
these structures, as well as the characteristics of the fleeting and
anchorage areas, will vary across the nation. Regional concerns about
the mooring buoys authorized by this NWP are more appropriately
addressed by division and district engineers, who have the authority to
modify, suspend, or revoke NWP authorizations on a regional or
activity-specific basis. If a division engineer imposed a regional
condition on this NWP, in order to qualify for NWP authorization, the
permittee 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.
NWP 10. Mooring Buoys. The Corps did not propose any changes to
this NWP. Many commenters stated that activities should not be
authorized by NWP 10 when they interfere with tribal rights. Many
commenters stated that NWP 10 should require a mooring buoy and
anchoring structure maintenance agreement and that midline floats on
mooring/anchor lines should be mandatory. One commenter stated that NWP
10 should be revised to limit mooring buoys where the applicant already
has an existing mooring structure, or on the basis of whether the
applicant has access to adjoining property.
We do not agree that a maintenance agreement and a midline float is
required for every mooring buoy and anchoring structure. The design of
these structures, as well as the characteristics of the fleeting and
anchorage areas, will vary across the nation. Regional concerns about
the mooring buoys authorized by this NWP are more appropriately
addressed by division and district engineers, who have the authority to
modify, suspend, or revoke NWP authorizations on a regional or
activity-specific basis.
In order to qualify for NWP authorization, the permittee must
comply with regional conditions, activity-specific conditions, as well
as any requirements in the text of the NWP and applicable NWP general
conditions. We also decline to limit the use of this NWP on the basis
of the applicant's access to other mooring structures or on the basis
of property ownership. As stated in Section E. (Further Information),
NWPs do not grant any property rights or exclusive privileges. The
Corps has no authority over zoning or land use rights.
This NWP is reissued as proposed.
NWP 11. Temporary Recreational Structures. The Corps did not
propose any changes to this NWP. One commenter stated that temporary
structures should be removed in less than 30 days if requested by an
affected tribe.
Activities authorized by this NWP must comply with general
condition 17 (tribal rights). Corps districts consulted with tribes
during the process for reissuing this NWP and those consultation
efforts may have resulted in regional conditions or coordination
procedures with tribes to help ensure compliance with general condition
17. Shorter time periods for removal may be imposed through regional
conditions, or if the district engineer receives a PCN, he or she may
add activity-specific conditions.
This NWP is reissued as proposed.
NWP 12. Oil or Natural Gas Pipeline Activities. The Corps proposed
to modify Note 1 and to add a Note (designated as Note 7) in this NWP.
Language was added to each Note to clarify the intent of each Note.
Note 1 was modified to identify information that should be provided to
NOS and to provide contact information for NOS. New Note 7 identifies
information that should be provided to USCG and to provide contact
information for USCG. The Corps provides a summary of the comments
received on revised Note 1 and new Note 7 and responses to comments in
Section II.D of this final action.
[[Page 786]]
Many commenters expressed support for NWP 12. Many commenters
expressed support for the NWP as written. Many commenters objected to
the reissuance of this NWP. One commenter stated that this NWP should
be available for authorization of jurisdictional activities associated
with carbon dioxide pipelines.
Nationwide permit 12 authorizes discharges of dredged or fill
material or work or structures associated with oil or natural gas
pipeline activities. Nationwide permit 12 defines oil or natural gas
pipelines as ``any pipe or pipeline for the transportation of any form
of oil or natural gas, including products derived from oil or natural
gas, such as gasoline, jet fuel, diesel fuel, heating oil,
petrochemical feedstocks, waxes, lubricating oils, and asphalt.''
Nationwide permit 58 (Utility Line Activities for Water and Other
Substances) may be used to authorize regulated activities associated
with the construction, maintenance, repair, and removal of utility
lines for water and other substances, including but not limited to
hydrogen, methanated hydrogen, or carbon dioxide. There is some overlap
in the NWPs. The district engineer will review PCNs that he or she
receives and determine if the case-specific activity can be authorized
by the NWP requested by the prospective permittee. If the case-specific
activity does not comply with the terms and conditions of the NWP, the
district engineer will notify the project proponent within 30 days of
the date the PCN was submitted to the district engineer that the
project proponent must apply for a different NWP, a regional general
permit, or an individual permit.
A few commenters stated that natural gas pipelines are subject to
industry standards and oversight by the Federal Energy Regulatory
Commission (FERC), resulting in temporary impacts to jurisdictional
waters which are mitigated where possible. A few commenters stated that
reissuance of this NWP is important for improving pipeline safety and
reliability. One commenter supported reissuing this NWP before the
other NWPs. Some commenters expressed opposition to specific pipeline
projects. The Corps acknowledges these comments.
A few commenters stated that the NWP does not protect waters of the
United States. Many commenters stated that this NWP allows more than
minimal adverse environmental impacts, individually and cumulatively.
Many commenters stated that the Corps should ensure that this NWP
authorizes no more than minimal individual and cumulative effects.
Several commenters stated that the Corps should collect more detailed
information on NWP 12 verifications to better inform the decision
whether the reissue the NWP. Many commenters oppose additional
modifications to this NWP and further cumulative effects analysis for
this NWP. Many commenters stated that this NWP violates CWA and NEPA. A
few commenters stated that the Corps should prepare an EIS for each
pipeline project.
Section 404(e) of the CWA provides the Corps with the authority to
issue NWPs to authorize categories of activities involving discharges
of dredged or fill material into waters of the United States to
streamline the authorization process for these activities, as long as
they result in no more than minimal individual and cumulative adverse
environmental effects. 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.
The Corps Headquarters has prepared a national decision document to
address the environmental effects of the reissuance of this NWP in
accordance with NEPA and CWA. The national decision document evaluates
cumulative impacts in accordance with the CWA Section 404(b)(1)
Guidelines at 40 CFR 230.7 for the issuance of general permits. The
national decision document includes estimates of the number of times
the NWP is anticipated to be used during the five-year period it will
be in effect, the authorized impacts to jurisdictional waters and
wetlands, and the compensatory mitigation required to offset losses of
jurisdictional waters and wetlands. Those impacts, and the compensatory
mitigation, are evaluated against the current environmental setting
(i.e., the affected environment).
The national decision document includes an environmental assessment
(EA) with a finding of no significant impact, satisfying the
requirements of NEPA. Neither the CWA nor NEPA mandate that the Corps
prepare an environmental impact statement to analyze the impacts of the
reauthorization of this NWP. Since the Corps fulfills the requirements
of NEPA when it issues its national decision document for the
reissuance of that NWP, specific activities authorized by this NWP do
not require additional NEPA analysis. As documented in this action and
in the national decision documents, the issuance of this NWP complies
with the requirements of the CWA.
In addition to the assessment of cumulative effects at the national
level, division engineers will consider cumulative effects in the
supplemental documentation for a region, which is typically defined as
a state or Corps district. District engineers will consider cumulative
effects during their review of a PCN for a case-specific activity. In
furtherance of the district engineer's review of cumulative effects,
paragraph (b)(4)(ii) of NWP general condition 32 requires PCNs for
proposed NWP activities for linear projects to include and any other
NWP(s), regional general permit(s), or individual permit(s) used or
intended to be used to authorize any part of the proposed project or
any related activity, including other separate and distant crossings
for linear projects that require Department of the Army authorization
but do not require a PCN.
When a district engineer issues a verification letter in response
to a PCN or a voluntary request for an 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
district engineer reviews a PCN and determines that the impacts of the
jurisdictional activity are more than minimal, the district engineer
will exercise discretionary authority to require an individual permit
for that proposed activity.
One commenter supported the determination that reissuance of the
NWP will have ``no effect'' on listed species or critical habitat. Many
commenters stated that programmatic ESA consultation should be required
for reissuance of this NWP. Many commenters stated that this NWP
violates the ESA. One commenter stated that this NWP should prohibit
jurisdictional activities that are in the vicinity of listed species or
designated critical habitat.
The Corps' compliance with ESA for the reissuance of the NWPs is
discussed in Section III.C. of this action. General condition 18
(Endangered Species) addresses compliance with Section 7 of the ESA for
each NWP-specific activity. If the regulated activity might affect, or
[[Page 787]]
is in the vicinity of a species listed (or proposed for listing) or
designated critical habitat (or habitat proposed for such designation)
under the ESA, general condition 18 (Endangered Species) requires non-
federal permittees to submit a PCN and states the permittee cannot
begin work until the district engineer has provided notification that
the proposed activity will have ``no effect'' on listed species (or
species proposed for listing) or designated critical habitat (or
critical habitat proposed for such designation), or until ESA Section 7
consultation or conference has been completed. If a PCN is required for
the proposed NWP activity, the Federal permittee must provide the
district engineer with the appropriate documentation to demonstrate
compliance with the ESA.
Several commenters stated that this NWP violates Section 106 of the
NHPA. One commenter stated that this NWP should require tribal
consultation under Section 106 of the NHPA. One commenter expressed
concern over impacts to newly discovered cultural resources.
The Corps' compliance with Section 106 of the NHPA for the
reissuance of the NWPs is discussed in Section III.D. of this action.
General condition 20 (Historic Properties) addresses compliance with
section 106 of the NHPA. Under paragraph (c) of general condition 20,
non-federal permittees must submit a PCN to the district engineer if
the NWP activity might have the potential to cause effects to any
historic properties listed on, determined to be eligible for listing
on, or potentially eligible for listing on the National Register of
Historic Places, including previously unidentified properties even if a
PCN is not otherwise required. Non-federal permittees may not proceed
with their activity unless the district engineer has reviewed the PCN
and determined that the activity has ``no potential to effect''
historic properties or the district engineer has completed consultation
under Section 106 of NHPA.
If the district engineer determines that the proposed NWP activity
will result in either ``no historic properties affected,'' ``no adverse
effects,'' or ``adverse effects,'' he or she will conduct NHPA Section
106 consultation with the appropriate consulting parties, including
tribes. If a PCN is required for the proposed NWP activity, the Federal
permittee must provide the district engineer with the appropriate
documentation to demonstrate compliance with the NHPA. Permittees must
also comply with general condition 21 (Discovery of Previously Unknown
Remains and Artifacts) and immediately notify the district engineer of
discoveries of previously unknown historic, cultural, or archeological
remains and artifacts. The permittee must avoid activities that may
affect the remains and artifacts to the extent possible until required
coordination is completed.
Some commenters stated that the Corps is not complying with
Executive Order 13175. Many commenters stated that this NWP violates
tribal sovereignty and does not provide opportunity for tribal input.
One commenter stated that this NWP should require free prior and
informed consent from tribes. One commenter stated that this NWP
violates the RESPECT Act and sovereign land rights. One commenter
stated that man camps associated with pipeline construction projects
are linked to criminal activity.
Consultation with tribes on the reissuance of the NWPs is discussed
in Section V of this final action (Administrative Requirements), in the
section for E.O. 13175 (Consultation and Coordination with Indian
Tribal Governments). Tribal treaty rights are addressed through NWP
general condition 17 (Tribal Rights) for all NWPs, including NWP 12.
General condition 17 states that no activity authorized by an NWP may
impair reserved tribal rights. During the process for issuing these
NWPs, Corps districts have been consulting or coordinating with tribes
to identify regional conditions or coordination procedures to ensure
that activities authorized by NWP 12 and other NWPs do not have
substantial adverse effects on tribal rights and, as appropriate,
treaty reserved resources.
Division engineers can modify the NWPs at a regional level to
address tribal concerns within the limits of Corps' authorities. The
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
is a nonbinding document that encourages good faith consultation with
indigenous peoples to ``obtain their free, prior, and informed
consent'' before implementing measures that could affect them. The
Corps follows Executive Order 13175 and existing Department of Defense,
Army, and Corps' tribal consultation policies to meaningfully consult
with tribes and consider the concerns of tribes, but not necessarily
receive the agreement of tribes, before making permit decisions. The
RESPECT Act (Pub. L. 117-317) does not create obligations that are
relevant to this rulemaking. Concerns regarding criminal activities are
more appropriately addressed by local, state, tribal, and federal law
enforcement officials.
One commenter stated that this NWP is contrary to Executive Orders
13990 (Protecting Public Health and the Environment and Restoring
Science To Tackle the Climate Crisis) and 12898 (Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income
Populations). One commenter stated that this NWP is consistent with the
direction in Executive Order 14156 (Declaring a National Energy
Emergency).
Executive Order 13990 was rescinded by Executive Order 14148
(Initial Rescissions of Harmful Executive Orders and Actions) and
Executive Order 12898 was rescinded by Executive Order 14173 (Ending
Illegal Discrimination and Restoring Merit-Based Opportunity).
Executive Order 14156 declared a national energy emergency and directed
federal agencies to facilitate the identification, leasing, siting,
production, transportation, refining, and generation of domestic energy
resources through existing permitting vehicles. This NWP helps fulfill
the policies of Executive Order 14156 by maintaining the streamlined
process that has been in existence since 1977, to authorize categories
of activities associated with the construction and maintenance of oil
or natural gas pipelines that have no more than minimal individual and
cumulative adverse environmental effects.
Some commenters supported the retention of the \1/2\-acre impact
limit or opposed changes to this limit. One commenter said the \1/2\-
acre impact limit should be applied to the entire length of a pipeline.
One commenter stated that \1/2\-acre impact limit should include
temporary impacts. Many commenters expressed support for additional
impact limits on this NWP. Many commenters suggested raising the impact
limits on this NWP. One commenter recommended that this NWP authorize
up to 1,000 linear feet of stream impacts. One commenter suggested
capping the number of crossings that could be authorized by this NWP.
Some commenters suggested limiting the activities that may be
authorized by this NWP on the basis the dimensions of the pipeline or
amount of impacts to riparian buffers. One commenter stated that this
NWP should require authorization of activities in water of the United
States and other non-jurisdictional waters.
This NWP authorizes discharges of dredged or fill material into
waters of the United States and work and
[[Page 788]]
structures in navigable waters of the United States associated with the
construction, maintenance of repair, and removal of oil and natural gas
pipelines and associated facilities. The NWP prohibits loss of waters
that exceed \1/2\-acre of waters of the United States for each single
and complete project. The ``loss of waters of the United States''
refers to permanent adverse effects to waters of the United States as a
result of filling, flooding, excavation, or drainage because of the
activities subject to the Corps' authority, and does not include
temporary impacts.
The Corps believes that the \1/2\-acre limit authorized by this
NWP, as limited by the constraints in the text of the NWP (e.g.,
requirements to restore temporary impacts to preconstruction
elevations) and in the NWP general conditions, is appropriate to ensure
that each single and complete project will cause no more than minimal
adverse environmental effects. The Corps has no authority to regulate
impacts to non-jurisdictional aquatic resources and cannot require
permits for activities outside waters of the United States.
One commenter stated that temporary and cumulative impacts should
be considered when evaluating activities authorized by this NWP. One
commenter recommended raising the timeframe for temporary discharges
from three months to five months. One commenter recommended allowing
the district engineer to waive the requirement to restore areas to
preconstruction contours.
The national decision document for this NWP considers both
temporary impacts and cumulative effects in the analysis. Some
activities authorized by NWP 12 (e.g., the construction of substations
and permanent access roads) result in permanent fills while other
authorized activities generally result in temporary impacts. The terms
of the NWP, as well as general conditions 11 (Equipment) and 13
(Removal of Temporary Structures and Fills) require that temporary
fills be removed upon completion of the activity. The permittee must
restore the affected area to pre-construction elevations and revegetate
the area as appropriate. When the district engineer reviews a PCN, in
accordance with Section D, District Engineer's Decision, he or she will
consider the duration of the adverse effects (temporary or permanent)
as well as the cumulative effects of the specific activity.
Paragraph (b)(4) of NWP general condition 32 requires project
proponents to include in PCNs any other NWP(s), regional general
permit(s), or individual permit(s) used or intended to be used to
authorize any part of the proposed project or any related activity,
including other separate and distant crossings for linear projects that
require DA authorization but do not require a PCN. This information is
used by district engineers to determine whether the proposed activity
will result in no more than minimal individual and cumulative adverse
environmental effects. When the district engineer receives a PCN, he or
she will consider the direct and indirect effects of the regulated
activity in accordance with Section D (District Engineer's Decision)
and determine if the activity will cause no more than minimal adverse
environmental effects, both individually and cumulatively.
This NWP states that material from trench excavation can be
temporarily sidecast into waters of the United States for no more than
three months and this time period may be extended by the district
engineer to not more than 180 days (6 months) where appropriate. The
Corps retains the three-month limit and the district engineer's
discretion to allow temporary fills to remain in place for six months.
Waters of the United States which are filled, flooded, excavated, or
drained, and are not restored to preconstruction contours and
elevations after construction, are included in the measurement of loss
of waters of the United States, and are considered permanent adverse
effects.
Many commenters opposed further limits on the thresholds for
requiring a PCN. A few commenters stated that no PCN should be required
by this NWP. Many commenters stated that this NWP should require a PCN
for all activities. Many commenters supported lowering the thresholds
for requiring a PCN. A few commenters suggested adding other thresholds
for requiring the submittal of a PCN. One commenter recommended
retaining the 0.10-acre threshold for requiring the submittal of a PCN.
A few commenters opposed the 250-mile threshold for requiring a
submittal of a PCN. One commenter suggested raising the 250-mile PCN
threshold.
Nationwide permit 12 requires a PCN for any discharge of dredged or
fill material into waters of the United States that results in a loss
of greater than \1/10\-acre of waters of the United States. A PCN is
also required for any proposed work or structure which requires
authorization under Section 10 of the RHA, and for any regulated
activity associated with an overall project that is greater than 250
miles in length when the project purpose is to install new pipeline for
the majority of the distance of the overall project length. If a
proposed NWP 12 activity does not trigger any of the three PCN
thresholds in the text of the NWP, or a PCN threshold in the text of
one of the NWP general conditions (e.g., general condition 18
(Endangered species) and general condition 20 (Historic Properties)),
then a PCN is not required for the proposed activity unless a division
engineer has imposed a regional condition to require PCNs in a
particular geographic region.
Division engineers can add regional conditions to add PCN
thresholds, if he or she determines the PCN threshold is necessary to
ensure that the NWP authorizes only those activities that have no more
than minimal adverse environmental effects. The Corps has found that a
length of 250 miles is both a good indicator of potential cumulative
effects of an oil or natural gas pipeline while minimizing the
potential for inconsistent implementation of the PCN requirement across
districts. The Corps is retaining the PCN thresholds associated with
NWP 12 activities that result in losses of waters of the United States
or have potential effects on navigation. The PCN thresholds, in
combination with the other terms of the NWP and the general conditions
ensure that the NWP causes no more than minimal adverse environmental
effects.
Many commenters stated that the Corps should require a PCN for
mechanized land clearing of forested wetlands. Many commenters
supported the removal of the PCN threshold for mechanized land clearing
in the 2021 final rule to reissue the NWPs.
Mechanized land clearing in waters of the United States may result
in a discharge of dredged material which requires DA authorization
under Section 404 of the CWA. To be regulated under Section 404 of the
CWA, a discharge of dredged material involves any addition, including
redeposit other than incidental fallback, of dredged material,
including excavated material, into waters of the United States that is
incidental to any activity, including mechanized land clearing,
ditching, channelization, or other excavation (see 33 CFR
323.2(d)(1)(iii)). For the reasons stated in the 2021 final rule (86 FR
2773-2775), the Corps maintains the position that no PCN for mechanized
land clearing should be added to this NWP.
A few commenters stated that the NWP should require avoidance and
minimization to the maximum extent possible. Many commenters opposed
the addition of uniform national BMPs or standards to this NWP.
Paragraph (a) of general condition 23 (Mitigation), requires
permittees to avoid and minimize adverse effects to
[[Page 789]]
waters of the United States to the maximum extent practicable. Best
management practices are more appropriately addressed as regional
conditions added to the NWPs by division engineers or activity-specific
conditions added to NWP authorizations by district engineers. The Corps
is not adding any national BMPs to NWP 12.
Many commenters suggested that acreage impact limits and PCN
thresholds be consistent between NWPs 12 and 14. 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. NWP 12 and NWP 14 both require a PCN
for activities causing the loss of greater than \1/10\-acre of waters
of the United States. NWP 12 also requires a PCN for activities
requiring a Section 10 permit and when a proposed oil or natural gas
pipeline activity is associated with an overall project that is greater
than 250 miles in length and the project purpose is to install new
pipeline along the majority of the distance of the overall project
length. In addition to the \1/10\-acre PCN threshold, the NWP 14
requires a PCN for discharges of fill material into special aquatic
sites. Nationwide permits 12 and 14 have somewhat different impact
limits and PCN thresholds because of differences between oil or natural
gas pipeline activities and linear transportation projects. With the
exception of discharges of dredged or fill material associated with
substations, pipeline foundations, or access roads, many impacts
authorized by the NWP 12 are temporary and require restoration back to
preconstruction elevations (i.e., discharges of dredged or fill
material associated with the installation of the oil or natural gas
pipeline). Nationwide permit 14 for linear transportation projects
authorizes discharges of dredged or fill material associated with
linear transportation projects (e.g., roads, railroads, airport
runways, and trails), which are more likely to result in discharges of
dredged or fill material that are not temporary.
Many commenters recommended restricting the ability of the division
or district engineer to modify, suspend, and revoke NWP authorizations.
Many commenters opposed restricting the ability of the division or
district engineer to modify, suspend, and revoke NWP authorizations. In
accordance with 33 CFR 330.5, division and engineers have the
discretion to modify, suspend, or revoke NWP authorizations. The Corps
is retaining the division and district engineer's discretion to modify,
suspend, and revoke NWPs.
Several commenters stated that permittees fail to comply with the
requirement to remove temporary access roads and recommended increased
compliance and enforcement by the Corps. A few commenters stated that
this NWP should include language about the repercussions of
unauthorized activities in this NWP.
If the permittee fails to comply with the terms and conditions of
an NWP, including NWP general conditions then the activity is not
authorized by that NWP and the district engineer may pursue compliance
of an unauthorized action pursuant to 33 CFR 326. The district engineer
has discretion how to resolve unauthorized actions, including whether
to require restoration, accept an application for an after-the-fact
authorization, or other remedies. The Note in Section C (NWP General
Conditions) advises prospective permittees of their obligations
regarding compliance with NWP terms and conditions.
Several commenters stated that the Corps should require additional
information in PCNs for NWP 12. One commenter stated that prospective
permittees should not be allowed to proceed with construction 45 days
after submittal of a PCN.
The Corps has determined that the contents of a complete PCN as
stated in paragraph (b) of general condition 32 are sufficient for the
district engineer to make his or her decision. Some general conditions,
such as general condition 18 (endangered species) or general condition
20 (historic properties) require a non-federal permittee to wait for
written approval before commencing construction. Activities that
qualify for the default authorization that occurs 45-days after the
district engineer receives a complete PCN must comply with all
conditions of the NWP, including the general conditions and any
applicable regional conditions imposed by the division engineer.
One commenter supported separating this NWP into one or more
general permits. One commenter objected to separating this NWP into one
or more general permits. One commenter recommended that use of this NWP
be prohibited for activities in sensitive areas. One commenter stated
that use of this NWP should be prohibited for large pipeline projects.
Many commenters stated that this NWP should not automatically prohibit
authorization of activities associated with oil and gas pipelines.
Section 404(e) of the CWA does not specify how broad or narrow
categories of activities authorized by NWPs and other general permits
must be. The Corps has substantial discretion to identify categories of
activities that are appropriate for NWPs and other general permits. For
instance, in the 2021 final rule to reissue the NWPs (86 FR 2744), the
Corps modified NWP 12 and created two new NWPs (NWP 57. Electric
Utility Line and Telecommunications Activities and NWP 58 Utility Line
Activities for Water and Other Substances) to authorize activities
associated with types of utility projects that were formerly authorized
by NWP 12. The Corps declines to further narrow the activities
authorized by NWP 12.
Division engineers may develop regional conditions for an NWP if he
or she determines it necessary to ensure that activities in a region
will cause no more than minimal adverse environmental effects to
sensitive areas. This NWP requires project proponents to submit a PCN
for regulated activities associated with pipelines greater than 250-
miles in length, when the purpose is to install new pipeline over the
majority of the overall length. The PCN must include the locations and
proposed impacts of all crossings of waters of the United States that
require DA authorization. The district engineer will review the PCN and
determine if the proposed NWP activity will, after considering permit
conditions such as mitigation requirements, result in no more than
minimal individual and cumulative adverse environmental effects. If one
crossing of waters of the United States associated with the
installation of a new oil or natural gas pipeline requires an
individual permit, then 33 CFR 330.6(d) applies and the district
engineer will determine which activities require individual permits and
which activities can be authorized by an NWP. Section 330.6(d) of the
Corps' NWP regulations, as well as Note 2 of NWP 12, remain in effect.
Section 330.6(d) and Note 2 maintain the Corps' long-standing process
regarding the use of NWPs and individual permits to authorize linear
projects such as oil or natural gas pipelines.
Many commenters requested more consistency across districts
regarding whether this NWP authorizes regulated activities associated
with the abandonment of pipelines. District engineers have discretion
to determine on a case-by-case basis how to address pipeline
abandonment activities. If a permittee proposes to abandon a pipeline
which lies over, under, or in a navigable water of the United States,
the district engineer will review the PCN to
[[Page 790]]
determine if the proposed action will impact navigation.
Many commenters requested a clarification of the scope of
``emergency activities'' authorized by this NWP. The activities that
are authorized by NWP 12 are defined in the terms of this NWP.
Nationwide permit 12 can be used to authorize regulated activities
associated with emergency installation, replacement or repair of
utility lines. The availability of this NWP to authorize such
activities may facilitate the implementation of these emergency
activities by reducing delays in securing authorization. Which
activities constitute an ``emergency'' is determined by regulation and
policy.
Many commenters requested that ``normal maintenance'' be exempted
under Section 404(f). Discharges of dredged or fill material for
maintenance activities may be exempted from regulation under the CWA by
Section 404(f), in accordance with 33 CFR 323.4(a)(2). If not exempted
by Section 404(f) of the CWA, such discharges may be authorized by a
variety of NWPs, such as NWP 3 (Maintenance), NWP 33 (Temporary
Construction, Access, and Dewatering), or NWP 45 (Repair of Uplands
Damaged by Discrete Events). The 1989 Memorandum of Agreement Between
the Department of the Army and the U.S. EPA Concerning the
Determination of the Section 404 Program and the Application of the
Exemptions under Section 404(f) of the Clean Water Act, states that the
U.S. EPA has the authority to establish policies on which activities
are eligible for the CWA Section 404(f) exemptions. There are no work
or structures in navigable waters of the United States that are
exempted from regulation under Section 10 of the RHA.
Many commenters stated that the definition of ``single and complete
linear project'' causes cumulative effects to aquatic resources. Many
commenters objected to the determination that each waterbody crossing
is a single and complete project. One commenter requested that the
Corps define ``separate and distant.'' One commenter disagreed that the
Corps fails to consider cumulative impacts from all crossings.
The authorization of separate and distant crossings of waters of
the United States as single and complete projects for the purposes of
NWP authorization is a long-standing practice consistent with the
Corps' regulations at 33 CFR 330.2(i). Under paragraph (b)(4) of
general condition 32, PCNs for linear projects are required to include
those crossings of waters of the United States that require NWP PCNs as
well as those crossings that will utilize the NWPs and do not require
PCNs. The Corps declines to define the phrase ``separate and distant''
because what constitutes separate and distant crossings can vary across
the country because of differences in the distribution of waters and
wetlands in the landscape, local hydrologic conditions, local geologic
conditions, and other factors. What constitutes separate and distant
crossings is more appropriately determined by district engineers on a
case-by-case basis. When reviewing a PCN, the district engineer will
consider the cumulative effects of all crossings of waters of the
United States and apply the 10 criteria listed in paragraph 2 of
Section D, District Engineer's Decision.
One commenter stated that vague conditions such as ``to the maximum
extent possible'' and ``where practicable'' should be eliminated from
the NWP. One commenter recommended that the phrase ``near as possible''
be revised to ``maximum extent practicable.'' The use of the terms such
as ``to the maximum extent practicable'' and ``where practicable''
afford the district engineer the discretion to consider the benefits
and detriments of activities, temporary activities in light of
differences in the local hydrologic conditions, and other factors while
ensuring that the activity will have no more than minimal adverse
environmental effects. This NWP requires access roads to be constructed
as near as possible to pre-construction contours and elevations. The
additional avoidance and minimization required by the more restrictive
``near as possible'' is necessary and still allows flexibility to
deviate from preconstruction contours.
Many commenters oppose providing notice and an opportunity for
potentially impacted communities to comment on each NWP-specific
activity. Many commenters stated that the NWP does not provide
opportunity for public input on each activity. Many commenters stated
that this NWP does not ensure that impacts to disadvantaged and
environmental justice communities are considered.
The public was provided an opportunity to comment on the Corps'
proposal to issue, reissue, or modify NWP 12 when Corps Headquarters
published its proposed rule in the Federal Register (90 FR 26100) to
start the public comment period. However, after an NWP is issued, there
is no public comment process for specific NWP activities. If, for a
proposed oil or natural gas pipeline activity, the district engineer
exercises discretionary authority and requires an individual permit for
that activity, the public will have an opportunity to provide comments
in response to the public notice issued by the Corps district. During
the process to reissue or modify the NWPs, the Corps considers the
adverse environmental effects of the reissuance of these NWPs in
accordance Section 404(e) of the CWA, Section 10 of the RHA, and in
compliance with applicable environmental laws, regulation, guidance and
policy, as limited by the scope of our authority. The level of analysis
and consideration of environmental justice concerns in the national
decision documents and this final action comply with current Executive
Orders and agency directives, including Executive Order 14151. The NWPs
are not expected to have any discriminatory effect or disproportionate
negative impact on any community or group.
One commenter opposed this NWP, stating it undermines local
environmental requirements. One commenter stated that states and local
authorities should review projects with activities that may be
authorized by this NWP. One commenter stated that a PCN should be
required for activities proposed where residential areas are within 500
feet of the pipeline right-of-way. One commenter stated that the Corps
has no authority to make siting decisions for pipelines. One commenter
expressed concerns over risks of horizontal directional drilling.
As stated in item 2 of Section E (Further Information), the NWPs do
not obviate the need to obtain other federal, state, or local permits,
approvals, or authorizations required by law. State and local
governments are the entities that have primary responsibility for
regulating land use and pipeline siting. The Corps does not have
jurisdiction to regulate or enforce inadvertent returns, leaks, or
spills that may occur during horizontal directional drilling to install
or replace oil or natural gas pipelines. The eighth paragraph of this
NWP authorizes, to the extent that DA authorization is required,
temporary structures, fills, and work necessary for the remediation of
inadvertent returns of drilling fluids to waters of the United States
through subsoil fissures or fractures that might occur during
horizontal directional drilling activities conducted for the purpose of
installing or replacing oil or natural gas pipelines. The purpose of
this paragraph is to provide authorization for regulated activities
that are necessary to remediate inadvertent returns of drilling fluids
to reduce adverse environmental effects that might be caused by
releases of
[[Page 791]]
drilling fluids to the surrounding environment.
One commenter stated that this NWP should be available to all
parties rather than just to the oil and gas industry. One commenter
expressed concern that this NWP exposes the NWP Program to judicial
scrutiny. This NWP places no restriction on who may apply for
authorization for discharges of dredged or fill material into waters of
the United States or work and structures in navigable waters of the
United States for activities associated with oil or natural gas
pipelines. While potential litigation risk is a consideration when
contemplating changes to an NWP, the Corps also considers other factors
such as administrative efficiency, reduction of regulatory burdens, and
other approaches for maintaining environmental protections.
Many commenters expressed concern over the impacts of activities
authorized by this NWP on water supply and water quality. Many
commenters expressed opposition to oil and gas pipelines because of
concern over fossil fuels or supporting renewable energy resources.
Many commenters stated that authorizing fossil fuel projects is
contrary to the public interest. Many commenters expressed concerns
over ruptures, spills and leaks from oil and gas pipelines. Several
commenters stated that the Corps does not analyze the harms and threats
posed on the environment through operation and maintenance of
pipelines.
The national decision document for this NWP considers the effects
of regulated discharges of dredged or fill material, or work or
structures, on water supply and conservation as part of the public
interest review. Discharges of dredged or fill material 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. For those certifying authorities that
choose to require individual water quality certifications for
activities authorized by this NWP, they can place conditions on the
certification to ensure the activity complies with state water quality
standards. General condition 25 (water quality) requires permittees to
comply with any granted water quality certifications. As stated in item
2 of Section E (Further Information), the NWPs do not obviate the need
to obtain other federal, state, or local permits, approvals, or
authorizations required by law. State and local governments are the
entities that have primary responsibility for regulating water use.
Congress did not grant the Corps' statutory authority to regulate
the extraction of oil or natural gas, the operation of any oil or
natural gas pipeline, the product transported by the pipeline, or the
emissions that result from combustion of oil or natural gas or from the
industrial processes that derive other products from oil or natural
gas. The Corps' authority is limited to the discharges of dredged or
fill material into waters of the United States and work or structure in
navigable waters of the United States. The extent of the NEPA analysis
for this NWP addresses the environmental effects of reissuing NWP 12
for a period of five years. NEPA does not require that the Corps
evaluate upstream and downstream impacts, including potential impacts
on the planet's climate which are associated with the extraction or
consumption of oil or natural gas or products derived from oil or
natural gas.
In the national decision document for the issuance of this NWP, the
Corps discusses leaks or spills that may occur during the construction
and/or operation of oil or natural gas pipelines. Congress has not
granted the Corps statutory authority to take actions to prevent or
control potential leaks or spills that may occur during the
construction or operation of oil or natural gas pipelines. Since the
Corps does not regulate the release of oil, natural gas, or products
derived from oil or natural gas, the Corps is not required to perform a
detailed analysis of the effects of those possible future leaks or
spills because those leaks or spills are not an effect of the Corps'
proposed action. Although some regulated activities authorized by
various NWPs may be associated with energy production, distribution,
and use, the Corps does not have the authority to regulate or control
the which type of energy production is proposed by a project proponent.
Many commenters recommended that compensatory mitigation should be
required for all losses of stream banks and any loss of waters. One
commenter stated that states rely on the Corps to require compensatory
mitigation for impacts to streams in their state.
General condition 23 requires compensatory mitigation for all
wetland losses greater than 1/10-acre and for all stream losses greater
than 3/100-acre that require PCNs, unless the district engineer
determines that some other form of mitigation would be more
environmentally appropriate. The Corps establishes PCN thresholds to
ensure compliance with federal law and to ensure that activities
authorized by an NWP will cause no more than minimal adverse
environmental effects. States and other local authorities may enact
laws and regulations to place further protections on streams and other
natural resources. The NWPs do not obviate the need to obtain other
federal, state, or local permits, approvals, or authorizations required
by law.
This NWP is reissued as proposed.
NWP 13. Bank Stabilization. The Corps proposed to modify NWP 13 by
adding a paragraph to clarify that this NWP can be used to authorize
regulated activities that incorporate nature-based solutions associated
with bank stabilization activities, including those in conjunction with
hard bank stabilization activities such as seawalls, bulkheads, and
revetments. The Corps also proposed to modify this NWP by adding a new
Note to encourage project proponents to use soft bank stabilization
approaches and/or nature-based solutions where appropriate to reduce
the potential individual and cumulative adverse environmental effects
that may be caused by bank stabilization activities. The proposed new
Note also provides examples of the numerous factors that likely need to
be considered when planning and designing a proposed bank stabilization
activity, including hard or soft approaches to bank stabilization.
Many commenters recommended that the Corps not reissue this NWP.
Many commenters stated that this NWP causes more than minimal adverse
environmental effects. Many commenters stated that the Corps failed to
support the finding that this NWP will cause no more than minimal
individual and cumulative adverse environmental effects. Many
commenters objected to the reliance on compensatory mitigation to
reduce the cumulative impacts of NWP 13 to a minimal level. Many
commenters stated that NWP 13 authorizes activities with significant
adverse impacts and therefore violates NEPA and the CWA. Many
commenters expressed concern that the Corps failed to analyze
``secondary effects'' on aquatic ecosystems. Many commenters stated
that Corps should conduct proper endangered species consultation for
the reissuance of NWP 13.
The process to reissue this NWP complied with Section 404(e) of the
CWA (including the Section 404(b)(1) Guidelines), NEPA, and ESA. The
terms and conditions for this NWP are appropriate for limiting bank
stabilization activities so that they have no more than minimal
individual and cumulative adverse environmental effects, while allowing
landowners and other entities to protect their property
[[Page 792]]
and safety. In the national decision document for the reissuance of
this NWP, the Corps prepared an EA using reliable data and resources to
inform 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, we have completed a 404(b)(1) Guidelines analysis,
including an analysis of direct and secondary effects, and determined
that the reissuance of this NWP complies with the Guidelines. The
Corps' compliance with ESA for the reissuance of the NWPs is discussed
in Section III.C. of this action.
Many commenters stated that this NWP authorizes activities that are
not similar in nature. One commenter stated that the Corps should
require mitigation for projects that result in more than minimal losses
of riverine functions for hard bank stabilization. Many commenters
expressed concern that the Corps failed to meaningfully consider
climate change and sea level rise.
This NWP authorizes discharges of dredged or fill material into
waters of the United States or work and structures in navigable waters
of the United States associated with bank stabilization activities
necessary for erosion control or prevention. This NWP authorizes
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 phrase ``categories of activities
that are similar in nature'', is best read to confer broad discretion
on the Secretary to facilitate the practical implementation of this
general permit program. General condition 23 requires compensatory
mitigation for all wetland losses greater than 1/10-acre and for all
stream losses greater than 3/100-acre that require PCNs, unless the
district engineer determines that some other form of mitigation would
be more environmentally appropriate. The activities authorized by NWP
13 are a tool for landowners and communities to adapt to sea level rise
and increases in the frequency of severe storm events.
Many commenters suggested reducing the impact limits for this NWP.
Many commenters recommended adding an acreage impact to this NWP. Many
stated that all armoring projects should be evaluated through the
individual permit process. Many commenters stated that the public
should be given the opportunity to comment on all shoreline armoring
projects regardless of size.
This NWP does not have an acreage limit; regulated activities
authorized by this NWP are subject to nine criteria, including a 500-
linear foot length limit along the bank and one-cubic yard per running
foot, unless waived by the district engineer. The limits in this NWP
are sufficient to ensure that the NWP authorizes only those activities
that have minimal adverse effects on the aquatic environment. Division
engineers may regionally condition this NWP to impose lower impact
limits to account for local environmental conditions and the ecological
functions and services provided by waters of the United States in those
areas.
In response to a PCN the district engineer can add special
conditions to the NWP authorization to ensure minimal adverse effects,
or exercise discretionary authority and require another type of permit,
such as an individual permit, for the activity. If the district
engineer exercises discretionary authority and requires an individual
permit for a bank stabilization activity, the public will have an
opportunity to provide comments in response to the public notice issued
by the Corps district. The public was provided an opportunity to
comment on the Corps' proposal to issue, reissue, or modify an NWP when
Corps Headquarters published its proposed rule in the Federal Register
(90 FR 26100) to start the public comment period. However, after an NWP
is issued, there is no public comment process for specific NWP
activities.
Many commenters stated that PCNs should be required for all NWP 13
projects. Many commenters objected to any new PCN thresholds. Several
commenters recommended reducing the 500-linear foot limit. One
commenter suggested raising the 500-linear foot limit. One commenter
stated that the one cubic yard per running foot limit is too
restrictive. One commenter requested clarification if the 500 linear
foot limit is measured along the centerline or along each bank.
The Corps establishes PCN thresholds to ensure compliance with
federal laws and to ensure that activities authorized by an NWP will
cause no more than minimal adverse environmental effects. This NWP
requires the prospective permittee submit a PCN when a proposed
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.
The linear foot limit in this NWP applies to the length of the
regulated activity as measured along each bank where the bank
stabilization would occur, not the length of the stream segment as
measured along the centerline. If the prospective permittee intends
bank stabilization along 300 linear feet of the right stream bank and
additional bank stabilization along 300 linear feet of the left stream
bank of the same stream segment, a PCN is required because the total
length of the activity will exceed 500 linear feet. If a proposed
activity does not trigger any of the three PCN thresholds in the text
of the NWP, or a PCN threshold in the text of one of the NWP general
conditions (e.g., general condition 18, endangered species and general
condition 20, historic properties), then a PCN is not required for the
proposed activity unless a division engineer has imposed a regional
condition to require PCNs in a particular geographic region. Upon
receipt of a PCN, the district engineer will determine if the regulated
activity will cause no more than minimal adverse environmental effects.
The Corps is retaining the PCN thresholds in this NWP.
Many commenters recommended removing the district engineers'
ability to waive the limits in this NWP. Many commenters stated that
the Corps is not adequately considering the benefits versus the adverse
effects when deciding whether to waive limits. Many commenters
suggested removing the 1,000 linear foot limit on waivers for bulkheads
to allow for case-by-case approvals.
Paragraph (b) limits the activity authorized by this NWP to 500
linear feet unless waived and limits any bulkhead to no more than 1,000
linear feet. Paragraph (c) limits the activity to an average of one
cubic yard per running foot along the length of the treated bank unless
waived. Paragraph (d) prohibits discharges of dredged or fill material
into special aquatic sites unless waived. The criterion in paragraphs
(b), (c), and (d) of this NWP can be waived upon written determination
by the district engineer that the discharge of dredged or fill material
will result in no more than minimal adverse environmental effects. All
requests for waivers under NWP 13 will be coordinated with the
appropriate resource agencies, in accordance with paragraph (d) of
general condition 32, to assist with the district engineer's
evaluation. The district engineer will review the PCN and determine if
the proposed NWP activity will, after
[[Page 793]]
considering any comments from resource agencies, any waived criterion,
and permit conditions such as mitigation requirements, result in no
more than minimal individual and cumulative adverse environmental
effects.
We are retaining the waiver provisions for NWP 13. Waivers are an
important tool for providing flexibility in the NWP program, and for
authorizing activities that have only minimal adverse environmental
effects. Waivers also allow the Corps to focus its limited resources on
proposed activities that require DA authorization and may have more
than minimal impacts on the aquatic environment. The national decision
documents list the estimated annual usage of this NWP, the amount of
authorized impacts and the amount of required compensatory mitigation.
This level of information is sufficient to determine that this NWP is
being reissued compliant with Section 404(e) of the CWA.
Many commenters suggested an addition to paragraph (e) to prohibit
the impediment of groundwater and hyporheic exchange, for example,
through the filling of wetlands. One commenter recommended adding ``and
that material from failed protection will be removed from stream (and
if reused, can only be used as backfill as it does not meet 100 yr
flood requirements)'' to the end of paragraph (e). Many commenters
suggested that subsection (i) should state that maintenance of any bank
stabilization must be required for the lifetime of the activity. One
commenter requested that the NWP include a condition that requires the
project be designed to ensure the bank stabilization is sustainable.
One commenter suggested clarifying that the authorized maintenance
under the NWP includes the removal of failing structures.
Discharges of dredged or fill material into wetlands and other
waters of the United States may directly or indirectly impact movement
of ground water and hyporheic exchange. The loss of functions resulting
from the regulated activity are considered in the evaluation of the
impacts, at the national level, at the regional level, and at the
district level. The district engineer will determine, through review of
the PCN, if impacts to wetlands and other special aquatic sites
resulting from the specific activity will cause no more than minimal
adverse environmental effects. Paragraph (i) and general condition 14
(Proper Maintenance) require a permittee maintain and repair any
activity authorized by this NWP. Paragraph (i) does not require a
landowner or other entity to maintain a bank stabilization activity in
perpetuity. There are also a variety of other factors that affect the
functional lifespan of a bank stabilization activity.
If failure of an authorized activity occurs, the district engineer
may pursue compliance of an unauthorized action pursuant to 33 CFR 326.
The Corps declines to modify paragraph (e) to prescribe a specific
method for resolving noncompliance with an NWP, preserving flexibility
in such situations. As described in 33 CFR 326, the district engineer
has the discretion to make decisions on resolving unauthorized actions
based on the specific site characteristics, type of resource impacted,
and whether removal of eroded material would cause greater impacts then
allowing it to remain in place. Consistent with paragraph (i) and
general condition 14 (Proper Maintenance) a permittee may remove
existing fill or structures in order to maintain and repair any
activity authorized by this NWP. Removal of authorized fills and
structures may be also authorized by NWP 3 (Maintenance), by regional
general permit, or by individual permit.
Many commenters suggested adding language that requires that fill
material must be free from contaminants. Many commenters recommended
adding language that requires the applicant to ensure the preservation
of fish when dewatering aquatic resources.
Activities authorized by this NWP must comply with general
condition 6 (Suitable Material) which prohibits the discharge of
material that contains pollutants in toxic amounts. The permittee is
also responsible for complying with all general conditions to the NWP.
General condition 2 (Aquatic Life Movements) requires that temporary
crossings be suitably culverted, bridged, or otherwise designed and
constructed to maintain low flows to sustain the movement of those
aquatic species. If the regulated activity might affect, or is in the
vicinity of a species listed (or proposed for listing) or designated
critical habitat (or habitat proposed for such designation) under the
ESA, general condition 18 (Endangered Species) requires non-federal
permittees to submit a PCN and states the permittee cannot begin work
until the district engineer has provided notification that the proposed
activity will have ``no effect'' on listed species (or species proposed
for listing) or designated critical habitat (or critical habitat
proposed for such designation), or until ESA Section 7 consultation or
conference has been completed. If a PCN is required for the proposed
NWP activity, the Federal permittee must provide the district engineer
with the appropriate documentation to demonstrate compliance with the
ESA. The permittee is required to comply with any mitigation measures
identified during Section 7 ESA consultation, or species proposed for
listed) or critical habitat (or habitat proposed for such designation).
Many commenters supported the proposed addition of language about
nature-based solutions. Many commenters opposed the addition of the
nature-based solutions definition and some expressed concern that
nature-based solutions are not always the most beneficial to the
environment or feasible. Many commenters recommended requiring the use
of nature-based solutions. Many commenters suggested requiring nature-
based solutions be considered before allowing another form of bank
stabilization. One commenter recommended that the district engineer
ensure a seamless transition occurs between soft bank transitions to
hard bank structures and transitions to unmodified bank.
This NWP encourages project proponents to incorporate nature-based
solutions into the design of the activities authorized by this NWP. The
Corps acknowledges that there are circumstances when nature-based
solutions will not be practicable for a site for a variety of reasons.
Inclusion of nature-based solutions into the design of a project is not
required by this NWP. Note 2 reinforces the Corps' acknowledgement that
the landowner has the general right to protect his or her property from
erosion. The project proponent will determine what bank stabilization
options are feasible. In addition, district engineers can only provide
general information to landowners regarding bank stabilization options.
District engineers cannot design a landowner's bank stabilization
activity.
Paragraph (a) of general condition 23 (Mitigation), requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable. General condition 23
requires compensatory mitigation for all wetland losses greater than 1/
10-acre and for all stream losses greater than 3/100-acre for all
activities authorized under this NWP, unless the district engineer
determines that some other form of mitigation would be more
environmentally appropriate. The district engineer will determine if a
proposed activity would cause more than minimal adverse impacts to the
environment in light of the terms of the
[[Page 794]]
NWP, all the general conditions, and the criteria in Section D.
District Engineer's Decision.
A few commenters expressed concern that proposed examples of
nature-based solutions are actually bank hardening approaches that
contradict nature-based solutions. One commenter recommended clarifying
if ``bags of molluscs'' refers to living organisms, is limited to the
use of native species, the quantity of mollusks used, or if this
relates to oyster shell bags used in living shorelines. One commenter
suggests aligning the definition of nature-based solutions with the
examples provided in NWP 43 (Stormwater Management Facilities) to
ensure consistency for transportation and stormwater management
projects that incorporate nature-based solutions. One commenter
suggested adding the word ``also'' to the first sentence of the
eleventh paragraph, so it reads ``This NWP also authorizes discharges .
. .'' to clarify that the permit doesn't only authorize discharges
incorporating nature-based solution.
Depending on the characteristics of a site, soft bank stabilization
may not be appropriate. Nature-based solutions can include natural and
engineered components. Elements of nature-based solutions can be
incorporated into hard bank stabilization, such as use of construction
materials for seawalls and bulkheads that have textured surfaces, or
the placement of rock clusters next to a seawall or bulkhead. We have
modified NWP to add ``vegetative stabilization'' and ``bioengineering''
to the list of examples of nature-based solutions for bank
stabilization activities. We have also added a sentence to the eleventh
paragraph to reinforce that nature-based solutions should be
appropriate for the physical and biological characteristics of the
site.
Nature-based solutions may also include the placement of bags of
molluscs to create habitat. Molluscs are found in both freshwater and
saltwater and include mussels and oysters. The phrase ``bags of
molluscs'' refers to living organisms, but nature-based solutions can
also include the placement of bags of mollusc shells. If the molluscs
are living, the bags of molluscs should consist of species that are
native to the waterway where they will be placed to avoid the
introduction of invasive species in a waterway. The examples of nature-
based solutions in NWP 13 and in NWP 43 (Stormwater Management
Facilities) are necessarily different because the examples listed in
any NWP are related to the purpose of the proposed discharge of dredged
or fill material or work and structures. The Corps is retaining the
list of examples in this NWP. The Corps agrees to modify the first
sentence of the eleventh paragraph to make clear that this NWP
authorizes activities associated with bank stabilization and also
authorizes activities associated with incorporating nature-based
solutions into new and existing bank stabilization.
Many commenters supported the addition of Note 2 to this NWP. Many
commenters opposed the addition of Note 2. Several commenters expressed
concern that Note 2 would only apply to activities that require
submittal of a PCN. One commenter requested a modification to Note 2 to
state what hard armoring is permitted along shorelines and to specify
what private property structures are eligible for protection and what
level of bank stabilization is required. A few commenters expressed
concerns that Note 2 recommends nature-based solutions and does not
prohibit hard stabilization. Several commenters stated that the Note
should be modified to recognize local agencies authority to determine
approaches for projects. Several commenters recommended adding
additional factors to consider when determining the type of bank
stabilization, such as local climate, soil properties, water
fluctuations, bank slope and wake action. One commenter stated that the
private property owner's right to protect their property is limited by
concerns of adverse impacts to property of others, public health and
safety, adverse environmental impacts, and the public interest.
This NWP encourages the incorporation of nature-based solutions
into existing and new bank stabilization projects where those methods
are likely to be successful. Note 2 applies to all activities
authorized by this NWP. The Corps recognizes that there may be
locations where the incorporation of soft bank stabilization or other
nature-based solutions may not be practicable. The responsibility for
land use planning and zoning, including land use in coastal zones,
generally falls on state and local governments. If a state regulates
shore erosion control activities, the state's regulations or permit
decisions will influence or dictate the shore erosion approach proposed
by the landowner. There will be a variety of factors to consider when
identifying, planning, and designing an appropriate and effective bank
stabilization activity for a particular site. Some of the factors to
consider are listed in Note 2, but there may be other factors to
consider based on the location of a site.
The Corps acknowledges that the property owner's right to protect
their property is balanced by considerations including whether the
protective structure may cause damage to the property of others,
adversely affect public health, or otherwise be contrary to the public
interest. It is up to the landowner to decide how he or she wants to
protect his or her property from erosion. Upon review of the PCN, if
the district engineer determines that the proposed activity does not
qualify for the NWP, he or she will advise the applicant whether the
activity qualifies for another NWP or regional general permit
authorization or requires an individual permit.
Many commenters suggested that the NWP explicitly state the
preference for the use of NWP 54 for shoreline stabilization projects
instead of NWP 13. Several commenters requested that the Corps properly
enforce the removal of permitted temporary fills.
The Corps declines to establish a preference for one approach to
bank stabilization over other approaches. Paragraph (b) of general
condition 32 (Pre-Construction Notification) states the PCN must
include the specific NWP(s) that the prospective permittee wants to use
to authorize the proposed activity. Corps districts will enforce NWP 13
activities in the same manner as they enforce all individual permits
and general permit authorizations, which is through the procedures
described in the Corps' regulations at 33 CFR part 326 and relevant
guidance and policy documents. 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
removal of temporary discharges of dredged or fill material into waters
of the United States.
This NWP is reissued with the modifications discussed above.
NWP 14. Linear Transportation Projects. The Corps did not propose
any changes to this NWP. Many commenters expressed support for the
reissuance of this NWP. Many commenters oppose the reissuance of this
NWP. One commenter stated that this NWP authorizes more than minimal
impacts. Many commenters stated that this NWP causes significant
cumulative impacts to water quality, salmon, and shellfish. Several
commenters stated that a public comment period should be required for
this NWP. Many commenters support the use of temporary mats under NWP
14.
This NWP authorizes activities that have no more than minimal
individual and cumulative adverse environmental effects. For this NWP,
the assessment of cumulative effects occurs at three levels:
[[Page 795]]
National, regional, and the verification stage. The national NWP
decision document includes a national scale cumulative effects
analysis. Corps Headquarters prepared a national decision document for
the reissuance of this NWP and made a finding of no significant impact.
Each supplemental document has a cumulative effects analysis conducted
for a region, which is typically defined as a state or Corps district.
When a district engineer issues a verification letter in response
to a PCN or a voluntary request for an NWP verification, the district
engineer prepares a brief document that 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. The public was provided an
opportunity to comment on the Corps' proposal to issue, reissue, or
modify an NWP when Corps Headquarters published its proposed rule in
the Federal Register (90 FR 26100) to start the public comment period.
However, after an NWP is issued, there is no public comment process for
specific NWP activities.
Many commenters requested that NWP 12 and NWP 14 have consistent
acreage limits. Many commenters oppose the \1/3\-acre impact limit in
tidal waters and \1/2\-acre impact limit in non-tidal waters. One
commenter stated that the impact limits should not be changed.
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 impact thresholds because of
differences between oil or natural gas pipeline activities and linear
transportation projects. With the exception of discharges of dredged or
fill material associated with substations, pipeline foundations, or
access roads, many impacts authorized by the NWP 12 are temporary and
require restoration back to preconstruction elevations (i.e.,
discharges of dredged or fill material associated with the installation
of the oil or natural gas pipeline). Nationwide permit 14 for linear
transportation projects authorizes discharges of dredged or fill
material associated with linear transportation projects (e.g., roads,
railroads, airport runways, and trails), which are more likely to
result in discharges of dredged or fill material that are not
temporary. The Corps is retaining the impact limits for this NWP.
Many commenters requested that NWP 12 and NWP 14 have consistent
PCN thresholds. Several commenters supported the \1/10\-acre threshold
for submittal of a PCN. A few commenters stated this NWP should have no
PCN threshold for low quality wetlands. One commenter stated that
isolated waters should not be considered special aquatic sites. One
commenter stated that a PCN should be required for all activities
authorized by this NWP because historic resources are being affected.
NWP 12 and NWP 14 both require a PCN for activities causing the
loss of greater than \1/10\-acre of waters of the United States. NWP 12
also requires a PCN for activities requiring a Section 10 permit and
when a proposed oil or natural gas pipeline activity is associated with
an overall project that is greater than 250 miles in length and the
project purpose is to install new pipeline along the majority of the
distance of the overall project length. In addition to the \1/10\-acre
threshold, NWP 14 requires a PCN for discharges of fill material into
special aquatic sites. Wetlands are special aquatic sites as defined by
regulation in 33 CFR 330.2(j).
The Corps only has the authority to issue permits for regulated
activities in waters of the United States. Not all wetlands and waters
are waters of the United States. A jurisdictional determination is not
required in order to submit a PCN. If the project proponent did not
obtain an approved jurisdictional determination for the project site
prior to submitting the PCN, for the purposes of evaluating the PCN,
the district engineer will presume the wetlands, streams, and other
waters on the project site are subject to CWA jurisdiction. If a PCN is
required, the district engineer will review the PCN and consider the
quality of the aquatic resources that would be impacted by the
regulated activity when making the district engineer's decision
(Section D).
If a non-federal permittee proposes an activity that might have the
potential to effect a historic property or a property eligible for
listing on the National Register of Historic Places, in accordance with
general condition 20 (historic properties), the prospective permittee
must submit a PCN and may not begin construction until they receive
written authorization from the district engineer. Federal agencies must
follow their own regulations for complying with Section 106 of the
NHPA. During the review of the PCN, the district engineer will assess
the proposal for compliance with general condition 17 (Tribal Rights).
The Corps declines to modify the PCN thresholds for this NWP. The PCN
requirements, in addition to the other terms of this NWP and the NWP
general conditions ensure that the activities authorized by this NWP
cause no more than minimal adverse environmental effects.
Many commenters oppose the definition of ``single and complete
linear project,'' stating that it is used to avoid review of projects
through the individual permit process. The practice for providing NWP
authorization for single and complete linear projects, 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), and dates back to November 22,
1991. District engineers will review PCNs to determine whether proposed
crossings of waters of the United States are to be considered together
or as separate and distant on a case-by-case basis, after evaluating
site and regional characteristics. If one crossing of waters of the
United States associated with the construction of a linear
transportation project requires an individual permit, then 33 CFR
330.6(d) applies and the district engineer will determine which
activities require individual permits and which activities can be
authorized by an NWP. Section 330.6(d) of the Corps' NWP regulations,
as well as Note 1 of NWP 14, remain in effect. Section 330.6(d) and
Note 1 maintain the Corps' long-standing process regarding the use of
NWPs and individual permits to authorize linear projects.
One commenter stated that replacement of existing fills should not
count toward the \3/100\-acre threshold. One commenter stated that this
NWP should authorize nature-based solutions. One commenter recommended
adding a note to NWP 14 to encourage the use of nature-based solutions.
Discharges of dredged or fill material for maintenance activities
may be exempt from regulation under the CWA by Section 404(f) in
accordance with 33 CFR 323.4(a)(2). If not exempted by Section 404(f)
of the CWA, such discharges may be authorized by a variety of NWPs,
such as NWP 3 (Maintenance) or NWP 14 (Linear Transportation Projects),
NWP 33 (Temporary Construction, Access, and Dewatering), or NWP 45
(Repair of Uplands Damaged by Discrete Events). General condition 23
requires compensatory mitigation for all wetland losses greater than
\1/10\-acre and for all stream losses greater than \3/100\-acre for all
activities which require a PCN,
[[Page 796]]
unless the district engineer determines that some other form of
mitigation would be more environmentally appropriate.
This NWP authorizes discharges of dredged or fill material into
waters of the United States and work and structures in navigable waters
of the United States for activities associated with the construction,
expansion, modification, or improvement of linear transportation
projects. Prospective permittees may incorporate nature-based solutions
into activities which requires DA authorization, where appropriate.
Culvert replacements may be authorized by NWP 3 (Maintenance), NWP 14
(Linear Transportation Projects), or NWP A (Activities to Improve
Passage of Fish and Other Aquatic Organisms) when the case-specific
activity complies with the terms and conditions of the NWP. However,
the incorporation of nature-based solutions may not be possible based
on-site conditions, design requirements, and other factors. We decline
to add a note to NWP 14 because the opportunity to incorporate nature-
based solutions into linear transportation projects may be limited.
This NWP is reissued as proposed.
NWP 15. U.S. Coast Guard Approved Bridges. The Corps proposed to
modify this NWP to refer to the General Bridge Act of 1946 as one of
the statutory authorities that may be used by the U.S. Coast Guard to
authorize a bridge over navigable waters of the United States. No
comments were received on 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 suggested
changes to NWP 16 to authorize discharges of return water from a barge.
The return water from a contained disposal area is administratively
defined as a discharge of dredged material by 33 CFR 323.2(d). NWP 16
authorizes the return water from an upland contained disposal area
provided the activity meets the terms and conditions of this NWP. This
NWP only authorizes the return water. NWP 16 does not authorize the
actual dredging activity, dredge material transport, or the discharge
of dredged or fill material into waters of the United States, beyond
the return water activity described above. The text of NWP 16 states
dredging activities may require Section 404 authorization (33 CFR
323.2(d)) and will require Section 10 authorization if located in
navigable waters of the United States. This NWP does not authorize the
discharge of return water from a vessel. We decline to modify the terms
of this NWP.
One commenter suggested revising the NWP to require that activities
authorized by NWP 16 require a separate individual Section 401 water
quality certification. One commenter suggested NWP 16 not be reissued,
stating it could authorize the placement of contaminated dredged
material, causing detrimental water quality impacts and violating the
CWA. One commenter stated that a PCN should be required for activities
authorized under NWP 16 and that testing of the dredged material should
be required.
The authority to make decisions regarding water quality under
Section 401 of the CWA, including whether a project proponent must
obtain an individual water quality certification, lies with state,
tribe or EPA Region with the authority to grant, waive or deny water
quality certifications. The permittee is responsible for complying with
the terms and conditions to the NWP and any applicable regional
conditions, including conditions of a granted general or individual 401
WQC. Activities authorized by this NWP must also comply with general
condition 6 (Suitable Material) which prohibits the discharge of
material that contains pollutants in toxic amounts. If the permittee
fails to comply with a general condition, then the activity is not
authorized by that NWP and the district engineer may pursue compliance
of an unauthorized action pursuant to 33 CFR 326. We do not agree that
a PCN should be required for this NWP. If the project proponent intends
to discharge dredged material into waters of the United States beyond
the return water activity, he or she must obtain a separate DA
authorization, and a separate water quality certification.
This NWP is reissued as proposed.
NWP 17. Hydropower Projects. The Corps did not propose any changes
to this NWP. Many commenters stated that the activities authorized
under this NWP are not similar in nature and objected to the lack of
impact limitations. Many commenters requested that the Corps decrease
the total allowable generating capacity for NWP 17 activities from
10,000 kw to 5,000 kw. Many commenters requested confirmation that NWP
17 cannot be used for new dam construction.
This NWP authorizes categories of activities that are similar in
nature, that is discharges of dredged or fill material regulated by the
Corps that are associated with the construction of hydropower
facilities within existing infrastructure which is under the authority
of the FERC. For the reasons articulated in the 2021 NWPs (86 FR 73522)
NWP 17 was modified to authorize activities associated with hydropower
projects with a generating capacity of less than 10,000 kilowatts. This
NWP does not authorize the construction of new dams for hydropower
projects. This NWP authorizes discharges of dredged or fill material to
install hydropower generation into existing reservoirs or structures.
Many commenters requested that the Corps withdraw the NWP 17
because it authorizes significant adverse impacts that violate the CWA.
Many commenters suggested the inclusion of additional protective
measures in the NWP, such as limiting impact size, requiring fish
passage technology, bypasses, size restrictions, sediment flushing,
fish-protective turbine spacing, and technologies to prevent water
quality violations.
This NWP requires a PCN for all authorized activities. District
engineers will review each PCN 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 and may include activity-specific conditions in
the NWP authorization. Decisions on the appropriate protective measures
necessary to ensure the activity causes no more than minimal adverse
effects to the environment will vary based on site conditions, type of
facility, the proposed action and species and habitats that are
present. 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.
Many commenters oppose the authorization of activities under NWP 17
in watersheds containing unlicensed or non-compliant hydropower
projects with known environmental and cultural impacts. Many commenters
requested that the Corps prohibit use of NWP 17 for hydropower projects
in a specific waterbody. Many commenters suggested requiring formal
government-to-government consultation and written concurrence from
affected tribes for all NWP 17 activities.
Division engineers may regionally condition this NWP to account for
local environmental conditions and the ecological functions and
services provided by waters of the United States. In geographic areas
where there are
[[Page 797]]
regional concerns about impacts to a particular waterbody or a
sensitive aquatic resource, division engineers have the discretionary
authority to suspend, modify, or revoke this NWP in a region or
location. During the review of the PCN, the district engineer will
assess the proposal for compliance with general condition 17 (Tribal
Rights).
This NWP is reissued as proposed.
NWP 18. Minor Discharges. The Corps did not propose any changes to
this NWP. Many commenters supported reissuance of this NWP with no
changes. Many commenters suggested adding language to paragraph (a) of
this NWP specifying that dredged or fill material cannot be discarded
in areas above the plane of the ordinary high-water mark or high tide
line in a manner that would result in future discharge into the
waterbody via runoff. Many commenters recommended increasing the
acreage impact threshold in this NWP to \1/2\-acre. One commenter
requested that the volume limit be raised to 50 cubic yards. One
commenter stated that wetlands are not all special aquatic sites and
requested the Corps change the PCN threshold of this NWP to only
require a PCN when wetlands of a certain quality would be impacted by
the activity.
This NWP authorizes discharges of dredged or fill material into
waters of the United States provided the activity meets certain
criteria. Disposal of dredged material in uplands is not subject to
Corps' authority with the exception of return water, which may be
authorized by NWP 16 (Return Water from Upland Disposal Sites). If
discharges of dredged or fill material into waters of the United States
located above the ordinary high water mark or high tide line are
authorized by an NWP, the permittee must comply with general condition
12 (Soil Erosion and Sediment Controls) to stabilize exposed soils and
fills. The permittee must also protect water quality through compliance
with any conditions to water quality certifications.
The Corps believes that the 25 cubic yard limit for discharges and
excavation activities and the \1/10\-acre limit for losses of waters of
the United States ensure that this NWP authorizes only those activities
that have minimal individual and cumulative adverse effects on the
aquatic environment. Special aquatic sites are defined by regulation in
33 CFR 330.2(j) and include all areas that meet the definition of a
wetland. The Corps declines to change the PCN threshold to exclude
certain wetlands.
One commenter recommended that the language in paragraph (a) of the
NWP be modified to remove the phrase ``and the volume of material
excavated'' because the Corps does not typically regulate excavation or
removal of material. One commenter stated that wetlands do not have an
ordinary high water mark or high tide line and recommended that
paragraph (a) be revised to limit the quantity of discharges in waters
of the United States rather than below the plane of the ordinary high
water mark or the high tide line.
When measuring the quantity of the discharge of dredged or fill
material, the Corps will include the volume of any excavated area
(i.e., the volume of the substrate excavated) which is below the plane
of the ordinary high water mark (OHWM) or high tide line (HTL).
Excavation activities may result in discharges of dredged or fill
material into waters of the United States that require Section 404
permits (see 33 CFR 323.2(d)). Therefore, it is not appropriate to
remove references to excavation from this NWP. Unless exempted under
Section 404(f) of the CWA, excavation activities in waters of the
United States that result in more than incidental fallback require
Section 404 authorization. Minor discharges authorized under NWP 18
often involve excavation activities that result in more than incidental
fallback and would therefore constitute a discharge that is regulated
under Section 404. The volume limitation is applied in waters of the
United States below the high tide line or ordinary high water mark. The
acreage limitation is applied in all waters of the United States.
Wetlands may occur both waterward and below, or landward and above, the
ordinary high water mark or the high tide line. For these reasons, the
Corps declines to revise paragraph (a).
This NWP is reissued as proposed.
NWP 19. Minor Dredging. The Corps did not propose any changes to
this NWP. One commenter expressed support for reissuance of the NWP as
written. One commenter requested that the volume limit of this NWP be
raised to 50 cubic yards. One commenter suggested requiring a PCN for
all activities authorized by this NWP. Another commenter suggested
requiring a PCN for activities in special aquatic sites.
The Corps believes that the 25 cubic yard limit in this NWP ensures
that this NWP authorizes those activities that have minimal individual
and cumulative adverse effects on the aquatic environment. Where the 25
cubic yard limit would be exceeded, the dredging activity may be
authorized under regional general permits or individual permits.
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 evaluate these minor dredging activities
on a case-by-case basis.
One commenter stated that the NWP should include language that
requires dredging to be conducted in a manner that avoids destabilizing
the bed and banks of waterbodies. One commenter recommended expanding
the list of areas where dredging is not authorized to include areas
such as habitats for anadromous species, as well as in tidal marshes,
eelgrass beds, mapped pocket estuaries, and tribal shellfish harvesting
areas. One commenter requested a cumulative impact assessment for areas
where repeated dredging has substantially reduced habitat availability.
General condition 12 (Soil Erosion and Sediment Controls) requires
a permittee to stabilize any work below the ordinary high water mark or
high tide line at the earliest practicable date. Division engineers may
develop regional conditions for an NWP if he or she determines it
necessary to ensure that activities in a region will cause no more than
minimal adverse environmental effects to sensitive areas. If the
regulated activity might affect, or is in the vicinity of a species
listed (or proposed for listing) or designated critical habitat (or
habitat proposed for such designation) under the ESA, general condition
18 (Endangered Species) requires non-federal permittees to submit a PCN
and states the permittee cannot begin work until the district engineer
has provided notification that the proposed activity will have ``no
effect'' on listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such
designation), or until ESA Section 7 consultation or conference has
been completed. If a PCN is required for the proposed NWP activity, the
Federal permittee must provide the district engineer with the
appropriate documentation to demonstrate compliance with the ESA.
For the NWPs, the assessment of cumulative effects occurs at three
levels: National, regional, and the verification stage. Each national
NWP decision document includes a national scale cumulative effects
analysis under the Corps' public interest review. Each supplemental
document has a cumulative effects analysis 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 an
NWP
[[Page 798]]
verification, the district engineer prepares a brief document that
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.
This NWP is reissued as proposed.
NWP 20. Response Operations for Oil or Hazardous Substances. 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 21. Surface Coal Mining Activities. The Corps did not propose
any changes to this NWP. Several commenters stated that this NWP should
not be reissued. Several commenters stated that the \1/2\-acre impact
limit is overly permissive. Several commenters stated that surface coal
mining activities should only be authorized by individual permits.
The discharge of dredged or fill material associated with surface
coal mining and reclamation operations that are authorized by this NWP
cannot result in the loss of greater than \1/2\-acre of non-tidal
waters of the United States, excluding non-tidal wetlands adjacent to
tidal waters. All activities authorized by this NWP require PCNs. If
the district engineer determines a proposed NWP 21 activity will result
in more than minimal adverse environmental effects after considering
mitigation proposed by the permit applicant, he or she will exercise
discretionary authority and require an individual permit for the
proposed activity. The \1/2\-acre limit, the PCN requirements, and the
ability of division and district engineers to modify, suspend, or
revoke this NWP on a regional or activity-specific basis ensures that
the activities authorized by this NWP result in no more than minimal
adverse environmental effects.
Several commenters stated that this NWP authorizes activities that
have significant direct and cumulative effects, including effects to
threatened and endangered species, waterways, water quality, animals,
flood risks, and the human environment. Several commenters stated that
the reissuance of the NWP should be evaluated in an environmental
impact statement and programmatic ESA consultation.
As discussed in Section III.A. of this final action, the Corps
Headquarters has prepared a national decision document and with a
finding of no significant impact, therefore the requirements of NEPA
have been met and no environmental impact statement is required. The
terms and conditions of this NWP, 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. District engineers will review
the PCN and consider the effects of the regulated activity on waters of
the United States. Permittees must comply with general conditions 10
(Fills Within 100-Year Floodplains) and 25 (Water Quality) and any
conditions of a granted water quality certification. As discussed in
Section III.C. of this final action, the Corps has determined that the
issuance of this final action will have ``no effect'' on listed species
(or species proposed for listed) or critical habitat (or habitat
proposed for such designation), therefore no programmatic consultation
on the issuance of these NWP is required.
Several commenters stated that the prohibition on ``valley fills''
allows other activities to be authorized under this NWP that have
similar impacts on downstream waters. Several commenters stated that
the scale of the cumulative impacts assessment for the activities
authorized by NWP 21 should be limited to those areas where coal is
mined, rather than nationwide. Several commenters stated that this NWP
should never be used to authorize activities in the Appalachian Region.
The term ``valley fills'' is defined in the terms of NWP 21, and
discharges of dredged or fill material that meet that definition are
not authorized by this NWP. Other discharges of dredged or fill
material into waters of the United States for activities associated
with mining operations may be authorized by this NWP provided the
regulated activity causes no more than minimal adverse effects to the
aquatic environment. 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. The cumulative effects
analysis at the national scale considers past, present, and reasonably
foreseeable impacts to the nations waters which are impacts by human
activities. Each supplemental document has a cumulative effects
analysis for a region, which is typically defined as a state or Corps
district. When a district engineer issues a verification in response to
a PCN or a voluntary request for an NWP verification, the district
engineer prepares a brief decision document that documents the district
engineer's decision that 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 Corps district staff believe that the use of an NWP in that
geographic region may be approaching a threshold above which the
cumulative adverse environmental effects for that category of
activities may be more than minimal, the district engineer may either
make a recommendation to the division engineer to modify, suspend, or
revoke the NWP authorization in that geographic region in accordance
with the procedures in 33 CFR 330.5(c). Alternatively, under the
procedures at 33 CFR 330.5(d), the district engineer may also modify,
suspend, or revoke NWP authorizations on a case-by-case basis to ensure
that the NWP does not authorize activities that result in more than
minimal cumulative adverse environmental effects.
This NWP is reissued as proposed.
NWP 22. Removal of Vessels. 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 23. Approved Categorical Exclusions. The Corps proposed to
modify paragraph (a) of this NWP to add references to NEPA to replace
the references from the Council on Environmental Quality NEPA
regulations that were removed from the Code of Federal Regulations on
April 11, 2025 (90 FR 10610). The Corps proposed to modify paragraph
(a) to reference Sections 106, 109, and 111(1) of the NEPA statute. The
Corps also sought comment on whether a Regulatory Guidance Letter is
the best way to document the categorical exclusions that are approved
under this NWP or if another document, such as a Federal Register
notice, would provide better notice to the public.
One commenter supported the updates to the text of the NWP. Many
commenters requested that the Corps use the Federal Register to notify
the public of categorical exclusions that are approved for use under
this NWP. One commenter requested that the Corps use a Regulatory
Guidance Letter to notify the public of categorical exclusions that are
approved under this NWP. Several commenters recommended notifying the
public of any revisions to the list of categorical exclusions in both
the Federal Register and in a Regulatory Guidance Letter. One commenter
recommended that the Corps provide a list of categorical exclusions
approved
[[Page 799]]
by the Federal Highways Administration or a summary of activities that
have historically qualified for this NWP.
After consideration of the comments, the Corps will notify the
public of future changes to the list of categorical exclusions
applicable to this NWP in a Federal Register notice. We have modified
the text of the Note to indicate that future changes to approve
categorical exclusions applicable to this NWP will be announced in the
Federal Register. Until it is rescinded or replaced, Regulatory
Guidance Letter 05-07 contains the list of activities approved for
authorization under this NWP as of the date of this action. Regulatory
Guidance Letter 05-07 and any future Federal Register notices of
changes to categorical exclusions applicable to NWP 23 can be found on
the Corps' website (usace.army.mil). Regulatory Guidance Letter 05-07
lists the categorical exclusions requested by the Federal Highways
Administration, Bureau of Reclamation, and USCG and approved for
authorization under this NWP.
Many commenters stated that the activities authorized by this NWP
are not all similar in nature. One commenter stated that a PCN should
be required for all activities proposed for authorization under this
NWP.
We believe that the ``categories of activities that are similar in
nature'' requirement in CWA Section 404(e) is to be interpreted
broadly, for practical implementation of this general permit program.
This NWP only authorizes discharges of dredged or fill material into
waters of the United States and work and structures in navigable waters
of the United States when: (1) another federal agency has determined,
pursuant to Section 106, 109, and 111(1) of NEPA, that the activity is
categorically excluded from the requirement to prepare an environmental
impact statement or environmental assessment analysis; and (2) the
Chief of Engineers has concurred with that agency's or department's
determination and has approved that activity for authorization under
this NWP.
To be categorically excluded from NEPA, an agency must determine
that a category of activities normally does not individually or
cumulatively have significant effect on the human environment. After
the other agency makes that determination, the Chief of Engineers also
evaluates that category of activities to determine if he or she concurs
that the agencies' categorical exclusions have no more than minimal
adverse effects on the aquatic environment. A PCN is required for
certain activities approved for authorization under this NWP. 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, he or she will exercise
discretionary authority to add case-specific conditions to the NWP or
to require an individual permit for the proposed activity.
One commenter requested that the Corps consider whether certain
categories of routine transportation activities, such as minor road
maintenance or rehabilitation, could be addressed through standardized
verification procedures. One commenter stated that the NWP should
include a Note to advise the permittee that an action that qualifies
for a categorical exclusion under NEPA may not be categorically
excluded from a state environmental policy regulation.
The NWPs provide a streamlined process for authorizing activities
that cause no more than minimal adverse environmental effects.
Discharges of dredged or fill material for maintenance activities may
be exempted from regulation under the CWA by Section 404(f). If not
exempted by Section 404(f) of the CWA, such discharges may be
authorized by a variety of NWPs, such as NWP 3 (Maintenance) or NWP 14
(Linear Transportation Projects), NWP 33 (Temporary Construction,
Access, and Dewatering), NWP 45 (Repair of Uplands Damaged by Discrete
Events). Maintenance activities in navigable waters of the United
States may also be authorized by a variety of NWPs, such as NWP 3
(Maintenance) or NWP 14 (Linear Transportation Projects), NWP 33
(Temporary Construction, Access, and Dewatering), NWP 45 (Repair of
Uplands Damaged by Discrete Events).
Environmental policy regulations and requirements are different for
each state. If there are state requirements which inform the Division
Engineer's decision on the addition of regional conditions to the NWPs
or the district engineer's case-specific review of an activity that may
be authorized by the NWP, the division engineer or the district
engineer may use his or her discretionary authority to modify the NWP.
It is not necessary to add a Note advising permittees that their
activity may be subject to review under state laws and regulations
because the NWP does not purport to exempt a proposed activity from
compliance with applicable state laws or regulations.
This NWP is reissued with the modifications discussed above.
NWP 24. Indian Tribe or State Administered Section 404 Programs.
The Corps proposed to modify this NWP to remove Florida from the list
of states that have been approved by EPA to administer their own CWA
Section 404 permit program under the authority of 33 U.S.C. 1344(g)-
(l). EPA's approval of Florida's assumption of the CWA Section 404
permit program was vacated by the District Court for the District of
Columbia in 2024. One commenter expressed support for the change to the
NWP.
This NWP is reissued as proposed.
NWP 25. Structural Discharges. 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 27. Aquatic Ecosystem Restoration, Enhancement, and
Establishment Activities. The Corps proposed to change the title of
this NWP to refer to ``aquatic ecosystems'' instead of ``aquatic
habitats'' because activities authorized by this NWP should, over time,
produce net increases in a variety of aquatic ecosystem functions and
services. The Corps also proposed to modify the paragraph that requires
NWP 27 activities to resemble ecological references and include
ecological references that are cultural ecosystems and ecological
references based on indigenous and local ecological knowledge. In
addition, the Corps proposed to remove the list of examples of
activities authorized by this NWP and modify the list of categories of
activities that are not authorized by this NWP.
The Corps also proposed to require the submission of Reports for
all NWP 27 activities and remove the ``Notification'' paragraphs from
this NWP. However, PCNs will still be required when PCN thresholds in
the NWP general conditions (e.g., general condition 18, endangered
species) or regional conditions added by division engineers are
triggered. Lastly, the Corps proposed to add a new Note (Note 2) to
this NWP to state that if an NWP 27 activity requires PCN because of an
NWP general condition or a regional condition imposed by a division
engineer, the baseline information required by paragraph (3) of the
Reporting requirement substitutes for the delineation of waters,
wetlands, and other special aquatic sites required by paragraph (b)(5)
of general condition 32.
A few commenters opposed the reissuance of this NWP. Many
commenters supported the proposed changes to this NWP. A few commenters
requested a size limit be placed on all projects that can be authorized
by NWP 27. One commenter stated that no activities should be authorized
under this NWP without a public hearing or
[[Page 800]]
public notice. Many commenters supported the statement that activities
authorized by this NWP do not require compensatory mitigation. A few
commenters opposed the language clarifying compensatory mitigation
shall not be required by NWP 27.
This NWP requires aquatic ecosystem restoration, enhancement, and
establishment activities that result in net increases in aquatic
resource functions and services and resemble ecological references.
This NWP does not have any acreage or other quantitative limits because
the overall effect of the regulated activity results in a benefit to
the aquatic environment. Aquatic habitat restoration, enhancement, and
establishment activities can occur in large or small areas. When the
district engineer reviews the reports required for activities proposed
for authorization by this NWP, he or she will assess whether the
activities will satisfy the terms and conditions of this NWP. If a
specific activity does not, then the district engineer will notify the
project proponent that he or she must apply for a different NWP, for a
regional general permit, or for an individual permit.
This NWP requires that activities in waters of the United States
associated with restoration, enhancement, and establishment result in
net increases in aquatic ecosystem functions and services, which will
generally result in an increase in acreage of aquatic habitats.
However, there may be some activities authorized by this NWP that
result in a decrease in acreage of aquatic resources in order to affect
a net increase in aquatic ecosystem functions and services. Such
decreases in acreage of aquatic resources are acceptable because it is
the ecosystem functions, and the services that people derive from those
functions, which are important to society. The public was provided an
opportunity to comment on the Corps' proposal to issue, reissue, or
modify NWP 27 when Corps Headquarters published its proposed rule in
the Federal Register (90 FR 26100) to start the public comment period.
However, after an NWP is issued, there is no public comment process for
specific NWP activities. The Corps is retaining language that states no
compensatory mitigation is required for activities authorized by this
NWP.
One commenter recommended defining voluntary restoration to
differentiate it from activities associated with compensatory
mitigation. One commenter suggested that the Corps establish a new NWP
that approves mitigation banking instruments or in-lieu fee program
instruments. One commenter supported the use of an ecological reference
standard. One commenter opposed allowing project proponents to decide
how to establish the goals of the restoration, enhancement or
establishment activities. A few commenters recommended requiring
applicants to document and justify their selection of the ecological
reference(s). One commenter recommended that the report include a
discussion of the ecological reference condition(s) relied upon by the
project proponent to inform the district engineers' review.
The Corps does not find it necessary to define what constitutes a
voluntary restoration activity. This NWP authorizes activities
associated with voluntary restoration and with restoration by third
party mitigation providers. Both types of restoration activities are
subject to the same requirements of this NWP. In a process separate
from this NWP, third-party mitigation providers are also subject to any
approved mitigation banking instrument or in-lieu fee program
instrument (33 CFR 332). Third-party mitigation providers of mitigation
banks or in-lieu fee programs which require approval by the Corps will
include information on the goals and objectives of the compensatory
mitigation, as well as performance standards, in their mitigation
banking instrument or in-lieu fee program instrument. Nationwide
permits authorize discharges of dredged or fill material into waters of
the United States or work and structures in navigable waters of the
United States under the authorities of Section 404(e) of the CWA and
the implementing regulations at 33 CFR 330. Under the Corps'
regulations at 33 CFR 332, the approval of a compensatory mitigation
banking instrument or an in-lieu fee program instrument is a separate
process and does not authorize the discharge or dredged or fill
material or work or structures associated with the restoration,
enhancement, or establishment activities.
For voluntary aquatic ecosystem restoration, enhancement, and
establishment activities, project proponents can decide on the
objectives and whether, and how, they establish goals and ecological
performance criteria. To allow the district engineer to assess whether
there will be a net increase in aquatic resource functions and services
and that the proposed activity will resemble an ecological reference,
we have added a provision to the reporting requirement that requires
the prospective permittee identify the objectives of the proposed
aquatic ecosystem restoration and enhancement and establishment
activity. Item (5) of the ``Report'' section of NWP 27 has been revised
to require that the project proponent state the objectives of the
proposed aquatic ecosystem restoration enhancement and establishment
activity proposed for authorization under NWP 27 and to make clear that
the report should describe the methods by which those objectives will
be met.
A few commenters recommended allowing some engineered elements in
restoration projects while maintaining ecological reference standards,
arguing that excluding all artificial components would eliminate most
restoration opportunities in developed areas. One commenter supported
allowing habitat manipulation that simulates a naturally occurring
feature, such as a beaver dam. One commenter recommended developing a
separate NWP to authorize low-tech process-based restoration, such as
beaver dam analogues (BDAs) and post assisted log structures (PALS)
(Wheaton et al. 2019). One commenter suggested adding a reference to
the Corps' definition of ``restoration.'' One commenter stated that
restoration should always provide net increases in biological
functions.
Nationwide permit 27 does not authorize the construction,
maintenance, or expansion of artificial, engineered features that
require management because those activities would not resemble
ecological references. Examples of such artificial, engineered features
that would not resemble ecological references include culverts,
bridges, water pumps, and gated water control structures. The removal
of such structures, and restoration of the water of the United States
may be authorized by NWP 27, it such activity meets the terms and
condition of the NWP. Construction, maintenance, or expansion of
engineered features that are analogous to natural landscape features,
features that occur in nature, may be authorized under NWP 27.
Constructed levees or berms that simulate natural landforms which form
as a result of a river's natural flooding and sediment deposition
processes, constructed or anchored log jams that mimic the movement of
large woody debris or beaver dams in a riverine system, and rock grade
controls that mimic a rock slide or bedrock sill may be authorized by
NWP 27 if they resemble an ecological reference. The proposed
modifications to this NWP remove the restriction on conversions of
streams and natural wetlands to better allow process-based restoration,
including BDAs and PALs.
[[Page 801]]
It is unnecessary to include a reference to the definition of
``restoration'' in this NWP. The Corps will continue to rely on the
definition of ``restoration'' in Section F. (Definitions), consistent
with the definition of ``restoration'' found in 33 CFR 332.2. Regulated
activities proposed for authorization under this NWP must result in net
increases in aquatic resource functions and services, and such
activities may result in a net increase in biological function, either
as a direct or indirect result of the restoration activity.
One commenter requested that the text of this NWP make clear that
natural elements that do not currently occur in the project area may
still meet the definition of ecological reference standard provided
they contribute to overall ecological function and result in a net
improvement. Many commenters argued that restoration projects do not
universally result in ecological improvements and requested enhanced
monitoring requirements. One commenter recommended including a
definition of ``aquatic ecosystem functions and services'' in the NWP.
The Corps agrees that, for activities authorized by this NWP,
natural elements that are not currently in the project area may be part
of an NWP-specific restoration, enhancement, or establishment activity
if they resemble an ecological reference that currently exists or did
exist in the region and result in net increases in aquatic ecosystem
functions and services. For instance, the restoration of a farmed
wetland may include the addition of native wetland vegetation that is
not currently in the farmed wetland but that can be found in wetlands
currently in the region. The terms of this NWP and the definition of
``Ecological Reference'' in Section F (Definitions) provide sufficient
information about the limits or acceptable elements of an ecological
reference.
Monitoring is not required by this NWP. In accordance with 33 CFR
332, third-party mitigation providers must monitor compensatory
mitigation banks or in-lieu fee programs sites as established in the
mitigation banking instrument or in-lieu fee program instrument.
Project proponents of voluntary restoration projects may voluntarily
monitor the activity in order to report to federal or state agencies,
or entities which may have funded the activity. Permittees who receive
an NWP verification letter, either as a result of a PCN submitted in
compliance with a general condition or a PCN submitted voluntarily,
must certify to the district engineer that the authorized activity has
been completed in compliance with the NWP authorization in accordance
with general condition 30 (Compliance Certification). If a permittee
fails to comply with the terms and conditions of this NWP, the district
engineer will address the potential unauthorized activity in accordance
with 33 CFR 326. The Corps will rely on the definitions of
``functions'' and ``services'' in 33 CFR 332.2 and declines to add a
definition of ``aquatic ecosystem functions and services'' to this NWP.
Many commenters supported removing the list of examples of
authorized activities. A few commenters opposed complete removal of the
examples list, recommending that the list be included, but adding
language to make clear that the list does not limit the activities
authorized by this NWP. Some commenters requested that this NWP
authorize the removal of fords and in-stream grade control structures.
One commenter stated that the Corps should no longer approve
restoration that includes Natural Channel Design, Legacy Sediment
Removal, connecting to an ``Engineered Floodplain'', or Regenerative
Stormwater Conveyance Step Pools. Several commenters requested
recognition that some projects may provide both restoration and flood
management benefits.
The Corps is removing the list of examples of authorized activities
as proposed. The removal of low fords is an activity that would likely
result in net increases in aquatic ecosystem functions and services and
could be authorized by this NWP if the activity results in an aquatic
ecosystem that resembles an ecological reference. The removal of in-
stream grade control structures, such as irrigation structures, may be
more appropriately authorized by NWP 33 (Temporary Construction,
Access, and Dewatering).
Certain types of manipulation of the physical or chemical
characteristics of a site may restore aquatic resources or downstream
waters; however, they must result in an aquatic ecosystem that
resembles an ecological reference in order for the regulated activity
to be authorized by this NWP. A stream restoration activity that also
helps reduce sediment, nutrient, and pollutant inputs to downstream
waters and helps meet established Total Maximum Daily Loads (TMDLs) can
be authorized by this NWP, provided the restored stream will resemble
an ecological reference for that stream type in the region. Activities
associated with the restoration, enhancement, and establishment of
aquatic ecosystems may have multiple goals or benefits, but those
activities authorized by this NWP must result in a net increase in
aquatic ecosystem functions and services so that the aquatic ecosystem
resembles an ecological reference.
Many commenters supported the removal of the prohibition on
conversion. One commenter stated that the terms of an NWP may not be
explicit enough to ensure that conversion is allowed. One commenter
recommended retaining language stating that wetland plant communities
that occur when wetland hydrology is more fully restored is not a
prohibited habitat conversion. Several commenters stated that the
conversion of open waters areas to wetlands may result in a benefit to
the ecosystem and should not be categorized as ``conversion.'' One
commenter supported allowing the relocation of non-tidal waters in
authorized projects. Some commenters expressed concern about
eliminating the prohibition on conversion, arguing that some
conversions result in net functional losses. One commenter recommended
only allowing conversions when the project would result in a net
increase to the aquatic resource.
The Corps proposed to modify the list of categories of activities
not authorized by this NWP to remove the prohibition on conversions of
a stream or natural wetlands to another aquatic habitat type or
uplands. This NWP retains the prohibition on the conversion of tidal
wetlands to open water impoundments and other aquatic uses. The full
suite of aquatic ecosystem functions and services must be considered
when determining whether the net gains in aquatic resource functions
and services required by this NWP will occur. When conducting these
evaluations to determine NWP 27 eligibility, there should not be a
focus on a specific aquatic resource function, or the ecological
service(s) produced from that aquatic resource function. To assist
district engineers in making these determinations, prospective
permittees considering such activities should provide supporting
information in their NWP 27 Reports or PCNs to demonstrate net
increases in aquatic resource functions and services.
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. Changes in plant communities resulting from restoring wetland
hydrology are still acceptable under this NWP provided the resulting
aquatic habitat type resembles an ecological reference. Restoring
wetland
[[Page 802]]
hydrology has a high likelihood of changing the plant community, and
such changes are usually an objective of those wetland restoration
activities. Discharges of dredged or fill material into waters of the
United States and work or structures in navigable waters of the United
States for the purpose of restoring, enhancing, or establishing aquatic
ecosystems must result in a net increase in aquatic ecosystem functions
and services in order to be authorized by this NWP. The Corps is
modifying the statement that this NWP does not authorize conversions of
tidal wetlands to open water impoundments or other aquatic uses, to
clarify that such conversions may be authorized if the conversion is
solely for the purpose of enhancing the functions of tidal wetlands.
The objective of the restoration, enhancement, or establishment
activities authorized by this NWP is to provide a net increase in
aquatic resource functions and services and this modification allows
the district engineer the flexibility to authorize activities that will
result in a wider variety of tidal habitats, including other types of
special aquatic sites.
Many commenters supported excluding dam removal from NWP 27. Many
commenters stated that NWP 27 should authorize dam removal. Many
commenters argued that dam removal has a number of ecological benefits,
and that removal of smaller dams should be authorized by this NWP. Some
of the commenters stated that this NWP should authorize removal of
small dams as defined by dam height or acre-feet of storage in the
impoundment. Some of these commenters recommended that dam removal
could be authorized by NWP 27 after submittal of a PCN.
The Corps is retaining the language stating that this NWP does not
authorize discharges of dredged or fill material into waters of the
United States and work or structures in navigable waters of the United
States associated with any type of dam removal. The removal of small
water control structures, dikes, and berms, to the extent DA
authorization is needed, and associated restoration of the stream
channel associated with the removal of the water control structure may
still be authorized by NWP 27 so long as those activities result in net
increases in aquatic ecosystem functions and services and resemble an
ecological reference. Activities associated with low head dam removal
may be authorized by NWP 53 (Removal of Low-Head Dams) and regulated
activities associated with the removal of other types of dams may be
authorized by regional general permit or an individual permit.
One commenter supported the addition of Bureau of Land Management
to the list of federal agencies who can authorize or fund restoration
projects. A few commenters recommended revising item (5) of Reporting
by moving ``and if applicable'' from the end of item (5) to the
beginning of item (6), to make clear that the prospective permittee
must only include the documents listed in item (6) in the Report if
they apply to the proposed NWP-specific activity.
The Corps is retaining the language adding the Bureau of Land
Management to the list of federal agencies who can authorize or fund
projects. The Corps is revising items (5) and (6) under Reporting as
suggested to make clear that the prospective permittee must only
include the documents in item (6) if the prospective permittee is
proposing the activity in accordance with an agreement, documentation,
or permit from the listed agencies.
Many commenters supported the removal of a requirement to submit a
PCN and replacement with a Report requirement. Many commenters objected
to the removal of the requirement to submit a PCN, stating that a PCN
should be required for all activities or for all activities in certain
regions. One commenter supported the requirement to submit a PCN when
required by general condition. Many commenters stated that an
individual permit should be required for larger projects. A few
commenters recommended that no report be required for small projects.
All activities authorized by this NWP require some form of advance
notification to district engineer before commencing authorized
activities, to ensure compliance with the NWP. If the district
engineers determines that a proposed activity does not qualify for NWP
27 authorization because it is not an aquatic ecosystem restoration,
enhancement, or establishment activity or it is not likely to result in
net gains in aquatic resource functions and services; or it does not
resemble an ecological reference, then the district engineer will
notify the project proponent that he or she must apply for a different
NWP, a regional general permit, or an individual permit. If a PCN is
required by a general condition (e.g., general condition 18 (Endangered
Species) or general condition 20 (Historic Properties)), the district
engineer will review the PCN for compliance with the terms and general
conditions and Section D (District Engineer's Decision). If a PCN is
required by a general condition, the project proponent cannot proceed
with the activity until he or she receives written notification from
the district engineer. The Corps does not agree that an individual
permit should be required for regulated activities associated with the
restoration, enhancement, or establishment of aquatic ecosystems
because the activity will cause no more than minimal adverse effects to
the environment by providing a net benefit to the aquatic ecosystem.
Likewise, the Corps does not agree that a PCN should be required for
all activities authorized by this NWP. The district engineer's review
of a report will be sufficient to determine if the case-specific
activity will comply with the terms of this NWP. Division engineers may
develop regional conditions to require a PCN for this NWP if he or she
determines it is necessary to ensure that activities in a region will
cause no more than minimal adverse environmental effects out of concern
for sensitive areas or tribal rights.
Several commenters requested clarification about procedures
following report timeframes and when the project proponent has
authorization to proceed. One commenter stated that the district
engineer must show through scientific literature how they supported
their determination of the adequacy of the restoration. One commenter
supported the requirement to submit the report 30-days before
commencing activities in waters of the United States. Several
commenters stated that the report should be submitted to the district
engineer 60-days before commencing activities. A few commenters
expressed concern about conflicts between this NWP and state regulatory
requirements, such as water quality certification timeframes.
Prospective permittees must submit advance notification to the
district engineer. The advance notification takes the form of either:
(1) a Report, or (2) a PCN. Prospective permittees must a submit a
Report for all activities authorized by this NWP unless a general
condition requires submittal of a PCN (e.g., general condition 18
(Endangered species)). When no PCN is required, the project proponent
must submit a Report to the district engineer at least 30-days before
commencing activities in waters of the United States authorized by this
NWP. The district engineer will review the Report to assess whether the
case-specific activities will satisfy the terms and conditions of this
NWP. The project proponent may proceed with their case-specific
activity if 30 days have passed from submittal of the report to the
district engineer and the project proponent has not received written
notice from the district engineer that the proposed activity does not
qualify for
[[Page 803]]
authorization under NWP 27. If the district engineer reviews the Report
and determines a PCN is required in order to comply with a general
condition, the district engineer must notify the project proponent
within 30-days of submittal of the Report. If a specific activity does
not comply with the terms and conditions of this NWP, then the district
engineer will notify the project proponent within 30 days of the date
the Report was submitted to the district engineer indicating that the
project proponent must apply for a different NWP, a regional general
permit, or an individual permit. The district engineer's documentation
of their determination that the case-specific activity is authorized by
the NWP 27 does not require detailed analysis of the adequacy of the
proposed restoration. The district engineer's review of a Report must
only establish that the proposed activity meets the terms and
conditions of this NWP. When the district engineer reviews a PCN, he or
she will document the district engineer's decision in accordance with
Section D (District Engineer's Decision). The Corps believes that 30-
days is sufficient time for the district engineer to determine if a
case-specific activity will comply with the terms and conditions of
this NWP or to notify the project proponent that they must apply for
some other type of DA authorization.
General condition 25 (Water Quality) requires a permittee to comply
with any conditions of a granted water quality certification. If a
certifying authority has not previously granted certification or waived
certification, the prospective permittee must obtain an individual
water quality certification or waiver in order for an activity to be
authorized by this NWP. Nationwide permits do not obviate the need to
obtain other federal, state, or local permits, approvals, or
authorizations required by law.
Many commenters supported the addition of Note 2 and the removal of
the requirement to submit a wetland delineation to the district
engineer, if a PCN is required for activities authorized under this
NWP. Many commenters objected to the removal of the requirement to
provide a wetland delineation to the district engineer.
This NWP does not have any quantitative limits, such as acreage
limits, which necessitate identifying the precise location of
jurisdictional boundaries, such as wetland boundaries, ordinary high
water marks, high tide lines, or mean high water marks. A
jurisdictional determination is not required in order to receive an NWP
verification or conduct activities authorized by an NWP or other permit
type. This NWP requires authorized activities to result in net
increases in aquatic resource functions and services, which will
generally add acreage to the nation's aquatic habitat base. The
information required by the Reporting section of this NWP, including
baseline information is sufficient for the district engineer to
determine if an activity complies with the terms of this NWP and
general conditions, including any regional conditions.
A few commenters expressed disagreement with the data and analysis
in the national decision document for the NWP 27. The national decision
document for this NWP was prepared using estimates of past and future
use of an NWP based on information available at the time of document
preparation and our best understanding of the state of the science of
restoration, enhancement, and establishment activities.
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. One commenter stated a PCN should be
required for all activities authorized by this NWP. One commenter
requested that tribes be notified of actions proposed for authorization
by this NWP that would be located in usual and accustomed fishing
grounds. One commenter stated that this NWP should require that
activities avoid eelgrass, macroalgae, and shellfish habitat. One
commenter stated that a review of cumulative impacts should be
completed for areas with multiple existing overwater structures. One
commenter recommended that the incremental expansion of marina
infrastructure be monitored for cumulative impacts to nearshore habitat
and access to treaty-protected fisheries.
This NWP authorizes the work and structures in navigable waters of
the United States associated with the reconfiguration of existing
docking facilities within an authorized marina area. Expansions or
additions of any kind are not authorized by this NWP. Permittees must
comply with general condition 23 (Mitigation) and design the activity
to avoid and minimize impacts to the maximum extent practicable at the
site. Division engineers can add regional conditions to this NWP to
require PCNs for some or all NWP 28 activities to provide district
engineers the opportunity to review these activities on a case-by-case
basis and determine whether the activity would cause more than minimal
adverse effects on a sensitive aquatic resource or tribal rights.
For the NWPs, the assessment of cumulative effects occurs at three
levels: National, regional, and the verification stage. Each national
NWP decision document includes a national scale cumulative effects
analysis under the Corps' public interest review. Each supplemental
document has a cumulative effects analysis for a region, which is
typically defined as a state or Corps district. When a district
engineer issues a verification letter in response to a PCN or a
voluntary request for an NWP verification, the district engineer
prepares a brief document that explains the decision that 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 a permittee conducts work or constructs structures that are not
authorized by an issued permit, it is an unauthorized activity, and the
Corps district will determine an appropriate course of action under its
regulations at 33 CFR part 326. Under Section 10 of the RHA, the
removal of any unauthorized structures from navigable waters of the
United States ``may'' be enforced and proper proceedings ``may'' be
instituted under the direction of the Attorney General of the United
States.
This NWP is reissued as proposed.
NWP 29. Residential Developments. The Corps did not propose any
changes to this NWP. Many commenters stated that this NWP does not
authorize activities that are similar in nature and/or have similar
effects on the environment. Commenters stated that developments ranging
from single-family homes to large multi-unit developments as well as
``attendant features'' are dissimilar activities. Many commenters
stated the NWP contributes significantly to the loss of wetlands in the
United States. One commenter recommended modifying NWP 29 to apply
separate standards for larger housing developments and for small
individual landowners or separate the NWP 29 into two separate NWPs.
One commenter stated that this NWP should be withdrawn. Many commenters
stated that the term ``subdivision'' should be defined in the NWP.
We believe that the ``categories of activities that are similar in
nature'' requirement in CWA Section 404(e) is to be interpreted
broadly, for practical implementation of this general permit program.
This NWP authorizes categories of activities that are similar in
nature, that is discharges of dredged or fill material regulated by the
Corps that are associated with the construction of
[[Page 804]]
residential development. The requirements of this NWP are appropriate
for both regulated activities associated with the construction of
single-family homes and multi-unit developments. Residential
developments that are part of a larger mixed-use development may by
authorized by NWP 29 in combination with other NWPs if consistent with
general condition 28 (Use of Multiple Nationwide Permits). This NWP
includes a subdivision provision, which states that for residential
subdivisions, the aggregate total loss of waters of the United States
authorized by this NWP cannot exceed \1/2\-acre, including any loss of
waters of the United States associated with the development of
individual subdivision lots. Defining the term ``subdivision'' is
unnecessary as there is little confusion surrounding the term.
One commenter recommended changing ``aggregate total'' to
``cumulative total.'' One commenter requested that the NWP be modified
to clarify that discharges of dredged or fill material into waters of
the United States and work and structures into navigable waters of the
United States can be authorized by this NWP for activities associated
with attendant features may be authorized by this NWP only if they are
part of the original development or subdivision. One commenter
requested that this NWP be modified to clarify that this NWP does not
authorize swimming pools constructed in aquatic resources.
The Corps declines to revise the NWP to replace the term
``aggregate'' with the term ``cumulative'' to avoid confusion with the
regulatory requirements in the Corps regulations 33 CFR 320.4, which
frequently use ``cumulative.'' This NWP may authorize attendant
features associated with residential developments provided they meet
the requirements of general condition 15 (single and complete project),
and the application of the definition of ``single and complete
nonlinear project.'' The \1/2\-acre limit, the requirement that all
activities authorized by this NWP require PCNs, the general conditions
that apply to these activities including mitigation requirements in
those general conditions, and the district engineers' review of PCNs
ensure that the activities authorized by this NWP will result in no
more than minimal individual and cumulative adverse effects.
Many commenters stated that the Corps should maintain and not
decrease the current \1/2\-acre impact limit on the NWP. Many
commenters stated that the impact limit should be decreased to less
than \1/2\ acre. Many commenters stated that this NWP should be revised
to require the use of low-impact construction methods or require the
use of nature-based solutions. Many commenters stated that this NWP
should not authorize activities within certain locations, including
critical habitat. Many commenters recommended requiring climate
resiliency screening (sea level rise vulnerability, floodplain
modeling) as part of the district engineer's review of the PCN.
The \1/2\-acre limit, plus the requirement that all activities
require PCNs and thus get case-by-case review by district engineers,
are sufficient to ensure that the NWP authorizes those activities with
no more than minimal adverse environmental effects. District engineers
will consider the direct, indirect, and cumulative effects of the
proposed activity in accordance with paragraph (2) in the District
Engineers Decision (Section D.). Division engineers can modify,
suspend, or revoke this NWP in geographic areas to ensure that the
authorized activities do not cause more than minimal individual and
cumulative adverse environmental impacts to sensitive areas
Paragraph (a) of general condition 23, mitigation, requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable on the project site
regardless of the construction type or method. This action adds a
definition of nature-based solutions to assist in the district
engineer's review of the PCN. Prospective permittees are encouraged but
not required to incorporate nature-based solutions into their project
design. The Corps will not require the use of nature based-solutions
because there may be locations where the incorporation of nature-based
solutions may not be practicable. Activities authorized by this NWP
must comply with general condition 10 (fills within 100-year
floodplains). Although the CWA and the RHA do not require the district
engineer to screen proposed activities for climate resilience, the use
of nature-based solutions may contribute to climate resiliency efforts.
Activities authorized by this NWP must also comply with general
condition 18 (Endangered Species). If the regulated activity might
affect, or is in the vicinity of a species listed (or proposed for
listing) or designated critical habitat (or habitat proposed for such
designation) under the ESA, general condition 18 (Endangered Species)
states the non-federal permittee cannot begin work until the district
engineer has provided notification that the proposed activity will have
``no effect'' on listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such
designation), or until ESA Section 7 consultation or conference has
been completed. Federal permittees must provide the district engineer
with the appropriate documentation to demonstrate compliance with the
ESA.
Many commenters objected to the removal of the 300 linear foot
limit from the NWP, stating that it violates the CWA. A few commenters
supported the removal of the 300 linear foot limit. One commenter
stated that the NWP should be modified to prohibit the district
engineer from waiving impact limits.
The 300 linear foot impact limit was removed from this NWP in the
2021 NWPs as explained in the final rule to issue the 2021 NWPs (86 FR
2761-2768) and remains the Corps' position. The Corps will rely on
other, existing protective mechanisms within the NWP to ensure that the
authorized activities will result in no more than minimal individual
and cumulative adverse environmental effects. Those mechanisms include
the \1/2\-acre impact limit, the PCN requirements for these NWPs, and
the ability of division and district engineers to further condition or
restrict the applicability of an NWP in situations where they have
concerns for the aquatic environment under the CWA Section 404(b)(1)
Guidelines or for any factor of the public interest (see 33 CFR
330.1(d)). The ability for district engineers to waive impact limits
was not proposed for inclusion in this NWP. The district engineer's
discretion to waive the 300-linear foot impact limit was removed for
the reasons explained in the 2021 NWPs, which remains the Corps
position. When a district engineer issues a verification letter in
response to a PCN or a voluntary request for an 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.
One commenter suggested that the NWP require compensatory
mitigation for any impacts over \1/10\-acre. One commenter stated that
the authority to waive the mitigation requirements should be banned or
restricted to a higher level of review. Many commenters stated that
reliance on compensatory mitigation to reduce cumulative impacts of NWP
29 does not satisfy CWA requirements. Many commenters stated that
compensatory mitigation is not effective at offsetting impacts
authorized by this NWP. Many commenters stated that the draft
[[Page 805]]
decision document and NWP 29 itself lacks specific methods for
mitigating the effects of residential construction.
General condition 23 requires compensatory mitigation for all
wetland losses greater than \1/10\-acre and for all stream losses
greater than \3/100\-acre when a PCN is required, unless the district
engineer determines that some other form of mitigation would be more
environmentally appropriate. District engineers have the discretion to
delegate the authority to review PCNs. The district engineer, or
delegated authority will make activity-specific determinations whether
the compensatory mitigation is sufficient to ensure that the authorized
activity results in no more than minimal individual and cumulative
adverse environmental effects. The use of compensatory mitigation and
other forms of mitigation to ensure that activities authorized by an
NWP result in no more than minimal individual and cumulative adverse
environmental effects is codified in the Corps' NWP regulations at 33
CFR 330.1(e)(3). Section 404(e) of the CWA does not prescribe how the
Corps is to ensure that the categories of activities authorized by
general permits such as the NWPs will cause only minimal adverse
environmental effects when performed separately and will have only
minimal cumulative adverse effect on the environment. Therefore, the
Corps has discretion on how to comply with the requirement in the
statute.
Compensatory mitigation projects required for activities authorized
by the NWPs must comply with the Corps' regulations at 33 CFR part 332,
which require monitoring and other actions to ensure that the required
compensatory mitigation offsets the permitted wetland or stream losses.
The geographic area or watershed where mitigation credits are available
to offset adverse impacts to wetlands and streams is determined through
the review of the compensatory mitigation proposal in compliance with
33 CFR 332. District engineers will review the PCN to determine if the
compensatory mitigation proposed by the prospective permittee is
suitable to offset the adverse impacts to aquatic resources,
considering the location of the impacts relative to the compensatory
mitigation, watershed characteristics, and type of compensatory
mitigation. If the district engineer determines that the compensatory
mitigation is not suitable, he or she may advise the prospective
permittee to revise their mitigation plan or review the proposed
activity through the individual permit process.
One commenter expressed concern that the expected amount of
compensatory mitigation required by this NWP decreased from the 2021
Rule according to the draft decision document for this NWP. The
decision document for this NWP estimates the amount of compensatory
mitigation that will be required annually and over the five-years the
NWPs in this final action could be in effect. The acres of compensatory
mitigation that may be required to offset regulated activities
authorized by the NWP in this final action are based on reliable data
and resources. These estimates in the national decision documents are
updated each time the Corps prepares national decision documents to
support the reissuance of an NWP. Estimates of required compensatory
mitigation acreage may change from decision document to decision
document as a result of a variety of factors, which may include
increased reliance on compensatory mitigation banks and in-lieu fee
programs, or increased avoidance and minimization sufficient for the
district engineer to determine that a case-specific authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects.
This NWP is reissued as proposed.
NWP 30. Moist Soil Management for Wildlife. 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 31. Maintenance of Existing Flood Control Facilities. The Corps
did not propose any changes to this NWP. One commenter expressed
support for this NWP. Many commenters recommended adding aerial and
linear impact limitations to this NWP. Many commenters urged the Corps
not to reissue this NWP, stating that it causes significant impacts in
violation of 404(e) of the CWA.
This NWP authorizes the discharge of dredged or fill material into
waters of the United States or work or structures in navigable waters
of the United States for the purpose of maintaining existing 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. The NWP does not authorize new
construction or expansion of an existing flood control facility. Flood
control facilities contain aquatic resources which are adapted to a
regime of periodic disturbance and will re-colonize an area after
recurring maintenance. Based on the recovery of these resources after
maintenance activities, the Corps believes that no quantitative limit
is required to ensure that the activities authorized by this NWP will
not cause 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, the recovery of biotic and abiotic components, is likely the
reason why recurring maintenance is needed, because the ecological
recovery within an existing flood control facility, such as the re-
growth of vegetation and the accumulation of sediment, may be
diminishing the capacity of the flood control facility to perform its
intended flood control functions.
Many commenters stated that the activities authorized by this NWP
should be restricted to those that are similar in nature. We believe
that the ``categories of activities that are similar in nature''
requirement in CWA Section 404(e) is to be interpreted broadly, for
practical implementation of this general permit program. This NWP
authorizes categories of activities that are similar in nature, that is
discharges of dredged or fill material regulated by the Corps that are
associated with activities related to the maintenance of existing flood
control facilities within the established maintenance baseline.
Many commenters recommended that vegetation removal from levees be
addressed by a regional approach. Maintenance of an existing flood
control facility may require the removal of vegetation, regardless of
whether a DA authorization is required for maintenance activities back
to the maintenance baseline. This NWP does not impose any specific
requirements regarding vegetation on levees, and it does not prescribe
any specific management approach to levee vegetation. Division
engineers may develop regional conditions to an NWP if he or she
determines it necessary to ensure that activities in a region will
cause no more than minimal adverse environmental effects. The district
engineer will review the PCN and determine if the proposed NWP activity
will, after considering permit conditions such as mitigation
requirements, result in no more than minimal individual and cumulative
adverse environmental effects.
Many commenters recommended that compensatory mitigation be
required each time an activity is authorized by this NWP. One commenter
urged the Corps to require compensatory mitigation for lost habitat
values and,
[[Page 806]]
impacts to anadromous fish and special status species each time the NWP
is utilized.
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 first-time approval of the maintenance
activity up to 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.
If the regulated activity might affect, or is in the vicinity of a
species listed (or proposed for listing) or designated critical habitat
(or habitat proposed for such designation) under the ESA, general
condition 18 (Endangered Species) states the non-federal permittee
cannot begin work until the district engineer has provided notification
that the proposed activity will have ``no effect'' on listed species
(or species proposed for listing) or designated critical habitat (or
critical habitat proposed for such designation), or until ESA Section 7
consultation or conference has been completed. Federal permittees must
provide the district engineer with the appropriate documentation to
demonstrate compliance with the ESA.
One commenter expressed concern that the national decision document
for this NWP stated that there would be a five-fold increase in the use
of this NWP under this final action. No changes have been made to the
terms or conditions of this NWP. The estimated impact acreages in the
national decision document for this NWP includes both permanent and
temporary impacts to waters of the United States. The national decision
document for this NWP was prepared using estimates of past and future
use of an NWP based on information available at the time of document
preparation.
This NWP is reissued as proposed.
NWP 32. Completed Enforcement Actions. The Corps did not propose
any changes to this NWP. One commenter stated that the Corps should
coordinate with affected tribes prior to administering an enforcement
action to ensure that tribal treaty resources are protected. District
engineers undertake tribal consultations regarding resolution of
unauthorized actions (33 CFR part 326) consistent with the existing
Department of Defense, Army, and Corps' tribal consultation policies.
Activities that are authorized by this NWP must comply with general
condition 17 (Tribal Rights).
This NWP is reissued as proposed.
NWP 33. Temporary Construction, Access, and Dewatering. The Corps
did not propose any changes to this NWP. Many commenters supported the
reissuance of the NWP with no changes. One commenter stated that the
NWP should require the permittee to ensure that fish are preserved from
areas that are temporarily dewatered. One commenter stated that this
NWP should require that any fill brought in from outside the project
area for constructing temporary structures be verified to be free from
contaminants.
General condition 2 (Aquatic Life Movements) requires that
temporary crossings be suitably culverted, bridged, or otherwise
designed and constructed to maintain low flows to sustain the movement
of those aquatic species. If the regulated activity might affect, or is
in the vicinity of a species listed (or proposed for listing) or
designated critical habitat (or habitat proposed for such designation)
under the ESA, general condition 18 (Endangered Species) requires non-
federal permittees to submit a PCN and states the permittee cannot
begin work until the district engineer has provided notification that
the proposed activity will have ``no effect'' on listed species (or
species proposed for listing) or designated critical habitat (or
critical habitat proposed for such designation), or until ESA Section 7
consultation or conference has been completed. If a PCN is required for
the proposed NWP activity, the Federal permittee must provide the
district engineer with the appropriate documentation to demonstrate
compliance with the ESA. The permittee is required to comply with any
mitigation measures identified during Section 7 ESA consultation.
General condition 6 (Suitable Material) requires that all material used
for construction be free from toxic pollutants in toxic amounts. The
Corps declines to require the permittee use a specific method for
verifying that the material is compliant with general condition 6.
One commenter objected to the inclusion of language stating that
structures can be left in place after construction if authorized by a
separate Section 10 permit, stating that all structures should be
removed or should require authorization under both a Section 10 and a
CWA Section 404 permit. One commenter stated that this NWP should
exempt waterfilled barriers used to create coffer dams/water diversions
from requiring a permit under either Section 10 of the RHA or Section
404 of the CWA.
This NWP prohibits any temporary fills from remaining in place and
requires that they be removed in their entirety after completion of
construction. Permanent structures or fills may be authorized through a
separate DA authorization, such as an individual permit, other NWP, or
a regional general permit. Structures in navigable waters of the United
States require authorization under Section 10 of the RHA and discharges
of dredged or fill material into waters of the United States, including
navigable waters of the United States, require authorization under
Section 404 of the CWA. Many structures do not result in an activity
which requires authorization under Section 404. For instance, many
pilings are structures that do not result in activity that requires
authorization under Section 404 of the CWA (33 CFR 323.3(c)(2)). There
may be situations when it would cause more environmental damage to
remove a structure in its entirety than it would to leave the structure
in place. The Corps declines to specifically exempt waterfilled
barriers from requiring authorization under this NWP. District
engineers will determine what activities require authorization under DA
authorities.
This NWP is reissued as proposed.
NWP 34. Cranberry Production 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 35. Maintenance Dredging of Existing Basins. The Corps did not
propose any changes to this NWP. Many commenters recommended that the
NWP require dredging projects include sediment contamination testing
and adherence to EPA/State cleanup standards. One commenter stated this
NWP should include authorization under Section 404 of the CWA. One
commenter stated that this NWP should require a PCN so that the
district engineer can review the dredge disposal areas associated with
the proposed activity for potential effects to historic properties.
Many commenters stated that this NWP be modified to require a PCN.
This NWP authorizes dredging in navigable waters of the United
States to previously authorized depths or controlling depths for
ingress/egress, whichever is less. Discharges of dredged or fill
material are not authorized by this
[[Page 807]]
NWP. During dredging activities, sediments may be resuspended in the
water column and may carry 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
bottom. Under Section 401 of the CWA, 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. The
permittee must comply with general condition 25 (Water Quality). Water
quality certifications for activities authorized by this NWP will help
ensure that any 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 RHA. This NWP has
never been issued or reissued under the authority of Section 404 of the
CWA. If the project proponent intends to dispose of dredged material
into waters of the United States a separate DA authorization, such as
another NWP, an individual permit, or a regional general permit is
required.
If the dredge activity in navigable waters of the United States
might have the potential to affect a historic property or a property
eligible for listing on the National Register of Historic Places, in
accordance with general condition 20 (historic properties), the
prospective permittee must submit a PCN and may not begin construction
until he or she receives written authorization from the district
engineer. Federal permittees will comply with general condition 20 by
following their agency procedures for implementing Section 106 of NHPA.
Division engineers can add regional conditions to this NWP to
require PCNs for activities to provide district engineers the
opportunity to review these activities on a case-by-case basis and
determine if impacts to sensitive areas would cause no more than
minimal adverse environmental effects. The activities authorized by
this NWP are limited to existing marina basins, access channels to
marinas or boat slips, and boat slips. The terms and conditions of this
NWP ensure that activities authorized by this NWP cause no more than
minimal adverse environmental effects. The Corps declines to require a
PCN for this NWP.
This NWP is reissued as proposed.
NWP 36. Boat Ramps. The Corps did not propose any changes to this
NWP. One commenter recommended that the NWP 36 be modified to increase
the fill limit to 100 cubic yards and the maximum width to 30 feet. One
commenter stated that the NWP should not allow the district engineer to
issue waivers. One commenter requested that the prohibition on
discharging material into special aquatic sites be removed from the
NWP. One commenter requested this NWP be modified to require a PCN for
all authorized activities out of concern for the potential to affect
historic properties.
This NWP authorizes discharges of dredged or fill material into
waters of the United States and work and structures in navigable water
of the United States for the construction of boat ramps in waters of
the United States The terms of the NWP restrict the volume of
discharged material to 50 cubic yards and the width of the boat ramp to
20 feet unless waived by the district engineer. Project sites, aquatic
resources, and habitats vary across the nation; therefore, this NWP
affords the district engineers the discretion to restrict or waive the
width and volume limits so long as the activity would cause no more
than minimal adverse environmental effects. Paragraph (e) of this NWP
prohibits the placement of material into special aquatic sites, which
include wetlands and riffles and pools. The Corps believes that the
limits of this NWP are appropriate to ensure the NWP activity will
result in no more than minimal adverse environmental effects.
If the regulated activity in waters of the United States might have
the potential to affect a historic property or a property eligible for
listing on the National Register of Historic Places, in accordance with
general condition 20 (historic properties), the prospective permittee
must submit a PCN and may not begin construction until he or she
receives written authorization from the district engineer. Federal
permittees will comply with general condition 20 by following their
agency procedures for implementing Section 106 of NHPA.
This NWP is reissued as proposed.
NWP 37. Emergency Watershed Protection and Rehabilitation. The
Corps did not propose any changes to this NWP. A few of commenters
requested the NWP be modified to add ``local or state government entity
or political subdivision'' as a category of emergency watershed
protection and rehabilitation work authorized by this NWP. This NWP
authorizes work done or authorized by certain federal agencies under
their implementing regulations or policies. Federal agencies have known
regulations and policies which include requirements to meet
environmental standards that the Corps can review to determine that
activities authorized by this NWP would cause no more than minimal
adverse environmental effects. Local or state governments, or other
political subdivisions will have a variety of standards and
requirements which may not provide similar environmental controls. The
Corps declines to revise 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 39. Commercial and Institutional Developments. The Corps did
not propose any changes to this NWP. One commenter stated that the
activities authorized by this NWP are not similar in nature. One
commenter stated that this NWP should not be reissued. One commenter
stated that commercial and industrial developments should require an
individual permit. One commenter requested the NWP be modified to raise
the \1/2\-acre impact limit to one-acre. Many commenters stated that
the Corps should maintain or not decrease the current \1/2\-acre impact
limit. One commenter requested that the NWP be modified to limit stream
bed impacts to 300 linear feet. One commenter stated that the
requirement to submit a PCN for this NWP should be removed. One
commenter requested the NWP be modified to include a threshold below
which no PCN would be required.
Practical implementation of the Corps' general permit program
warrants a broad interpretation of the ``categories of activities that
are similar in nature'' requirement in CWA Section 404(e). This NWP
authorizes categories of activities that are similar in nature, that is
discharges of dredged or fill material regulated by the Corps that are
associated with the construction of commercial and institutional
developments. The activities authorized by this NWP must not cause the
loss of greater than \1/2\-acre of non-tidal waters of the United
States. The \1/2\-acre limit, the requirement that all activities
authorized by this NWP require PCNs, the general conditions that apply
to these activities, including mitigation requirements in those general
conditions, and the district engineers' review of PCNs ensures that the
activities authorized by this NWP will result in no more than minimal
individual and cumulative adverse
[[Page 808]]
effects. The 300 linear foot impact limit was removed from this NWP in
the 2021 NWPs as explained in the final rule to issue the 2021 NWPs (86
FR 2761-2768) and remains the Corps' position.
A few commenters recommended revising this NWP to include data
centers, and artificial intelligence and machine learning facilities as
examples of commercial developments. One commenter stated that this NWP
should list pharmaceutical storage and pharmaceutical manufacturing
facilities as an example of commercial developments.
The Corps agrees that data centers, artificial intelligence and
machine learning facilities, pharmaceutical storage facilities, and
pharmaceutical manufacturing facilities are types of commercial
developments. In response to these comments, this NWP has been modified
to include ``data centers (to include for example, artificial
intelligence and machine learning facilities),'' ``pharmaceutical
manufacturing facilities,'' and the broader term ``storage facilities''
in the list of examples of commercial developments. The list of
examples of commercial and institutional developments in this NWP is
not intended to be all-encompassing. This NWP authorizes attendant
features to commercial and institutional developments, including
utility lines, and roads. There are a number of NWPs that also could
authorize discharges of dredged or fill material associated with the
construction of facilities associated with commercial and institutional
developments, such as NWP 12 (Oil and natural gas pipelines), NWP 14
(Linear Transportation Projects), NWP 18 (Minor Discharges), NWP 51
(Land-based Renewable Energy Generation Facilities), NWP 57 (Electric
Utility Line and Telecommunication Activities), or NWP 58 (Utility Line
Activities for Water and Other Substances). The use of multiple NWPs to
authorize a single and complete project must comply with general
condition 28 (Use of Multiple Nationwide Permits).
Prospective permittees who submit a PCN in accordance with
paragraph (b) of general condition 32 (Pre-Construction Notification)
will identify the specific NWP or NWPs that they propose to use. The
district engineer will review the PCN and determine if the case
specific activity qualifies for the NWP identified in the PCN. If a
proposed activity meets the terms of the requested NWP, and any
applicable regional conditions, then the district engineer should issue
the NWP verification under the NWP identified in the PCN. If the
district engineer decides after reviewing the PCN that the proposed
activity does not qualify for the NWP identified by the project
proponent, he or she does not have to notify the applicant that the PCN
is being evaluated under another NWP. If the district engineer decides
that the proposed activity does not qualify for authorization under any
NWP, he or she will notify the applicant and provide instructions on
how to apply for authorization under an individual permit or a regional
general permit.
One commenter stated that phased commercial developments may cause
cumulative effects that may not be appropriate for authorization under
an NWP. A few commenters stated that commercial developments in
floodplains, special aquatic sites, or areas important to salmon should
not be authorized by this NWP. One commenter stated that this NWP
should require compensatory mitigation for any impacts greater than \1/
10\-acre.
The requirements of general condition 15 (Single and Complete
Project), and the application of the definition of ``single and
complete nonlinear project'' will limit the environmental impacts of
any phased commercial developments. The \1/2\-acre limit of NWP 39,
plus the requirement that all activities require PCNs and thus get
case-by-case review by district engineers, are sufficient to ensure
that the NWP authorizes those activities that will cause no more than
minimal adverse environmental effects, individually and cumulatively.
District engineers will consider the direct, indirect, and cumulative
effects of the proposed activity in accordance with paragraph (2) in
the District Engineers Decision (Section D.). Division engineers can
modify, suspend, or revoke this NWP in a region or geographic to ensure
that this NWP does not authorize activities that result in more than
minimal cumulative adverse environmental effects.
Activities authorized by this NWP must comply with general
condition 10 (Fills Within 100-year Floodplains) and with general
condition 18 (Endangered Species). If the regulated activity might
affect, or is in the vicinity of a species listed (or proposed for
listing) or designated critical habitat (or habitat proposed for such
designation) under the ESA, general condition 18 (Endangered Species)
states the non-federal permittee cannot begin work until the district
engineer has provided notification that the proposed activity will have
``no effect'' on listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such
designation), or until ESA Section 7 consultation or conference has
been completed. Federal permittees must provide the district engineer
with the appropriate documentation to demonstrate compliance with the
ESA. If the district engineer reviews the PCN and determines that the
proposed activity may adversely affect essential fish habitat, he or
she will initiate essential fish habitat consultation with the NMFS.
General condition 23 requires compensatory mitigation for all wetland
losses greater than 1/10-acre and for all stream losses greater than 3/
100-acre, unless the district engineer determines that some other form
of mitigation would be more environmentally appropriate.
This NWP is reissued with the modifications discussed above.
NWP 40. Agricultural Activities. The Corps did not propose any
changes to this NWP. Many commenters stated that the Corps should
maintain and not decrease the current \1/2\-acre impact limit on the
NWP. One commenter expressed concern over the size of impacts
authorized by this NWP. One commenter recommended modifying this NWP to
authorize work and structures in navigable waters of the United States
under Section 10 of the RHA. One commenter requested language be
included to explicitly state that conservation practices that are
designed or constructed to meet USDA-NRCS specification be considered
agricultural activities.
The Corps has made no change to the \1/2\-acre impact limit in this
NWP. This NWP authorizes discharges of dredged or fill material into
waters of the United States for agricultural activities. The Corps
declines to modify this NWP to authorize activities in navigable waters
of the United States, such activities may be authorized by another NWP,
a regional general permit, or an individual permit. The NWP provides a
list of examples of activities that are considered agricultural
activities, but the list is not all-inclusive. This NWP requires that
prospective permittees submit a PCN. Upon receipt of the PCN, district
engineers will determine if a proposed activity is an agricultural
activity. If the district engineer determines that a discharge of
dredged or fill material into waters of the United States associated
with a conservation practice does not meet the terms and conditions of
this NWP, the project proponent can apply for different NWP, for a
regional general permit, or for an individual permit.
Many commenters opposed connecting agricultural drainage ditches to
fish bearing streams in Washington State, expressing concern about
water
[[Page 809]]
quality. One commenter recommended prohibiting use of this NWP in any
agricultural, drainage, or irrigation ditches that are used by fish.
Division engineers may develop regional conditions for an NWP if he
or she determines it necessary to ensure that activities in a region
will cause no more than minimal adverse environmental effects to
sensitive areas. Permittees must comply with general condition 25
(Water Quality) and any granted water quality certification. The
potential effects of a regulated activity on fish bearing streams in
Washington State would be better addressed at the regional level. The
district engineer may add conditions to a case-specific NWP which
incorporate measures to avoid and minimize impacts to listed species
(or species proposed for listing) and critical habitat (or critical
habitat proposed for designation). District engineers may also add
conditions to NWP authorizations to address EFH Conservation
Recommendations made by NMFS during activity-specific EFH
consultations. General conditions 2 (Aquatic Life Movements) and 3
(Spawning Areas) require the permittee to maintain low flows and to
avoid impacts to spawning areas during spawning seasons, to the maximum
extent practicable.
This NWP is reissued as proposed.
NWP 41. Reshaping Existing Drainage and Irrigation Ditches. The
Corps did not propose any changes to this NWP. A few commenters
recommended that this NWP be modified to require a PCN for all
activities. One commenter stated that this NWP should be modified to
limit the length and frequency of the activities authorized by this
NWP. One commenter requested that projects in a region on the eastern
seaboard require an individual permit. One commenter recommended adding
a statement requiring ``as-builts'' be provided to verify original
capacity and dimensions. One commenter stated that activities
authorized by this NWP may impact historic properties. One commenter
recommended modifying the NWP to prohibit authorization of this NWP in
any agricultural, drainage, or irrigation ditches that are used by fish
at any time of the year. This NWP authorizes discharges of dredged or
fill material in non-tidal waters of the United States to reshape
drainage or irrigation ditches. The Corps does not believe that length
or frequency limits are necessary to ensure that this NWP causes no
more than minimal adverse environmental effects, individually or
cumulatively. In geographic areas where there are regional concerns
about impacts to a sensitive aquatic resource, division engineers have
the discretionary authority to require a PCN for proposed NWP-
activities in a region or location. Permittees who receive a
verification letter certify compliance with the NWP terms and general
conditions, in accordance with general condition 30 (Compliance
Certification).
If a non-federal permittee proposes an activity that might have the
potential to affect a historic property or a property eligible for
listing on the National Register of Historic Places, in accordance with
general condition 20 (historic properties), the prospective permittee
must submit a PCN and may not begin construction until they receive
written authorization from the district engineer. The district engineer
may add conditions to a case-specific NWP which incorporate measures to
avoid and minimize impacts to listed species (or species proposed for
listing) and critical habitat (or critical habitat proposed for
designation). District engineers may also add conditions to NWP
authorizations to address EFH Conservation Recommendations made by NMFS
during activity-specific EFH consultations. General conditions 2
(Aquatic Life Movements) and 3 (Spawning Areas) require the permittee
to maintain low flows and to avoid impacts to spawning areas during
spawning seasons, to the maximum extent practicable. If the district
engineer receives a PCN, he or she may add conditions to a case-
specific NWP verification to ensure that the activity would cause no
more than minimal adverse environmental effects.
This NWP is reissued as proposed.
NWP 42. Recreational Facilities. The Corps did not propose any
changes to this NWP. One commenter expressed opposition to the
reissuance of this NWP and stated that the activities under this NWP
result in more than minimal impacts. One commenter stated that impacts
to \1/2\-acre of non-tidal waters or over 1,000 feet of stream channel
are not minimal. Many commenters stated the Corps should maintain and
not decrease the current \1/2\-acre impact limit on this NWP.
This NWP requires a PCN for all activities. District engineers will
review the PCN and 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
and may include activity-specific conditions in the NWP authorization.
Activities authorized by this NWP must not cause the loss of more than
\1/2\-acre of non-tidal waters of the United States. Losses of streams
will count toward the \1/2\-acre limit. The terms and conditions of
this NWP, including the \1/2\-acre limit and the requirement that all
activities require PCNs, will ensure that the activities authorized by
this NWP will result in no more than minimal individual and cumulative
adverse environmental effects.
One commenter stated that use of this NWP should be prohibited in
areas important to listed species or essential fish habitat. One
commenter stated that the NWP should require compensatory mitigation
for any impacts over \1/10\ acre.
If the regulated activity might affect, or is in the vicinity of a
species listed (or proposed for listing) or designated critical habitat
(or habitat proposed for such designation) under the ESA, general
condition 18 (Endangered Species) states non-federal permittees cannot
begin work until the district engineer has provided notification that
the proposed activity will have ``no effect'' on listed species (or
species proposed for listing) or designated critical habitat (or
critical habitat proposed for such designation), or until ESA Section 7
consultation or conference has been completed. Federal permittees must
provide the district engineer with the appropriate documentation to
demonstrate compliance with the ESA.
District engineers may also add conditions to NWP authorizations to
address EFH Conservation Recommendations made by NMFS during activity-
specific EFH consultations or to ensure that the activity would cause
no more than minimal adverse environmental effects. General conditions
2 (Aquatic Life Movements) and 3 (Spawning Areas) require the permittee
to maintain low flows and to avoid impacts to spawning areas during
spawning seasons, to the maximum extent practicable. General condition
23 requires compensatory mitigation for all wetland losses greater than
\1/10\-acre and for all stream losses greater than \3/100\-acre that
require PCNs, unless the district engineer determines that some other
form of mitigation would be more environmentally appropriate.
This NWP is reissued as proposed.
NWP 43. Stormwater Management Facilities. The Corps proposed to
modify this NWP to reference the broader term of ``nature-based
solutions'' instead of the narrower terms of ``green infrastructure''
and ``low-impact development integrated management features.'' The
nature-based solutions associated with regulated activities authorized
by this NWP include features that can be constructed and maintained to
manage
[[Page 810]]
stormwater and reduce inputs of pollutants, including sediments and
nutrients, to downstream waters. To provide additional clarity to
potential permittees, the Corps also proposed to add more examples to
the text of this NWP of nature-based solutions for stormwater
management and reducing pollution loads to waters and wetlands. Other
nature-based solutions and other features that are conducted to meet
pollutant reduction targets established under TMDLs set under the CWA
may also be authorized by this NWP provided they comply with the
applicable terms and conditions of this NWP.
Many commenters recommended retaining the \1/2\-acre impact
threshold in this NWP. Many commenters recommended clarifying that the
\1/2\-acre impact threshold does not apply to temporary or long-term
impacts to waters. A few commenters stated that changes to other
aquatic resource types should be considered loss of waters and
considered in the determination of minimal adverse impacts. Many
commenters recommended ensuring the cumulative effects of repeated
maintenance dredging and vegetation removal are evaluated. One
commenter recommended adding language explicitly authorizing routine
maintenance activities to ensure continued function.
The activities authorized by this NWP must not cause the loss of
greater than \1/2\-acre of non-tidal waters of the United States. The
``loss of waters of the United States'' refers to permanent adverse
effects to waters of the United States as a result of filling,
flooding, excavation, or drainage because of the activities subject to
Corps' authority, and does not include temporary impacts. The
definition of ``loss of waters of the United States'' is in Section F
of this action (Definitions). This NWP does not authorize any
activities in non-tidal wetlands adjacent to tidal waters or in tidal
waters.
This NWP does not authorize discharges of dredged or fill material
for the construction of new stormwater management facilities in
perennial streams. When a PCN is required, the district engineer will
determine if a proposed activity would cause more than minimal
individual and cumulative adverse effects to the environment in light
of all the general conditions and the criteria in Section D, District
Engineer's Decision. The district engineer will consider the direct,
indirect, and cumulative effects of the action on waters of the United
States. The Corps' CWA authority over aquatic resources is limited to
waters of the United States. The second paragraph of this NWP states
that ``to the extent that a section 404 permit is required, discharges
of dredged or fill material into non-tidal waters of the United States
for the maintenance of stormwater management facilities'' is authorized
by this NWP.
Several commenters expressed support for the proposed language that
nature-based solutions can be authorized under this NWP. One commenter
stated that this NWP should authorize nature-based solutions.
To the extent that nature-based solutions require DA authorization
and are associated with stormwater management facilities, regulated
activities associated with nature-based solutions may be authorized by
NWP 43. The district engineer will review the PCN and make a case-
specific determination whether such structures, are authorized by this
NWP.
Many commenters stated that stormwater management facilities should
be prohibited in a variety of areas, including wetlands and critical
habitat. One commenter opposed use of this NWP in natural streams or
areas used by fish. One commenter opposed converting natural resources
into stormwater management facilities. One commenter stated that
facilities located in a floodplain should require an individual permit.
Many commenters recommended tribal coordination within salmon-bearing
watersheds or usual and accustomed fishing areas.
It is not always possible or desirable to site stormwater
management facilities in upland areas, and locating them in
jurisdictional wetlands or other waters of the United States may be the
only practicable option for effectively managing stormwater. This NWP
authorizes the construction of these facilities in non-tidal
jurisdictional wetlands and waters, as long as those activities result
in no more than minimal individual and cumulative adverse environmental
effects. This NWP does not authorize discharges of dredged or fill
material into perennial streams for the construction of new stormwater
management facilities.
Except for certain maintenance activities, all activities
authorized by this NWP require submittal of a PCN. For those activities
that require PCNs, the district engineer will evaluate potential
impacts to fish and determine if the proposed activity may affect
listed species (or species proposed for listing) or critical habitat
(or habitat proposed for such designation) and complete any required
ESA Section 7 consultation. Activities authorized by this NWP must
comply with general condition 10 (Fills in 100-Year Floodplains). If,
during the review of a PCN, the district engineer determines the
proposed activity may adversely affect EFH, she or he will initiate EFH
consultation with the NMFS. Division engineers may add regional
conditions to this NWP to protect other sensitive areas. The district
engineer will review all PCNs for compliance with general condition 17
(Tribal Rights).
One commenter stated that the activities authorized by this NWP
should not be considered restoration. One commenter stated that
compensatory mitigation should not be required for activities
authorized by this NWP because stormwater management facilities improve
and protect aquatic resources. One commenter recommended the Corps
retain discretionary authority to require mitigation.
Stormwater management facilities are an important tool for
fulfilling the objective of the CWA, by protecting and restoring the
physical, chemical, and biological integrity of our Nation's waters.
Some activities authorized by this NWP will not meet the definition of
``restoration,'' but they may still provide benefits to the aquatic
ecosystem. General condition 23 requires compensatory mitigation for
all wetland losses greater than \1/10\-acre and for all stream losses
greater than \3/100\-acre that require PCNs, unless the district
engineer determines that some other form of mitigation would be more
environmentally appropriate.
One commenter expressed support for the current PCN threshold. Many
commenters stated that the district engineer should consider low impact
development alternatives and changing rainfall intensity or flood risk.
Many commenters stated that the prospective permittee should have to
submit a long-term maintenance plan as part of the PCN.
General condition 23 requires the prospective permittee to design
the activity to avoid and minimize adverse effects to waters of the
Untied Stated to the maximum extent practicable at the project site.
The use of nature-based approaches may contribute to avoidance and
minimization and could address changing climate factors. This NWP does
not require the inclusion of nature-based solutions in the design of a
stormwater management facility. Activities authorized by this NWP that
are associated with the maintenance of stormwater facilities do not
require a PCN if they are limited to restoring the original design
capacities of the stormwater management facility. The Corps has
determined that these
[[Page 811]]
activities will cause no more than minimal adverse environmental
effects if completed in compliance with the terms of this NWP and all
applicable general conditions.
One commenter stated that NWP 43 should authorize a broader
category of activities which improve water quality rather than
specifying that the NWP authorizes activities that are conducted to
meet TMDLs set under the CWA. One commenter stated that the Corps
should recognize that prospective permittees must comply with
requirements of states, municipalities, and tribes. One commenter
stated that the final decision on what is most appropriate to meet
public safety needs should be made by the local agency responsible for
stormwater management. One commenter stated that monitoring may be
required for certain activities where there are limits on allowable
degradation, performance standards, or potential violations of water
quality standards.
This NWP authorizes discharges of dredged or fill material into
non-tidal waters of the United States for the construction of
stormwater management facilities, maintenance of such stormwater
facilities and nature-based solutions for managing stormwater and
reducing inputs of sediments, nutrients, and other pollutants into
waters. This NWP authorizes regulated activities which include, but are
not limited to, activities which are conducted to meet TMDLs. The Corps
agrees that states and municipalities may require, under their
authorities, the construction and implementation of facilities to meet
water quality criteria, designated uses, and compliance with post-
construction stormwater requirements. If the construction and
maintenance of those facilities involves discharges of dredged or fill
material into waters of the United States, this NWP can be used to
authorize those activities. If a certifying authority grants a water
quality certification with conditions, those conditions become regional
conditions to the NWP. Section E of this action (Further Information)
states the NWPs do not obviate the need to obtain other federal, state,
or local permits, approvals, or authorizations required by law. Project
proponents are responsible for complying with other licenses or
permits.
This NWP is reissued as proposed.
NWP 44. Mining Activities. The Corps did not propose any changes to
this NWP. Many commenters stated that the Corps should maintain and not
decrease the current \1/2\-acre impact limit on this NWP. One commenter
stated that \1/2\-acre of impacts to a small stream is not minimal. One
commenter recommended using a sliding acreage cap for impacts based on
project size. One commenter stated that the \1/2\-acre impact limit
should be expanded to at least 3 acres. One commenter recommended a new
NWP permit only for aggregates with a higher acreage impact limit.
The terms and conditions of this NWP, including the \1/2\-acre
limit and the requirement that all activities require PCNs, will ensure
that the activities authorized by this NWP will result in no more than
minimal individual and cumulative adverse environmental effects.
District engineers will review these PCNs, and can add conditions to
the NWP authorization, including mitigation requirements, to ensure
that the authorized activity will cause no more than minimal adverse
environmental effects. If a proposed activity will result in more than
minimal adverse environmental effects, after considering the mitigation
proposal provided by the prospective permittee, the district engineer
will exercise discretionary authority and require an individual permit.
Division engineers may also add regional conditions to this NWP to
change the PCN threshold or restrict activities in sensitive waters or
locations. This NWP authorizes aggregate mining activities, and the
Corps does not believe a separate NWP for those activities is
warranted. Activities that are not authorized by this NWP may be
authorized by a regional general permit or individual permit.
One commenter stated that mining activities, especially within a
fish bearing stream, should not be covered under an NWP. One commenter
objected to the use of this NWP when activities occur in streams,
floodplains, or are adjacent to non-tidal waters occupied by anadromous
salmon.
All activities authorized by this NWP require a PCN. District
engineers will review PCNs for case specific activities and determine
whether they may affect ESA-listed species (or species proposed for
listing) or designated critical habitat (or habitat proposed for such
designation). If the district engineer determines a proposed NWP
activity may affect listed species (or species proposed for listing) or
designated critical habitat (or habitat proposed for designation), he
or she will conduct ESA Section 7 consultation with the U.S. Fish and
Wildlife Service's (FWS) or National Marine Fisheries Service's (NMFS)
as appropriate. If, during the review of a PCN, the district engineer
determines the proposed activity may adversely affect EFH, she or he
will initiate EFH consultation with the NMFS. Division engineers may
add regional conditions to this NWP to protect other special status
species.
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 stated that any
repairs should not include structures waterward of the new ordinary
high water mark unless there is an immediate threat to a primary
structure or associated infrastructure. One commenter suggested this
NWP be modified to authorize beach restoration, up to 25 cubic yards,
conducted by a local government or hydropower owner with a FERC
license.
This NWP only authorizes restoration of the damaged upland areas up
to the contours or ordinary high water mark that existed prior to the
occurrence of the damage. We do not agree that the restoration should
be limited to the post-damage ordinary high water mark. The purpose of
this NWP is to authorize regulated activities to repair uplands that
have been damaged by a discrete event. It may not be practicable to
limit fills to the new ordinary high water mark where the ordinary high
water mark was changed by a discrete event.
Use of this NWP to authorize beach nourishment has been prohibited
since 2012 (77 FR 10227) and we continue to maintain this position. The
FERC license is not sufficient to replace the review by the district
engineer to ensure that the activity would cause no more than minimal
adverse environmental effects. The Corps declines to modify this NWP to
authorize beach nourishment. Beach nourishment or restoration
activities may be authorized by individual permits or regional general
permits.
One commenter stated the requirement to submit the PCN within one
year from the date of damage is too short due to engineering and
regulatory processes that need to be followed. This commenter
recommended the timeframe be extended to two years.
The Corps agrees that 12 months may be too short a timeframe to
submit a PCN for activities authorized by this NWP. The Corps is
modifying this NWP to require submittal of a PCN within 18-months and
retaining the district engineer's discretion to waive the 18-month
deadline if the prospective permittee can demonstrate funding,
contract, or similar delays. Such delays can occur after major storm
events if the entities responsible for making decisions regarding
disbursement of funds or issuing contracts are short staffed or receive
more requests than can be handled in a timely manner. The
[[Page 812]]
Corps is retaining the requirement that the activity be under contract
to commence or commence construction within two years of the date of
the damage, and retaining the district engineer's discretion to waive
the two-year timeframe.
This NWP is reissued with the modifications discussed above.
NWP 46. Discharges in Ditches. The Corps did not propose any
changes to this NWP. One commenter expressed concern with the scale of
impacts authorized by this NWP. A few commenters objected to the use of
this NWP to authorize activities in ditches occupied by fish.
The Corps is retaining the one-acre limit that was established for
this NWP when it was first issued in 2007. 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 no more than minimal individual and cumulative
adverse environmental effects. 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 losses
of waters of the United States, in accordance with general condition 23
(Mitigation).
This NWP requires prospective permittees to submit a PCN. When the
district engineer reviews the PCN, he or she will consider potential
impacts to salmon and other fish species. General condition 2 (Aquatic
Life Movements), prohibits activities which could disrupt the necessary
life cycle movements of aquatic species and general condition 3
(Spawning Areas) prohibits the destruction of important spawning areas.
If deemed appropriate, this NWP can be regionally conditioned by
division engineers to limit or restrict the use of this NWP in waters
accessible to anadromous salmonid species. The text of this NWP states
that it does not authorize discharges into streams, or streams that
have been relocated into uplands.
One commenter requested clarification if activities in ditches that
receive groundwater inputs are excluded from this NWP. One commenter
requested that this NWP be modified to allow activities in ditches that
receive water from sources other than waters of the United States.
This NWP authorizes discharges of dredged or fill material into
ditches that are waters of the United States so long as the ditches (1)
are 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, and (3) divert water to an area determined to be a water of the
United States prior to the construction of the ditch. Although
criterion (2) requires that the ditch must receive water from a water
of the United States that existed prior to the construction of the
upland ditch, the terms of the NWP do not require that the ditch only
receive water from a water of the United States prior to the
construction of the ditch. The ditch may also receive water from other
sources, such as precipitation or groundwater. 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. To the extent that ditches
are determined to be waters of the United States, this permit provides
authorization for discharges of dredged or fill material into them
provided all terms and conditions of this NWP are met.
This NWP is reissued as proposed.
NWP 48. Commercial Shellfish Mariculture Activities. Federal court
decisions in The Coalition to Protect Puget Sound v. U.S. Army Corps of
Engineers (U.S. District Court, Western District Court of Washington at
Seattle and U.S. Court of Appeals for the Ninth Circuit) vacated the
2017 NWP 48 in waters within Washington State. As a result, project
proponents in Washington state have since sought authorization for
regulated activities, work, or structures under a standard individual
permit or letter of permission. Due to the low volume of PCNs received
under the 2021 NWPs for activities proposed within waters in Washington
State, the Corps proposed to modify NWP 48 to exclude its use in waters
within Washington State. The Corps proposed to modify Note 1 and to add
a Note (designated as Note 4) in this NWP. Language was added to each
Note to clarify the intent of each Note. Note 1 was modified to
identify information that should be provided to USCG and to provide
contact information for USCG. New Note 4 identifies information that
should be provided to NOS and provides contact information for NOS. The
Corps provides a summary of the comments received on revised Note 1 and
new Note 4 and responses to comments in Section II.D of this final
action.
One commenter recommended that a PCN be required for all activities
authorized by this NWP. One commenter opposed NWP 48 and recommended
all covered activities require an individual permit. One commenter
suggested prohibiting the use of this NWP and requiring an individual
permit in high-value subsistence and cultural zones. One commenter
recommended that the NWP be withdrawn until it can be demonstrated that
the impacts of shellfish mariculture on the aquatic environment are
minimal in nature. One commenter supported the revocation of NWP 48 in
Washington State but disagreed with the use of Letters of Permission
for authorizing mariculture operations in the state.
The terms and conditions of this NWP, including its PCN
requirement, will ensure that commercial shellfish mariculture
activities authorized by this NWP will result in no more than minimal
individual and cumulative adverse environmental effects. If the
regulated activity might affect, or is in the vicinity of a species
listed (or proposed for listing) or designated critical habitat (or
habitat proposed for such designation) under the ESA, general condition
18 (Endangered Species) requires non-federal permittees to submit a PCN
and states the permittee cannot begin work until the district engineer
has provided notification that the proposed activity will have ``no
effect'' on listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such
designation), or until ESA Section 7 consultation or conference has
been completed.
Division engineers may impose regional conditions to require PCNs
or revoke this NWP for proposed activities that might affect treaty
rights, submerged aquatic vegetation, or other concerns. Regional
conditions can help ensure compliance with general condition 17,
(Tribal rights) so that no NWP 48 activity will cause more than minimal
adverse effects on reserved tribal rights (including treaty rights),
protected tribal resources, or tribal lands.
When reviewing a PCN, if the district engineer determines that the
proposed activity, after considering mitigation proposed by the
prospective permittee, will result in more than minimal individual and
cumulative adverse environmental effects, he or she will exercise
discretionary authority and require an individual permit for that
activity. The district engineer has the discretion to determine what
type of individual permit may be appropriate
[[Page 813]]
for authorizing the proposed activity, a Letter of Permission or a
standard individual permit.
One commenter expressed concerns that the NWP could cause more than
minimal adverse impacts to submerged aquatic vegetation. One commenter
expressed concern that no compensatory mitigation will be required to
offset the impacts from the authorized activities. One commenter stated
that commercial shellfish mariculture activities improve habitat,
increase species richness, and increase species diversity of aquatic
resources. One commenter disagreed with the Corps' claim that the
placement of oyster shells is a permanent discharge of dredged or fill
material and can bury submerged aquatic vegetation. One commenter
expressed concern that this NWP has no acreage impact limitation.
Prospective permittees must submit a PCN for commercial mariculture
operations that impact more than \1/2\-acre of submerged aquatic
vegetation. This PCN threshold is sufficient for the purposes of
ensuring that a project will have no more than minimal individual or
cumulative adverse environmental effect. Division engineers may
restrict or prohibit use of this NWP in geographic regions or specific
waterbodies where more than minimal individual or cumulative adverse
environmental effects may occur. District engineers will review the PCN
and determine if the case-specific activity will cause more than
minimal adverse effects on the environment. Placement of oyster shells
in waters of the United States, either temporarily or permanently, can
impact submerged aquatic vegetation. The length of time it takes for
submerged aquatic vegetation to reestablish in an area can vary by
species and habitat. District engineers will review PCNs to determine
what activities result in a loss of waters of the United States and if
the effects of the discharge are more than minimal.
One commenter requested clarification if the commercial shellfish
operator would need to reapply every five years for continued
authorization of the regulated activities. The commenter stated that
requiring prospective permittees to reapply every NWP cycle is
excessive and puts an extreme burden on districts where mariculture is
prevalent.
General permits, including NWPs, must be reissued at least every
five years. Commercial shellfish mariculture activities typically
involve on-going discharges of dredged or fill material into waters of
the United States and structures and work in navigable waters of the
United States throughout the five-year period a general permit is in
effect. When that general permit expires, the on-going activities must
be reauthorized in order for the regulated activities to continue to be
authorized by general permit, assuming the general permit is reissued
by the appropriate permitting authority (i.e., Corps Headquarters for
an NWP, a district engineer for a regional general permit or a
programmatic general permit). Commercial shellfish mariculture
operators can choose to utilize NWP 48 or other general permits to
provide DA authorization for their activities, or they can apply for
standard individual permits or letters of permission for those
activities and if they would like to request that Corps districts issue
standard individual permits or Letters of Permission for those
activities that would be in effect for periods longer than five years.
One commenter requested that the NWP define which activities
require authorization under Section 404 of the CWA and which activities
require authorization under Section 10 of the RHA. Structures or work
in navigable waters of the United States require authorization under
Section 10 of the RHA and discharges of dredged or fill material into
waters of the United States require authorization under Section 404 of
the CWA. The majority of the activities associated with commercial
shellfish mariculture require authorization under Section 10 of the
RHA. Some activities associated with seeding, cultivating and
harvesting activities will require authorization under Section 404 of
the CWA. District engineers will determine what specific activities are
subject to each of these laws.
One commenter asserted that mechanical harvest, harrowing and shell
dispersal do not constitute a discharge of dredged or fill material and
insisted that those activities should be covered under the normal
farming exemption.
Discharges of dredged or fill material require DA authorization
under Section 404 of the CWA unless exempted by Section 404(f) of the
CWA. In accordance with the 1989 Memorandum of Agreement Between the
Department of the Army and the U.S. EPA Concerning the Determination of
the Section 404 Program and the Application of the Exemptions under
Section 404(f) of the CWA, the U.S. EPA has the authority to establish
policies on which activities are eligible for the CWA Section 404(f)
exemptions. There are no work or structures in navigable waters of the
United States that are exempted from regulation under Section 10 of the
RHA.
This NWP is reissued as proposed.
NWP 49. Coal Remining Activities. The Corps did not propose any
changes to this NWP. One commenter stated mining activities should not
be covered under an NWP. All activities authorized by this NWP must
result in net increases in aquatic resource functions. Regulated
activities associated with remining activities reduce acid mine
drainage and sedimentation, which help manage cumulative effects on a
watershed basis. The reduction in acid mine drainage and/or
sedimentation in downstream segments of stream channels has resulted in
functional improvements in many watersheds.
This NWP is reissued as proposed.
NWP 50. Underground Coal Mining Activities. The Corps did not
propose any changes to this NWP. Many commenters opposed reissuance of
this NWP and stated that the activities authorized under the NWP have
significant and harmful impacts on the environment. One commenter
stated mining activities should require an individual permit. Many
commenters opposed the use of this NWP in the Appalachian Regions due
to impacts from previous mining.
The Corps Headquarters has prepared a national decision document to
address the environmental effects of the reissuance of this NWP in
accordance with NEPA and the CWA. The national decision document
evaluates cumulative impacts in accordance with the CWA Section
404(b)(1) Guidelines at 40 CFR 230.7 for the issuance of general
permits. In the national decision document for this NWP, the Corps
Headquarters has made a finding of no significant impact.
In addition to the national analysis, the division engineer will
prepare supplemental documentation and can exercise discretionary
authority and modify the NWP by imposing regional conditions to ensure
that activities authorized by this NWP in a region cause no more than
minimal adverse environmental effects. The prospective permittee must
submit a PCN to the district engineer for all activities proposed for
authorization by this NWP. When the district engineer reviews the PCN,
he or she will consider the direct and indirect effects of the NWP-
specific activity in accordance with Section D (District Engineer's
Decision) and determine if the activity will cause no more than minimal
adverse environmental effects, both individually and cumulatively. If
the district engineer reviews the PCN and determines that the proposed
activity, after considering any mitigation proposal submitted by the
applicant,
[[Page 814]]
will result in more than minimal adverse environmental effects, he or
she will assert discretionary authority and require an individual
permit for that activity.
Many commenters stated that the Corps should maintain the current
\1/2\-acre impact limit on this NWP. Many commenters stated that the
\1/2\-acre impact limit should only apply to permanent impacts to
waters. Many commenters opposed the \1/2\-acre impact limit. Many
commenters opposed the provision that allows the permittee to proceed
45-days after submittal of the PCN to the district engineer.
This NWP prohibits the loss of greater than \1/2\-acre of non-tidal
waters of the United States. The \1/2\-acre limit for this NWP, as well
as the requirement that all activities require PCNs, will ensure that
this NWP authorizes activities that result in no more than minimal
adverse environmental effects, individually and cumulatively. The
``loss of waters of the United States'' refers to permanent adverse
effects to waters of the United States as a result of filling,
flooding, excavation, or drainage because of the activities subject to
Corps' authority, and does not include temporary impacts. The district
engineer will review the PCN and consider the impacts of the regulated
activities, including the duration of the adverse effects (temporary or
permanent) in accordance with Section D (District Engineer's Decision).
Activities that qualify for the default authorization that occurs 45-
days after the district engineer receives a complete PCN must comply
with all terms and conditions of the NWP, including the general
conditions and any applicable regional conditions imposed by the
division engineer.
Many commenters expressed concern that this NWP would significantly
increase sediment loads into waters of the United States Many
commenters stated that the activities authorized by this NWP would harm
endangered species.
Permittees must comply with the general conditions of this NWP,
including general condition 25 (Water Quality) and general condition 12
(Soil Erosion and Sediment Controls), which require the permittee to
comply with any conditions to granted water quality certifications and
to implement appropriate soil erosion and sediment controls. Paragraph
(c) of general condition 25 acknowledges that the district engineer or
certifying authority may require additional water quality management
measures to ensure that the authorized activity does not result in more
than minimal degradation of water quality.
If the regulated activity might affect, or is in the vicinity of a
species listed (or proposed for listing) or designated critical habitat
(or habitat proposed for such designation) under the ESA, general
condition 18 (Endangered Species) states the permittee cannot begin
work until the district engineer has provided notification that the
proposed activity will have ``no effect'' on listed species (or species
proposed for listing) or designated critical habitat (or critical
habitat proposed for such designation), or until ESA Section 7
consultation or conference has been completed. Federal permittees must
provide the district engineer with the appropriate documentation to
demonstrate compliance with the ESA. No activity is authorized by an
NWP if it is likely to directly or indirectly jeopardize the continued
existence of a threatened or endangered species or a species proposed
for such designation.
This NWP is reissued as proposed.
NWP 51. Land-Based Renewable Energy Generation Facilities. The
Corps did not propose any changes to this NWP. One commenter expressed
support for this NWP. One commenter expressed concern with the scale of
impacts authorized by this NWP. A few commenters stated these
activities should not be covered under an NWP. Many commenters stated
that the Corps should maintain the current \1/2\-acre impact limit on
this NWP. Many commenters stated that the \1/2\-acre impact limit
should only apply to permanent impacts to waters. One commenter stated
that a PCN should be required for all activities authorized by this NWP
citing concerns for impacts to historic properties.
This NWP authorizes discharges of dredged or fill material into
waters of the United States for the construction, expansion, or
modification of land-based renewable energy facilities. The authorized
discharge must not cause the loss of greater than \1/2\-acre of non-
tidal waters of the United States. The ``loss of waters of the United
States'' refers to permanent adverse effects to waters of the United
States as a result of filling, flooding, excavation, or drainage
because of the activities subject to Corps' authority, and does not
include temporary impacts (Section F. Definitions). The \1/2\-acre
limit, along with the PCN requirements and compliance with the NWP
general conditions, will ensure that the activities authorized by this
NWP will result in no more than minimal individual and cumulative
adverse environmental effects. PCN is required if the discharge results
in the loss of greater than \1/10\-acre of waters of the United States.
The district engineer will review the PCN and he or she will consider
the impacts of the discharges of dredged or fill material into waters
of the United States, including the duration of the adverse effects
(temporary or permanent) in accordance with Section D (District
Engineer's Decision).
If a non-federal permittee proposes an activity that might have the
potential to affect a historic property or a property eligible for
listing on the National Register of Historic Places, in accordance with
general condition 20 (historic properties), the prospective permittee
must submit a PCN and may not begin construction until they receive
written authorization from the district engineer. Federal agencies must
follow their own procedures for complying with Section 106 of the NHPA.
One commenter requested that the NWP be expanded to provide
authorization for battery storage projects. There is overlap in some
activities authorized by certain NWPs and battery storage projects,
such as battery energy storage systems, may be authorized by this NWP,
as well as by NWP 39 (Commercial and Institutional Developments) or NWP
57 (Electric Utility Line and Telecommunications Activities) provided
they comply with the terms and conditions of the NWP.
One commenter suggested the NWP be modified to restrict its use in
critical habitat, recovery units or areas known to be of importance to
migratory birds, bald eagles, and golden eagles. One commenter stated
that this NWP causes more than minimal impacts to areas important to
fish. One commenter stated that compensatory mitigation should be
required for impacts that cannot be avoided.
In accordance with general condition 19 (Migratory Birds and Bald
and Golden Eagles), project proponents are responsible for complying
with the Migratory Bird Treaty Act and the Bald and Golden Eagle
Protection Act. If the regulated activity might affect, or is in the
vicinity of a species listed (or proposed for listing) or designated
critical habitat (or habitat proposed for such designation) under the
ESA, general condition 18 (Endangered Species) requires non-federal
permittees to submit a PCN and states the permittee cannot begin work
until the district engineer has provided notification that the proposed
activity will have ``no effect'' on listed species (or species proposed
for listing) or designated critical habitat (or critical habitat
proposed for such designation), or until ESA Section 7 consultation or
conference has been completed. If a
[[Page 815]]
PCN is required for the proposed NWP activity, the Federal permittee
must provide the district engineer with the appropriate documentation
to demonstrate compliance with the ESA. Activities authorized by this
NWP must comply with general condition 10 (Fills Within 100-year
Floodplains). Division engineers can regionally condition this NWP to
restrict or prohibit its use in waters of the United States, where the
discharges of dredged or fill material are likely to result in more
than minimal adverse effects on the aquatic environment. During the
review of PCNs for case-specific activities, district engineers can
require compensatory mitigation to offset the permitted losses of
waters of the United States, in accordance with general condition 23
(Mitigation).
This NWP is reissued as proposed.
NWP 52. Water-Based Renewable Energy Generation Pilot Projects. The
Corps proposed to modify Note 3 and to add a Note (designated as Note
6) in this NWP. Language was added to each Note to clarify the intent
of each Note. Note 3 was modified to identify information that should
be provided to NOS and to provide contact information for NOS. New Note
6 identifies information that should be provided to USCG and to provide
contact information for USCG. The Corps provides a summary of the
comments received on revised Note 3 and new Note 6 and responses to
comments in Section II.D of this final action.
One commenter supported NWP 52 and the proposed changes. One
commenter objected to the reissuance of this NWP and stated that all
covered activities should require an individual permit. Many commenters
stated that the Corps should maintain the current \1/2\-acre impact
limit on this NWP. Many commenters stated that the \1/2\-acre impact
limit should only apply to permanent impacts to waters. Many commenters
stated that the number of units allowed by this NWP should be reduced
from 10 to 3. One commenter stated that authorizing these activities in
streams, wetlands or other critical areas would result in more than
minimal adverse environmental impact. Several commenters expressed
concern with shading or light reduction caused by solar panels. Many
commenters stated that activities authorized by this NWP impact treaty
rights and tribal treaty fishing rights.
The terms and conditions of this NWP, including the \1/2\-acre
limit, and the ten-unit limit will ensure that this NWP authorizes only
those activities with minimal adverse effects on the aquatic
environment. All activities authorized by this NWP require a PCN, which
provides district engineers an opportunity to review each proposed
activity and determine whether the adverse effects on the aquatic
environment will be minimal. District engineers may add activity-
specific conditions to the NWP authorization which require actions to
mitigate adverse environmental effects. The Corps is retaining the \1/
2\-acre limit and the requirement that all authorized activities
require PCNs. The ``loss of waters of the United States'' refers to
permanent adverse effects to waters of the United States as a result of
filling, flooding, excavation, or drainage because of the activities
subject to Corps' authority, and does not include temporary impacts.
This NWP is also subject to general condition 22 (Designated
Critical Resource Waters), which prohibits using this NWP to authorize
discharges of dredged or fill material into critical resource waters
and wetlands adjacent to such waters. Critical resource waters include
marine sanctuaries and marine monuments managed by the National Oceanic
and Atmospheric Administration, and National Estuarine Research
Reserves, and waters designated by the district engineer after notice
and opportunity for comment. Division engineers may also impose
regional conditions to restrict or prohibit the use of this NWP in
specific categories of waters or in certain geographic areas. Division
engineers will review the PCN and make a project-specific determination
that the adverse effects on navigation, the aquatic environment, and
other public interest review factors would be minimal, individually and
cumulatively. During review of a PCN, district engineers may exercise
discretionary authority and require an individual permit if the
proposed activity will result in more than minimal adverse effects on
the aquatic environment. Division engineers can add regional conditions
to this NWP to help ensure compliance with general condition 17 (Tribal
Rights).
Many commenters objected to the Corps relinquishing its authority
to the FERC for activities proposed under this NWP. Note 4 states that
hydrokinetic renewable energy generation projects that require
authorization by the FERC under the Federal Power Act of 1920 do not
require separate authorization from the Corps under Section 10 of the
RHA. Note 4 is based on current law and must remain in the NWP. If the
water-based renewable energy generation activity results in discharges
of dredged or fill material into waters of the United States, then
Section 404 authorization is required for the proposed activity. In
situations when FERC authorizes a structure in a navigable water of the
United States, this NWP can authorize the discharge of dredged or fill
material if the proposed activity complies with the NWP terms and all
general conditions.
One commenter stated that pilot projects should be temporary. Many
commenters stated that permanent installation of hydrokinetic units
should require an individual permit because they are based on new
technologies.
This NWP does not authorize activities associated with permanent
installation of water-based renewable energy generation pilot projects.
The construction of permanent water-based renewable energy generation
facilities would require separate authorization under a regional
general permit or individual permit.
This NWP is reissued as proposed.
NWP 53. Removal of Low-Head Dams. The Corps did not propose any
changes to this NWP. One commenter supported reissuance of this NWP. A
few commenters suggested that this NWP be expanded to authorize the
removal of other dams using criteria based on size or storage volume.
This NWP, defines ``low-head dam'' 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
definition further states that low-head dams in all cases, provide
little or no storage function. The Corps declines to modify this NWP to
expand the activities covered by this NWP based on a dam height or
storage capacity, as those criteria could result in a greater range of
potential impacts to aquatic resources. The definition of ``low head
dam'' in this NWP limits the use of this NWP to dams that have the key
features presented in the definition. The definition of ``low head
dam,'' in addition to the PCN requirement, ensures that activities
authorized by this NWP cause no more than minimal adverse environmental
effects.
If the proposed dam removal activity does not qualify for
authorization under this NWP or NWP 27, then an individual permit will
be required unless the Corps district has issued a regional general
permit that could be used to authorize the proposed activity. District
engineers can also issue regional general permits to authorize the
removal of other types of dams, such as run-of-the-river dams. The
removal of fords or in-stream grade-control structures might also be
authorized by NWP 27 as a long
[[Page 816]]
as the activity results in a net increase in aquatic ecosystem
functions and services and complies with the other terms and conditions
of the NWP.
One commenter recommended revising this NWP to allow placement of
demolition debris from the low head dam below the ordinary high water
mark within 200 linear feet of the structure. One commenter recommended
that the Corps create a single permit to authorize dam removal,
restoration, and bank stabilization activities.
This NWP requires that the material of the removed low-head dam
structure 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. The terms and
conditions of the NWP ensure that the authorized activities cause no
more than minimal adverse effects to the environment. We decline to
modify this NWP to expand the list of activities authorized by this
NWP. Bank stabilization activities may be authorized by NWP 13 (Bank
Stabilization), restoration of the stream in the vicinity of the dam
may be authorized by NWP 27 (Aquatic Ecosystem Restoration,
Enhancement, and Establishment) or other DA permits, such as a regional
general permit. Activities authorized by one or more NWPs must comply
with all general conditions, including general permit 28 (Use of
Multiple Nationwide Permits). The district engineer will review the PCN
and determine if the proposed activity can be authorized by one or more
NWPs. If a prospective permittee cannot comply with the terms of the
NWP and the general conditions, the district engineer may advise the
project proponent to apply for a regional general permit or individual
permit.
This NWP is reissued as proposed.
NWP 54. Living Shorelines. The Corps proposed to modify the first
paragraph of this NWP to state that a portion of a living shoreline can
consist of an unvegetated cobble or sand beach, which can be considered
a pocket beach.
Many commenters supported reissuance of this NWP, noting that it
streamlined the permitting process for bank stabilization projects
which provide ecological enhancement. One commenter supported the
retention of the PCN requirement and the language in the NWP. One
commenter objected to the reissuance of this NWP and stated that all
covered activities should require an individual permit. One commenter
stated that these activities could result in more than minimal adverse
environmental impacts. One commenter stated that the applicant must
demonstrate that the proposed activity will not impact waters of the
United States.
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 associated with the construction and maintenance of
living shorelines. The permittee must comply with the terms and general
conditions of this NWP, including general conditions which require
avoidance and minimization of effects to spawning areas. A PCN is
required for all NWP 54 activities. The district engineer will review
the PCN and, if the proposed activity will result in more than minimal
individual and cumulative adverse environmental effects after
considering mitigation proposed by the applicant, the district engineer
will exercise discretionary authority and require an individual permit.
One commenter expressed concern that permittees will not be
required to avoid or minimize impacts to waters of the United States.
One commenter stated that the applicant should demonstrate why the
proposed activity is necessary. One commenter stated that the applicant
must provide assurances that the structure will not become a hazard.
One commenter stated that the NWP should prohibit the introduction of
non-native or invasive species.
Paragraph (a) of general condition 23 (Mitigation) and paragraphs
(e) and (f) of this NWP require structures and fills in jurisdictional
waters and wetlands, including navigable waters, to be minimized to the
maximum extent practicable on the project site. It is up to the
landowner to decide how he or she wants to protect his or her property
from erosion. This NWP authorizes the construction or maintenance of
living shorelines in order to offer landowners an alternative general
permit authorization to the various types of bank stabilization
activities authorized by NWP 13 (Bank Stabilization). Paragraph (h) of
this NWP requires that the permittee maintain the living shoreline,
including making repairs after discrete events. Paragraph (d) of this
NWP requires that the permittee use native plants.
One commenter stated that the activities authorized by this NWP
should not be used as compensatory mitigation. One commenter stated
that the permittee should be required to comply with water quality
standards.
When the prospective permittee submits a PCN and compensatory
mitigation is required by general condition 23 (Mitigation), the
district engineer will review the proposed compensatory mitigation and
determine if it is sufficient to offset the adverse environmental
effects of a regulated activity. Consistent with general condition 25
(water quality) the permittee must comply with any conditions of a
granted water quality certification for any activity that may result in
a discharge from a point source into waters of the United States.
One commenter suggested that this NWP be modified to limit the use
of cobble and gravel fill materials by adding ``where appropriate and
consistent with the characteristics of the natural shoreline.'' Many
commenters stated that the NWP should avoid improper use of larger
rocks in living shorelines. A few commenters suggested modifying this
NWP to authorize small-scale beach nourishment.
The terms of this NWP, in combination with the general conditions,
appropriately limit the types of structures or fill materials that are
authorized by this NWP. Cobble, sand, and rock sills may all be part of
a living shoreline as long as the footprint is made up of mostly native
material and incorporates vegetation or other living, natural ``soft''
elements, and the activity meets the other requirements of this NWP. We
have not included beach nourishment in this NWP because these projects
do not have a living component such as fringe wetland vegetation, or
oysters or mussels, and are not considered living shorelines. When
using the term ``beach nourishment,'' we are referring to larger scale
beach fill projects, which usually occur on open coasts. There may be a
portion of the living shoreline that consists of unvegetated sandy
substrate (e.g., a micro-beach or pocket-beach within or next to the
fringe wetland). In addition, we recognize that some movement of sand
fill may be necessary to maintain the living shoreline. The district
engineer will review the required PCN to determine of a specific
activity may be authorized by this NWP, another NWP, a regional general
permit, or if the activity will require an individual permit.
One commenter suggested modifying this NWP to allow fills and
structures to be placed more than 30 feet from the mean low water line
or the ordinary high water mark or to allow activities more than 500
feet in length without a waiver from the district engineer. One
commenter objected to allowing the district engineer the discretion to
waive the 30-foot or 500-foot limits.
The Corps is retaining the 30-foot and 500 linear foot limits and
retaining the district engineer's discretion to waive
[[Page 817]]
these limits on a case-by-case basis, after reviewing the PCN and
coordinating that PCN with the resource agencies. For a waiver to
occur, the district engineer must issue a written determination with a
finding that the proposed activity will result in no more than minimal
individual and cumulative adverse environmental effects.
A few commenters stated that use of this NWP should be limited in
the State of Washington. One commenter stated that this NWP has the
potential to result in impacts to tribal treaty natural resources and
fishing activities.
Division engineers may also impose regional conditions to restrict
or prohibit the use of this NWP in specific categories of waters or in
certain geographic areas. Division engineers can add regional
conditions to this NWP to help ensure compliance with general condition
17 (Tribal Rights). District engineers may also include project-
specific conditions with any NWP verification to ensure the activity
results in no more than minimal adverse environmental effects.
One commenter suggested that language allowing temporary structures
during construction, similar to language found in NWP 13 (Bank
Stabilization), be added to NWP 54. We agree with the suggested change
and have added language after paragraph (h) of this NWP to authorize
temporary structures, fills, and work, including the use of temporary
mats, necessary to construct the living shoreline.
This NWP is reissued with the modifications discussed above.
NWP 55. Seaweed Mariculture Activities. The Corps proposed to
modify Note 1 and to add a Note (designated as Note 4) in this NWP.
Language was added to each Note to clarify the intent of each Note.
Note 1 was modified to identify information that should be provided to
USCG and to provide contact information for USCG. New Note 4 identifies
information that should be provided to NOS and provides contact
information for NOS. The Corps provides a summary of the comments
received on revised Note 1 and new Note 4 and responses to comments in
Section II.D of this final action.
Many commenters urged the Corps to revoke NWP 55 due to concerns
that the activities covered could cause more than minimal impacts. A
few commenters suggested prohibiting the use of this NWP and requiring
an individual permit. One commenter stated that the use of this NWP
should be prohibited in areas important to tribes.
The work and structures in navigable waters of the United States
authorized by this NWP are associated with seaweed mariculture, which
is expected to have a relatively small, if not beneficial, impact on
marine ecosystems. This NWP includes terms and conditions, including
the requirement to submit a PCN for all proposed NWP 55 activities, to
ensure the NWP authorizes only those regulated activities associated
with seaweed mariculture that result in no more than minimal individual
and cumulative adverse environmental effects. In response to a PCN,
district engineers will apply the criteria listed in paragraph 2 of
Section D, District Engineer's Decision to determine whether the
proposed activity can be authorized by NWP 55, with or without
additional permit conditions, or exercise their discretionary authority
to require an individual permit. Division engineers may modify,
suspend, or revoke this NWP on a regional basis in accordance with the
procedures at 33 CFR 330.5(c).
Division engineers may impose regional conditions to require PCNs
or revoke this NWP for proposed activities that might affect treaty
rights, submerged aquatic vegetation, or other concerns. Regional
conditions can help ensure compliance with general condition 17,
(Tribal rights) so that no NWP 55 activity will cause more than minimal
adverse effects on reserved tribal rights (including treaty rights),
protected tribal resources, or tribal lands.
This NWP is reissued as proposed.
NWP 56. Finfish Mariculture Activities. The Corps proposed to not
reissue this NWP. Under this final action, NWP 56 will expire on March
14, 2026. Section I.D. of this action (and 33 CFR 330.6(b)) provides
information about the time within which permittees must complete
activities authorized by this NWP. After this expiration date, project
proponents who want to construct structures in navigable waters of the
United States for finfish mariculture activities will need to obtain
individual permits (i.e., standard individual permits or letters of
permission) for those activities unless the Corps district has issued a
regional general permit or a programmatic general permit to authorize
regulated structures associated with finfish mariculture. Many
commenters supported the Corps' decision not to reissue this NWP. This
NWP is not reissued.
NWP 57. Electric Utility Line and Telecommunications Activities.
The Corps proposed to modify Note 1 and to add a Note (designated as
Note 8) in this NWP. Language was added to each Note to clarify the
intent of each Note. Note 1 was modified to identify information that
should be provided to NOS and to provide contact information for NOS.
New Note 8 identifies information that should be provided to USCG and
to provide contact information for USCG. The Corps provides a summary
of the comments received on revised Note 1 and new Note 8 and responses
to comments in Section II.D of this final action.
Many commenters support the reissuance of this NWP as proposed. One
commenter stated that NWP 57 will have no more than minimal adverse
effects on the environment. One commenter recognizes that impacts that
are not discharges of dredged or fill material are outside of the
Corps' regulatory authority under Section 404 of CWA. One commenter
opposes the reissuance of NWP 57, stating that it will result in more
than minimal impacts. Several commenters stated that a PCN should be
required when a project includes mechanized land clearing. One
commenter stated that activities authorized by NWP 57 should be
required to avoid marine aquatic vegetation areas.
The \1/2\-acre impact limit, PCN requirements and other
requirements of this NWP, and general conditions, are sufficient to
ensure that the activities authorized by this NWP cause no more than
minimal adverse environmental effects. Utility line installations must
not cause changes to pre-construction contours in waters of the United
States. Changes to pre-construction contours constitute a loss of
waters of the United States. A PCN is required for the loss of greater
than \1/10\-acre of waters of the United States. If a PCN is required,
district engineers can add conditions to the NWP authorization,
including mitigation requirements, to ensure that the authorized
activity will cause no more than minimal adverse environmental effects.
Paragraph (a) of general condition 23 (Mitigation), requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable. General condition 23
requires compensatory mitigation for all wetland losses greater than
\1/10\-acre and for all stream losses greater than \3/100\-acre for all
activities authorized under this NWP, unless the district engineer
determines that some other form of mitigation would be more
environmentally appropriate. The district engineer may, consistent with
paragraph (i) of general condition 23, require compensatory mitigation
for
[[Page 818]]
conversions of wetlands in utility rights-of-way to offset adverse
environmental effects of such conversions.
If after reviewing a PCN, the district engineer determines the
proposed activity will result in more than minimal adverse
environmental effects, after considering the mitigation proposal
provided by the prospective permittee, he or she will exercise his or
her discretionary authority and require an individual permit. Division
engineers may also add regional conditions to this NWP to change the
PCN threshold or restrict activities in sensitive waters or locations.
The Corps declines to add a PCN threshold for mechanized land clearing
to this NWP.
One commenter suggested that the requirements for access roads be
consistent between NWPs 57 and 14. One commenter recommended that the
phrase ``near as possible'' be revised to ``maximum extent
practicable.''
This NWP requires access roads to be constructed as near as
possible to pre-construction contours and elevations. The additional
avoidance and minimization required by the more restrictive ``near as
possible'' is necessary and still allows flexibility to deviate from
preconstruction contours. The Corps declines to modify this NWP to
allow access roads in tidal waters or wetlands adjacent to tidal
waters. Temporary access roads in tidal waters may be authorized by NWP
33 (Temporary Construction, Access, and Dewatering).
Many commenters oppose Note 2 in NWP 57, stating that reliance on
the definition of ``single and complete linear project'' is unlawful.
The practice for providing NWP authorization for single and complete
linear projects, 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.
This NWP has been issued in compliance with Section 404(e) of the CWA
(including the Section 404(b)(1) Guidelines). District engineers will
review PCNs to determine whether proposed crossings of waters of the
United States are to be considered together or as separate and distant
on a case-by-case basis, after evaluating site and regional
characteristics. If one crossing of waters of the United States
associated with the construction of a linear transportation project
requires an individual permit, then 33 CFR 330.6(d) applies, and the
district engineer will determine which activities require individual
permits and which activities can be authorized by an NWP. Section
330.6(d) of the Corps' NWP regulations, as well as Note 2 of NWP 57,
remain in effect. Section 330.6(d) and Note 2 maintain the Corps' long-
standing process regarding the use of NWPs and individual permits to
authorize linear projects.
One commenter requested that this NWP be expanded to provide
authorization for battery storage projects. Battery storage projects,
such as battery energy storage systems, may be authorized by this NWP,
as well as by NWP 39 (Commercial and Institutional Developments) or NWP
51 (Land-Based Renewable Energy Generation Facilities) provided they
comply with the terms and conditions of the NWP. There is overlap in
activities authorized by certain NWPs.
This NWP is reissued as proposed.
NWP 58. Utility Line Activities for Water and Other Substances. The
Corps proposed to modify Note 1 and to add a Note (designated as Note
7) in this NWP. Language was added to each Note to clarify the intent
of each Note. Note 1 was modified to identify information that should
be provided to NOS and to provide contact information for NOS. New Note
7 identifies information that should be provided to USCG and to provide
contact information for USCG. The Corps provides a summary of the
comments received on revised Note 1 and new Note 7 and responses to
comments in Section II.D of this final action.
Many commenters expressed general support for NWP 58. Many oppose
the reissuance of this NWP and stated that this NWP would authorize
more than minimal adverse environmental impacts. A few commenters
stated that a district engineer's decision that activities from the
same pipeline have no more than minimal cumulative effects should be in
writing and made publicly available. Many commenters assert that NWP 58
fails to comply with NEPA and is therefore unlawful.
This NWP has been issued in compliance with Section 404(e) of the
CWA (including the Section 404(b)(1) Guidelines). The terms and
conditions of this NWP are appropriate for limiting authorized
activities associated with utility lines activities for water and other
substances so that they have a no more than minimal individual and
cumulative adverse effect on the aquatic environment. Certain
activities require pre-construction notification to the district
engineer. District engineers will review PCNs for proposed NWP 58
activities, and may add permit conditions, including mitigation
requirements, to the NWP authorization to help ensure that the
authorized activities cause no more than minimal adverse environmental
effects. District engineers can also exercise discretionary authority
and require an individual permit if the proposed activity may result in
more than minimal adverse environmental effects. Following the
conclusion of the district engineer's review of a PCN, he or she
prepares an official, publicly-available decision document. This
document discusses the district engineer's findings as to whether a
proposed NWP activity qualifies for NWP authorization, including
compliance with all applicable terms and conditions, and 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. As explained in Section III.A. of this
final action, the reissuance of the NWP complies with NEPA.
One commenter requested that this NWP be modified to specifically
list CO2 pipelines as example of a substance that could be transported
by utility lines installed under this NWP. One commenter suggested
creating a separate NWP for CO2 pipelines with limits on the size of
such projects.
This NWP authorizes discharges of dredged or fill material into
waters of the United States and structures or work in navigable waters
of the United States for construction, maintenance, repair, and removal
of utility lines for water and other substances, excluding oil, natural
gas, products derived from oil or natural gas, and electricity. Carbon
dioxide is not derived from oil or natural gas but is emitted when oil
or natural gas are burned. NWP 58 defines ``utility lines'' as any pipe
or pipeline for the transportation of any gaseous, liquid, liquescent,
or slurry substance, for any purpose that is not oil, natural gas, or
petrochemicals. Carbon dioxide is transported as a liquid. The Corps
agrees that this NWP may authorize regulated activities associated with
the construction, maintenance, repair, or removal of pipelines for
pipelines that convey carbon dioxide, hydrogen or methanated hydrogen,
industrial products that are not petrochemicals, wastewater, brine,
irrigation water, sewage or stormwater. The Corps declines to create a
separate NWP specifically for carbon dioxide pipeline activities
because regulated activities associated with carbon dioxide pipelines
are authorized by this NWP.
Many commenters expressed concern over the use of this NWP to
authorize activities associated with pipelines that transport carbon
dioxide or hydrogen.
[[Page 819]]
One commenter stated that the decision document of NWP 58 fails to
include analysis of carbon dioxide pipelines and is therefore in
violation of the CWA and NEPA. Many commenters stated that carbon
dioxide pipelines should require an individual permit.
The Corps does not have jurisdiction over the construction or
siting of any pipeline, the products transported by any pipeline, nor
over inadvertent returns, leaks, or spills that may occur during the
installation or operation of pipelines. The siting of pipelines falls
under the authority of the FERC or state agencies. Pipeline safety,
including carbon dioxide or hydrogen pipelines, falls under the
authority of the Pipeline and Hazardous Materials Safety
Administration. The Corps has authority over discharges of dredged or
fill material into waters of the United States and structures or work
in navigable waters of the United States.
As discussed in Section III. A. and B. of this final action, this
NWP was issued in compliance with NEPA and the CWA. Through the
national decision document, the Corps has determined that this NWP will
cause no more than minimal adverse environmental effects. The division
engineer can exercise discretionary authority and modify the NWP by
imposing regional conditions, that will help ensure that the NWP
authorizes only those activities with minimal individual and cumulative
adverse effects on the aquatic environment. District engineers can
exercise discretionary authority and require an individual permit if he
or she determines the proposed activity will result in more than
minimal adverse environmental effects.
One commenter recommended revising the last sentence of the seventh
paragraph of this NWP to be consistent with Note 4 and similar text in
NWP 12 (Oil or Natural Gas Pipelines). The Corps agrees with this
suggestion and has added the word ``may'' after ``discharge of dredged
or fill material'' to acknowledge that some structures over navigable
waters of the United States will not require authorization under
Section 10 of the RHA. Pipelines over navigable waters of the United
States are bridges and may require a permit from the USCG.
Many commenters opposed Note 2 in NWP 58, stating that reliance on
the definition of ``single and complete linear project'' is unlawful.
One commenter stated that specific direction should be provided to the
district engineer on the use of discretionary authority to ensure that
the NWP is not used to approve large-scale projects.
The practice for providing NWP authorization for single and
complete linear projects, 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.
This NWP has been issued in compliance with Section 404(e) of the CWA
(including the Section 404(b)(1) Guidelines). District engineers will
review PCNs to determine whether proposed crossings of waters of the
United States are to be considered together or as separate and distant
on a case-by-case basis, after evaluating site and regional
characteristics. If one crossing of waters of the United States
associated with the construction of a linear transportation project
requires an individual permit, then 33 CFR 330.6(d) applies, and the
district engineer will determine which activities require individual
permits and which activities can be authorized by an NWP. Section
330.6(d) of the Corps' NWP regulations, as well as Note 2 of NWP 57,
remain in effect. Section 330.6(d) and Note 2 maintain the Corps' long-
standing process regarding the use of NWPs and individual permits to
authorize linear projects.
Several commenters recommended modifying the NWP to require a PCN
for proposed mechanized land clearing. One commenter suggested that
activities authorized by this NWP must avoid marine aquatic vegetation
areas. One commenter stated that the Corps should exercise more
oversight of projects authorized by this NWP rather than relying on
information from the prospective permittee.
Mechanized land clearing in waters of the United States may result
in a discharge of dredged material which requires DA authorization
under Section 404 of the CWA. To be regulated under Section 404 of the
CWA, a discharge of dredged material involves any addition, including
redeposit other than incidental fallback, of dredged material,
including excavated material, into waters of the United States that is
incidental to any activity, including mechanized land clearing,
ditching, channelization, or other excavation (see 33 CFR
323.2(d)(1)(iii)). The \1/2\-acre impact limit, PCN requirements and
other requirements of this NWP, and general conditions, are sufficient
to ensure that the activities authorized by this NWP cause no more than
minimal adverse environmental effects.
Utility line installations must not cause changes to pre-
construction contours in waters of the United States. Changes to pre-
construction contours constitute a loss of waters of the United States.
A PCN is required for the loss of greater than \1/10\-acre of waters of
the United States. If a PCN is required, district engineers can add
conditions to the NWP authorization, including mitigation requirements,
to ensure that the authorized activity will cause no more than minimal
adverse environmental effects. Paragraph (a) of general condition 23
(Mitigation), requires permittees to avoid and minimize adverse effects
to waters of the United States to the maximum extent practicable.
General condition 23 requires compensatory mitigation for all wetland
losses greater than \1/10\-acre and for all stream losses greater than
\3/100\-acre for all activities authorized under this NWP, unless the
district engineer determines that some other form of mitigation would
be more environmentally appropriate.
The district engineer may, consistent with paragraph (i) of general
condition 23, require compensatory mitigation for conversions of
wetlands in utility rights-of-way to offset adverse environmental
effects of such conversions. If after reviewing a PCN, the district
engineer determines the proposed activity will result in more than
minimal adverse environmental effects, after considering the mitigation
proposal provided by the prospective permittee, he or she will exercise
his or her discretionary authority and require an individual permit.
Division engineers may also add regional conditions to this NWP to
change the PCN threshold or restrict activities in sensitive waters or
locations. The Corps declines to add a PCN threshold for mechanized
land clearing to this NWP.
The district engineer will rely on information provided by the
prospective permittee and other reliable data and resources when making
a decision whether the NWP-specific activity will result in no more
than minimal adverse environmental effects. Permittees who receive an
NWP verification letter, either as a result of a PCN submitted in
compliance with a general condition or a PCN submitted voluntarily,
must certify to the district engineer that the authorized activity has
been completed in compliance with the NWP authorization in accordance
with general condition 30 (Compliance Certification). If a permittee
fails to comply with the terms and conditions of this NWP, the district
engineer will evaluate the potential unauthorized activity in
accordance with 33 CFR 326.
One commenter suggested that the requirements for access roads be
consistent between NWPs 58 and 14.
[[Page 820]]
One commenter recommended that the phrase ``near as possible'' be
revised to ``maximum extent practicable.''
This NWP requires access roads to be constructed as near as
possible to pre-construction contours and elevations. The additional
avoidance and minimization required by the more restrictive ``near as
possible'' is necessary and still allows flexibility to deviate from
preconstruction contours. The Corps declines to modify this NWP to
allow access roads in tidal waters or wetlands adjacent to tidal
waters. Temporary access roads in tidal waters may be authorized by NWP
33 (Temporary Construction, Access, and Dewatering).
This NWP is reissued with the modifications discussed above.
NWP 59. Water Reclamation and Reuse Facilities. The Corps did not
propose any changes to this NWP. Several commenters expressed general
support for NWP 59. A few commenters oppose the \1/2\-acre limitation
for NWP 59, citing that the acreage limitation severely limits the
practical use of this NWP. One commenter requested clarification if
reuse water pipelines such as those used for extractive industries
(natural gas hydraulic fracturing) would fall under NWP 58 or NWP 59.
The \1/2\-acre limit in NWP 59 is consistent with other NWPs and is
necessary to ensure that regulated activities cause no more than
minimal adverse environmental effects. This NWP 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). There may be overlap with NWP 58 for some
activities authorized by this NWP. There are a number of activities
that may be authorized by more than one NWP, and such redundancy is not
problematic because the statutory requirement for all NWPs and other
general permits is the same: those general permits can only authorize
activities that have no more than minimal individual and cumulative
adverse environmental effects. If the district engineer, after review
of the PCN, determines that an activity cannot be authorized by NWP 59,
he or she will advise the applicant whether the activity qualifies for
another NWP or regional general permit, or if an individual permit is
required.
This NWP is reissued as proposed.
NWP A. Activities To Improve Passage of Fish and Other Aquatic
Organisms. The Corps proposed this new NWP to authorize structures and
work in navigable waters of the United States and discharges of dredged
or fill material into waters of the United States for activities that
restore or enhance the passage of fish and other aquatic organisms
through river and stream networks as well as other types of waters.
Many commenters expressed support for the addition of this NWP.
Several commenters stated that this NWP authorizes activities that are
similar in nature. One commenter supported the statements in the 2025
Proposal stating that prospective permittees have the flexibility to
use engineered components or nature-based solutions. One commenter
opposed this NWP. One commenter recommended that this NWP authorize
replacement of low-head irrigation dams with permanent structures such
as weirs and vanes as well as replacing culverts in favor of low water
crossings. A few commenters recommended that this NWP authorize the
removal of in-stream structures such as dams, weirs, fords or other
grade control structures.
Many commenters recommended limiting the activities authorized by
this NWP to those associated with nature-like fishways, culvert and
low-head dam removal and related restoration, and fish screens, stating
that all other activities should require an individual permit. One
commenter stated that placement of gravel for enhancing spawning
habitat should be authorized by this NWP. One commenter supported the
prohibition to use this NWP to authorize dam removal. One commenter
stated that bridges should be mentioned in every instance where
culverts are mentioned. One commenter requested clarification that this
NWP authorizes installation and modification of culverts that are
incidental to the fish passage elements of a project.
This new NWP can be used to authorize discharges of dredged or fill
material in waters of the United States and work and structures in
navigable waters of the United States associated with the construction,
maintenance, modification, removal, or expansion of structures,
devices, or fills that increase the ability of fish and other aquatic
organisms to pass through, or around, infrastructure and other built
features. The structures, devices, or fills may be engineered and may
include nature-based solutions. This NWP is written to authorize
regulated activities associated with a variety of options for improving
the passage of fish and other organisms and is not limited to nature-
like fishways, fish screens and culvert removal.
This new NWP does not authorize the removal of dams of any size.
Regulated activities associated with the removal of low head dams may
be authorized by NWP 53 (Removal of Low-Head Dams). Regulated
activities associated with the removal of any other type of dam will
require evaluation through the individual permit process. There are
some diversion structures that are not dams and regulated activities
associated with the removal of these structures, including weirs and
vanes, may be covered by this new NWP, if such removal improves passage
of fish and other organisms.
Regulated activities associated with the removal of existing in-
stream structures, such as weirs, fords, and other grade control
structures, are authorized by this NWP when they restore or enhance the
ability of fish and other aquatic organisms to move through the aquatic
ecosystem. This NWP also authorizes regulated activities associated
with the removal or replacement of existing culverts along with other
structures, including but not limited to culverted fishways, low-water
crossings, or bridges. Unless otherwise exempt, discharges of dredged
or fill material associated with the construction of bridges in waters
of the United States, including navigable waters of the United States,
require authorization under Section 404 of the CWA. Bridges that cross
navigable waters of the United States require a separate authorization
from the U.S. Coast Guard under Section 9 of the RHA.
We have modified the text of the NWP to change the examples of
activities that may be authorized by this NWP to replace ``culverts''
with ``structures.'' This modification clarifies there is flexibility
in the types of structures that may be replaced, or which may replace
existing culverts in order to enhance the movement of fish or aquatic
organisms.
This new NWP authorizes the construction, maintenance,
modification, or expansion of culverts and other structures if they are
associated with the improvement of passage of fish and other aquatic
organisms. Such activities include, but are not limited to, replacement
of culverts that are perched or undersized or the construction or
installation of additional culverts near existing culverts (e.g.
installing an additional culvert next to an existing single culvert in
a stream channel to reduce water velocities through the existing
culvert sufficient to allow fish to swim
[[Page 821]]
upstream). We have added language to clarify that this NWP does not
authorize the construction or installation of new culverts where there
are not existing culverts. In other words, the construction or
installation of new culverts where no culvert is present at the
waterbody crossing or no culvert is in, or adjacent to, the waterbody
crossing is not authorized by this NWP. In situations where there is no
existing culverted crossing or if there is an existing in-stream grade
control structure which lacks a culvert, this NWP does not authorize
the discharge of dredged or fill material or construction or
installation of a new culvert. Installation of new culverts where a
culvert does not exist may be authorized by other NWPs, such as NWP 14
if the activity is associated with a linear transportation project, and
such culverts may include measures to improve passage of fish and other
organisms.
One commenter requested additional clarification on types of fish
passages that may qualify for authorization under this NWP. Many
commenters recommended additional examples of activities that could be
authorized by this NWP, including the removal of culverts for the
purpose of daylighting streams, the addition of behavioral guidance and
deterrence features that leverage attraction or avoidance behavioral
responses of fish; the creation of seasonal floodways; the installation
of fish lifts, fish by-pass pipes, and/or fish screens on water supply
intakes; and/or or the addition of gravel to spawning habitat. Several
commenters requested that examples of activities authorized by this NWP
that fall under the category of ``other ecological process'' be added.
We have modified the text of the proposed NWP to expand the list of
examples of activities and types of structures or devices that may be
authorized by this NWP. We have added text to clarify that fishways may
be conventional/technical, to make clear that either term is
appropriate for use to describe fishways that may be authorized by this
NWP. We have modified the text to clarify that this NWP may be used to
authorize modification of existing structures or fills, in addition to
the construction, maintenance, expansion or removal of existing
structures or fills to enhance passage of fish and other aquatic
organisms. We have added some additional examples to the list in the
NWP, namely devices to minimize entrainment and entrapment of fish and
other aquatic organisms, such as fish screens; and fish lifts and fish
by-pass pipes. We have also added devices to guide fish and other
aquatic organisms through passage features as an example of a structure
that could be authorized by this NWP.
The list of examples in the NWP is not exhaustive. We agree that
removing culverts, daylighting culverts, or creating seasonal floodways
are activities that may be authorized by this NWP if they restore or
enhance the passage of fish and other aquatic organisms and comply with
the other terms of this NWP and the NWP general conditions. The
enhancement of spawning habitat would not be authorized by this new NWP
unless such activity restores or enhances the ability of fish and other
aquatic organisms to move through the aquatic ecosystem. The placement
of gravel for enhancing fish spawning habitat may be authorized by NWP
18 (Minor Discharges) or NWP 27 (Aquatic Ecosystem Restoration,
Enhancement, and Establishment).
Many commenters expressed support of the one-acre impact limit in
this NWP. Many commenters opposed the one-acre impact limit. One
commenter suggested changing the impact limit of this NWP from one-acre
of loss of waters to 1/5-acre of conversion of waters of the United
States to uplands. One commenter recommended that all activities
authorized by this NWP be considered temporary impacts.
The Corps is retaining the one acre loss of waters of the United
States limit in this NWP. The ``loss of waters of the United States''
refers to permanent adverse effects to waters of the United States as a
result of filling, flooding, excavation, or drainage because of the
activities subject to Corps' authority, and does not include temporary
impacts. For activities that are intended to improve the passage of
fish and other aquatic organisms through river or stream networks or
other components of the aquatic environment, permanent fills in rivers
and streams or other aquatic habitats may occur through the placement
of boulders, cobbles, large wood and other materials to construct a
nature-like fishway or the construction of a conventional fishway, or
the replacement of a culvert. The construction of bypass channels
around dams or weirs could involve filling or excavating wetlands or
river or stream channels. Activities that are planned, designed, and
constructed to improve the ability of fish and other aquatic organisms
to pass through or around barriers are unlikely to result in the
conversion of aquatic habitats to dry land. However, the placement of
rocks, wood, or other fill material into a stream segment would result
in a permanent discharge of fill material into to waters of the United
States and would be considered a ``loss of waters of the United
States.''
One commenter requested clarification if this NWP authorizes
activities in wetlands adjacent to waters of the United States. One
commenter requested that language be added to the new NWP to inform the
prospective permittee that some activities may be exempt from requiring
DA authorization under Section 404(f) of the CWA.
Activities in jurisdictional wetlands adjacent to other waters of
the United States may be authorized by this NWP provided the regulated
activity increases or enhances the passage of fish and other aquatic
organisms. Discharges of dredged or fill material associated with
maintenance activities are exempted from regulation under Section
404(f) of the CWA, unless they modify the character, scope, or size of
the original fill design. The RHA contains no language which exempts
work or structures in navigable waters of the United States from
regulation. The Corps declines to add text to this NWP to inform the
prospective permittee that some activities may be exempt from
regulation under Section 404 of the CWA because the activities
authorized by this NWP are likely to modify the character of the
original structure or fill.
Many commenters expressed support for the \1/10\th acre threshold
limit for submittal of a PCN. Many commenters stated that a PCN should
be required for all activities. One commenter recommended raising the
PCN threshold to one-acre. One commenter expressed concern that certain
activities, such as culvert replacement, modification of in-stream
structures, and construction or expansion of fish bypass channels,
could result in more than minimal damage to the aquatic ecosystem. Many
commenters expressed concern that cumulative impacts would not be
adequately evaluated under this NWP.
This new NWP requires a PCN for activities resulting in the loss of
greater than \1/10\-acre of waters of the United States. This PCN
threshold is implemented so that, in combination with the other terms
and NWP general conditions, this NWP will result in no more than
minimal adverse environmental impact, both individually and
cumulatively. Through the national decision document, the Corps has
determined that this NWP will cause no more than minimal adverse
environmental effects. The division engineer can exercise discretionary
authority and modify the NWP by imposing regional conditions to
[[Page 822]]
help ensure that the NWP authorizes only those activities with minimal
individual and cumulative adverse effects on the aquatic environment.
The district engineer will review the PCN and determine if compensatory
mitigation or other special conditions are necessary to ensure that the
NWP-specific activity will result in no more than minimal adverse
environmental impact.
Several commenters recommended requiring activities to meet
specified design criteria. Several commenters recommended that this NWP
should require that any authorized activity will improve the movement
of wood, water, and sediment, in addition to fish.
There are numerous techniques to design features that improve
passage of fish and aquatic organisms. Some of those techniques were
discussed in the resources that were referenced in the 2025 Proposal.
Activities which enhance the passage of fish and other aquatic
organisms will vary by site, by species, and by waterbody. The Corps
declines to set specific design criteria to allow for flexibility in
the type of activity that is selected by the project proponent and to
avoid prohibiting the application of new and emerging technologies.
District engineers can generally discuss potential options to improve
passage of fish and aquatic resources with project proponents. District
engineers do not design or approve the design used to improve passage
of fish and aquatic resources for activities which require NWP
authorization. It is the prospective applicant's responsibility to
ensure that the project is designed by someone with appropriate
expertise in the design of such features. The district engineer's
review will be limited to whether the proposed project meets the terms
and conditions of the NWP and the criteria in Section D. (District
Engineer's Decision). This NWP authorizes regulated activities
associated with activities that restore or enhance the ability of fish
and other aquatic organisms to move through aquatic ecosystems. There
may be other benefits to such actions, such as the movement of wood,
water, and sediment, that also benefit the aquatic ecosystem although
they are not the focus of the activities authorized by this NWP.
Several commenters stated that the terms of this NWP do not ensure
that a proposed activity will improve fish passage. Several commenters
stated that this NWP should require monitoring and an adaptive
management framework to ensure the projects are meeting ecological
goals. One commenter stated that the NWP should require monitoring to
demonstrate net ecosystem benefits.
This NWP only authorizes activities that improve or enhance the
passage of fish and other organisms. Permittees must submit a PCN for
activities that would cause greater than 1/10-acre of loss of waters of
the United States. Permittees who receive a verification letter from
the Corps are required to certify their compliance with the NWP in
accordance with general condition 30 (Compliance Certification). If a
permittee fails to comply with the terms and conditions of this NWP,
the district engineer will address the potential unauthorized activity
in accordance with 33 CFR 326. This new NWP does not require that the
regulated activities result in net ecosystem benefits. Losses of waters
may occur as a result of activities to improve the passage of fish and
other organisms.
Several commenters expressed concern that the NWP would allow the
movement of invasive or non-native species. One commenter suggested a
regional or activity specific permit condition to prevent the spread of
invasive species.
Enhancing the passage of native fish and aquatic organisms may also
allow the movement of invasive species or non-native species. Project
proponents should consider the benefits and detriments of enabling
invasive species to access waterways where they do not currently exist.
Fishways can be designed to reduce the ability of large-bodied
predatory fish or non-native species to move through the fishway, such
as designing the fishway to have shallow water depths that larger
individuals cannot pass through (Tamario et al. 2018). Under the
discretionary authority provision at 33 CFR 330.1(d) and other
provisions of the NWP regulations at 33 CFR part 330, division and
district engineers can further condition or restrict the applicability
of an NWP for cases where they have concerns for the aquatic
environment.
Many commenters stated that this NWP does not comply with the ESA,
stating that consultation is required for beneficial effects to listed
species. One commenter recommended that the Corps identify activities
authorized by this NWP that may require consultation under Section 7 of
ESA. One commenter stated that authorizing improvements to fish passage
could impact salmonids.
All permittees must comply with general condition 18 (Endangered
Species). If the regulated activity might affect, or is in the vicinity
of a species listed (or proposed for listing) or designated critical
habitat (or habitat proposed for such designation) under the ESA,
general condition 18 (Endangered Species) requires non-federal
permittees to submit a PCN and states the permittee cannot begin work
until the district engineer has provided notification that the proposed
activity will have ``no effect'' on listed species (or species proposed
for listing) or designated critical habitat (or critical habitat
proposed for such designation), or until ESA Section 7 consultation or
conference has been completed. If a PCN is required for the proposed
NWP activity, the Federal permittee must provide the district engineer
with the appropriate documentation to demonstrate compliance with the
ESA. The Corps acknowledges that consultation is required by Section 7
regardless of whether the effect is beneficial or detrimental (see
paragraph (c) of general condition 18). Federal permittees must comply
with their own implementing regulations for ESA.
If salmonids are listed under the ESA, the district engineer will
review the PCN and determine if the NWP-specific activity will have
``no effect'' on the listed species or critical habitat or complete any
appropriate consultation under Section 7 of the ESA. If essential fish
habitat has been designated for the salmonid species, district
engineers will complete consultation in accordance with the Magnuson-
Stevens Fishery Conservation and Management Act at 50 CFR 600.920.
Corps districts will conduct consultations in accordance with the EFH
consultation regulations. District engineers may add conditions to NWP
authorizations in order to ensure the effects of the activity on listed
species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed such designation) are no more
than minimal. Conditions may also be added to address EFH Conservation
Recommendations made by NMFS during activity-specific EFH
consultations.
Several commenters stated that the Corps should issue a public
notice for each NWP-specific activity. One commenter stated that
regional conditions should be added to the permit to address water
quality concerns.
The public was provided an opportunity to comment on the Corps'
proposal to issue, reissue, or modify an NWP when Corps Headquarters
published its proposed rule in the Federal Register (90 FR 26100) to
start the public comment period. However, after an NWP is issued, there
is no public comment process for specific NWP activities. Consistent
with general condition 25 (water quality) the
[[Page 823]]
permittee must comply with any conditions of a granted water quality
certification for any activity that may result in a discharge from a
point source into waters of the United States. Division engineers may
develop regional conditions for an NWP if he or she determines it
necessary to ensure that activities in a region will cause no more than
minimal adverse environmental effects to sensitive areas, which may
include areas with water quality concerns.
One commenter stated that NWP should be modified to clarify that
compensatory mitigation is not required for activities authorized by
this NWP. One commenter stated that compensatory mitigation may be
required for this NWP.
Compensatory mitigation may be required for losses of waters
authorized by this NWP. General condition 23 (Mitigation) requires
compensatory mitigation for all wetland losses greater than 1/10-acre
and for all stream losses greater than 3/100-acre for all activities
authorized under this NWP, unless the district engineer determines that
some other form of mitigation would be more environmentally
appropriate. The district engineer will consider the benefits of the
NWP-specific activity in determining the need for compensatory
mitigation to offset the impacts to waters which would result from the
regulated activities authorized by this NWP. The district engineer will
review the PCN and determine if the NWP-specific activity will, after
considering permit conditions such as mitigation requirements, result
in no more than minimal individual and cumulative adverse environmental
effects.
The Corps is issuing this NWP with the modifications discussed
above. Proposed new NWP A is issued as NWP 60.
G. Responses to Comments on the Nationwide Permits General Conditions
Many commenters supported the reissuance of the general conditions
from the 2021 NWPs. Several commenters supported the reissuance of all
general conditions without additional unnecessary and burdensome
requirements. One commenter stated that there are too many general
conditions and requested that the overall number of general conditions
be reduced to streamline the NWPs. One commenter stated that additional
best management practices or industry standards should be added to
regional conditions instead of general conditions. One commenter
requested that the general conditions be amended to recognize Tribal
designations that correspond to any referenced state or federal
designations.
Many commenters stated that the Corps violated the Administrative
Procedure Act and CWA by relying on the general conditions to make a
determination that the NWPs would have no more than minimal adverse
environmental effects. Many commenters stated that the general
conditions are insufficient to ensure that adverse impacts to waters of
the United States have been minimized and avoided.
The NWP program is an administrative mechanism that allows the
Corps to authorize activities with only minimal adverse environmental
impacts in a timely manner. The NWP program incentivizes project
proponents to design their activities to avoid and minimize adverse
impacts to jurisdictional waters and wetlands to qualify for the
streamlined NWP authorization. The final permits issued today,
including the general conditions, maintain a proper balance between
efficiently authorizing activities with minimal individual and
cumulative adverse environmental effects and protecting the aquatic
environment. If a project proponent does not comply with the general
conditions, then the activity is not authorized by an NWP. In such
situations, it is an unauthorized activity, and the district engineer
will determine the appropriate course of action. District engineers
will use available tools and information, such as databases and
websites managed by state and local governments and non-governmental
organizations, and information made available by tribal governments
that may be helpful in determining whether an activity complies with
the general conditions to the NWPs and applicable environmental laws.
Discussion of Proposed Modifications to Nationwide Permit General
Conditions
GC 1. Navigation. The Corps did not propose any changes to this
general condition. One commenter recommended that lighted buoys be
avoided and stated that smaller markings would be acceptable. One
commenter stated that GC 1 should be modified to state that permittees
must agree that they will be required to remove structures or work that
impairs reserved treaty rights.
The requirements for safety lights and signals are prescribed by
the U.S. Coast Guard through their regulations at 33 CFR part 67 and
are not under the authority of the Corps. Consistent with GC 17 (Treaty
Rights) no activity or its operation may impair reserved tribal rights,
including, but not limited to, reserved water rights and treaty fishing
and hunting rights. If the district engineer determines that work or
structure authorized by an NWP impairs reserved treaty rights, the
district engineer will determine whether to modify, suspend, or revoke
the NWP verification in accordance with 33 CFR 330.5(d).
The general condition is adopted as proposed.
GC 2. Aquatic Life Movements. The Corps did not propose any changes
to this general condition. Many commenters stated that the wording of
the general condition lacks enforceable or explanatory language. One
commenter stated that applicants should be required to submit an
engineered design where endangered species are likely to be found.
It is not practicable to avoid all impacts to indigenous aquatic
species. Regulated activities are likely to cause some interference to
life cycle movements during construction. The intent of this general
condition is to ensure that the impacts are no more than minimal,
unless the purpose is to impound water. The characteristics of aquatic
habitat types and the life cycle movements of indigenous aquatic
species vary across the nation therefore, it is not possible to add
more specific requirements to this general condition. District
engineers will determine compliance with this general condition, on a
case-by-case basis, considering any regional conditions, specific
characteristics of the indigenous aquatic species, and aquatic habitats
in the project area. The district engineer will determine if a proposed
activity would cause more than minimal adverse impacts to the
environment considering all the general conditions and the criteria in
Section D. District Engineer's Decision. Permittees must also comply
with general condition 18 (Endangered Species). The district engineer
may add conditions to an NWP verification to avoid and minimize impacts
to listed species (species proposed for listing) or critical habitat
(or habitat proposed for such designation). The Corps declines to
require engineered designs for activities authorized by an NWP.
The general condition is adopted as proposed.
GC 3. Spawning Areas. The Corps did not propose any changes to this
general condition. Many commenters recommended strengthening and
clarifying the language in the general condition. Many commenters
assert that the general condition is not adequate to protect spawning
areas. One commenter stated that the general condition should be
modified to prohibit activities in
[[Page 824]]
spawning areas used for spawning by endangered species.
The district engineer will determine compliance with this general
condition on a case-by-case basis, in light of the timing of the
activity relative to the spawning season and the characteristics of the
spawning areas. It is not practicable or feasible to avoid all impacts
to spawning areas. The use of the terms such as ``to the maximum extent
practicable'' affords the district engineer the discretion to consider
the benefits and detriments of activities that may require DA
authorization, such as restoration activities authorized by NWP 27
(Aquatic Ecosystem Restoration, Enhancement, and Establishment
Activities) or emergency actions authorized by NWP 37 (Emergency
Watershed Protection and Rehabilitation), while ensuring that the
activity will have no more than minimal adverse environmental impacts.
In accordance with the general conditions, including general conditions
17 (treaty rights) and 18 (endangered species) and any regional
conditions, the district engineer will determine if a proposed activity
would cause more than minimal adverse impacts to the environment in
light of all general conditions and the criteria in Section D. District
Engineer's Decision.
The general condition is adopted as proposed.
GC 4. Migratory Bird Breeding Areas. The Corps did not propose any
changes to this general condition. Many commenters recommend
strengthening and clarifying the language in this general condition.
Many commenters assert that this general condition is not adequate to
protect breeding areas for migratory birds. One commenter stated that
the general condition should be modified to prohibit activities in
breeding areas during breeding season.
This general condition establishes a national requirement to avoid
impacts to migratory bird breeding areas to the maximum extent
practicable. It is not feasible or practicable to completely avoid
impacts to migratory bird breeding areas. The use of the terms such as
``to the maximum extent practicable'' afford the district engineer the
discretion to consider the benefits and detriments of activities that
may require DA authorization, such as restoration activities authorized
by NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and
Establishment Activities) or emergency actions authorized by NWP 37
(Emergency Watershed Protection and Rehabilitation), while ensuring
that the activity will have no more than minimal adverse environmental
impacts.
The general condition is adopted as proposed.
GC 5. Shellfish Beds. The Corps did not propose any changes to this
general condition. One commenter stated that the general condition
should be modified to clarify that habitat restoration in shellfish
beds as allowed by the general condition is ``oyster'' habitat
restoration and not general habitat restoration. One commenter
recommended that language be added to the general condition to prohibit
any activity in areas harvested by tribes with reserved treaty rights.
This general condition applies to oysters, clams, or other native
shellfish in any waterbody that contains concentrated shellfish
populations. Habitat restoration authorized by NWP 27 (Aquatic
Ecosystem Restoration, Enhancement, and Establishment Activities) may
result in improved habitat quality and increases in shellfish
populations. Activities that do not comply with all general conditions,
including regional conditions are not authorized by an NWP. In
accordance with general condition 17 (treaty rights) no activity is
authorized by an NWP if it impairs a reserved treaty right.
The general condition is adopted as proposed.
GC 6. Suitable Material. The Corps did not propose any changes to
this general condition. Many commenters stated that the general
condition has no ability to regulate chemicals released during spills,
leaks, or frac-outs. One commenter stated that suitable material should
be defined as construction materials free of all pollutants that could
leach or be discharged into waters of the United States.
The Corps agrees that general condition 6 does not convey authority
over spills or leaks of chemicals, or releases of drilling muds used in
directional drilling activities because these activities do not
constitute a discharge of dredged or fill material that require DA
authorization. Leaks or spills of chemicals, or releases of drilling
mud, are not authorized by any DA permit. Leaks or spills of chemicals,
or releases of drilling muds used in directional drilling activities
which occur during an activity that requires DA authorization may be
subject to Section 401 of the CWA or Section 402 of the CWA which are
administered by state agencies, tribes, or EPA. Consistent with general
condition 25 (water quality) the permittee must comply with any
conditions of a granted water quality certification for any activity
that may result in a discharge from a point source into waters of the
United States. The Corps also does not have authority over leaks or
spills of chemicals occurring during the operation of facilities
constructed on fills or structures that required DA authorization. Such
spills or leaks are more appropriately addressed through federal,
state, or local laws that are administered by other federal agencies,
or state or local government agencies.
No commenter provided specific standards or criteria to define
environmentally suitable construction materials. In the absence of a
specific standard or criteria to develop a definition, the general
condition prohibits the use of materials that contain toxic pollutants
in toxic amounts, such as heavy metals, pesticides, and polycyclic
aromatic hydrocarbons, in accordance with Section 307 of the CWA.
Pollutants that could affect water quality of waters of the United
States are regulated by states, tribes, or EPA through Section 401 of
the CWA, whereby certifying authorities determine if the proposed
discharge complies with applicable water quality standards.
The general condition is adopted as proposed.
GC 7. Water Supply Intakes. The Corps did not propose any changes
to this general condition. Many commenters questioned the effectiveness
of this general condition, citing the lack of a definition of
``proximity'', the perceived difficulty in accessing information on the
location of water supply intakes, and the lack of a PCN requirement for
some NWPs. These commenters requested that the general condition be
modified to prohibit the use of NWPs in source waters protection areas
or waters designated for use as drinking water supplies.
The term ``proximity'' should be applied using the commonly
understood definition of the term (``very near, close'' according to
Merriam-Webster's Collegiate Dictionary, 10th edition). Therefore, the
proposed NWP activity would have to be very near, or close to, the
public water supply intake for general condition 7 to apply. We do not
agree that all NWP activities should be prohibited in source water
protection areas for public water systems. NWP activities can be
conducted in those areas with little or no more than minimal adverse
effects to water quality. In addition, all NWPs that authorize
discharges into waters of the United States require Section 401 water
quality certification. States can deny water quality certification for
any NWP activity that might result in a discharge that is not in
compliance with applicable water quality requirements.
[[Page 825]]
For those NWP activities that require PCNs or when PCNs are
voluntarily reported to Corps districts, district engineers will review
the PCNs to determine if general condition 7 applies. For those NWP
activities that do not require PCNs and are not voluntarily reported to
Corps districts, the permittee is responsible for complying with all
applicable terms and conditions of the NWP, including general condition
7. District engineers have the authority to determine whether those
unreported NWP activities comply with all applicable general and
regional conditions. If an activity does not comply with one or more
applicable conditions, the district engineer will take appropriate
action under 33 CFR part 326. Under the discretionary authority
provision at 33 CFR 330.1(d) and other provisions of the NWP
regulations at 33 CFR part 330, division and district engineers can
further condition or restrict the applicability of an NWP for cases
where they have concerns regarding impacts to water supply intakes.
The general condition is adopted as proposed.
GC 8. Adverse Effects From Impoundments. The Corps did not propose
any changes to this general condition. Many commenters stated that this
condition does not limit adverse impacts to a minimal level because of
the inclusion of the phrase ``to the maximum extent practicable.''
District engineers will use their discretion in determining whether
specific impoundments authorized by NWP have minimized, to the maximum
extent practicable, adverse effects to the aquatic system as a result
of accelerated water flows or restricted water flows. The application
of the term ``maximum extent practicable'' is dependent on case-
specific circumstances and site conditions.
The general condition is adopted as proposed.
GC 9. Management of Water Flows. The Corps proposed to add ``tidal
flows'' to the text of this general condition to clarify that expected
high flows, and normal or high flows, include the flow of water caused
by tides. One commenter stated that the general condition should be
issued as proposed with no additional changes. Many commenters stated
that the general condition does not limit adverse impacts to a minimal
level because of the inclusion of the term ``to the maximum extent
practicable.'' One commenter stated that no alteration of the course,
current, or cross section of a waterbody should be allowed without
engineered drawings, that have been approved by the district engineer
or other another qualified engineer. One commenter stated that normal
and high flows must be quantified.
District engineers will use their discretion in determining whether
a case-specific-activity authorized by NWP meets the requirements of
this general condition. The application of the term ``maximum extent
practicable'' is dependent on case-specific circumstances and site
conditions. General condition 32 requires that a complete PCN include
sketches that are sufficiently detailed to help the district engineer
understand the proposed activity. The district engineer reviews the PCN
based on the criteria in Section F. District Engineer's Decision to
determine whether a case-specific activity would have no more than
minimal adverse effects on the environment. The district engineer's
review makes no determination whether the case-specific activity meets
current engineering standards and assumes that the permittee will
comply with other relevant laws, authorizations and requirements. The
Corps does not agree that engineered drawings should be required to
show compliance with this general condition. It would be impracticable
to define normal and high flows since it would depend on the
environmental setting of the NWP activity.
The general condition is adopted as proposed.
GC 10. Fills Within 100-Year Floodplains. The Corps did not propose
any changes to this general condition. Many commenters stated that
floodplains provide important functions and services. Many commenters
stated that compliance with FEMA-approved floodplain management
requirements is insufficient to ensure no more than minimal adverse
environmental effects. Many commenters stated that the Corps cannot
rely on compliance with the general condition to ensure that authorized
activities will not cause more than minimal effects on flood storage
and conveyance. Many commenters stated that the general condition
should prohibit the use of NWPs in floodplains. One commenter stated
that the general condition should restrict the use of NWPs to authorize
above-grade construction in the 100-year floodplain.
The Corps agrees that floodplains provide important ecological
functions and services. The NWP program supports the objectives of E.O.
11988 (Floodplain Management) by encouraging minimization of losses of
waters of the United States to qualify for NWP authorization, including
losses of waters of the United States in 100-year floodplains. The
Corps does not have the authority to regulate activities in the 100-
year floodplain except for discharges of dredged or fill material into
waters of the United States that may be located in those floodplains.
Many areas within 100-year floodplains are not subject to CWA
jurisdiction, because a large proportion of the area within 100-year
floodplains consists of uplands.
The primary responsibility for land use matters, including
development in 100-year floodplains, lies with state, local, and tribal
governments (see 33 CFR 320.4(j)(2)). For those NWP activities that do
not require PCNs and are not voluntarily reported to Corps districts,
the permittee is responsible for complying with all applicable terms
and conditions of the NWP, including general condition 10. District
engineers have the authority to determine whether those unreported NWP
activities comply with all applicable general and regional conditions.
If an activity does not comply with one or more applicable conditions,
the district engineer will take appropriate action under 33 CFR part
326. Under the discretionary authority provision at 33 CFR 330.1(d) and
other provisions of the NWP regulations at 33 CFR part 330, division
and district engineers can further condition or restrict the
applicability of an NWP for cases where they have concerns for the
aquatic environment.
One commenter stated that the general condition should require
engineered drawings approved by the district engineer or other
qualified engineer to prove that the activity would have no adverse
impacts to 100-year floodplains. One commenter stated that the Corps
may not be able to rely on floodplain management requirements to ensure
public safety.
General condition 32 requires that a complete PCN include sketches
that are sufficiently detailed to help the district engineer understand
the proposed activity. The district engineer reviews the PCN based on
the criteria in Section D (District Engineer's Decision) to determine
whether a case-specific activity would have no more than minimal
adverse effects on the environment. The district engineer's review
makes no determination whether the case-specific activity meets current
engineering standards and presumes that the permittee will comply with
other relevant laws, authorizations and requirements. The Corps does
not agree that engineered drawings should be required to show
compliance with this general condition. The district engineer reviews a
PCN based on the criteria in
[[Page 826]]
Section D (District Engineer's Decision) to determine whether a case-
specific activity would have no more than minimal adverse effects on
the environment. The district engineer's review makes no determination
whether the case-specific activity meets current engineering standards
and assumes that the permittee will comply with other relevant laws,
authorizations and requirements. General condition 10 requires the
permittee comply with applicable FEMA-approved state or local
floodplain management requirements. This general condition is
consistent with item 2 of Section E, Further Information, which states
that the NWPs do not obviate the need to obtain other federal, state,
or local permits, approvals, or authorizations required by law.
State and local governments are the entities that have primary
responsibility for regulating land uses within floodplains and other
areas. Concerns about adverse effects to public safety with respect to
floodplains and floodways are more appropriately addressed by the state
and local agencies that have the primary responsibility for floodplain
management.
The general condition is adopted as proposed.
GC 11. Equipment. The Corps proposed to modify this general
condition by adding two new sentences to specify that areas affected by
the use of mats must be restored. Several commenters support the
proposed changes. A few commenters oppose the proposed changes to the
general condition. A few commenters stated that the language
``significant soil compaction'' is ambiguous. One commenter stated that
the language should only require restorative measures to prevent
substantial impairment of hydrologic and soil functions. One commenter
recommended that the text of the general condition allow the
restoration requirements to be waived if the district engineer
determines that the area would recover naturally. One commenter stated
that this issue would be better addressed through regional conditions.
The purpose of the modification to the general condition is to
require that the permittee restore any areas affected by mats to pre-
construction elevations and, if appropriate, to revegetate the affected
area. The modified condition also encourages the permittee to implement
techniques to reverse the adverse effects of soil compaction that may
occur as a result of the use of mats. Compacted soils may result in
depressional areas that hold surface water and inhibit the recovery of
hydrologic and soil functions, as well as the reestablishment of the
plant community.
The general condition is adopted as proposed.
GC 12. Soil Erosion and Sediment Controls. The Corps did not
propose any changes to this general condition. Many commenters stated
that the general condition allows permittees to determine how to apply
the general condition. One commenter recommends clarifying that work
should not occur during low tides when and where migratory waterbirds
are utilizing tidal flats. One commenter recommended requiring that
erosion and sediment controls be designed to federal or state design
criteria and approved by state or federal personnel. One commenter
recommended that the general condition require a time limit for
permanent and temporary stabilization activities. Many commenters
assert that the phase ``at the earliest practicable date'' allows
exposed soils to erode until it is practicable to stabilize them. One
commenter recommended defining low flow conditions.
In order for an activity to be authorized by an NWP, permittees are
required to comply with all general conditions to the NWPs. General
condition 4 requires that NWP activities avoid breeding areas for
migratory birds to the maximum extent practicable. General condition 19
also addresses the applicability of the Migratory Bird Treaty Act to
the NWP program, and states that the permittee is responsible for
contacting the local office of the U.S. Fish and Wildlife Service to
determine if an ``incidental take'' permit is necessary and available
under the Migratory Bird Treaty Act. The appropriate stabilization
measures may be dictated by state or local sediment and erosion control
regulations. Specific soil erosion and sediment control requirements
vary among state and local governments and other entities. Appropriate
stabilization measures will vary by site location and activity type.
The Corps agrees that exposed soils are likely to erode until they
are permanently stabilized. The purpose of soil erosion and sediment
controls that are required to be used and maintained during
construction is to limit and contain sediment in the construction area
until the area can be permanently stabilized. It would not be
practicable to require a time limit for permanent and temporary
stabilization activities because many of these requirements may be
included in state and local sediment and erosion requirements. In
addition, the timeframe for installing temporary and permanent
stabilization measures will vary on a case-by-case basis and may depend
on weather conditions. The last sentence of this general condition
states that permittees are encouraged to conduct NWP activities in
waters of the United States during periods of no-flow or low-flow or
during low tides. We decline to define what constitutes a low-flow
condition at a national level. District engineers will use their
discretion to determine what constitutes a low-flow condition depending
on the site-specific conditions.
The general condition is adopted as proposed.
GC 13. Removal of Temporary Structures and Fills. The Corps did not
propose any changes to this general condition. One commenter
recommended modifying the general condition to require the removal of
all temporary structures in their entirety rather than ``to the maximum
extent practicable.'' There are circumstances when it might not be
feasible to completely remove the structure after its use has been
discontinued or circumstances where attempting to remove a temporary
structure in its entirety has the potential to cause more substantial
adverse environmental effects than leaving a portion of the structure
in place. For example, it might not be feasible to remove an entire
piling from navigable waters after it is no longer needed, but the
project proponent could remove that portion of the piling that extends
above the bottom of the waterbody so that it no longer is an
obstruction to navigation.
The general condition is adopted as proposed.
GC 14. Proper Maintenance. The Corps did not propose any changes to
this general condition. One commenter recommended revising the language
of the general condition to prohibit the use of an NWP for emergency
purposes when a structure or fill has not been maintained or inspected.
Maintenance of structures or fills is a requirement of this general
condition. If a project proponent does not comply with the terms and
conditions of an NWP, then the case-specific activity is not authorized
by the NWP. This general condition establishes no requirement for
monitoring or inspection of an authorized structure or fill. If a
project proponent conducts activities in waters of the United States
without DA authorization, the district engineer will address the
potential unauthorized activity in accordance with 33 CFR 326.
Emergency projects that are not covered by NWPs or regional general
permits may be addressed under the Corps'
[[Page 827]]
emergency permitting procedures at 33 CFR 325.2(e)(4).
The general condition is adopted as proposed.
GC 15. Single and Complete Project. The Corps did not propose any
changes to this general condition. The Corps did not receive any
comments on this general condition. The general condition is adopted as
proposed.
GC 16. Wild and Scenic Rivers. The Corps did not propose any
changes to this general condition. One commenter recommended revising
this general condition to allow federal permittees to satisfy the
requirements of the general condition and provide documentation of such
compliance, if a PCN is required by the NWP or another general
condition. One commenter recommended that the general condition clarify
how a non-federal permittee can comply with this general condition when
a federal agency other than the Corps is leading the environmental
review.
The language in this general condition is based on federal agency
regulations and guidance for implementing the Wild and Scenic Rivers
Act, and the text of Section 7(a) of the Wild and Scenic Rivers Act.
Section 7(a) of the Wild and Scenic Rivers Act requires the federal
agency authorizing the water resources project to do the coordination
with the federal agency with direct management responsibility for that
river. Until the federal agency with direct management responsibility
for that river issues its written determination to the district
engineer, the project proponent cannot proceed under the NWP
authorization.
The general condition is adopted as proposed.
GC 17. Tribal Rights. The Corps did not propose any changes to this
general condition. Many commenters recommended that this general
condition require PCNs for all NWPs within areas of concern to tribes.
Many commenters stated that tribes should be notified and provided
opportunities to comment on activities which would impact tribal trust
lands or natural and cultural resources important to tribes. One
commenter stated that the Corps should require concurrence from
potentially affected Tribes. One commenter stated that tribes should
determine if general condition 17 is applicable to an activity, instead
of the Corps. Once commenter recommended revising the general condition
to clarify that it applies to both on- and off-reservation reserved
rights. One commenter stated that the text of the general condition
diminishes the protections of tribal rights.
The text of this general condition serves as a guide to users when
undertaking tribal consultations regarding the application of an NWP to
a particular activity, and when developing protocols regarding tribal
notification that build upon the existing Department of Defense, Army,
and Corps' tribal consultation policies. The CWA Section 404(e)
requirement that no activity authorized by an NWP may cause more than
minimal adverse effects remains applicable in the context of potential
effects to tribal rights, resources, or lands. Division engineers may
modify, suspend, or revoke this NWP on a regional basis in accordance
with the procedures at 33 CFR 330.5(c). Division engineers may impose
regional conditions to require PCNs for proposed activities that might
affect treaty rights. The Corps follows Executive Order 13175 and
existing Department of Defense, Army, and Corps' tribal consultation
policies to meaningfully consult with tribes and consider the concerns
of tribes, but not necessarily receive the agreement of tribes, before
making permit decisions. District engineers can coordinate with tribes
to help make these decisions, including whether a proposed NWP activity
complies with general condition 17. District engineers have the final
decision-making authority as to whether a proposed NWP activity that
requires DA authorization qualifies for NWP authorization. This general
condition applies to activities authorized by NWPs both on- and off-
reservation reserved tribal rights.
The general condition is adopted as proposed.
GC 18. Endangered Species. The Corps proposed to modify the last
sentence of the first paragraph of this general condition by removing
language referring to 50 CFR 402.17. In a final rule published in the
Federal Register on April 5, 2024 (89 FR 24268), the U.S. Fish and
Wildlife Service and National Marine Fisheries Service removed Section
402.17 from their Endangered Species Act (ESA) Section 7 interagency
consultation regulations at 50 CFR part 402.
A few commenters objected to the proposed changes. A few commenters
supported the proposed changes. A few commenters requested that the
Corps consider additional changes in future rulemakings to improve the
efficient processing of permits.
Under 33 CFR 330.5(b), anyone may, at any time, suggest that Corps
Headquarters consider new NWPs or conditions for issuance, or changes
to existing NWPs. Corps Headquarters has the authority to periodically
review the NWPs and their conditions and initiate the process for
proposing to modify, reissue, or revoke the NWPs (see 33 CFR 330.5(b)
and 330.6(b)). The Corps will continue to exercise this authority to
evaluate opportunities for more efficient processing of permits and
likewise will evaluate future suggestions as part of subsequent
rulemakings, including suggestions for timely completion of
consultation or conferences sufficient to comply with Section 7 of the
ESA.
Many commenters stated that reliance on general condition 18
unlawfully delegates the Corps' ESA responsibilities to permittees. A
few commenters stated that when project proponents who do not submit a
PCN when required to do so by general condition 18, cause harm to
listed species and violate the ESA. One commenter stated that the
general condition places the responsibility for identification of the
potential presence of listed species or critical habitat on the non-
federal permittee.
The Corps complies with Section 7 of the ESA through 33 CFR
330.4(f) and NWP general condition 18. The regulation and general
condition 18 require a non-federal permittee to submit a PCN for any
activity that might affect listed species or designated critical
habitat (or species proposed for listing or habitat proposed for
designation). The Corps established the ``might affect'' threshold in
33 CFR 330.4(f)(2) and in paragraph (c) of general condition 18 because
it is more stringent than the ``may affect'' threshold for Section 7
consultation in the Services regulations at 50 CFR part 402. The
``might'' threshold is below the threshold that triggers the
requirement for ESA Section 7 consultation for the proposed federal
action.
When a PCN is submitted, the Corps evaluates the PCN and makes an
effect determination for the proposed NWP activity for the purposes of
ESA Section 7. 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 when a 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, 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
[[Page 828]]
activity. In accordance with general condition 32, a non-federal
project proponent is responsible for providing all the information
required for a complete PCN, including the names of those endangered or
threatened species (or species proposed for listing) that might be
affected by the proposed activity or utilize the designated critical
habitat (or critical habitat proposed for such designation) that might
be affected by the proposed activity. The district engineer will verify
that the appropriate documentation has been submitted.
A few commenters stated that general condition 18 should not
include species proposed for listing or critical habitat proposed for
such designation. One commenter recommended that the general condition
be modified so that a PCN is only required when an activity may affect
and is likely to adversely affect listed species or critical habitat.
Section 7(a)(4) of the ESA requires agencies to confer with the
Services on any agency action which is likely to jeopardize the
continued existence of any species proposed to be listed under Section
4 of the ESA or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species. The NWP
regulations at 33 CFR 330.4(f)(2) impose 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. Because the Corps is
statutorily mandated to consider species and critical habitat proposed
for listing, we decline to remove the proposed species and habitat from
the PCN requirement.
Similarly, the Corps also declines to modify the general condition
to require a PCN only when an activity may affect and is likely to
adversely affect a listed species or critical habitat. This is because
the Corps must make the ``may affect'' determination and cannot
delegate that decision to a permit applicant. Similarly, a prospective
permittee cannot determine if an activity that ``may affect'' listed
species or critical habitat is ``not likely to adversely affect'' those
resources. The Corps is the decision-maker in these circumstances. The
Corps will seek any required concurrence from the FWS or NMFS.
Many commenters recommended that the general condition be modified
to state that no PCN is required when programmatic consultation has
been completed by the district engineer and regional conditions have
been developed to mitigate impacts. Several commenters stated that the
Corps should complete ESA consultation within 45-days. Many commenters
stated that project proponents should be allowed to proceed with their
activity 45-days after submitting a PCN. One commenter stated that the
Corps and FWS should publish standard avoidance and minimization
measures and that project proponents who include these measures into
their PCN should be allowed to proceed after 45-days unless the Corps
has notified them that the PCN is incomplete.
Corps districts may complete regional programmatic consultation for
specific species and develop local procedures to more efficiently
complete Section 7 consultation. Similarly, division engineers may
approve regional general conditions which incorporate measures to
ensure that impacts to listed species (or species proposed for listing)
and critical habitat (or critical habitat proposed for designation) are
no more than minimal. However, even when a regional programmatic
consultation or protective regional conditions apply, the PCN serves to
ensure that the Corps can validate that the proposed activity will
comply with ESA. This responsibility to validate compliance with ESA
cannot be waived if the Corps does not act within a specific timeframe.
However, the Corps' review should be completed expeditiously if the
Corps determines a regional programmatic consultation or protective
regional conditions apply. The outcome of regional programmatic
consultation may require that the district engineer modify the NWP for
a case-specific activity by adding special conditions to the NWP (33
CFR 330.5).
If the district engineer is required to consult with the Services,
the Services may take longer than 45 days to complete the consultation
process. The Services' regulations at 50 CFR 402.13 state that the
Services' will provide written concurrence or non-concurrence with a
federal agency's determination of ``may effect, not likely to adversely
affect'' within 60-days, and will extend the 60-day timeframe upon
mutual consent of the Service, the federal agency and the applicant. In
accordance with 50 CFR 402.14, formal consultation concludes within 90
days and the Service should provide the biological opinion within 45-
days of the conclusion of formal consultation, unless the timeframe is
extended. The biological opinion itself does not authorize the project
proponent to take species or adversely affect designated critical
habitat.
To ensure compliance with ESA, the Corps cannot finalize the agency
action to issue the NWP verification until the Section 7 consultation,
or a conference is completed for activities that ``may affect'' listed
species (or species proposed for listing) and critical habitat (or
critical habitat proposed for designation). Given compliance with the
ESA cannot be waived, the prospective permittee cannot proceed with the
regulated activity without receiving written verification. The
requirement for this written verification is described in both general
condition 18 paragraph (c) and paragraph (a)(2) of general condition
32. Proposals for programmatic consideration of common and widespread
species listed under ESA should be directed to USFWS or NMFS.
One commenter stated that the general condition should be modified
to mandate consultation under the ESA in sensitive areas. Many
commenters requested that the general condition be modified to define
``in the vicinity.'' Many commenters recommended that the phrase ``or
is in the vicinity of the activity'' be deleted from the general
condition. One commenter stated that the general condition should be
modified to state that permittees may rely on the USFWS Information
Planning and Consultation (IPaC) tool to determine if a species is ``in
the vicinity'' of a water crossing. On commenter stated that the
general condition should include the entire text of the definition of
the ``effects of the action.'' One commenter stated that consultation
should include information about the distance that a project must be
located from an endangered species in order to avoid jeopardizing that
species.
No activity is authorized by an NWP which ``may affect'' listed
species or designated critical habitat until ESA Section 7 consultation
has been completed. The ESA requires a federal agency to consult with
the Services when a regulated activity ``may affect'' a listed species
(or species proposed for listing) or critical habitat (or critical
habitat proposed for designation). This obligation to consult under
Section 7 applies regardless of the location of the NWP-specific
activity. In determining whether a case-specific activity ``may
affect'' a listed species (or species proposed for listing) or critical
habitat (or critical habitat proposed for designation), the district
engineer will consider the ``effects of the action'' (50 CFR 402.02).
The ``effects of the action'' may include consequences occurring
outside the immediate area involved in the action.
The term ``in the vicinity'' for the purposes of paragraph (c) of
this general condition cannot be defined at a national level. What
constitutes ``in the vicinity'' can vary substantially by
[[Page 829]]
species, environmental setting, the medium in which the species lives
(e.g., water, air, or in the ground), and other factors. The vicinity
is also dependent on the NWP activity and the types of effects that
might be caused by that NWP activity. The Corps also declines to remove
the term ``in the vicinity'' from the general condition. The Services'
regulations at 50 CFR 402.02 include the definition of the ``effects of
the action.'' In the interest of brevity and to limit any future need
to change the language of the general condition should the Services
decide to modify the definition, the Corps declines to include the
definition in general condition 18.
When reviewing a PCN, the district engineer makes an independent
determination of whether the proposed activity ``may affect'' listed
species or designated critical habitat and thus requires ESA Section 7
consultation. The district engineer relies in part on information in
the PCN, but he or she will also utilize other information, including
local knowledge of the area, and the species and the habitats in which
the listed species occurs. Information on listed species under the
management of FWS is available to the public through the IPaC
system,\1\ an on-line project planning tool developed and maintained by
the FWS. The FWS's IPaC tool is just one tool that might provide useful
information to prospective permittees about species that might be in
the vicinity of proposed activity. Information on species under the
management of NMFS may be found on their website.\2\ There may be other
tools, such as databases and websites managed by state and local
governments and non-governmental organizations that may be helpful in
determining whether a proposed NWP activity might affect listed species
(or species proposed for listing) or critical habitat (or critical
habitat proposed for designation), or if listed species (or species
proposed for listing) or critical habitat (or critical habitat proposed
for designation) are in the vicinity of a proposed activity.
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\1\ https://ipac.ecosphere.fws.gov/.
\2\ http://www.nmfs.noaa.gov/.
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Through ESA Section 7 consultation, with the FWS and/or the NMFS as
appropriate, the district engineers will ensure that case-specific NWP
activities will not jeopardize any threatened and endangered species or
adversely modify designated critical habitat. District engineers may
add conditions to an NWP that authorizes an activity to avoid,
minimize, or offset the effects of the action.
One commenter requested clarification if the second sentence of
paragraph (a) of general condition 18 should include the text ``or
species proposed for listing.'' A few commenters stated that the level
of information available on species proposed for listing causes
uncertainty in the analysis of impacts. A few commenters expressed
concern that projects may be delayed if a species is listed midway
through a construction activity.
The second sentence of paragraph (a) refers specifically to the
requirements to complete consultation under Section 7 of the ESA for
listed species or critical habitat which an activity ``may affect.''
Federal agencies confer with the Services to ensure an activity will
not jeopardize a species proposed for listing or adversely modify
proposed critical habitat. The Corps has retained the text of paragraph
(a) to specify that no activity is authorized by an NWP unless the
Corps has complete ESA Section 7 consultation for proposed species and
proposed critical habitat. The Corps must comply with Section 7 of the
ESA. Permittees and district engineers will use best available data and
resources to inform the determination of effects and any mitigation
measures. Information on species proposed for listing may be found on
the Services' proposed species' web pages. For species administered by
the FWS, additional information can also be found in IPaC and in the
species status reports in the FWS's Environmental Online System.
Prospective permittees are encouraged to use this publicly available
information and/or contact the Services to obtain information on listed
species (or species proposed for listing) or critical habitat (or
critical habitat proposed for designation) in the vicinity of a
proposed project.
If the Service lists a species or designates critical habitat, the
Service may adopt the conference findings of a case-specific activity
if no new significant information is developed for the species or
critical habitat and if there are no significant changes to the
activity (50 CFR 402.10). Re-initiation of consultation may be required
under Section 7 of the ESA if an activity which requires DA
authorization has not been completed. In such cases, the division
engineer and/or district engineer will consider available information
on the species and/or habit and the discretionary options described in
33 CFR 330.5.
One commenter stated that general condition 18 should only require
federal agencies to submit a PCN if they have not completed Section 7
consultation under the ESA. One commenter requested clarification if a
federal permittee or federally-funded project is required to submit a
PCN for an activity that requires consultation under Section 7 of ESA
if no PCN is required by the terms and other conditions of the NWP. One
commenter stated that the general condition should be revised to state
that proponents of a linear project can proceed at crossings and areas
outside Corps' jurisdiction where the project proponent has determined
that a PCN is not required. One commenter stated that the Corps should
designate a non-federal representative conduct Section 7 consultation.
In accordance with general condition 18, federal agencies must
follow their own procedures for complying with Section 7 of the ESA.
Paragraph (b) of general condition 18 does not contain a requirement
for federal agencies to submit a PCN. Federal agencies only need to
submit documentation of compliance with Section 7 of the Endangered
Species Act (ESA) when the terms and conditions of the NWP, or regional
conditions imposed by the division engineer, require the submission of
a PCN. If a federal agency is required to submit a PCN, consistent with
general condition 32, a complete PCN will include documentation
demonstrating the federal agency's compliance with the Endangered
Species Act. Corps districts will generally not consult under Section 7
on behalf of another federal agency unless the district engineer has
determined that the federal agency has not provided appropriate
documentation of compliance with Section 7 of the ESA or the district
engineer has agreed to be the lead federal agency for compliance with
Section 7 of the ESA (50 CFR 402.07).
The non-federal permittee is responsible for complying with
paragraph (c) of general condition 18 and submitting a PCN to the
district engineer when a proposed NWP activity triggers one of the PCN
thresholds in that paragraph. Generally speaking, a non-federal
permittee is a permittee that is not a federal agency. There may be
limited circumstances where a non-federal agency might be considered as
having ESA Section 7 obligations similar to those of a federal agency.
For example, the Federal Highway Administration may assign a state
Department of Transportation the responsibility for complying with non-
NEPA environmental statutes such as the ESA. When a non-federal
permittee is required to submit a PCN by general condition 18, the
activity that requires DA authorization is not authorized by
[[Page 830]]
an NWP until the Corps has provided notification that the proposed
activity will have ``no effect'' on listed species (or species proposed
for listing) or designated critical habitat (or critical habitat
proposed for such designation), or until ESA Section 7 consultation or
conference has been completed. Prospective permittees, including
proponents of linear projects must comply with general condition 18.
District engineers have the discretion to designate a non-federal
representative to conduct informal consultation or prepare a biological
assessment in accordance with 50 CFR 402.08.
The general condition is adopted with the modifications discussed
above.
GC 19. Migratory Birds and Bald and Golden Eagles. The Corps did
not propose any changes to this general condition. One commenter stated
that the general condition 19 should be revised to use the text from
the 2017 NWPs. One commenter stated that the prospective permittee
should be required to prove that they have contacted FWS and the
specific measures that they will implement to reduce adverse impacts so
those measures can be reviewed by the Corps.
General condition 19 was revised in the 2021 NWPs to clarify that
the permittee, with the assistance of the FWS, is the entity
responsible for determining what measures, if any, are necessary or
appropriate to reduce adverse effects to migratory birds or eagles.
This condition also clarifies that the permittee, with FWS assistance,
is also responsible for determining what ``take'' permits, if any,
might be required under the Migratory Bird Treaty Act or the Bald and
Golden Eagle Protection Act. Compliance with the Migratory Bird Treaty
Act and the Bald and Golden Eagle Protection Act is the responsibility
of the permittee.
The general condition is adopted as proposed.
GC 20. Historic Properties. The Corps did not propose any changes
to this general condition. A few commenters stated that general
condition 20 should require a PCN for most activities authorized by
NWPs. A few commenters stated that the requirements of this general
condition can result in extended review times and onerous paperwork.
Several commenters requested clarification on the terms ``might have
the potential to cause'' and ``potentially eligible'' stating that
districts apply these requirements inconsistently when determining if a
PCN is required.
The only activities that are immediately authorized by NWPs without
the requirement for a PCN under general condition 20 are activities
with ``no potential to cause effect'' to historic properties. For
compliance with Section 106 of the NHPA the Corps complies with the
implementing regulations at Appendix C to 33 CFR part 325, 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. Paragraph (b) of general condition 20 requires non-
federal permittees to submit a PCN to the district engineer if the NWP
activity might have the potential to cause effects on 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 non-federal
permittee must not begin the activity until notified by the district
engineer either that the activity has no potential to cause effects on
historic properties or that NHPA Section 106 consultation has been
completed. The terms ``might have the potential to cause effects'' and
``potentially eligible'' are thresholds that are intended to provide
the district engineer with an opportunity for further review to
determine whether a historic property is present.
One commenter stated that the general condition should be modified
to define the distance from a jurisdictional feature where a non-
federal permittee should consider whether an activity might cause
effects to a historic property, such as 300 feet. One commenter
suggested changing ``historic properties'' to ``historic resources.''
An area within which an NWP activity ``might have the potential to
cause effects'' for the purposes of paragraph (c) of this general
condition cannot be defined at a national level. What constitutes a
``potential effect'' to a historic property from an NWP activity can
vary substantially by the type of NWP activity and the type of historic
property, if a historic property is present. The distance between an
NWP activity and a historic property where the NWP activity might have
the potential to cause effects will depend on the types of effects that
might be caused by that NWP activity (e.g., physical destruction or
alteration of a historic property in the project area, or visual or
noise effects to historic properties outside of the project area),
landscape setting, and other factors. The Corps will continue to use
the term ``historic properties'' consistent with the language in
Section 106 of the NHPA and the definition in Section F. Definitions.
District engineers will review PCNs and determine whether proposed NWP
activities have the potential to affect historic properties. Section
106 consultation remains the responsibility of the Corps. The
requirements of general condition 20 ensure that Section 106
consultation occurs for NWP activities that have potential to cause
effects to historic properties.
A few commenters stated that general condition 20 relies on
applicants to make a determination if an activity has the potential to
affect historic properties, delegating the responsibility to comply
with Section 106 of NHPA on the permittee instead of the Corps. A few
commenters recommended that the general condition make clear that the
district engineer cannot request additional information about cultural
resources in the project area if permittee has determined that the
``might have the potential'' threshold has not been met. A few
commenters stated that the ``might have the potential'' threshold is
higher than the threshold set forth in the ACHP regulations.
The Corps complies with Section 106 of the NHPA through the NWP
regulations at 33 CFR 330.4(g) and NWP general condition 20. Those
regulations prohibit authorization of an activity by an NWP that may
have the potential to cause effects to historic properties unless the
requirements of Section 106 have been satisfied. General condition 20
is applicable to every activity which may be authorized by an NWP as
permittees are required to comply with all general conditions to the
NWPs. District engineers will review PCNs and may request additional
information to inform their determination if an activity may have the
potential to cause effects on properties listed, or eligible for
listing, in the National Register of Historic Places. Paragraph (c) of
general condition 20, requires a non-federal permittee to submit a PCN
for any activity that might have the potential to cause effects on 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
``might'' threshold is below the threshold that triggers the
requirement for Section 106 consultation for the proposed federal
action. The purpose of the ``might have the potential to cause
effects'' threshold is to require submittal of PCNs for proposed NWP
activities that might have a possibility of causing effects to historic
properties, so that the district engineer can determine whether Section
106 consultation is required for a proposed NWP activity.
[[Page 831]]
The district engineer is responsible for evaluating the PCN and
making an effect determination for the proposed NWP activity for the
purposes of Section 106 of the NHPA. If the district engineer
determines that the proposed NWP activity has no potential to cause
effects on historic properties, Section 106 consultation is not
required. If the district engineer determines that the proposed NWP
activity will result in either ``no historic properties affected,''
``no adverse effects,'' or ``adverse effects,'' he or she will conduct
NHPA Section 106 consultation with the appropriate consulting parties.
If the non-federal project proponent does not comply with 33 CFR
330.4(g)(2) and general condition 20, 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,
if and when the Corps learns about that unauthorized activity.
One commenter stated that tribes should determine if general
condition 20 is applicable to an activity, instead of the Corps. One
commenter requested that the general condition define the roles and
responsibilities of the permittee and the Corps in consulting with
tribes on efforts to identify of historic properties. One commenter
requested that the general condition be modified to stipulate that
tribes should be consulted before identification efforts are conducted
and to require that cultural resource surveys be completed after the
submittal of a PCN. One commenter stated that tribes are the expert on
traditional cultural properties/landscapes and requested 30 days to
review PCNs.
The division engineer has the authority to determine if an NWP-
specific activity meets the terms and conditions of an NWP. When a
district engineer reviews a PCN and determines that consultation under
Section 106 of the NHPA is required, the district engineer will consult
with consulting parties identified under 36 CFR 800.2(c). Consulting
parties include the Indian tribes and the prospective permittee. The
district engineer will complete Section 106 consultation in accordance
with implementing regulations at 36 CFR part 800, 33 CFR 325 Appendix
C, 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. The Corps declines to modify this
general condition to specify the roles of the consulting parties or to
prohibit actions that the permittee may take before submittal of the
PCN and beginning of the federal action. Division engineers may modify
this NWP on a regional basis in accordance with the procedures at 33
CFR 330.5(c) to impose regional conditions to require PCNs for proposed
activities that might affect historic properties, including traditional
cultural properties that are or are eligible to be listed on the
National Register of Historic Places. District engineers will determine
whether an activity may have the potential to cause effects on
properties listed, or eligible for listing, in the National Register of
Historic Places using available information, including information may
be shared by tribes.
A few commenters recommended that no changes be allowed to scopes
of work for historic properties investigations once reviews are
complete. A few commenters recommended that district offices inform
prospective permittees of the scope of any required historic properties
investigations before a PCN is submitted. A few commenters supported
the language in the general condition that clarifies that
identification efforts will be commensurate with potential impacts. One
commenter stated that it is unclear if general condition 20 requires
the Corps to consult with consulting parties when making a
determination of effects or after the determination of effect is made.
One commenter stated that general condition 20 should be revised to
clarify that the Corps follows 36 CFR 800 when Section 106 consultation
is required.
The NHPA does not require non-federal prospective permittees to
consult with a State Historic Preservation Officer or a Tribal Historic
Preservation Officer, or with tribes. Prospective permittees are
encouraged to engage with Corps districts in pre-application
consultations at the earliest practical time in the planning process so
that the district engineer may discuss measures to comply with general
condition 20 and 33 CFR 330.4(g). When reviewing PCNs, district
engineers will comply with the current procedures for addressing the
requirements of Section 106 of the National Historic Preservation Act,
including implementing regulations at 36 CFR part 800, 33 CFR 325
Appendix C, 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.
The district engineer, in consultation with consulting parties, is
responsible for ensuring compliance with Section 106 of the NHPA and
will require the project proponent to provide the information necessary
to inform the determination of eligibility and determination of
effects. The district engineer will conduct consultation with
consulting parties identified under 36 CFR 800.2(c) when he or she
makes any of the following effect determinations for the purposes of
Section 106 of the NHPA: no historic properties affected, no adverse
effect, or adverse effect.
One commenter requested clarification if a federal permittee or
federally-funded project that fulfilled the requirements of Section 106
of the NHPA must submit a PCN if no PCN is required by the terms or
other conditions of the NWP. A few commenters stated that non-federal
permittees should not have to submit a PCN if the district engineer has
completed regional consultation and developed regional conditions to
mitigate impacts to historic properties. A few commenters recommended
that the Corps adhere to the 45-day review time or as an alternative
change paragraph (c) of this general condition so that the district
engineer's review of the PCN does not exceed 90 days.
In accordance with general condition 20, federal agencies must
follow their own procedures for complying with Section 106 of the NHPA.
Paragraph (b) of general condition 20 does not contain a requirement
for federal agencies to submit a PCN. Federal agencies only need to
submit documentation of compliance with Section 106 of the NHPA when
the terms and conditions of the NWP, or regional conditions imposed by
the division engineer, require the submission of a PCN. Corps districts
may develop a program alternative and develop local procedures to more
efficiently satisfy the requirements of Section 106 of the NHPA.
Paragraph (d) of general condition 20 states that for non-federal
permittees, the district engineer will notify the prospective permittee
within 45 days of receipt of a complete PCN whether NHPA Section 106
consultation is required. District engineers must consult with the
SHPO, tribes and other consulting parties to satisfy Section 106 of the
NHPA. There are no mandatory timelines for the completion of the
Section 106 process. The Section 106 consultation process may take
longer than 45 days. The NWP verification cannot be issued and the
project applicant cannot proceed with the
[[Page 832]]
proposed activities under Corps' jurisdiction until the Section 106
consultation process has been completed.
A few commenters suggested adding language to paragraph (c) of the
general condition to require that the person who would make the
determination that non-federal permittees must submit a PCN for the
purposes of complying with general condition 20 would need to satisfy
the Secretary of the Interior's Standards for Professional
Qualifications in Archaeology and Historic Preservation.
It is not appropriate to add text to this general condition to
stipulate the qualifications of people determining if a PCN is required
for the purposes of compliance with general condition 20. Non-federal
permittees are responsible for determining if an activity ``might have
the potential to cause effects to historic properties.'' Determinations
whether an activity has the potential to cause effects to historic
properties may be made by a variety of agency officials, including
Corps district staff. The Corps is ultimately responsible for
determining compliance with the requirements of Section 106 of the
National Historic Preservation Act.
The general condition is adopted as proposed.
GC 21. Discovery of Previously Unknown Remains and Artifacts. The
Corps did not propose any changes to this general condition. A few
commenters supported reissuing this general condition with no
substantive changes. Many commenters stated that the general condition
does not limit impacts to a no more than minimal level because of the
inclusion of the text ``to the maximum extent practicable.'' One
commenter recommended editing the first sentence of the general
condition to improve readability.
The application of the term ``maximum extent practicable'' is
dependent on case-specific circumstances and site conditions, and gives
the district engineer the discretion to determine what is necessary to
comply with the general condition for each circumstance in which
inadvertent discoveries occur. We recognize that in some circumstances
it may not be possible to avoid further construction activities that
might affect the remains and artifacts, because those construction
activities may have to be completed for safety or minimizing erosion
and sedimentation. The language of the general condition is
sufficiently clear in its current form, and we decline to make any
changes to this general condition.
The general condition is adopted as proposed.
GC 22. Designated Critical Resource Waters. The Corps did not
propose any changes to this general condition. Many commenters
expressed concern that the general condition did not provide protection
against indirect or secondary impacts from upstream NWP activities on
the critical resource waters. One commenter requested that this general
condition be modified to prohibit the use of NWP 12 in critical
resource waters.
Activities authorized by an NWP which occur upstream from critical
resource waters must comply with the general conditions to the NWPs and
any regional conditions. Through compliance with general conditions and
regional conditions, activities subject to an NWP would cause no more
than minimal individual and cumulative adverse environmental effects.
The district engineer will review PCNs for activities consistent with
Section E (District Engineer's Decision) and will consider the direct
and indirect effects of the activity. The district engineer will also
consider site specific factors, such as the environmental setting in
the vicinity of the NWP activity. The district engineer may add site
specific conditions to address specific environmental concerns.
Paragraph (a) of this general condition prohibits the use of NWP 12 to
authorize discharges of dredged or fill material into waters of the
United States located within or directly affecting critical resource
waters and wetlands adjacent to such waters.
The general condition is adopted as proposed.
GC 23. Mitigation. The Corps did not propose any changes to this
general condition. Many commenters stated that this general condition
should be strengthened to require that prospective permittees take all
practicable steps to avoid and minimize adverse impacts. One commenter
stated that mitigation is no substitute for avoidance of impacts. Many
commenters stated that the first sentence of paragraph (a) of the
general condition should be revised to require avoidance and
minimization of adverse effects to any wetland and waterbody rather
than waters of the United States. One commenter stated that the NWPs
cause no more than minimal individual and cumulative environmental
impacts, therefore general condition 23 should be eliminated. One
commenter stated that requiring the district engineer to consider the
need for compensatory mitigation places an unnecessary burden on the
district and results in delays and unnecessary costs.
Mitigation includes avoidance, minimization, and compensatory
mitigation. Paragraph (a) of general condition 23 requires the NWP
activity to be designed and constructed to avoid and minimize adverse
effects, both temporary and permanent, to waters of the United States
to the maximum extent practicable at the project site (i.e., on site).
The Corps does not have authority to require mitigation to address
impacts that occur as a result of activities in areas that are not
regulated under the CWA or RHA. The purpose of compensatory mitigation
is to offset unavoidable adverse impacts to jurisdictional waters and
the compensatory mitigation should be considered after all appropriate
and practicable avoidance and minimization has been achieved.
The NWPs only authorize activities that have no more than minimal
adverse environmental affects both individually and cumulatively. An
activity is not authorized under an NWP unless the activity complies
with both the terms and all applicable conditions to ensure that an
activity will have no more than minimal adverse environmental effects.
Where the district engineer determines that mitigation is required to
ensure no more than minimal adverse environmental effects, the activity
will be authorized within the 45-day PCN review period, unless the 45-
day timeframe does not apply due to requirements of a general condition
(e.g., general condition 18 (Endangered Species) or general condition
20 (Historic Properties)), with activity-specific conditions that
specify the mitigation requirements. Work cannot proceed in waters of
the United States until the district engineer has approved a specific
compensatory mitigation plan or has determined that a mitigation plan
is not practicable or necessary to ensure timely completion of the
require compensatory mitigation.
One commenter stated mitigation should not be used to justify that
an activity would have less than minimal impacts. Many commenters
stated that compensatory mitigation should be required at a ratio of
greater than one-to-one. Many commenters stated that the existing
thresholds for compensatory mitigation in paragraphs (c) and (d) of the
general condition should retained. Many commenters stated that the
acreage thresholds for requiring compensatory mitigation in the NWPs
should be increased. One commenter stated that the Corps should require
compensatory mitigation for any amount of acreage of wetlands and
streams when a PCN is required while retaining the district engineer's
discretion to make a case-specific
[[Page 833]]
determination if compensatory mitigation is appropriate.
The use of compensatory mitigation and other forms of mitigation to
ensure that activities authorized by an NWP result in no more than
minimal individual and cumulative adverse environmental effects is
codified in the Corps' NWP regulations at 33 CFR 330.1(e)(3).
Compensatory mitigation will not be used to increase the acreage losses
allowed by the acreage limits of the NWPs. The terms and conditions of
the NWPs, such as acreage limits and the mitigation, are considered by
the district engineer to determine if an activity would result in no
more than minimal adverse effects on the aquatic environment. Since the
NWPs authorize activities across the country, paragraphs (c) and (d) of
this general condition establish a national threshold for stream
compensatory mitigation, but there is flexibility in the general
condition to allow district engineers to make activity-specific
determinations on whether compensatory mitigation should be required
for activities that result in the loss of waters of the United States.
When an NWP requires a PCN, district engineers may require
compensatory mitigation for activities which do not exceed the acreage
thresholds in general condition 23 when he or she determines
compensatory mitigation is necessary to ensure that the adverse
environmental effects are no more than minimal. District engineers also
have the discretion to determine, on a case-by-case basis that either
some other form of mitigation would be more environmentally appropriate
or the adverse environmental effects of the proposed activity are no
more than minimal. Division engineers can add regional conditions to
the NWPs to establish a lower threshold for requiring compensatory
mitigation. For all DA permits, including the NWPs, compensatory
mitigation requirements are determined on a case-by-case basis.
Many commenters stated that the practice of giving the district
engineer discretion to make a case-specific determination if
compensatory mitigation is required follows longstanding agency
practice to prevent no more than minimal adverse environmental effects.
One commenter recommended retaining language in the general condition
which gives the district engineer the discretion to determine whether
compensatory mitigation is required. Several commenters stated that the
district engineer should not have discretion to determine the type of
mitigation or to waive the requirement to provide compensatory
mitigation. One commenter stated that giving the district engineer the
discretion to waive compensatory mitigation fails to prevent direct,
indirect, and cumulative effects. Many commenters stated that the
district engineer should not have the discretion to accept riparian
area mitigation in lieu of wetland compensatory mitigation for losses
of wetlands.
A few commenters stated that compensatory mitigation for stream bed
losses should not be required when a PCN is required by an NWP
condition that is not related to aquatic resource impacts, such as when
a PCN is required by general condition 20 (historic properties). A few
commenters stated that the general condition should list circumstances
when compensatory mitigation for stream bed losses may be waived,
including when the activity would not change the ecological function of
the stream bed. A few commenters stated that compensatory mitigation
should not be required if the activity incorporates the U.S. Fish and
Wildlife Service's best management practices, or when the prospective
permittee will incorporate conservation measures required to satisfy
Section 7 consultation for aquatic habitats subject to the ESA.
General condition 23 (Mitigation) requires compensatory mitigation
for all wetland losses greater than \1/10\-acre and for all stream
losses greater than \3/100\-acre for all activities authorized under
this NWP, unless the district engineer determines that some other form
of mitigation would be more environmentally appropriate. District
engineers impose compensatory mitigation requirements on specific
activities authorized by NWPs to ensure that those activities result in
no more than minimal individual and cumulative adverse environmental
effects, including direct and indirect effects. This discretion is
appropriate because the district engineer can evaluate the case-
specific circumstances of an activity to consider factors such as the
quality and ecological function of the waters being lost, the benefits
of the regulated activity to the aquatic ecosystem, and similar
considerations. Just as some circumstances may warrant a greater
mitigation ratio than that specified as the minimum, other
circumstances may justify less mitigation.
The district engineers' discretion to determine mitigation
requirements on a case-by-case basis also provides the necessary
flexibility to adjust to the on-the-ground realities that may not make
specific types of mitigation possible or beneficial in all cases. In
some cases, a different type of mitigation (e.g., wetland instead of
riparian) may be the only practical option or may provide a greater
environmental benefit. When a district engineer exercises his or her
discretion to deviate from the recommended mitigation, it may be
necessary to require mitigation at a higher ratio to ensure the
environmental effects are no more than minimal.
The flexibility in general condition 23 allows district engineers
to consider the impacts of the case-specific activity, and other site-
specific activities required by other agencies, such as mine
reclamation, when determining whether to require compensatory
mitigation for NWP activities. District engineers evaluate stream
compensatory mitigation proposals and should be provided the
flexibility to consider a variety of potential stream restoration or
rehabilitation approaches.
Many commenters objected to the requirement in paragraph (d) that
losses of stream bed that exceed \3/100\-acre will require compensatory
mitigation. One commenter stated that paragraph (d) is inconsistent
with Executive Orders 14219, ``Ensuring Lawful Governance and
Implementation of the President's `Department of Government Efficiency'
Deregulatory Agenda,'' and E.O. 14192, ``Unleashing Prosperity through
Deregulation.'' A few commenters supported the retention of the \3/
100\-acre stream bed loss threshold. One commenter stated that the \3/
100\-acre threshold did not create a new requirement but converted the
threshold from a linear measurement to an area measurement.
Many commenters stated that the \3/100\-acre threshold should be
removed, and the district engineer should have the discretion to
determine whether to require compensatory mitigation for stream bed
losses. Many commenters requested that the Corps change the threshold
for compensatory mitigation for stream bed losses from \3/100\-acre to
300 linear feet. One commenter stated that mitigation should be
required based on both aerial and linear impacts thresholds. Several
commenters stated that the threshold for requiring compensatory
mitigation for impacts to streams should be raised to \1/10\-acre. A
few commenters expressed concern that the \3/100\-acre threshold would
allow greater impacts to stream beds. One commenter requested that the
\3/100\-acre threshold to require compensatory mitigation should only
apply to perennial streams impacted by permanent fill.
Paragraph (d) of general condition 23 requires compensatory
mitigation at a
[[Page 834]]
minimum one-for-one ratio for all losses of stream bed that exceed \3/
100\-acre and require a PCN. The rationale for establishing the \3/
100\-acre threshold for stream compensatory mitigation for NWP
activities was explained in the final rule to issue the 2021 NWPs (86
FR 2744). The rationale remains valid and justifies the retention of
the \3/100\-acre threshold. This threshold is intended to be
conservative based on the complexities of riverine systems, the
substantial variation in riverine systems across the country, and the
subjectivity inherent in the threshold for the NWPs (i.e., no more than
minimal individual and cumulative adverse environmental effects).
Paragraph (d) applies to any loss of stream bed which exceeds \3/100\-
acre, when the stream bed is part of a water of the United States and
is permanently adversely affected by filling, flooding, excavation, or
drainage because of the regulated activity. District engineers retain
the discretion to determine on a case-by-case basis whether to require
compensatory mitigation for losses of stream bed authorized by NWPs.
Many commenters recommended that paragraph (e) of the general
condition retain language on the width of riparian buffers. A few
commenters stated that paragraph (e) should require riparian buffers
wider than 25 to 50 feet.
The Corps' compensatory mitigation regulations at 33 CFR 332.3(i)
allow district engineers to require the restoration, establishment,
enhancement, and preservation, as well as the maintenance, of riparian
areas and/or buffers around aquatic resources where necessary to ensure
the long-term viability of those resources. The recommended riparian
area width of 25 to 50 feet was established in the NWP program in 2000
(65 FR 12833) because riparian areas of that width can provide
important aquatic habitat functions and water quality benefits. The
rationale remains valid and continues to support this recommended
riparian width. The general condition gives the district engineer the
discretion to require wider riparian buffers to address concerns for
water quality or habitat loss at a specific location.
Many commenters stated that districts vary in the types of
compensatory mitigation required to offset wetlands impacts and
encouraged the Corps to focus on improving consistency among districts
regarding the application of mitigation requirements. Many commenters
recommended that the Corps adhere to the 2008 Mitigation rule (33 CFR
332) and revise the NWP program when a new mitigation rule is
finalized. Many commenters stated that the district engineer should
have the flexibility to consider how to apply the mitigation hierarchy
described in 33 CFR 332.3(b). One commenter stated that a qualified
engineer should submit mitigation plans and those plans should be
approved by the district engineer.
Compensatory mitigation can be provided through the restoration,
enhancement, establishment, and protection of aquatic resources to
offset losses of those functions caused by activities authorized by the
NWPs and other types of DA permits. The district engineer reviews
compensatory mitigation plans for compliance with the compensatory
mitigation regulations at 33 CFR 332. District engineers will review
case-specific activities, including proposed compensatory mitigation,
in compliance with the applicable environmental regulations in place at
that time and will consider any changes to 33 CFR 332 or other
regulations that may occur in the future. As stated in paragraph (f)(1)
of GC 23, the use of mitigation bank and in-lieu fee program credits to
provide compensatory mitigation for NWP activities is preferred, not
required. This preference is based on the hierarchical framework for
considering compensatory mitigation options for NWPs and other DA
permits that is provided in 33 CFR 332.3(b). The district engineer's
acceptance of mitigation only validates that the mitigation complies
with the requirements of 33 CFR 332 and GC 23. It is the responsibility
of the permittee to ensure that the work complies with other applicable
laws, authorizations and requirements, including any applicable
engineering standards. As such, it's not necessary to require that
mitigation plans be submitted by a qualified engineer.
One commenter stated that many districts have regional conditions
that address the loss of functions of forested wetlands and recommended
revising paragraph (i) of the general condition to require compensatory
mitigation for the permanent conversion of forested wetlands in all
cases.
Consistent with paragraph (i) of this general condition, if a
proposed NWP activity involves mechanized land clearing in a forested
wetland, and it requires a PCN, the district engineer can require
compensatory mitigation to ensure the proposed activity results in no
more than minimal individual and cumulative adverse environmental
effects. The district engineer also has discretion to require
compensatory mitigation on a case-by-case basis for the conversion of
forested wetlands to ensure the activity results in no more than
minimal adverse environmental effects both individually and
cumulatively.
The general condition is adopted as proposed.
GC 24. Safety of Impoundment Structures. The Corps did not propose
any changes to this general condition. One commenter stated that a
qualified dam safety engineer should submit the plans for impoundment
structures and the plans should be approved by a qualified engineer.
The general condition states that the district engineer may require
non-federal permittees to demonstrate that impoundment structures have
been designed by qualified permits. The general condition also states
that the district engineer may require documentation that the design
has been reviewed by a similarly qualified person.
The general condition is adopted as proposed.
GC 25. Water Quality. The Corps proposed to modify the text of this
general condition to clarify that the proposed activity which may
result in any discharge from a point source would have to be into a
water of the United States in order to trigger the requirement for
water quality certification. This proposed change would make the text
of this general condition consistent with EPA's current water quality
certification regulations at 40 CFR part 121, which defines ``license
or permit'' as consistent with See 40 CFR 121.1(f).
One commenter supported the change to the general condition. One
commenter opposed the revision, stating that the change is unnecessary
because the language in 40 CFR 121.2 clearly states the threshold
requirement for a 401 water quality certification. Several commenters
suggested changing the language in the general condition from ``may''
to ``will.'' One commenter stated that the general condition should
mandate water quality reviews. One commenter stated that district
engineers are inconsistently applying the standard for when a water
quality certification may be required. Several commenters stated that
the proposed revised language in the general condition is not
consistent with the language in the current regulation. The commenters
recommend revising ``discharge from a point source'' to ``any
discharge.'' One commenter stated that the general condition should
reinforce that water quality certification is required only when an
activity would result in a discharge from a point source into waters of
the United States. One commenter requested that text be added to the
general condition to state that
[[Page 835]]
where a permittee has already received a FERC license and an associated
water quality certification, the permittee is not required to obtain a
duplicate water quality certification to satisfy general condition 25.
The current regulations at 40 CFR 121.2 state that a certification
is required for any federal permit that ``authorizes any activity which
may result in any discharge from a point source into waters of the
United States.'' The revised language in the general condition is
consistent with the current regulation. Discharges of dredged or fill
material into waters of the United States are not authorized by an NWP
until the certifying authority has granted or waived water quality
certification. The certifying authority makes the determination if an
activity which requires DA authorization would result in a discharge
that requires a water quality certification or waiver, and reviews
certification requests in accordance with 40 CFR 121. The Corps is
responsible for complying with the requirements of Section 401 of the
CWA even if there is another federal agency making a decision on a
federal license or permit which also requires review under Section 401
of the CWA.
If a certifying authority has not previously certified compliance
of an NWP with CWA Section 401, the permittee must obtain an individual
water quality certification or waiver for a proposed activity which may
result in a discharge from a point source into waters of the United
States. In accordance with 33 CFR 330.4(c)(3), if a state denies a
water quality certification for an activity that otherwise meets that
NWP, a district engineer may provisionally notify the prospective
permittee that the district engineer has completed his or her review,
but the activity is not authorized pending the completion of the
processes required by 40 CFR 121.
The general condition is adopted as proposed.
GC 26. Coastal Zone Management. The Corps did not propose any
changes to this general condition. The Corps did not receive any
comments on this general condition. The general condition is adopted as
proposed.
GC 27. Regional and Case-by-Case Conditions. The Corps did not
propose any changes to this general condition. The Corps did not
receive any comments on this general condition. The general condition
is adopted as proposed.
GC 28. Use of Multiple Nationwide Permits. The Corps proposed
modifications to this GC to clarify the standards that must be met to
comply with this general condition.
Several commenters expressed support for the proposed changes to
the general condition. Several commenters stated that the general
condition should limit the total acreage limit to the lowest specified
acreage limit. Several commenters recommended that the general
condition limit the number of NWPs that can be used to authorize an
activity to two to minimize cumulative impacts. Several commenters
asked that the general condition clarify how temporary and cumulative
effects are considered in the thresholds of this general condition. One
commenter stated that there should be a waiver to this general
condition when restoration activities are proposed which would be
authorized under NWP 27.
The purpose of the revision to this general condition is to clarify
the longstanding requirement to limit the total acreage impacts to the
highest total acreage limit of each NWP being used for a single and
complete project. The text in paragraph (a) will limit the use of NWPs
with no acreage limits, including NWP 27. The general condition limits
the acreage loss of waters of the United States to the highest
specified acreage limit, and it does not allow the acreage limit of an
NWP with a specified lower acreage limit to be exceeded. The general
condition applies acreage impact limits to losses of waters of the
United States. The definition of loss of waters of the United States is
restricted to activities that cause permanent adverse effects to waters
of the United States and does not include temporary or cumulative
impacts. When the district engineer receives a PCN, his or her review
will consider the direct, indirect, and cumulative effects of the
single and complete project, in accordance with paragraph 2 of Section
D (District Engineer's Decision).
The general condition is adopted as proposed.
GC 29. Transfer of Nationwide Permit Verifications. The Corps did
not propose any changes to this general condition. One commenter stated
that this general condition only addresses the transfer of an NWP
verification is situations where the property ownership is transferred
between landowners, and recommended that it be expanded to allow the
transfer of a permit verification when responsibility over the project
is transferred even if the activities authorized by the NWP occur on
lands not owned by the permittee, such as government owned lands.
The language in the general condition was taken from Appendix A of
33 CFR 325, which is the standard form for Department of the Army
permits. This language is found at general condition 4 of Appendix A of
33 CFR 325. We believe that the language in this general condition
should be consistent with our standard permit language. Permittees with
questions about the transfer of an NWP verifications should contact the
district engineer in the district where the activity is located.
The general condition is adopted as proposed.
GC 30. Compliance Certification. The Corps proposed to modify the
second sentence of this general condition to refer to the ``successful
completion'' of any required permittee-responsible mitigation instead
of the ``success'' of any required permittee-responsible mitigation.
One commenter supported the proposed change.
The general condition is adopted as proposed.
GC 31. Activities Affecting Structures or Works Built by the United
States. The Corps did not propose any changes to this general
condition. One commenter expressed support for the reissuance of this
general condition. One commenter stated that the Corps should clarify
how the NWPs in this action would affect the timelines of Section 408
reviews of federal projects.
A PCN is required for proposed NWP activities that also require
Section 408 permissions so that the appropriate coordination can occur
between district staff involved in the NWP evaluation and Section 408
permission processes. The Corps acknowledges that it may take longer
for NWP verification to be issued by the district engineer when a 408
permission is required, because the NWP verification cannot be issued
before the Section 408 permission process is completed.
The general condition is adopted as proposed.
GC 32. Pre-Construction Notification. The Corps proposed to modify
paragraph (a)(2) of this general condition, to make it consistent with
paragraph (c) of general condition 18 (Endangered Species). In
paragraph (b)(5) of this general condition, the Corps proposed to
simplify the first sentence to state that the PCN must include a
delineation of waters, wetlands, and other special aquatic sites on the
project site. The Corps proposed to remove references to ``other
waters'' such as lakes and ponds and perennial and intermittent streams
because those features would be covered by the term ``waters.'' The
Corps also proposed to modify paragraph (b)(5) of this general
condition by adding a new sentence at the end of this paragraph which
points
[[Page 836]]
permittees using NWP 27 (Aquatic Ecosystem Restoration, Enhancement,
and Establishment Activities) to proposed new Note 2 in NWP 27.
Many commenters stated that PCNs should be required for all
activities authorized by NWPs. Several commenters stated that both
federal and non-federal permittees should be required to submit PCNs
for every activity authorized by an NWP. One commenter stated that the
project proponent should determine if a PCN is required for each single
and complete crossing. One commenter stated that the Corps should
clarify when a PCN is required for activities that impact protected
resources. Many commenters said that no additional information
requirements should be added to the PCN process that would further
complicate or burden the process.
The Corps establishes PCN thresholds for those NWP activities that
have the potential to cause more than minimal adverse environmental
effects, to provide the opportunity for district engineer to conduct an
activity-specific review and to exercise discretionary authority and
require individual permits for activities that will have more than
minimal adverse environmental effects. The PCN process provides an
opportunity for the district engineer to do a site- and activity-
specific evaluation of a proposed NWP activity and take into account
the characteristics of the project site and proposed activity, to
determine whether the proposed NWP activity will cause no more than
minimal individual and cumulative adverse environmental effects.
Certain general conditions (e.g., general conditions 18 (endangered
species) and 20 (historic properties)) require submittal of a PCN when
an activity that requires DA authorization may impact protected
resources. Division engineers may also modify NWPs to require a PCN to
address regional concerns for protected resources. We are retaining the
language in general conditions 18 and 20 which direct federal agencies
to follow their own procedures for complying with Section 7 of the ESA
and Section 106 of the NHPA. The Corps has not added any information
requirements beyond the clarifying language that was proposed in the
2025 Proposal.
One commenter opposed allowing permittees to proceed if the
district engineer does not respond to a PCN within 45 days. One
commenter stated that the NWPs are issued based on the finding that
they would cause no more than minimal individual and cumulative
impacts, therefore it is redundant to require submittal of a PCN based
on thresholds that are lower than the limits to the loss of waters
authorized by an NWP. Several commenters stated that allowing
permittees to proceed with their activity after 45 days without Corps
review does not comply with Section 404(e). One commenter stated that
requiring the district engineer to review a PCN causes unnecessary
work, delay and cost. One commenter stated that permittees should be
allowed to submit reports documenting the completion of an activity
rather than a requiring submittal of PCN to allow for the district
engineers' review.
Activities that qualify for the default authorization that occurs
45-days after the district engineer receives a complete PCN must comply
with all conditions of the NWP, including the general conditions and
any applicable regional conditions imposed by the division engineer.
The permittee is responsible for reading the NWPs and all of the
general conditions and regional conditions to determine whether he or
she is required to submit a PCN before proceeding with an authorized
activity. The PCN process provides flexibility in the NWP program and
ensures that NWP activities have no more than minimal individual and
cumulative adverse environmental effects and comply with the Section
404(e) of the CWA. The PCN process also gives the district engineer the
opportunity to add activity-specific conditions to the NWP
authorization to satisfy the ``no more than minimal adverse
environmental effects'' requirement for the NWPs. There are exceptions
to the 45-day review period, such as when district engineers have to
complete ESA Section 7 consultation, NHPA Section 106 consultations, or
for other specified purposes to satisfy federal law.
One commenter stated that the general condition should state that
work can proceed in water crossings outside Corps' jurisdiction where a
project proponent has determined that a PCN is not required. One
commenter stated that the prospective permittees for activities
associated with linear projects should not be required to report
activities for which no PCN is required. Several commenters stated that
the Corps does not have the resources to ensure activities comply with
the NWPs if it does not have the resources to respond to PCNs within 45
days.
The Corps has no authority over activities in waters outside Corps'
jurisdiction. In the absence of a jurisdictional determination, when
reviewing a PCN, the district engineer will assume that all waters in
the project area are jurisdictional. If a project proponent has
determined that no PCN is required, the proponent must comply with the
NWP and general conditions to the NWPs if order for the activity to be
authorized by an NWP. Paragraph (b)(i) states that prospective
permittees submitting a PCN for linear projects must include
information on other separate and distant crossings that require DA
authorization but do not require a PCN. The requirement to submit
information on the non-PCN activities does not change those activities
into ones which are subject to a PCN. The district engineer will review
the PCN and information about activities which do not require a PCN to
determine if the regulated activity will have no more than minimal
individual and cumulative adverse effects to the environment. The Corps
declines to remove the requirement to provide information about linear
crossings for which no PCN is required. District engineers have the
discretion to manage district workloads.
One commenter stated that it is not clear how the Corps determines
when the 45-day time period has started. Many commenters stated that
the Corps should determine if a PCN is complete within 15 days.
The 45-day time period begins upon the district engineer's receipt
of a complete PCN. If the prospective permittee does not receive a
request for additional information within 30-days of the date of
receipt, the permittee can begin the activity 45 days from the district
engineer's receipt of the PCN. There are exceptions to the 45-day
timeframe, such as for activities conducted by non-federal permittees
that require PCNs under paragraph (c) of general conditions 18 and 20
(Endangered Species and Historic Properties, respectively), activities
that require PCNs under general conditions 16 and 31, activities
proposed for authorization under NWP 49 (Coal Remining Activities), and
when the proposed activity requires a written waiver to exceed
specified limits of an NWP, or if the district engineer takes action
under 33 CFR 330.5(d) to modify, suspend, or revoke the NWP
authorization. We believe that 30 days is necessary to make
completeness determinations for PCNs.
Many commenters stated that the permittee should not be allowed to
proceed with their activity until the district engineer has provided
written notification that the activity qualifies for an NWP. Many
commenters stated that prospective permittees should receive expedited
permit processing if the Corps fails to meet the 45-day timeline in
general condition 32. One commenter
[[Page 837]]
stated that the 45-day timeline does not allow for adequate time for
tribal review. Many commenters recommended that district engineers
adhere to the general rule to request additional information only one
time and limit requests to information that is reasonable and avoids
unnecessary delay. One commenter recommended that district engineers
use their discretionary authority to expedite certain time-sensitive
maintenance and inspection projects associated with energy projects.
District engineers have the responsibility to review a PCN. After
the Corps district receives a PCN, the prospective permittee cannot
begin the activity until either: (1) He or she is notified in writing
by the district engineer that the activity may proceed under the NWP
with any special conditions imposed by the district or division
engineer; or (2) 45 calendar days have passed from the district
engineer's receipt of the complete PCN and the prospective permittee
has not received written notice from the district or division engineer.
The Corps declines to add a provision requiring that all project
proponents receive written authorization from the Corps prior to
commencing the authorized activity. The terms and conditions of the
NWPs describe the circumstances (e.g., when Section 7 ESA or Section
106 NHPA consultation is required) when a project proponent must wait
for a written response from the Corps prior to commencing the activity.
We agree that district engineers, as a general rule should request
information necessary to make a PCN complete only one time. District
engineers may make additional requests for information when the project
proponent has not provided the requested information to the district
engineer. District engineers manage their workload, including actions
associated with energy projects, consistent with applicable policy.
One commenter recommended that paragraph (b) be revised to clarify
that the 45-day time period does not begin until the district engineer
receives a delineation report which meets a recommended minimum
standard. Many commenters requested that wetland delineations be
accepted when they are sufficiently detailed, rather than requiring a
field wetland delineation. Many commenters recommended that the Corps
clarify that paragraph (b)(5) only applies to jurisdictional waters.
One commenter stated that the term ``project site'' is not clear and
should be replaced with the term ``proposed limits of construction''
because the term ``project site'' results in the expense of delineating
of waters that are on a property but distant from the area where work
is proposed.
General condition 32 paragraph (b)(5) requires a delineation of
waters, wetlands, and special aquatic sites prepared in accordance with
the current method required by the Corps. In accordance with CWA
Section 404(e), the NWPs are intended to authorize activities with
little, if any, delay or paperwork. Prospective permittees are not
required to submit a delineation report compliant with a recommended
standard. The recommended minimum standards for reports that accompany
a delineation are not mandatory. These recommended minimum standards
have been developed as a tool to assist prospective permittees in
providing information in a manner that could expedite reviews of
jurisdictional determinations and permit applications. The delineation
only needs to identify wetlands, other special aquatic sites, and other
waters on the site and their approximate boundaries, so that the
district engineer can evaluate the proposed activity's impacts to those
wetlands, other special aquatic sites, and other waters.
Field verification of a delineation by the Corps district is not
required for a complete PCN. If the district engineer finds errors in
the delineation, he or she may make corrections to the delineation or
require the applicant to make those corrections, but those corrections
should not delay the decision on the NWP verification or the decision
to exercise discretionary authority. An approved jurisdictional
determination is not required for a complete PCN. If the project
proponent did not obtain and/or does not wish to obtain an approved
jurisdictional determination for the project site, for the purposes of
evaluating the PCN, the district engineer will presume the wetlands,
streams, and other waters on the project site are subject to CWA
jurisdiction. General condition 23 clarifies that project site means
``on site''.
One commenter stated that paragraph (b) should be revised to
require the prospective permittee's email address, information about
essential fish habitat that might be affected by the activity, and to
specify information about any required individual water quality
certification request.
The Corps declines to modify paragraph (b) Contents of a PCN.
Paragraph (c) encourages prospective permittees use the NWP PCN form
(ENG 6082) to submit their PCN information or provide the required
information in a letter. Prospective permittees may also submit their
PCN and all supplemental information electronically through the Corps'
Regulatory Request System \3\ (RRS). Both ENG Form 6082 and RRS
encourage the prospective permittee to provide their email address.
Essential fish habitat (EFH) is generally confined to coastal waters
and anadromous waters. District engineers in areas where EFH has been
identified may require information regarding essential fish habitat to
be included in the PCN through the development of regional conditions.
General condition 25 (Water Quality) requires the prospective permittee
to provide any issued or waived water quality certification for the
proposed discharge authorized by a specific NWP activity, to the
district engineer when the certifying authority previously denied the
certification request for the issuance of the NWPs. Consistent with 33
CFR 330.4(c), an NWP is denied without prejudice until a project
proponent provides an individual water quality certification or waiver.
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\3\ Regulatory Request System (RRS) is a web-based national
online application portal and management platform created to
modernize the Corps' Regulatory Program permitting process and meet
user expectations by providing a straightforward transparent process
for the submittal of permit requests. RRS provides general
information on the Regulatory Program and allows the public to
submit pre-application meeting requests, jurisdictional
determination requests, and individual and general permit
applications and other necessary information electronically. RRS can
be accessed at the following address: rrs.usace.army.mil/rrs.
---------------------------------------------------------------------------
One commenter stated that the NWPs should limit how many times an
NWP can be used to prevent piecemealing and causing more than minimal
impacts. Many commenters stated that the term ``separate and distant''
requires clarification and is used inconsistently by the Corps,
allowing for piecemealing of projects.
Section 404(e) of the CWA does not require NWPs to have quantified
acreage or other limits to ensure that authorized activities result in
no more than minimal individual and cumulative adverse effects. General
condition 28 (Use of Multiple Nationwide Permits) limits the amount of
loss of waters of the United States for each single and complete
project and each single and complete linear project. The definition of
``single and complete linear project'' does not allow piecemealing.
Under paragraph (b)(4) of general condition 32, PCNs for linear
projects are required to include those crossings of waters of the
United States that require NWP PCNs as well as those crossings that
will utilize the NWPs and do not require PCNs. When the district
engineer reviews the PCN, he or she considers the cumulative effects of
both the NWP activities that
[[Page 838]]
require PCNs and the NWP activities that do not require PCNs when
deciding if the activity will cause no more than minimal adverse
effects.
What constitutes ``separate and distant'' crossings can vary across
the country because of differences in the distribution of waters and
wetlands in the landscape, local hydrologic conditions, local geologic
conditions, and other factors. Application of the definition of
``separate and distant'' crossings is more appropriately determined by
district engineers on a case-by-case basis. Separate and distant
crossings of waters of the United States associated with linear
projects can be authorized by separate NWPs consistent with
longstanding practice that has been codified in the Corps' regulations
at 33 CFR 330.2(i) since 1991 (see 56 FR 59110).
One commenter stated that paragraph (d) should allow agencies 45
days to respond to agency coordination. With some exceptions (e.g.,
requirements of general conditions 18 (Endangered Species Act) or 20
(Historic Properties), paragraph (a)(2) allows permittees to begin
their activity 45 days after the district engineer receives a PCN. When
agency coordination is required, the agencies have a total of 25 days
to provide substantive comments on a PCN. This 25-day timeframe is
necessary so that the district engineer can fully consider the concerns
of the resource agency during review of the PCN with sufficient time to
determine if the NWP-specific activity must by modified, suspended, or
revoked in order to ensure that the regulated activity will cause no
more than minimal adverse environmental effects.
The general condition is adopted as proposed.
H. Responses to Comments on Section D. District Engineer's Decision
In Section D, ``District Engineer's Decision,'' the Corps proposed
to add a sentence to paragraph 3 to clarify that compensatory
mitigation shall not be required for activities authorized by NWP 27.
The addition of this sentence is intended to ensure that a district
engineer's decision is consistent with the terms of NWP 27.
One commenter supported the changes to Section D, ``District
Engineer's Decision.'' Many commenters recommended adding language to
Section D to clarify the scope of the district engineer's cumulative
effects analysis.
During their reviews of PCNs, district engineers use their
discretion to determine the appropriate regional scale for evaluating
cumulative effects for the purposes of 33 CFR 330.5(d)(1), 33 U.S.C.
1344(e)(1), 33 CFR 322.2(f)(1), and/or 33 CFR 323.2(h)(1). The
appropriate regional scale is dependent, in part, on what types of NWP
activities are occurring, where they are occurring, and what types of
adverse environmental effects they might be causing.
``District Engineer's Decision'' is adopted as proposed.
I. Responses to Comments on Section E. Further Information
One commenter recommended that item 3 in this section be revised to
insert ``or extinguish'' after ``do not grant.'' One commenter
requested a new item be added to this section to affirm that the Corps
will give due regard to the property rights of Americans and consider
property rights when making determinations about the public interest.
The language in Section E is taken directly from 33 CFR 330.4(b).
It would not be appropriate to deviate from the language in the Corps'
implementing regulations. During the process to reissue the NWPs, the
Corps completes a public interest review in accordance with 33 CFR
320.4, as documented in the national decision document for each NWP.
The public interest review includes a consideration of property
ownership consistent with 33 CFR 320.4(g). The considerations of
property ownership addressed in 33 CFR 320.4(g) are applicable to NWPs
and are relevant to the comments raised.
J. Responses to Comments on Section F. Definitions
In the 2025 Proposal, the Corps proposed changes to two of the NWP
definitions and the Corps proposed to add one definition. As discussed
in the proposed rule, the Corps proposed to modify the definitions of
``Ecological reference'' and ``Stream bed.'' The Corps proposed to add
a definition of ``Nature-based solutions.''
Many commenters expressed support for the changes to the
definitions. One commenter recommended adding a definition for ``soft
bank stabilization.'' One commenter requested the addition of a
definition of ``oil or natural gas pipeline'' that includes any gaseous
or liquid fuel, particularly hydrogen. One commenter recommended adding
a definition of ``special aquatic sites.'' Many commenters stated that
the NWPs should not include a definition of ``waters of the United
States''. Many commenters stated that the Corps should rely on
definition of waters of the United States that is in effect at the time
of the NWP-specific activity. One commenter recommended adding a
definition for ``waters of the United States'' to differentiate between
waters subject to Section 10 of the RHA and waters subject to Section
404 of the CWA.
The Corps does not believe that ``soft bank stabilization''
requires a definition because there are number of examples of soft bank
stabilization listed in Note 2 in NWP 13. The phrase ``oil or natural
gas pipeline'' is defined in NWP 12 and includes any pipe or pipeline
for the transportation of any form of oil or natural gas, including
products derived from oil or natural gas, such as gasoline, jet fuel,
diesel fuel, heating oil, petrochemical feedstocks, waxes, lubricating
oils, and asphalt. The Corps declines to include ``any liquid or
gaseous fuel'' in the definition of oil or natural gas pipeline.
NWP 58 authorizes activities associated with utility lines for
substances, excluding oil, natural gas, products derived from oil or
natural gas, and electricity. The Department of Energy states that
hydrogen can be produced from a variety of sources, including natural
gas, renewable power, or nuclear power.\4\ The Corps declines to add
``any gaseous or liquid fuel,'' or hydrogen to the definition of oil or
natural gas pipeline. The Corps relies on the definition of special
aquatic sites in 33 CFR 320.2(j). Special aquatic sites include
wetlands, mudflats, vegetated shallows, coral reefs, riffle and pool
complexes, sanctuaries, and refuges. The Corps does not believe it is
necessary to replicate the definition of special aquatic sites in
Section F. Definitions. The Corps declines to add a definition of
waters of the United States to Section F (Definitions) and will
continue to rely on the definition of ``waters of the United States''
in 33 CFR part 328.
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\4\ https://www.energy.gov/eere/fuelcells/hydrogen-fuel-basics.
---------------------------------------------------------------------------
Best management practices (BMPs). The Corps did not propose any
changes to this definition. The Corps did not receive any comments on
the proposed definition. The definition is adopted as proposed.
Compensatory mitigation. The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Currently serviceable. The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
[[Page 839]]
Direct effects. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Discharge. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Ecological reference. The Corps proposed modifications to this
definition to align with proposed changes to the second paragraph of
NWP 27, which discusses the requirement for aquatic ecosystem
restoration, enhancement, and establishment activities associated with
activities that require DA authorization to be planned, designed, and
implemented to result in aquatic ecosystems that resemble ecological
references. The proposed revisions to this definition discuss three
types of ecological references: (1) an aquatic ecosystem type or
riparian area type that currently exists in the region (i.e., a
contemporary ecological reference); (2) an aquatic ecosystem type or
riparian area type that existed in the region in the past (i.e., an
historic ecological reference); and (3) indigenous and local ecological
knowledge that applies to the aquatic ecosystem type or riparian area
type (i.e., an ecological reference based on a cultural ecosystem). The
Corps also proposed to change this definition to include cultural
ecosystems.
Many commenters supported the proposed modifications to this
definition. Several of these commenters stated that such provisions
recognize the historical role of human management in ecosystem
development and provide realistic restoration targets in highly altered
landscapes. One commenter opposed changes to this definition, stating
that the change could cause confusion regarding the selection of a
suitable ecological reference. Many commenters argued that defining
ecological references to include ecosystems developed under human
management activities contradicts the premise that references should be
based on natural systems or may result in project proponents arguing
that maintenance activities constitute restoration.
Many commenters expressed concerns that historical references might
not be self-sustaining under current landscape conditions and
recommended focusing on functioning systems under comparable present
conditions. Many commenters stated that the definition of ecological
reference should require that the reference be of the highest quality.
Many commenters requested clarification regarding how an ecological
reference would be implemented. One commenter recommended that the
Corps take a broad view of what constitutes an ecological reference.
One commenter was concerned that a low value stream that was present in
the past would be valued the same as an unaltered stream that is
currently present.
Ecological references are based on natural ecosystems. An
ecological reference takes into account the range of variation of the
aquatic habitat type or riparian area type in the region. Ecological
references are based on natural ecosystems which are ``developed by
natural processes and are self-organizing and self-maintaining''
(Society for Ecological Restoration International Science & Policy
Working Group 2004). Natural ecosystems are rarely pristine or
unimpacted by human influences. Ecological standards are not limited to
the highest and best quality of an ecosystem. Most natural ecosystems
have been impacted by human influences to varying degrees and may be
managed by people to varying degrees.
Understanding that all ecosystems are cultural ecosystems to
varying degrees because of pervasive human influences on these
ecosystems is important for establishing realistic and achievable goals
and objectives for aquatic ecosystem restoration, enhancement, and
establishment activities for human influenced ecological references.
Realistic objectives for resembling an ecological standard involve
establishing a ``lift'' to the net functions and services, not
necessarily an attempt to achieve the highest quality of that aquatic
ecosystem. This is consistent with the concepts in the 2008
Compensatory Mitigation Rule's (33 CFR 332.2) definition of ``reference
aquatic resources,'' which are defined as ``a set of aquatic resources
that represent the full range of variability exhibited by a regional
class of aquatic resources as a result of natural processes and
anthropogenic disturbances.''
This definition was revised to align with the changes to NWP 27
(Aquatic Ecosystem, Restoration, Enhancement, and Establishment). The
permittee must comply with the terms of NWP 27 and the NWP general
conditions. The NWP 27 requires that the proposed restoration,
enhancement, or establishment associated with activities that require
DA authorization resemble an ecological reference, and must also result
in net increases in aquatic ecosystem functions and services.
Many commenters approve of the inclusion of cultural ecosystems or
indigenous and local knowledge in the use of determining ecological
reference standard. Many commenters objected to the inclusion of
references to ``indigenous knowledge'' and encouraged the Corps to
delete the term and consider indigenous knowledge as captured by local
knowledge.
Ecological references may be based on indigenous knowledge or local
ecological knowledge. Recognition of indigenous knowledge does not
privilege this type of information above other types or sources of
information, it recognizes that the people who have inhabited in an
area over a long period of time have accumulated knowledge of that
area.
The definition is adopted as proposed.
Enhancement. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Establishment (creation). The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
High Tide Line. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Historic property. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Independent utility. The Corps did not propose any changes to this
definition. Many commenters recommended modifying this definition to
eliminate the distinction between linear and non-linear projects. Many
commenters requested the addition of ``linear projects'' to this
definition.
The concept of independent utility does not apply to individual
crossings of waters of the United States for linear projects because
each separate and distant crossing of waters of the United States is
necessary to transport people, goods, or services from the point of
origin to the terminal point. There is a rational basis for
distinguishing between linear projects and non-linear projects. For
linear projects, impacts to jurisdictional waters and wetlands caused
by activities authorized by NWPs are scattered throughout a large
landscape that encompasses the point of origin and terminal point of
the linear projects, and all of the crossings of jurisdictional waters
and wetlands in between the origin and terminus. Under most
circumstances, those crossings
[[Page 840]]
impact distinctly different waterbodies, although there may be cases
where there are multiple crossings of the same waterbody at separate
and distant locations. For a long linear project, a large number of
different waterbodies may be impacted by crossings that are a
substantial distance from each other. In contrast, for a non-linear
project, the impacts to jurisdictional waters and wetlands are
concentrated within a much smaller landscape unit (usually a single
parcel of land) that is defined by the boundaries of the non-linear
project (e.g., the boundaries of the residential or commercial
development). For a nonlinear project, the impacts of activities
authorized by NWPs or other DA permits usually occur to a single
waterbody and its tributaries and adjacent wetlands.
As a general concept, cumulative impacts accrue to a single
waterbody as a result of multiple impacts occurring over time, which
include direct impacts to the waterbody and the indirect effects of
activities occurring in the watershed of that waterbody. For a linear
project, the incremental contribution of a linear project crossing of a
waterbody to the cumulative impacts for that particular waterbody is
small. For a linear project, the sum of the authorized impacts occurs
to the various waterbodies crossed by that linear project. A non-linear
project may have a larger incremental contribution to the cumulative
impacts for a particular waterbody, because all of the authorized
impacts will occur in or near that waterbody.
The definition is adopted as proposed.
Indirect effects. The Corps did not propose any changes to this
definition. One commenter recommended the removal of this definition,
stating that it is too broad. District engineers will review PCNs
consistent with paragraph 2 of Section D (District Engineer's
Decision), which requires consideration of the direct and indirect
impacts caused by the NWP activity, as well as the cumulative effects
in order to determine if the activity would cause no more than minimal
adverse environmental effects. The NWP activity is the activity subject
to DA jurisdiction--the discharge of dredged or fill material into
waters of the United States and work and structures in navigable waters
of the United States. The Corps believes that the definition of
indirect effects should be retained to inform the district engineer's
decision.
The definition is adopted as proposed.
Loss of waters of the United States. The Corps did not propose any
changes to this definition. Many commenters recommended modifying the
definition to include temporary impacts as a loss of waters of the
United States. Many commenters recommended that language be added to
NWPs to clarify that the acreage impact limit applies to activities or
discharges that would result in a complete loss of waters of the United
States and not to temporary or long-term impacts to the waters. One
commenter recommended revising this definition to state that placement
of dredged or fill material that results in an increase in the aquatic
resource functions and services of the aquatic resource is not a loss
of waters.
Loss of waters of the United States does not include waters of the
United States temporarily filled, flooded, excavated, or drained.
Permittees must comply with general conditions 11 (Equipment) and 13
(Removal of Temporary Structures of Fills) which require areas to be
restored to pre-construction elevations and revegetated, as
appropriate. Under Section 404 of the CWA, DA authorization is required
for discharges of dredged or fill material into waters of the United
States unless exempted by CWA Section 404(f). Discharges of dredged or
fill material involve the addition of material within or into waters of
the United States, regardless of whether the effect of the discharge is
beneficial or adverse. The Corps declines to remove discharges that
result in beneficial effects from this definition. Consistent with the
District Engineer's Decision (Section D), the district engineer can
consider the duration of the effects and whether the regulated activity
would result in beneficial effects in their determination whether the
NWP activity would cause more than minimal adverse effects to the
environmental.
The definition is adopted as proposed.
Nature-based solutions. The Corps proposed to add a definition of
``nature-based solutions'' to Section F. For the reasons discussed in
Section II.D. the definition is adopted as proposed.
Navigable waters. The Corps did not propose any changes to this
definition. One commenter recommended revising this definition to
clarify that variations of the term ``navigable waters'' such as
''navigable water,'' ``navigable waters of the United States,'' or
``navigable water of the United States'' all refer to waters subject to
Section 10 of the RHA (i.e., Section 10 waters) as defined in 33 CFR
329. The Corps agrees that the terms listed here all refer to navigable
waters of the United States as defined in 33 CFR 329 but finds it
unnecessary to add these terms to this definition.
One commenter requested that Corps districts provide a list of
navigable waters of the United States subject to Section 10 of the RHA
on district websites. Consistent with 33 CFR 329.16, Corps districts
maintain a list of navigable waters and the Corps will evaluate the
best way to make these lists available to the public.
One commenter stated that the Corps should clarify if waters under
the authority of Section 10 of the RHA are also ``traditional navigable
waters.'' ``Traditional navigable waters'' include but are not limited
to ``navigable waters'' as defined in this definition.
The definition is adopted as proposed.
Non-tidal wetland. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Open water. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Ordinary high water mark. The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Perennial stream. The Corps did not propose any changes to this
definition. Many commenters expressed opposition to defining this term
and recommended its removal from the definitions. This term is used in
NWP 40 (Agricultural Activities) and in NWP 43 (Stormwater Management
Facilities) as such, the Corps declines to remove this definition. The
definition is adopted as proposed.
Practicable. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Pre-construction notification. The Corps did not propose any
changes to this definition. The Corps did not receive any comments on
the proposed definition. The definition is adopted as proposed.
Preservation. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Re-establishment. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Rehabilitation. The Corps did not propose any changes to this
definition. The Corps did not receive any
[[Page 841]]
comments on the proposed definition. The definition is adopted as
proposed.
Restoration. The Corps did not propose any changes to this
definition. One commenter requested that the definition use the phrase
``and biological'' instead of ``or biological.'' The use of ``or''
preserves the option to manipulate some but not all characteristics of
an aquatic resource to improve natural functions. The Corps declines to
make the recommended change in this definition. The definition is
adopted as proposed.
Riffle and pool complex. The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Riparian areas. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Shellfish seeding. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Single and complete linear project. The Corps did not propose any
changes to this definition. Many commenters expressed support for this
definition. Many commenters opposed this definition and stated that it
should be removed. Many commenters stated that the ability to use
multiple NWPs to authorize individual segments of linear projects
should be eliminated because that practice violates numerous laws. Many
commenters stated that the definition of ``single and complete linear
project'' is used to piecemeal large projects into NWPs.
The term ``single and complete project'' is defined in the
regulations implementing the NWP program that were promulgated in 1991
and are still in effect (33 CFR 330.2(i). The definition in regulation
addresses what constitutes a ``single and complete project'' generally
as well as in the context of linear projects. The definitions
concerning single and complete projects in the NWPs are consistent with
the NWP regulations issued in 1991. The basis for treating each
crossing involved in a linear project as a separate activity is that
the effects of the activities that can be authorized within the
limitations of the applicable NWPs and by definition minor and are
typically limited to the waterbody being impacted. For linear projects,
impacts to jurisdictional waters and wetlands caused by activities
authorized by NWPs are scattered throughout a large landscape that
encompasses the point of origin and terminal point of the linear
projects, and all of the crossings of jurisdictional waters and
wetlands in between the origin and terminus. Under most circumstances,
those crossings impact distinctly different waterbodies, although there
may be cases where there are multiple crossings of the same waterbody
at separate and distant locations. For a long linear project, a large
number of different waterbodies may be impacted by crossings that are a
substantial distance from each other. This is distinguished from a non-
linear project which is more likely to concentrate the effects of
multiple activities within a single waterbody or watershed. As an
additional backstop against the possibility of impacts compounding
across multiple separate crossings, when a PCN is required for an
activity associated with a linear project, the PCN must include
information on all crossings associated with that linear project which
require DA authorization. The district engineer will review the PCN to
ensure that the cumulative adverse environmental effects of all
crossings associated with linear projects are no more than minimal. As
explained in the rulemaking establishing the definition of ``single and
complete project'' in 33 CFR 330.2(i) (see 56 FR 59110, 59113-13), the
definition of ``single and complete linear project'' does not allow
piecemealing. Under paragraph (b)(4) of general condition 32, PCNs for
linear projects are required to include those crossings of waters of
the United States that require NWP PCNs as well as those crossings that
will utilize the NWPs and do not require PCNs. When the district
engineer reviews the PCN, he or she considers the cumulative effects of
both the NWP activities that require PCNs and the NWP activities that
do not require PCNs. The Corps declines to make any changes to this
definition.
The definition is adopted as proposed.
Single and complete non-linear project. The Corps did not propose
any changes to this definition. The Corps did not receive any comments
on the proposed definition. The definition is adopted as proposed.
Stormwater management. The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Stormwater management facilities. The Corps did not propose any
changes to this definition. The Corps did not receive any comments on
the proposed definition. The definition is adopted as proposed.
Stream bed. The Corps proposed to modify the definition of ``stream
bed'' by adding a sentence that states that the substrate of a stream
bed may also be comprised, in part, of large and small wood fragments,
leaves, algae, and other organic materials. A few commenters requested
clarification whether wetlands within the ordinary high water mark are
considered part of the stream bed. Several commenters stated that the
definition should be corrected to read ``bedrock or inorganic
particles.'' We have corrected the second sentence in the definition to
include the word ``or.'' Wetlands landward, or outside, the ordinary
high water marks are not part of the stream bed. Areas waterward, or
between, the ordinary high water marks are part of the stream bed. Some
areas waterward of the ordinary high water mark may meet the definition
of wetland.
The definition is adopted as proposed.
Stream channelization. The Corps did not propose any changes to
this definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Structure. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Tidal wetland. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Tribal lands. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Tribal rights. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Vegetated shallows. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
Waterbody. The Corps did not propose any changes to this
definition. The Corps did not receive any comments on the proposed
definition. The definition is adopted as proposed.
III. Compliance With Relevant Statutes
A. National Environmental Policy Act
The Corps has prepared a decision document for each NWP. Each
decision document contains an EA to fulfill the
[[Page 842]]
requirements of the NEPA. The EA discusses the anticipated impacts the
NWP will have on the human environment. Each decision document also
includes a public interest review conducted in accordance with 33 CFR
320.4. If an NWP authorizes discharges of dredged or fill material into
waters of the United States, the decision document for that NWP also
includes a CWA Section 404(b)(1) Guidelines analysis conducted in
accordance with the applicable provisions of 40 CFR part 230, including
40 CFR 230.7 which address the issuance of general permits. These
decision documents evaluate the environmental effects of each NWP from
a national perspective.
The Corps solicited comments on the draft national decision
documents, and any comments received were considered when preparing the
final decision documents for the NWPs. The final decision documents for
each NWP are available on the internet at: www.regulations.gov (docket
ID number COE-2025-0002) as ``Supporting and Related Materials'' for
this final action.
Many commenters stated that the Corps has not met its obligations
under NEPA. Many commenters stated the reissuance of the NWPs requires
the preparation of Environmental Impact Statement(s). Many commenters
stated that the draft decision documents do not support the finding
that the NWP Program has not resulted in significant environmental
harm. Many commenters stated that the Corps has not taken a hard look
at the impacts of the NWP.
The Corps prepared components of the draft and final national
decision documents in accordance with NEPA (42 U.S.C. 4321 et seq).The
final decision documents prepared by Corps Headquarters for the
reissuance of these NWPs provide an analysis of the impacts expected to
be caused by the activities authorized by these NWPs during the five-
year period they are expected to be in effect, including estimates of
the number of times an NWP is anticipated to be used, the anticipated
impacts to jurisdictional waters and wetlands, and the compensatory
mitigation required to offset losses of jurisdictional waters and
wetlands. Those impacts, and the compensatory mitigation, are evaluated
against the current environmental setting (i.e., the affected
environment).
In the decision document, 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 these NWPs. The national decision document prepared for
each NWP issued by this final action discusses alternatives, examines
the effects and impacts of the proposed action (i.e., the issuance of
the NWP by Corps Headquarters), including actions not under the
authority of the Department of the Army. The national decision
documents include an environmental assessment with a finding of no
significant impact and satisfy the requirements of NEPA.
Many commenters stated that the Corps is not in compliance with
NEPA because the process to reissue the NWPs or review NWP-specific
activities does not include sufficient public participation. One
commenter requested clarification on the responsibility of districts in
communicating with the public if a project requires a PCN. This
commenter was concerned that determining a project is non-notifying is
final agency decision subject to judicial review under the
Administrative Procedure Act.
The Corps solicited comments on the proposed rule to reissue the
NWPs, and on the draft national decision documents, and any comments
received were considered when preparing the final action and the final
decision documents for the NWPs. The Corps considered comments on
thresholds for submittal of a PCN in finalizing this action. The NWPs
authorize only those activities that have no more than minimal adverse
environmental effects, so it is not necessary to issue public notices
to announce the tens of thousands of NWP verification letters Corps
districts issue each year.
Many commenters stated that the Corps' analysis in the decision
documents lacks sufficiently detailed data and analysis of impacts. One
commenter stated that the lack of information in the draft decision
documents limits the public's ability to provide substantive comments.
Many commenters stated that there are unexplained data inconsistencies
between the 2021 NWP decision documents and the draft 2026 NWP decision
documents. One commenter recommended distinguishing between temporary
or permanent impacts in the analysis.
The draft and final decision documents for the NWPs issued in this
final action estimate usage, acreage of impacts, and acreage of
compensatory mitigation for the 2026 NWPs. The estimated acreage of
impacts combines temporary and permanent impacts. The national decision
documents assess reasonably foreseeable impacts at a national scale
based on reliable data and resources. The impacts are evaluated against
the current environmental setting or baseline, in accordance with
typical practices for conducting environmental impact analyses.
Differences between the estimates for the projected use of the 2021
NWPs in the 2021 national decision documents and the estimated use of
the 2021 NWPs in the 2026 national decision documents are based on
reliable data and resources available at the time of the analysis.
Reasons for changes in the data include, but are not limited to,
changes in an industry or economy, improved avoidance and minimization,
the exercise of the district engineer's discretion under paragraph (d)
of general condition 23 (Mitigation), improvements in available
compensatory mitigation, or changes in data collection.
A few commenters said the decision documents imply that the
district commander completes an activity-specific NEPA analysis. Many
commenters stated that the Corps inappropriately tiers the NEPA
analysis.
The Corps Headquarters has prepared national decision documents for
each NWP to address the environmental effects of the reissuance of each
NWP in accordance with NEPA. Since the Corps fulfills the requirements
of NEPA when it issues its national decision document for the
reissuance of that NWP, no additional NEPA analysis or documentation is
completed for case-specific activities authorized by that NWP. The
supplemental documentation prepared by the division engineer and the
documentation prepared by the district engineer for NWP-specific
activities do not contain a NEPA analysis.
Many commenters stated that the Corps' alternative analysis
inappropriately assumes that individual permits would be less
protective than the NWP. Many commenters oppose reliance on potential
mitigation to offset effects, contrary to NEPA. One commenter stated
that the Corps cannot rely on compensatory mitigation to offset impacts
without monitoring the completion or success of the compensatory
mitigation.
The NWPs incentivize project proponents to design their project to
minimize losses of waters to qualify for NWP authorization rather than
having to apply for individual permits for authorization that results
in larger losses of waters. For example, in FY 2023, 74 percent of the
NWP verifications involving discharges of dredged or fill material into
waters of the United States had impacts of less than \1/10\-acre, well
below the \1/2\-acre limit in numerous NWPs. The use of compensatory
mitigation and other forms of mitigation to ensure that activities
authorized by
[[Page 843]]
an NWP result in no more than minimal adverse environmental effects is
codified in the Corps' NWP regulations at 33 CFR 330.1(e)(3).
Compensatory mitigation projects required for activities authorized by
the NWPs must comply with the Corps' regulations at 33 CFR part 332,
which require monitoring and other actions to ensure that the required
compensatory mitigation successfully offsets the permitted wetland or
stream losses. General condition 30 (Compliance Certification) requires
the permittee to certify that the authorized activity and any required
compensatory mitigation is complete.
B. Compliance With 404(e) of the Clean Water Act
The NWPs are issued in accordance with Section 404(e) of the CWA
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 phrase ``categories of activities that are similar in nature'',
``as determined by the Secretary,'' is best read to confer broad
discretion on the Secretary to facilitate the practical implementation
of this general permit program.
Nationwide permits, as well as other general permits, are intended
to reduce administrative burdens on the Corps and the regulated public
while maintaining environmental protection, by efficiently authorizing
activities that have no more than minimal adverse environmental
effects, consistent with Congressional intent in the 1977 amendments to
the Federal Water Pollution Control Act. The NWPs incentivize project
proponents to minimize impacts to jurisdictional waters and wetlands to
qualify for NWP authorization instead of having to apply for individual
permits. Keeping the number of NWPs manageable is a key component for
making the NWPs protective of the environment and streamlining the
authorization process for those general categories of activities that
have no more than minimal individual and cumulative adverse
environmental effects.
These 404(b)(1) Guidelines analyses in the national decision
documents were conducted in accordance with 40 CFR part 230.7. The
404(b)(1) Guidelines analyses in the national decision documents also
include cumulative effects analyses done in accordance with 40 CFR
230.7(b) and 230.11(g).
Before the 2026 NWPs go into effect, division engineers will issue
supplemental documents to evaluate environmental effects on a regional
basis (e.g., a state or Corps district) and to determine whether
regional conditions are necessary to ensure that the NWPs will result
in no more than minimal individual and cumulative adverse environmental
effects on a regional basis. The supplemental documents are prepared by
Corps districts but must be approved and issued by the appropriate
division engineer, since the NWP regulations at 33 CFR 330.5(c) state
that the division engineer has the authority to modify, suspend, or
revoke NWP authorizations in a specific geographic area within his or
her division. For some Corps districts, their geographic area of
responsibility covers an entire state. For other Corps districts, their
geographic area of responsibility may be based on watershed boundaries.
For some states, there may be more than one Corps district
responsible for implementing the Corps' Regulatory Program, including
the NWP program. In states with more than one Corps district, there is
a lead Corps district responsible for preparing the supplemental
documents for all of the NWPs. The supplemental documents will discuss
regional conditions imposed by division engineers to protect the
aquatic environment, compliance with other applicable federal laws, and
ensure that any adverse environmental effects resulting from NWP
activities in that region will be no more than minimal both
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 conducted for a region, which is typically defined as a state
or Corps district. When a district engineer issues a verification
letter in response to a PCN or a voluntary request for an NWP
verification, the district engineer prepares a brief decision document.
That decision document explains whether the proposed NWP activity,
after considering permit conditions such as mitigation requirements,
will result in no more than minimal individual and cumulative adverse
environmental effects.
If the NWP is not suspended or revoked in a state or a Corps
district, the supplemental document includes a certification that the
use of the NWP in that district, with any applicable regional
conditions, will result in no more than minimal cumulative adverse
environmental effects.
After the NWPs are issued or reissued and go into effect, district
engineers will monitor the use of these NWPs on a regional basis (e.g.,
within a watershed, county, state, Corps district or other appropriate
geographic area), to ensure that the use of a particular NWP is not
resulting in more than minimal cumulative adverse environmental
effects. The Corps' staff that evaluate NWP PCNs often work in a
particular geographic area and have an understanding of the activities
that have been authorized by NWPs, regional general permits, and
individual permits over time, as well as the current environmental
setting for that geographic area. If the Corps district staff believe
that the use of an NWP in that geographic region may be approaching a
threshold above which the cumulative adverse environmental effects for
that category of activities may be more than minimal, the district
engineer may either make a recommendation to the division engineer to
modify, suspend, or revoke the NWP authorization in that geographic
region in accordance with the procedures in 33 CFR 330.5(c).
Alternatively, under the procedures at 33 CFR 330.5(d), the district
engineer may also modify, suspend, or revoke NWP authorizations on a
case-by-case basis to ensure that the NWP does not authorize activities
that result in more than minimal cumulative adverse environmental
effects.
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 CWA. For each NWP that may authorize
discharges of dredged or fill material into waters of the United
States, the national decision documents prepared by Corps Headquarters
include a 404(b)(1) Guidelines analysis. The supplemental documents
prepared by division engineers will discuss regional circumstances, to
provide the basis for division engineers to add regional conditions to
the NWPs to address relevant factors in the 404(b)(1) Guidelines.
One commenter stated that the decision document should include the
NEPA analysis, the 404(b)(1) guidelines analysis, the public interest
review, and the discussion of reasonably foreseeable effects. Many
commenters stated that
[[Page 844]]
the NWPs do not comply with the 404(b)(1) guidelines. Many commenters
stated that the proposal is not compliant with the regulations that
govern NWPs nor with the CWA. Many commenters stated that the Corps has
failed to justify that NWPs have no more than minimal adverse effects
on the environment individually and cumulatively.
The national decision documents for each NWP include a NEPA
analysis and a public interest review, including a discussion of
reasonably foreseeable effects. For each NWP that authorizes discharges
of dredged or fill material into waters of the United States, the
decision document contains a 404(b)(1) Guidelines analysis. Section
230.7(b) of the 404(b)(1) Guidelines requires a ``written evaluation of
the potential individual and cumulative impacts of the categories of
activities to be regulated under the general permit.'' When we issue
the NWPs, we fully comply with the requirements of the 404(b)(1)
Guidelines at 40 CFR 230.7, which govern the issuance of general
permits under Section 404 of the CWA. Since the required evaluation
must be completed before the NWP is issued, the analysis is predictive
in nature. The estimates of potential individual and cumulative
impacts, as well as the projected compensatory mitigation that will be
required, are based on the data from the Corps district offices,
including the past use of NWPs.
In our decision documents, we also used reliable national data on
the status of wetlands and other aquatic habitats in the United States,
and the foreseeable impacts of the NWPs on those waters. In the
national decision document, the Corps addressed the elements required
for a CWA 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 concluded that the reissuance of
the NWPs would not cause or contribute to significant degradation of
the aquatic environment. The Corps has determined that the NWPs would
cause no more than minimal adverse effects to the environment, both
individually and cumulatively.
Many commenters stated that the NWPs have authorized activities
that caused cumulative effects to ecosystems and waterways. Many
commenters said that the Corps has not completed any meaningful
analysis of effects of the NWPs. A few commenters stated that the
cumulative effects analysis is appropriate. Many commenters stated that
the Corps defers cumulative effects analysis to the activity-specific
analysis completed by the district engineer. One commenter stated that
the Corps has not provided a cumulative effects analysis since 2001.
Many commenters stated that the Corps cannot complete its cumulative
impact analysis in reliance on mitigation that is imposed by the
district engineer after case-specific review of each NWP activity.
Several commenters stated that the cumulative impacts do not include
temporary impacts. One commenter stated that the district engineer
should not have the discretion to issue waivers because analysis has
not been conducted to determine if the cumulative impacts are minimal.
Section 404(e) of the CWA recognizes that activities authorized by
general permits, including NWPs, will result in adverse environmental
impacts. One requirement of Section 404(e) of the CWA 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. The
national decision documents consider the reasonably foreseeable impacts
compared to the baseline condition, estimating the number of times the
NWP is anticipated to be used during the five-year period it will be in
effect, the estimated impacts to jurisdictional waters and wetlands,
and the compensatory mitigation required to offset losses of
jurisdictional waters and wetlands. The national decision documents
prepared for this final action provide the analysis to support the
Corps' determination that the NWPs will cause no more than minimal
adverse environmental effects, both individually and cumulatively.
Division engineers prepare supplemental documentation which provide the
cumulative effects analysis 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 an NWP verification,
the district engineer prepares a brief document that explains the
decision that 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.
The Corps Regulatory Program's automated information system (ORM)
tracks NWP verifications issued, regional general permit verifications
issued, and individual permits issued, including the types of
activities authorized by those general permits and individual permits
and the Corps uses this information to inform our cumulative effects
analysis. The Corps, including divisions and districts, will use
available information, which may include ORM data, to complete the
cumulative effects analysis.
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 (Pre-
Construction Notification), that the proposed NWP activity will result
in no more than minimal individual and cumulative adverse environmental
effects, the district engineer may grant such a waiver. Following the
conclusion of the district engineer's review of a PCN, he or she
prepares an official, publicly available 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 33 CFR 330.6(a)(3)(i)). We have
retained the district engineer's discretion to waive particular limits
when he or she determines that the authorized activity will cause no
more than minimal adverse environmental effects.
Many commenters suggested that Corps districts publish permit,
impact, and mitigation data, and other permit-related information on
Corps district websites to provide more detail about cumulative impacts
at a regional level. Many commenters stated that the Corps' cumulative
impacts tool should be publicly available. One commenter stated that
the Corps should make all project records available without a Freedom
of Information Act (FOIA) request.
Data which is relied upon to complete the NEPA analysis, 404(b)(1)
Guidelines analysis, and public interest review are published in the
national decision documents. This data includes the estimated annual
use of NWPs, estimated annual impacts authorized by
[[Page 845]]
NWPs and estimated annual required compensatory mitigation. This data
is published in this final action and in the national decision
documents. The Corps makes information on other permit types available
on our website. Congress established the Freedom of Information Act as
the means for the public to access records from federal agencies,
unless the information is exempt from release.
Many commenters stated that the NWPs do not authorize categories of
activities that are similar in nature. Many commenters stated that the
NWPs authorize activities that are similar in nature.
Section 404(e) of the CWA does not specify how broadly or narrowly
the Corps has to identify any category of activities for the issuance
of a general permit, including the NWPs. Section 404(e) only requires
that the activities in that category are similar in nature. Likewise,
under the Corps' definition of general permit in its Section 10
regulations at 33 CFR 322.2(f), there are no standards regarding how
broad or narrow the category has to be. We believe that the
``categories of activities that are similar in nature'' requirement in
CWA Section 404(e) is to be interpreted broadly, for practical
implementation of this general permit program.
Many commenters stated that the NWPs are contrary to the public
interest. Many commenters stated that the Corps disregards impacts of
activities authorized by the NWPs which occur beyond the aquatic
environment or outside the Corps' jurisdiction.
The Corps prepared a national decision document for each NWP which
includes a public interest review. 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 CWA Section 404(b)(1), in particular 40 CFR part 230.7.
These decision documents evaluate, from a national perspective, the
public interest review factors and the environmental effects of each
NWP. The final national decision documents conclude that the reissuance
of the NWPs is not contrary to the public interest. The Corps evaluates
reasonably foreseeable impacts of the actions within DA jurisdiction.
The Corps does not have the authority to take actions to control
potential impacts that may occur which are far attenuated from the
action subject to DA jurisdiction.
C. Compliance With the Endangered Species Act
The Corps has carefully evaluated its Endangered Species Act (ESA)
obligations for the issuance of these NWPs. The Corps has determined
that finalizing this action issuing these NWPs has no effect on any
listed species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed such designation) due to the
terms and requirements of 33 CFR 330.4(f)(2) and general condition 18.
The basis for this determination is outlined in an October 15, 2012,
letter from the Corps' Chief Counsel to the FWS and NMFS (the
Services), as further described below. The no effect determination is
further supported by a biological assessment prepared by the Corps to
support this rulemaking action.
Requirements of the ESA
Section 7 of ESA requires each federal agency to insure, 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 listed species or result in the destruction
or adverse modification of designated critical habitat (16 U.S.C.
1536(a)(2)). Section 7 consultation is a procedural process. This
process for satisfying this procedural requirement is set out in
regulation at 50 CFR part 402. Those regulations require the action
agency to consult with the appropriate Service when the action ``may
affect'' listed species or critical habitat (50 CFR 402.14). The
regulations also require an action agency to confer with the
appropriate Service if the action is likely to jeopardize the continued
existence of any proposed species or result in the destruction or
adverse modification of proposed critical habitat (50 CFR 402.10(a)).
If the action agency determines that the action would have no effect on
listed species or designated critical habitat, then no consultation or
conference is necessary (Section 3.5 of Section 7 Consultation
Handbook, March 1998).
Requirements and Limitations Imposed by General Condition 18 and 33 CFR
330.4(f)
The issuance or reissuance of the NWPs by the Chief of Engineers
imposes express limitations on activities authorized by the NWPs. These
limitations are imposed by the NWP terms and conditions, including the
general conditions that apply to all NWPs regardless of whether PCN is
required. With respect to listed species and critical habitat, general
condition 18 expressly prohibits any activity ``which `may affect' a
listed species or critical habitat, unless Section 7 consultation
addressing the effects of the proposed activity has been completed.''
General condition 18 also states that if an activity ``might affect'' a
listed species (or a species proposed for listing) or critical habitat
(or critical habitat proposed for such designation) 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, 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.''
Similarly, 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 designated critical habitat (or
critical habitat proposed such designation) might be affected or are in
the vicinity of the proposed NWP activity. Section 330.4(f)(2) also
prohibits those permittees from beginning the NWP activity until
notified by the district engineer that the requirements of the ESA have
been satisfied, and that the activity is authorized. Permit applicants
that are federal agencies should follow their own requirements for
complying with the ESA (see 33 CFR 330.4(f)(1)), and if their proposed
NWP activities require PCNs, then their PCNs must include documentation
demonstrating their compliance with the ESA (see paragraph (b)(7) of
general condition 32).
General condition 18 and 33 CFR 330.4(f) establish a more stringent
threshold than the threshold set forth in the Services' ESA Section 7
regulations for initiation of Section 7 consultation. While Section 7
consultation must be initiated for any activity that ``may affect''
listed species or critical habitat, for non-federal permittees general
condition 18 requires submission of a PCN to the Corps if ``any listed
species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed for such designation) might be
affected or is in the vicinity of the activity, or if the activity is
located in designated critical habitat'' 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
[[Page 846]]
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
general condition 32.)
In other words, those regulations and general condition 18 require
non-federal permittees to submit PCNs 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. The
district engineer then evaluates the PCN and makes an effect
determination for the proposed NWP activity for the purposes of ESA
Section 7. The requirements and limitations imposed by the NWP
regulations at 33 CFR 330.4(f) and NWP general condition 18 (Endangered
Species) mean that the promulgation of these NWPs by the Chief of
Engineers do not have any effect on listed (or proposed) species or
designated (or proposed) critical habitat.
The text of paragraph (e) of general condition 18 is clear: an NWP
does not authorize the ``take'' of an endangered or threatened species.
Activities authorized by an NWP may not result in ``take'' of a listed
species unless the district engineer or other federal agency completes
consultation, receives an incidental take statement from the FWS or
NMFS and incorporates reasonable and prudent measures as conditions to
the NWP in the NWP verification.
Paragraph (e) of general condition 18 also states that a separate
authorization (e.g., an ESA Section 10 permit or a biological opinion
with an ``incidental take statement'') is required to take a listed
species. In addition, paragraph (a) of general condition 18 states that
no activity is authorized by NWP which is likely to ``directly or
indirectly jeopardize the continued existence of a threatened or
endangered species or a species proposed for such designation'' or
``which will directly or indirectly destroy or adversely modify
designated critical habitat or critical habitat proposed for such
designation.'' 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
designated critical habitat or critical habitat proposed for such
designation 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 (or species proposed for listing) or designated
critical habitat (or critical habitat proposed such designation)
without complying with the PCN requirement or other requirements of
general condition 18, the activity is not authorized under Section 404
of the CWA or Section 10 RHA. In this case, the project proponent could
be subject to enforcement action and penalties under 33 CFR 326. In
addition, if the unauthorized activity results in a ``take'' of listed
species as defined by the ESA and its implementing regulations, then
the person conducting that activity could be subject to penalties,
enforcement actions, and other actions by the FWS or NMFS under Section
11 of the ESA.
In summary, the issuance or reissuance of NWPs has ``no effect'' on
listed species or critical habitat because (1) no NWP can or does
authorize an activity that may affect a listed species (or species
proposed for listing) or designated critical habitat (or critical
habitat proposed such designation) absent an activity-specific ESA
Section 7 consultation, conference, or an applicable regional
programmatic ESA Section 7 consultation, and because (2) any activity
that may affect listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed such
designation) must undergo an activity-specific consultation,
conference, 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. 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.
Chief Counsel's Letter Explaining the Basis for the No Effect
Determination
On October 15, 2012, the Chief Counsel for the Corps sent a letter
to the Services clarifying the Corps' legal position regarding
compliance with Section 7 of the ESA for the NWPs. That letter
explained that the issuance or reissuance of the NWPs, along with
compliance with ESA Section 7 through NWP general condition 18 (which
applies to every NWP, and which relates to endangered and threatened
species) and 33 CFR 330.4(f), results in ``no effect'' to listed
species or critical habitat, and therefore the reissuance/issuance
action itself does not require ESA Section 7 consultation. Although the
reissuance/issuance of the NWPs itself has no effect on listed species
or their critical habitat and thus requires no ESA Section 7
consultation, the terms and conditions of the NWPs, including general
condition 18 and 33 CFR 330.4(f), ensure that ESA consultation will
take place on an activity-specific basis wherever appropriate at the
field level of the Corps, and the Services. The principles discussed in
the Corps' October 15, 2012, letter apply to this issuance/reissuance
of NWPs.
Although section 7 has not been amended, the Services have amended
the regulations implementing Section 7 of ESA (50 CFR part 402) several
times since the 2012 Chief Counsel letter was written. Those changes in
regulation do not affect the analysis and conclusion reached in the
letter.
Revisions made in in 2015 (80 FR 26832) defined two types of
programmatic ESA Section 7 consultations and discussed the
circumstances under which providing an incidental take statement with a
biological opinion for a programmatic Section 7 consultation is
appropriate. The two types of programmatic Section 7 consultations are:
framework programmatic actions and mixed programmatic actions. While
programmatic consultations are designed to cover large-scale
programmatic actions, they are not required or appropriate for all
national programmatic actions. In some cases, it is more appropriate to
address consultation at a regional or local level. Indeed, in the
preamble to the 2015 final rule, the Services identified the Corps' NWP
program as an example of a framework action at a national scale that
can address ESA Section 7 consultation requirements at a later time as
appropriate, as specific activities are authorized, funded, or carried
out (see 80 FR 26835). In their 2015 final rule, the Services also
stated that this regulatory change does not imply that Section 7
consultation is required for a framework programmatic action that has
no effect on listed species or critical habitat (see 80 FR 26835).
As discussed in this final action, 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 scales. Each year, Corps districts initiate
thousands of formal
[[Page 847]]
and informal ESA Section 7 consultations for specific NWP activities
(see below), and many Corps districts have worked with the Services to
develop formal and informal regional programmatic consultations.
Additional revision made in 2019 (84 FR 44976) and 2024 (89 FR
24268) modified definitions and elements of the consultation process.
These amendments changed how agencies determine the ``effects of the
action'' that must be considered when making an effects determination
or reaching a ``no effect'' conclusion. However, this change does not
alter the analysis in the 2012 Chief Counsel letter nor in the
operation of NWP general condition 18 and 33 CFR 330.4(f) because
general condition 18 covers any direct or indirect effect and
explicitly incorporates the current definition of ``effects of the
action'' from 50 CFR 402.02.
Biological Assessment Making a ``No Effect'' Determination
Although not required by the statute, the Corps has prepared a
biological assessment for this rulemaking action. The biological
assessment includes the list of active and pending regional
programmatic ESA Section 7 consultations that can be used for NWP
activities. 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 species proposed for listing) or
designated critical habitat (or critical habitat proposed such
designation) without first completing an activity-specific ESA Section
7 consultation (or conference) with the Services, as required by
general condition 18 and 33 CFR 330.4(f). A copy of the biological
assessment is available at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/ (at the link
titled ``Biological Assessment for the 2026 Nationwide Permits'').
The Corps recognizes that this procedural process is different than
the programmatic ESA Section 7 consultations the Corps conducted for
the 2007 and 2012 NWPs as 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. Those consultations were not mandated
by section 7 of the ESA. Rather, the Corps voluntarily consulted with
the Services to further bolster the protectiveness of the NWPs
generally. The Services have since confirmed that it can be appropriate
to address ESA Section 7 procedural requirements at a later time,
rather than at the initial national framework action level (see 80 FR
26835). For the 2017 or 2021 NWPs, Corps Headquarters did not request a
national programmatic consultation, nor did the Directors. For the 2021
NWPs, Corps Headquarters prepared a biological assessment concluding
that the issuance or reissuance of NWPs through the rulemaking process
had no effect on listed species and designated critical habitat.
Neither the Director of FWS nor the Director of NMFS has requested the
Corps to enter into consultation for this action, as they are
authorized to do under 50 CFR 402.12(a) if they identify any action of
an agency that may affect listed species or critical habitat and for
which there has been no consultation.
Regional and Action-Specific Implementation
During the process for developing regional conditions, Corps
districts coordinate or consult with FWS and/or NMFS regional or field
offices to identify regional conditions to protect listed species (or
species proposed for listing) or designated critical habitat (or
critical habitat proposed such designation) and ensure that an NWP for
a specific activity only authorizes 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. Division engineers decide whether
suggested regional conditions identified during this coordination are
appropriate for the NWPs. Such regional conditions may add PCN
requirements to one or more NWPs in areas inhabited by listed species
(or species proposed for listing) or where designated critical habitat
(or habitat proposed for such designation) occurs. Regional conditions
may also 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. Furthermore, after review of a
PCN and conclusion of any ESA Section 7 consultation, a district
engineer can add activity-specific conditions to an NWP verification to
ensure the effects of the activity on listed species, species proposed
for listing, critical habitat, or habitat proposed for such
designation, are no more than minimal.
Through regional consultations, local initiatives, or other
cooperative efforts, district engineers consider additional information
and measures to ensure protection of listed species and critical
habitat, consistent with the requirements established by general
condition 18 (which apply to all uses of all NWPs), and other
provisions of the Corps' regulations. Corps district offices meet with
local representatives of the Services to establish or modify existing
procedures, where necessary, to ensure that the Corps has the latest
information regarding the existence and location of any threatened or
endangered species or their critical habitat. Corps districts can also
establish, through local procedures or other means such as regional
programmatic consultations or standard local operating procedures,
additional safeguards that ensure that NWP activities will not
jeopardize any threatened and endangered species or result in the
destruction or adverse modification of designated critical habitat.
The Corps collects data on all individual permit applications, all
NWP PCNs, all voluntary requests for NWP verifications where the NWP or
general conditions do not require PCNs, and all verifications of
activities authorized by regional general permits. For all written
authorizations issued by the Corps, the collected data includes
authorized impacts and required compensatory mitigation, as well as
information on all consultations conducted under Section 7 of the ESA.
Every year, the Corps evaluates approximately 25,000 NWP PCNs and
voluntary 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 review of a PCN,
district engineers assess potential impacts to listed species and
critical habitat and conduct Section 7 consultations whenever they
determine proposed NWP activities ``may affect'' listed species or
critical habitat. District engineers will exercise discretionary
authority and require individual permits when proposed NWP activities
will result in more than minimal adverse environmental effects.
Each year, the Corps conducts thousands of ESA Section 7
[[Page 848]]
consultations with the Services for activities authorized by NWPs. In
FY 2024 (October 1, 2023 to September 30, 2024), Corps districts
conducted 217 formal consultations and 2,647 informal consultations
under ESA Section 7 for NWP PCNs and verification requests. During that
time period, the Corps also used regional programmatic consultations
for 4,667 NWP PCNs and verification requests to comply with ESA Section
7. Therefore, during FY 2024 more than 7,500 ESA Section 7 consultation
actions were completed for NWP PCNs or voluntary verification requests
where either formal or informal consultations were conducted or
existing regional programmatic ESA Section 7 consultations (formal and
informal) were utilized to comply with ESA Section 7.
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 Section 7 consultation with the FWS and/or NMFS for
all of those crossings that she or he determines ``may affect'' listed
species or designated critical habitat. The number of Section 7
consultations provided above represents the number of NWP PCNs that
required some form of ESA Section 7 consultation, not the number of
single and complete projects authorized by NWPs 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.
Section 7 consultation is only required when a Corps district makes
a ``may affect'' determination. Regional conditions, standard local
operating procedures for endangered species (i.e., SLOPES), and
regional programmatic consultations protect listed species and critical
habitat and tailor the NWP program to address specific species, their
habitats, and the stressors that affect those species.
This layered approach of implementing successively more specific
protections for listed species and designated critical habitat
facilitates the efficient permitting of those activities that could not
possibly affect those protected resources while ensuring that
activities that might affect those resources are appropriately
evaluated at the activity-specific level.
Response to Comments
The Corps received numerous comments regarding compliance with the
Endangered Species Act for both the rulemaking process for issuing,
reissuing, and modifying the NWPs by Corps Headquarters, and compliance
for specific activities authorized by NWPs. Comments concerning
hypothetical specific activities authorized by these NWPs is beyond the
scope of this rulemaking.
Many commenters stated that the reissuance of the NWPs violate the
ESA because the Corps did not complete programmatic Section 7
consultation. Many commenters stated that programmatic consultation is
necessary in order to consider the cumulative effects of all activities
authorized by NWPs on protected species. Many commenters stated the
reissuance of the NWPs result in adverse effects to listed species.
One commenter opposed the authorization of activities in critical
habitat. Many commenters support the Corps' determination that the
reissuance of the NWPs will have ``no effect.'' One commenter stated
that the Corps should request written concurrence from the Services on
the determination that no programmatic consultation is required. Many
commenters stated that the Corps cannot rely on general condition 18 to
satisfy the requirements of the ESA because the Corps has authorized
activities using an NWP for case-specific activities without completing
consultation.
The NWP issuance or reissuance has no effect on listed species or
critical habitat and any proposed NWP activity that ``may affect''
listed species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed such designation) will undergo an
activity-specific ESA Section 7 consultation, conference, or an
applicable regional programmatic ESA Section 7 consultation therefore
there is no requirement that the Corps undertake programmatic
consultation for the NWP program. Regional programmatic consultations
may 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.
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. In
accordance with general condition 18, (Endangered Species) non-federal
prospective permittees may not begin work until the district engineer
has completed consultation with the Services for activities that ``may
affect'' listed species or critical habitat. Federal permittees must
follow their own regulations for complying with Section 7 of the ESA.
Activities which will jeopardize listed species (or species proposed
for listing) or cause adverse modification to critical habitat (or
habitat proposed for such designation) are not authorized by any NWP.
D. Compliance With Section 106 of the National Historic Preservation
Act
The NWP regulations at 33 CFR 330.4(g) and general condition 20
(Historic Properties) ensure that all activities authorized by NWPs
comply with Section 106 of the NHPA. General condition 20 requires non-
federal permittees to submit PCNs for any activity that might have the
potential to cause effects to any historic properties listed on,
determined to be eligible for listing on, or potentially eligible for
listing on the National Register of Historic Places, including
previously unidentified properties. The Corps established the ``might
have the potential to cause effects'' criterion under its own
regulatory authorities in paragraph (c) general condition 20 to require
PCNs for those activities to provide an additional layer of protection
for cultural resource values. Upon receipt of the PCN, the district
engineer will evaluate the proposed NWP activity and make a threshold
determination under 36 CFR 800.3(a)(1) whether the activity 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 (1)
the Corps district makes a ``no potential to cause effects''
determination or (2) completes NHPA Section 106 consultation.
When evaluating a PCN, the Corps will either make a ``no potential
to cause effects'' determination or a ``no historic properties
affected,'' ``no adverse effect,'' or ``adverse effect'' determination.
If the Corps makes a ``no historic properties affected,'' ``no adverse
effect,'' or ``adverse effect'' determination, the district engineer
will notify the non-federal applicant and the
[[Page 849]]
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 general condition 20, 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 address the unauthorized
activity under its regulations at 33 CFR 326.
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 general condition 20.
Programmatic agreements (see 36 CFR 800.14(b)) may also be used to
satisfy the requirements of general condition 20 if a proposed NWP
activity is covered by that programmatic agreement.
NHPA Section 106 requires a federal agency that has authority to
license or permit any undertaking, to take into account the effect of
the undertaking on any district, site, building, structure, or object
that is included in or eligible for inclusion in the National Register,
prior to issuing a license or permit. The head of any such Federal
agency shall afford the Advisory Council on Historic Preservation a
reasonable opportunity to comment on the undertaking. Thus, in
assessing application of NHPA Section 106 to NWPs issued or reissued by
the Corps, the proper focus is on the nature and extent of the specific
activities ``authorized'' by the NWPs and the timing of that
authorization.
The issuance or reissuance of the NWPs by the Chief of Engineers
imposes express limitations on activities authorized by those NWPs.
These limitations are imposed by the NWP terms and conditions,
including the general conditions that apply to all NWPs regardless of
whether preconstruction notification is required. With respect to
historic properties, general condition 20 expressly prohibits reliance
on an NWP authorization for 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. General condition 20 also states that
if an activity ``might have the potential to cause effects'' to any
historic properties, a non-federal applicant must submit a PCN and
``shall not begin the activity until notified by the district engineer
either that the activity has no potential to cause effects to historic
properties or that consultation under Section 106 of the NHPA has been
completed.'' Permit applicants that are federal agencies should follow
their own requirements for complying with Section 106 of the NHPA (see
33 CFR 330.4(g)(1) and paragraph (b) of the general condition 20
(Historic Properties)).
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 general condition
20 establishes an additional layer of protection for cultural resource
values occurring prior to any later threshold determination 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, assuming such
historic properties were present,'' for non-federal permittees general
condition 20 requires submission by the non-Federal permittee of a PCN
to the Corps preceding any assessment under Section 106, if ``the NWP
activity might have the potential to cause effects to any historic
properties listed on, determined to be eligible for listing on, or
potentially eligible for listing on the National Register of Historic
Places, including previously unidentified properties.''
General condition 20 also prohibits the proponent from conducting
the activity in reliance upon an NWP ``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 general condition 20.) The
PCN must ``state which historic property might have the potential to be
affected by the proposed activity or include a vicinity map indicating
the location of the historic property.'' (See paragraph (b)(8) of
general condition 32, Pre-Construction Notification.)
In emergency situations, consistent with 33 CFR 325.2(e)(4), 33 CFR
325 Appendix C, paragraph 14, and 36 CFR 800.12 if an activity has the
potential to cause effects to historic properties, the district
engineer will make reasonable efforts to obtain comments from the State
Historic Preservation Officer and the Advisory Council on Historic
Preservation. The district engineer will comply with the provisions of
33 CFR 325 Appendix C 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, ``to the extent
that time and the emergency situation allows.''
During the process for developing regional conditions, Corps
districts can coordinate or consult with State Historic Preservation
Officers, Tribal Historic Preservation Officers, and tribes to identify
regional conditions that can provide additional assurance of compliance
with general condition 20 and 33 CFR 330.4(g)(2) 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 general condition 20 (which
apply to all uses of all NWPs), and other provisions of the Corps'
regulations and guidance ensure full compliance with NHPA Section 106.
Based on the fact that NWP issuance or reissuance has no potential
to cause effects on historic properties and that any activity that
``has the potential to cause effects'' to historic properties will
undergo activity-specific NHPA Section 106 consultation, there is no
requirement that the Corps undertake programmatic consultation for the
NWP program. Regional programmatic agreements can be established by
Corps districts and State Historic Preservation
[[Page 850]]
Officers and/or Tribal Historic Preservation Officers to comply with
the requirements of Section 106 of the NHPA.
One commenter opposes the reissuance of the NWPs citing the lack of
consultation with SHPOs, THPOs, Tribes, and other consulting parties.
Many commenters support the development of a programmatic agreement for
all general permits.
During the process for developing regional conditions, Corps
districts can coordinate or consult with State Historic Preservation
Officers, Tribal Historic Preservation Officers, and tribes to identify
regional conditions that can provide additional assurance of compliance
with general condition 20 and 33 CFR 330.4(g)(2) 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 general condition 20 (which
apply to all uses of all NWPs), and other provisions of the Corps'
regulations and guidance ensure full compliance with NHPA Section 106.
Many commenters stated that the Corps cannot use Appendix C to
comply with Section 106 of the NHPA. A few commenters supported the
Corps' reliance on Appendix C. One commenter stated that the Corps does
not have the authority to promulgate Section 106 procedures codified in
general condition 20 and at 33 CFR 330.4(g).
Section 110(a)(2)(E)(i) of the NHPA and 36 CFR 14(a) states that
federal agencies can develop their own procedures for complying with
section 106 as long as those procedures are consistent with the
regulations issued by the Advisory Council on Historic Preservation.
Neither of those provisions require ACHP to approve program
alternatives. The Corps' regulations for complying with Section 106 of
the NHPA are found at Appendix C to 33 CFR part 325. Appendix C remains
in effect as a counterpart regulation to 36 CFR part 800, and no
federal court has invalidated Appendix C. The Corps continues to use
Appendix C and the 2005 and 2007 interim guidance, in addition to 36
CFR 800, to comply with Section 106 of the NHPA.
Section 404(e) of the CWA gives the Corps the authority to develop
NWPs. The Corps has issued or reissued the NWPs, including general
condition 20 and the regulations at 33 CFR 330.4 in accordance with the
Administrative Procedures Act in accordance with the authority
delegated to the Chief of Engineers through Section 404 of the CWA and
Section 10 of the RHA. General condition 20 and/or 33 CFR 330.4 were
not developed as alternative procedures to 36 CFR 800, rather they set
the requirements for the NWP program to comply with Section 106 of the
NHPA.
Many commenters stated that most NWPs should require a PCN in order
for the district engineer to review the activity for potential to
effect historic properties.
Non-federal permittees must submit a PCN if the NWP activity
``might have the potential to cause effects on 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 threshold that
triggers submittal of a PCN under paragraph (c) of general condition 20
is that the activity ``might have the potential to cause effects.'' The
actions by the non-federal permittee to submit a PCN occur before the
Section 106 process begins. Upon receipt of a PCN, the district
engineer will determine if there is potential to cause effects, and
whether he or she has further obligations under Section 106 of NHPA.
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 is achieved through EFH consultations between Corps
districts and NMFS regional offices. This approach continues the EFH
Conservation Recommendations provided by NMFS Headquarters to Corps
Headquarters in 1999 for the NWP Program. Corps districts that have EFH
designated within their geographic areas of responsibility will
coordinate with NMFS regional offices, to the extent necessary, to
develop NWP regional conditions that conserve EFH, are consistent with
NMFS regional EFH Conservation Recommendations, and are approved by
division engineers under the procedures at 33 CFR 330.5(c). District
engineers may also add conditions to NWP authorizations to address EFH
Conservation Recommendations made by NMFS during activity-specific EFH
consultations. Corps districts will conduct consultations in accordance
with the EFH consultation regulations at 50 CFR 600.920.
One commenter said that there will be cumulative impacts to EFH as
a result of impacts authorized by NWPs. In those Corps districts where
EFH has been designated, district engineers review PCNs for proposed
NWP activities to determine whether those proposed activities may
adversely affect EFH. If the district engineer determines a proposed
NWP activity may adversely affect EFH, she or he initiates EFH
consultation with the NMFS. Division engineers can add PCN requirements
via regional conditions to those NWPs that do not require PCNs for all
activities to ensure that EFH consultation is conducted for proposed
activities that may adversely affect EFH.
F. Section 401 of the Clean Water Act
A water quality certification granted by a state, authorized tribe,
or EPA (certifying authority), or a waiver thereof, is required by
Section 401 of the CWA, for an activity authorized by NWP which may
result in a discharge from a point source into waters of the United
States. Water quality certifications (WQC) may be granted without
conditions, granted with conditions, denied, or waived for specific
NWPs.
Nationwide permits 15, 16, 17, 18, 21, 25, 29, 30, 34, 39, 40, 41,
42, 43, 46, 49, 50, and 59 authorize activities that may result in
discharges and therefore 401 WQC or waiver is required for those NWPs.
Nationwide permits 3, 4, 5, 6, 7, 12, 13, 14, 19, 20, 22, 23, 27, 31,
32, 33, 36, 37, 38, 44, 45, 48, 51, 52, 53, 54, 57, 58, and 60
authorize various activities, some of which may result in a discharge
and require 401 WQC or waiver, and others which may not. Nationwide
permits 1, 2, 9, 10, 11, 24, 28, 35, and 55 authorize work or
structures which, in the opinion of the Corps, could not reasonably be
expected to result in a discharge into waters of the United States and
therefore do not require 401 WQC or waiver. However, the final decision
of whether WQC is needed for any of the activities authorized by these
nine NWPs (NWPs 1, 2, 9, 10, 11, 24, 28, 35, and 55) rests with the
certifying authority. In the case of NWP 8, it only authorizes
activities seaward of the territorial seas where the CWA does not apply
and therefore does not require WQC.
Prior to the issuance of this final action, certifying authorities
made their decisions on whether to grant, grant with conditions, deny,
or waive WQC for the issuance of the NWPs. If a certifying authority
granted WQC or
[[Page 851]]
granted WQC with conditions for the issuance of these NWPs, district
engineers reviewed the WQCs in accordance with 40 CFR 121.8. If the
district engineer determined that any WQC for the issuance of the NWPs
did not comply with the requirements of 33 U.S.C. 1341 and/or 33 CFR
330.4(c)(2), district engineers declined to rely on the WQC and
considered the WQC to be denied. In such cases, the district engineer
notified the certifying authority. The conditions in the WQC for the
issuance of the NWP became become conditions of the NWP authorization
in accordance with Section 401(d) of the CWA and 33 CFR 330.4(c)(2).
The 401(a)(2) process occurred per current requirements at 40 CFR
121.12 and 121.13.
If a certifying agency denied 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.
Many commenters supported the reasonable period of time of six
months. A few commenters objected to requests to make decisions to
grant, waive, or deny water quality based on the 2025 Proposal rather
than the final action. One commenter expressed concern that granted
water quality certifications may be made invalid by changes to the NWP
from the 2025 Proposal to this final action. One commenter requested
that district engineers include all conditions from granted water
quality certifications in the same manner as regional and general
conditions. Some commenters stated that conditions to granted water
quality certifications are unlawful and burdensome.
Section 401 of the CWA states that no permit shall be issued until
water quality certification has been obtained or waived. Therefore, the
water quality certification process must be completed before the final
NWPs are issued. That process is consistent with the Corps' NWP
regulations at 33 CFR 330.4(c)(1), which says that ``water quality
certification pursuant to Section 401 of the CWA, or waiver thereof, is
required prior to the issuance or reissuance of NWPs authorizing
activities which may result in a discharge into waters of the United
States.'' As discussed above, certifying authorities must act on
certification requests before the Corps can issue the final NWPs.
The process to request water quality certification for the NWPs in
this action is consistent with Section 401 of the CWA and EPA's final
certification regulation at 40 CFR part 121. Corps districts sent
certification requests to certifying authorities soon after the 2025
Proposal was published in the Federal Register (90 FR 26100), in June
2025. As stated in general condition 25 (Water Quality) and reiterated
in the Note to Section C. (Nationwide Permit General Conditions)
permittees must comply with the conditions of granted water quality
certifications. The Corps has limited authority to review conditions to
water quality certifications that were granted in accordance with EPA's
certification regulation.
After the final NWPs are issued and division engineers have
approved the final regional conditions for the NWPs, Corps districts
will issue public notices announcing the final regional conditions for
the NWPs and the disposition of WQC for the final NWPs. The Corps will
post copies of these district public notices in the www.regulations.gov
docket for this rulemaking action (docket number COE-2025-0002). It is
the certifying authorities' responsibility to develop conditions for
their WQCs for the issuance of the NWPs.
G. 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. CZMA
consistency concurrences may be issued without conditions, issued with
conditions, or denied for specific NWPs.
Prior to the issuance of this final action, 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 330.4(d)(2). 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 notification letters.
A provisional notification 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 PCN to the
Corps is not
[[Page 852]]
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).
After the final NWPs are issued and division engineers have
approved the final regional conditions for the NWPs, Corps districts
will issue public notices announcing the final regional conditions for
the NWPs and the disposition of CZMA concurrences for the final NWPs.
The Corps will post copies of these district public notices in the
www.regulations.gov docket for this rulemaking action (docket number
COE-2025-0002). It is the states' responsibility to develop conditions
for their WQCs for the issuance of the NWPs.
After the final NWPs are issued and division engineers have
approved the final regional conditions for the NWPs, Corps districts
will issue public notices announcing the final regional conditions for
the NWPs and the disposition of CZMA concurrences for the final NWPs.
The Corps will post copies of these district public notices in the
www.regulations.gov docket for this rulemaking action (docket number
COE-2025-0002). It is the states' responsibility to develop conditions
for their WQCs for the issuance of the NWPs.
IV. Economic Impact
The NWPs are expected to increase the number of regulated
activities eligible for NWP authorization and reduce the number of
regulated activities that require individual permits. The Corps
estimates that these NWPs will authorize an additional 123 individual
activities each year. Subsequently, 123 fewer activities each year
would require individual permits. By authorizing more activities by
NWP, this final action will reduce burden for the regulated public
primarily in the form of compliance costs. The changes will increase
the number of categories of activities authorized by NWP and
subsequently reduce the number of activities that require individual
permits. By increasing the number of activities that can be authorized
by NWPs, the changes will 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 incentivizes project proponents to minimize
impacts to jurisdictional waters and wetlands in exchange for receiving
the required Department of the Army authorization in less time compared
to the amount of time required to obtain individual permits. In fiscal
year 2024, the average time to receive an NWP verification was 55 days
from the date the Corps district received a complete PCN, compared to
253 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 action, which is available in the
www.regulations.gov docket (docket number COE-2025-0002)).
As discussed in the Regulatory Impact Analysis for this final
action, the Corps estimates that a permit applicant's compliance cost
for obtaining NWP authorization in 2024$ (2024 dollars) ranges from
$5,289 to $17,631 (The 2001 compliance cost estimates were originally
made using 1999$, which the Corps adjusted to 2024$ to account for
inflation using the GDP deflator approach).\5\ 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 $21,157 to $42,314 in 2024$. Considering how these NWPs
will increase the number of activities authorized by an NWP each year,
the Corps estimates that the NWPs authorized by this final action, when
compared with the 2021 NWPs, will decrease compliance costs for the
regulated public by approximately $3.5 million per year. The Corps
invited comment on the assumptions and methodology used to calculate
the compliance costs and burden in general associated with the NWP.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
One commenter stated that the Corps should conduct research to
update the data on the average costs of NWPs compared to standard
permits, as well as costs of compliance. The Corps uses reliable data
and resources to prepare the Regulatory Impact Analysis.
------------------------------------------------------------------------
Nationwide permit(s) Changes Anticipated impacts
------------------------------------------------------------------------
NWP 12............. Revised Note No change in number
recommending of NWP
permittee provide authorizations.
information to
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting. Added
Note recommending
permittee contact
USCG about project.
NWP 13............. Added new paragraph May increase number
clarifying that of activities
this NWP authorizes authorized by NWP
nature-based and decrease number
solutions to of activities
provide habitat and requiring
other ecosystem individual permits.
functions and (Prior versions of
services with bank NWP 13 could have
stabilization authorized bank
activities. Added a stabilization
new Note to activities
reference the incorporating
Corps' regulations nature-based
about selecting solutions.)
bank stabilization
approaches, and
examples of the
factors to be
considered.
NWP 15............. Added General Bridge No change in number
Act of 1946 as an of NWP
applicable authorizations.
statutory authority
for bridges
authorized by the
U.S. Coast Guard.
NWP 23............. Modify paragraph (a) No change in number
to reference of NWP
sections 106, 109, authorizations.
and 111(1) of NEPA.
Modified text to
state that any
changes to approved
categorical
exclusions
applicable to this
NWP will be
announced in the
Federal Register.
NWP 24............. Removed Florida from No change in number
list of states that of NWP
have assumed the authorizations.
Clean Water Act
Section 404 permit
program.
[[Page 853]]
NWP 27............. Changed title of Increased number of
NWP. Revised activities
ecological authorized by NWP;
reference decreased number of
requirement to activities
include historic requiring
ecosystems, individual permits.
cultural Decreased number of
ecosystems, and PCNs.
indigenous and
local ecological
knowledge. Removed
list of examples.
Required reports
for all activities
and modify report
requirements.
Removed PCN
thresholds.
Excluded dam
removal activities.
Added new Note to
address delineation
requirement when
NWP 27 activities
require PCNs
because of general
conditions or
regional conditions
imposed by division
engineers.
NWP 39............. Added ``data centers No change in number
(to include for of NWP
example, artificial authorizations.
intelligence and
machine learning
facilities),
pharmaceutical
manufacturing
facilities,'' and
``storage
facilities'' to
list of examples of
commercial
facilities
authorized by this
NWP.
NWP 43............. Replaced ``green No change in number
infrastructure'' of NWP
and ``low impact authorizations.
development
integrated
management
features'' with
``nature-based
solutions'' and
provided additional
examples of nature-
based solutions
related to
stormwater
management.
NWP 45............. Modified No change in number
``Notification'' of NWP
paragraph to extend authorizations.
timeframe within
which the permittee
must submit a PCN
to the district
engineer from 12 to
18 months of the
date of the damage.
NWP 48............. Excluded marine and No change in number
estuarine waters of NWP
within Washington authorizations
State. Revised Note because commercial
recommending shellfish
permittee contact mariculture
USCG about project. activities in
Added Note Washington State
recommending are currently being
permittee provide authorized by
information to individual permits.
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting.
NWP 52............. Revised Note No change in number
recommending of NWP
permittee provide authorizations.
information to
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting. Added
Note recommending
permittee contact
USCG about project.
NWP 54............. Added gravel and No change in number
cobble to types of of NWP
substrate used for authorizations
living shorelines. because using
Clarify that small cobble and gravel
pocket beaches can for living
be authorized. Add shorelines was not
text to NWP to prohibited and
specify that also small portions of a
authorizes living shoreline
temporary could be without
structures, fills, living components.
and work, including
the use of
temporary mats,
necessary to
construct the
living shoreline
activity.
NWP 55............. Revised Note No change in number
recommending of NWP
permittee contact authorizations.
USCG about project.
Add Note
recommending
permittee provide
information to
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting.
NWP 57............. Revised Note No change in number
recommending of NWP
permittee provide authorizations.
information to
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting. Added
Note recommending
permittee contact
USCG about project.
NWP 58............. Revised Note No change in number
recommending of NWP
permittee provide authorizations.
information to
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting. Added
Note recommending
permittee contact
USCG about project.
Added clarifying
language to correct
inconsistency in
language about
activities which
require
authorization under
Section 10 of RHA.
NWP 60............. Issued new NWP to Increased number of
authorize activities
activities to authorized by NWP;
improve passage of decreased number of
fish and other activities
aquatic organisms. requiring
individual permits.
General condition Added ``including No change in number
9, Management of Water tidal flows'' to of NWP
Flows. clarify that tidal authorizations.
flows should be
considered as
``expected high
flows''.
General condition Added a sentence No change in number
11, Equipment. requiring affected of NWP
areas to be authorizations.
returned to pre-
construction
elevations, and
revegetated as
appropriate to
rectify soil
compaction that may
occur from using
mats.
General condition Removed the No change in number
18, Endangered Species. reference to 50 CFR of NWP
402.17 because that authorizations.
section was removed
by a final rule
issued by the
Services in 2024.
General condition Added ``into waters No change in number
25, Water Quality. of the United of NWP
States'' after authorizations.
``discharge'' to
make it clear that
the discharge must
be into waters of
the United States.
[[Page 854]]
General condition Modified general No change in number
28, Use of Multiple NWPs. condition to of NWP
clarify application authorizations.
to NWPs with
different numeric
limits.
General condition Modified general No change in number
30, Compliance conditions to of NWP
certifications. change authorizations.
``successful'' to
``successful
completion'' to
clarify that any
required permittee-
responsible
mitigation has to
be successfully
completed by the
permittee.
General condition Modified paragraph No change in number
32, Pre-Construction (a)(2) to include of NWP
Notification. species proposed authorizations.
for listing and
critical habitat
proposed for
designation. Modify
paragraph (b)(5) to
refer to Note 2 of
NWP 27 when an NWP
27 activity
requires a PCN.
------------------------------------------------------------------------
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. For this final action,
the Corps has used 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
requires, on average, 11 hours to complete. The NWPs would slightly
increase the total paperwork burden associated with this program
because the Corps estimates that under this final action 44 more PCNs
would be required each year. This increase is primarily due to the
modification to NWP 13 to incorporate nature-based solutions into bank
stabilization activities and the issuance of NWP 60 to authorize
activities to improve the passage of fish and other aquatic organisms.
Both of these changes are expected to result in a reduction in the
number of activities requiring individual permits. The paperwork burden
associated with these NWPs is expected to increase by approximately
1,034 hours per year from 237,193 hours to 238,227 hours.
The following table summarizes the projected changes in paperwork
burden from the 2021 NWPs to the NWPs issued in this final action.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated
Estimated changes in
Number of Number of NWP Estimated changes in number of Estimated hours Estimated cost
NWP PCNs activities not changes in number of standard to prepare NWP to prepare NWP
per year requiring PCNs NWP PCNs authorized NWP individual PCNs per year PCNs per year
per year per year activities permits per (2024$ millions)
year
--------------------------------------------------------------------------------------------------------------------------------------------------------
2021 NWPs................................... 21,563 31,690 ........... ............... ........... 237,193 $379
2026 NWPs................................... 21,657 31,719 +44 +123 -123 238,227 381
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 RHA, Section
404 of the CWA, 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 this final action.
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
final action 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 CWA (33 U.S.C. 1344(e)) and Section 10
of the RHA (33 U.S.C. 403). Under Section 404, Department of the Army
(DA) permits are required for discharges of dredged or fill material
into waters of the United States. Under Section 10, DA permits are
required for any structures or other
[[Page 855]]
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. NWPs are a form of general permit
issued by the Chief of Engineers.
NWPs 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 CWA states that
general permits, including NWPs, can be issued for no more than five
years. If the current NWPs are not modified or reissued, they will
expire on March 14, 2026, 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.
The issuance of NWPs to authorize activities under Section 404 of
the CWA and Section 10 of the RHA reduces the burden of regulation
because if the NWPs are not issued, project proponents would be
required to obtain individual permits for those activities unless Corps
districts issue regional general permits or programmatic general
permits to authorize those activities. Each year, the NWPs authorize
approximately 55,000 activities that result in no more than minimal
individual and cumulative adverse environmental effects. In FY 2024,
the average time for the Corps to process an application for a standard
individual permit from date of receipt of a complete application to
date of issuance was 253 days. During FY 2024, the average time for the
Corps to process an NWP verification request was 55 days from date of
receipt of a complete pre-construction notification to the issuance
date. The shorter review period for NWP activities versus activities
requiring standard individual permits reduces regulatory burdens on
members of the public that need to obtain Department of the Army
authorization for their activities.
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. For this final action, the Corps has prepared a
Regulatory Impact Analysis in accordance with OMB Circular A-4 (2003).
The Regulatory Impact Analysis is available in the www.regulations.gov
docket for this rulemaking action (docket number COE-2025-0002, under
``Supporting and Related Materials''). In the Regulatory Impact
Analysis, the Corps estimates that under the 2026 NWPs, the estimated
annual direct compliance costs (in 2024$) would be between $382,000,000
and $652,000,000 per year, $3.5 million to $10.2 million per year less
than the baseline direct compliance costs (i.e., the estimated annual
direct compliance costs under the 2021 NWPs). The direct compliance
costs of the 2026 NWPs represent the cost savings achieved by the final
NWPs compared to the baseline of the 2021 NWPs. 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 CWA 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 mitigation measures, are imposed to ensure that the NWPs
authorize only those activities that result in no more than minimal
adverse effects on the aquatic environment and other public interest
review factors.
After considering the economic impacts of the issuance of these
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 NWPs finalized in this action will not impose
substantially higher costs on small entities than those of the existing
NWPs. If an NWP is not available to authorize a particular activity,
then another form of DA authorization, such as an individual permit or
a regional general permit authorization, must be secured. However, as
noted above, the Corps expects a slight to moderate 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 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,
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
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
[[Page 856]]
small governments on compliance with the regulatory requirements.
The Corps has determined that these 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 action 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 the NWPs is not subject to the
requirements of Section 203 of UMRA.
Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, federal agencies must evaluate the environmental
health or safety effects of the final rule on children and explain why
the regulation is preferable to other potentially effective and
reasonably feasible alternatives.
The NWPs are not subject to this Executive Order because they are
not economically significant as defined in Executive Order 12866. In
addition, the NWPs do not concern an environmental health or safety
risk that 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 does not have tribal implications. It is
generally consistent with current agency practice and will not have
substantial direct effects on tribal governments, on the relationship
between the federal government and the tribes, or on the distribution
of power and responsibilities between the federal government and
tribes. Therefore, Executive Order 13175 does not apply to this final
action. However, in the spirit of Executive Order 13175, the Corps
specifically requested comment from tribal officials on the proposed
rule. Corps districts conducted government-to-government consultation
with tribes who requested such consultation, to identify regional
conditions or other local NWP modifications that may be necessary to
protect aquatic resources of interest to tribes, as part of the Corps'
responsibility to protect trust resources. The Corps' Regulatory
Program follows a number of existing Department of Defense, Army, and
Corps' tribal consultation policies. Information on these tribal
consultation policies are available at: https://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations/.
Many commenters objected to the reissuance of the NWPs. One
commenter stated that the Corps has not demonstrated how NWP reissuance
would affect tribal treaty rights. Many commenters stated that there is
insufficient time for tribes to consult with the Corps on the 2025
Proposal. Several commenters said that the Corps is required to consult
and coordinate with the tribes on the proposed rule. One commenter
stated that the Corps should extend its comment period 60 days or
should withdraw its proposal to allow early tribal engagement.
While the NWPs are issued through rulemaking, we believe the final
NWPs will not have substantial direct effects on tribal governments, on
the relationship between the federal government and the tribes, or on
the distribution of power and responsibilities between the federal
government and tribes. We have taken, and will continue to take,
measures (such as Corps districts consulting with tribes on specific
NWP activities that may have adverse effects on tribal rights) to
ensure that the NWPs will not have substantial direct effects on tribal
governments, on the relationship between the federal government and the
tribes, or on the distribution of power and responsibilities between
the federal government and tribes.
General condition 17 (Tribal Rights) 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. Tribes use NWPs for activities they conduct that require DA
authorization under Section 404 of the CWA and/or Section 10 of the
RHA. For example, tribes that conduct commercial shellfish aquaculture
activities have used NWP 48, and tribes that conduct aquatic habitat
restoration activities have used NWP 27.
For the 2026 NWPs, the Corps provided a 30-day comment period on
the 2025 Proposal, which we believe is appropriate when considering the
minor changes proposed to the NWPs. The Corps has considered comments
received from tribes on the 2025 proposal, including letters from 18
tribes or tribal organizations. Corps districts conducted consultations
with tribes to identify regional conditions to ensure activities comply
with general conditions 17 and 20 (Historic Properties). The Corps has
consulted and will continue to consult with tribes consistent with our
tribal consultation policies. Division engineers can modify, suspend,
or revoke one or more NWPs in a region to protect tribal rights.
During the consultation on regional conditions to the NWPs,
district engineers can develop coordination procedures with tribes to
provide tribes with opportunities to review proposed NWP activities and
provide their views on whether those activities will cause more than
minimal adverse effects on tribal rights (including treaty rights),
protected tribal resources, or tribal lands. When a Corps district
receives a PCN that triggers a need to consult with one or more tribes,
that consultation will be completed before the district engineer makes
his or her decision on whether to issue the NWP verification. If, after
considering mitigation, the district engineer determines the proposed
NWP activity will have more than minimal adverse effects on tribal
rights (including treaty rights), protected tribal resources, or tribal
lands, he or she will exercise discretionary authority and require an
individual permit. A district engineer can modify, suspend, or revoke
an NWP to protect tribal rights, protected tribal resources, and tribal
lands.
One commenter requested that the Corps develop cooperative
agreements with tribes. One commenter stated that the Corps is shifting
the responsibility of monitoring and oversight to tribes as a result in
changes to jurisdiction. A few
[[Page 857]]
commenters stated that the Corps should engage in co-management with
tribes on enforcement and impacts analysis using tribal ecological
knowledge. One commenter requested that the Corps provide additional
training to staff on tribal trust resources.
Corps districts are encouraged by regulations at 33 CFR 320.4(j)(6)
to consult with tribes to establish procedures for establishing
official communications with tribes within their districts. The Corps
cannot require permits or monitoring of activities in aquatic resources
that are not waters of the Unites States. Corps districts are
responsible for enforcing compliance with NWP conditions unless the
state or eligible tribe has assumed the responsibility of the Section
404 permit program in certain waters of the United States in accordance
with Section 404(g) of the CWA. Consistent with general conditions 17
and 20, Corps districts will consult with tribes when evaluating use of
an NWP for resolution of enforcement actions that might impact tribal
rights or historic properties. The Corps provides regular training to
staff on the responsibilities of the federal government to uphold the
tribal trust responsibility.
Environmental Documentation
A decision document has been prepared for each NWP being issued.
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. The decision
documents are available at: www.regulations.gov (docket ID number COE-
2025-0002). 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 NWPs
and other required information to the U.S. Senate, the U.S. House of
Representatives, and the Government Accountability Office. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. The 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 13211
This action is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001) because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
VI. References
A complete list of all references cited in this document is
available on the internet at http://www.regulations.gov in docket
number COE-2025-0002 or upon request from the U.S. Army Corps of
Engineers (see FOR FURTHER INFORMATION CONTACT).
Authority
The Corps is reissuing 56 existing NWPs and issuing one new NWP
under the authority of Section 404(e) of the Clean Water Act (33 U.S.C.
1344) and/or Section 10 of the Rivers and Harbors Act of 1899 (33
U.S.C. 401 et seq.).
Jason E. Kelly,
Major General, U.S. Army, Deputy Commanding General for Civil and
Emergency Operations.
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, District Engineer's
Decision, Further Information, and Definitions
Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Ecosystem Restoration, Enhancement, and Establishment
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage and Irrigation Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Mariculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
53. Removal of Low-Head Dams
54. Living Shorelines
55. Seaweed Mariculture Activities
56. [Reserved]
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances
59. Water Reclamation and Reuse Facilities
60. Activities to Improve Passage of Fish and Other Aquatic
Organisms
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
[[Page 858]]
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United
States
32. Pre-Construction Notification
District Engineer's Decision
Further Information
Nationwide Permit Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Ecological reference
Enhancement
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Loss of waters of the United States
Nature-based solutions
Navigable waters
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Tribal lands
Tribal rights
Vegetated shallows
Waterbody
B. Nationwide Permits
1. Aids to Navigation. The placement of aids to navigation and
regulatory markers that are approved by and installed in accordance
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I,
subchapter C, part 66). (Authority: Section 10 of the Rivers and
Harbors Act of 1899 (Section 10))
2. Structures in Artificial Canals. Structures constructed in
artificial canals within principally residential developments where the
connection of the canal to a navigable water of the United States has
been previously authorized (see 33 CFR 322.5(g)). (Authority: Section
10)
3. Maintenance. (a) The repair, rehabilitation, or replacement of
any previously authorized, currently serviceable structure or fill, or
of any currently serviceable structure or fill authorized by 33 CFR
330.3, 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))
[[Page 859]]
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)
7. Outfall Structures and Associated Intake Structures. Activities
related to the construction or modification of outfall structures and
associated intake structures, where the effluent from the outfall is
authorized, conditionally authorized, or specifically exempted by, or
otherwise in compliance with regulations issued under the National
Pollutant Discharge Elimination System Program (Section 402 of the
Clean Water Act). The construction of intake structures is not
authorized by this NWP unless they are directly associated with an
authorized outfall structure.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
8. Oil and Gas Structures on the Outer Continental Shelf.
Structures for the exploration, production, and transportation of oil,
gas, and minerals on the outer continental shelf within areas leased
for such purposes by the Department of the Interior, Bureau of Ocean
Energy Management. Such structures shall not be placed within the
limits of any designated shipping safety fairway or traffic separation
scheme, except temporary anchors that comply with the fairway
regulations in 33 CFR 322.5(l). The district engineer will review such
proposals to ensure compliance with the provisions of the fairway
regulations in 33 CFR 322.5(l). Any Corps review under this NWP will be
limited to the effects on navigation and national security in
accordance with 33 CFR 322.5(f), as well as 33 CFR 322.5(l) and 33 CFR
part 334. Such structures will not be placed in established danger
zones or restricted areas as designated in 33 CFR part 334, nor will
such structures be permitted in EPA or Corps-designated dredged
material disposal areas.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 10)
9. Structures in Fleeting and Anchorage Areas. Structures, buoys,
floats, and other devices placed within anchorage or fleeting areas to
facilitate moorage of vessels where such areas have been established
for that purpose. (Authority: Section 10)
10. Mooring Buoys. Non-commercial, single-boat, mooring buoys.
(Authority: Section 10)
11. Temporary Recreational Structures. Temporary buoys, markers,
small floating docks, and similar structures placed for recreational
use during specific events such as water skiing competitions and boat
races or seasonal use, provided that such structures are removed within
30 days after use has been discontinued. At Corps of Engineers
reservoirs, the reservoir managers must approve each buoy or marker
individually. (Authority: Section 10)
12. Oil or Natural Gas Pipeline Activities. Activities required for
the construction, maintenance, repair, and removal of oil and natural
gas pipelines and associated facilities in waters of the United States,
provided the activity does not result in the loss of greater than \1/
2\-acre of waters of the United States for each single and complete
project.
Oil or natural gas pipelines: This NWP authorizes discharges of
dredged or fill material into waters of the United States and
structures or work in navigable waters for crossings of those waters
associated with the construction, maintenance, or repair of oil and
natural gas pipelines. There must be no change in pre-construction
contours of waters of the United States. An ``oil or natural gas
pipeline'' is defined as any pipe or pipeline for the transportation of
any form of oil or natural gas, including products derived from oil or
natural gas, such as gasoline, jet fuel, diesel fuel. heating oil,
petrochemical feedstocks, waxes, lubricating oils, and asphalt.
Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided the material is not placed in such a manner that it is
dispersed by currents or other forces. The district engineer may extend
the period of temporary side casting for no more than a total of 180
days, where appropriate. In wetlands, the top 6 to 12 inches of the
trench should normally be backfilled with topsoil from the trench. The
trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel
layers, creating a French drain effect). Any exposed slopes and stream
banks must
[[Page 860]]
be stabilized immediately upon completion of the utility line crossing
of each waterbody.
Oil or natural gas pipeline substations: This NWP authorizes the
construction, maintenance, or expansion of substation facilities (e.g.,
oil or natural gas or gaseous fuel custody transfer stations, boosting
stations, compression stations, metering stations, pressure regulating
stations) associated with an oil or natural gas pipeline in non-tidal
waters of the United States, provided the activity, in combination with
all other activities included in one single and complete project, does
not result in the loss of greater than \1/2\-acre of waters of the
United States. This NWP does not authorize discharges of dredged or
fill material into non-tidal wetlands adjacent to tidal waters of the
United States to construct, maintain, or expand substation facilities.
Foundations for above-ground oil or natural gas pipelines: This NWP
authorizes the construction or maintenance of foundations for above-
ground oil or natural gas pipelines in all waters of the United States,
provided the foundations are the minimum size necessary.
Access roads: This NWP authorizes the construction of access roads
for the construction and maintenance of oil or natural gas pipelines,
in non-tidal waters of the United States, provided the activity, in
combination with all other activities included in one single and
complete project, does not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters for access roads. Access roads must be the minimum
width necessary (see Note 2, below). Access roads must be constructed
so that the length of the road minimizes any adverse effects on waters
of the United States and must be as near as possible to pre-
construction contours and elevations (e.g., at grade corduroy roads or
geotextile/gravel roads). Access roads constructed above pre-
construction contours and elevations in waters of the United States
must be properly bridged or culverted to maintain surface flows.
This NWP may authorize oil or natural gas pipelines in or affecting
navigable waters of the United States even if there is no associated
discharge of dredged or fill material (see 33 CFR part 322). Oil or
natural gas pipelines routed in, over, or under section 10 waters
without a discharge of dredged or fill material may require a section
10 permit.
This NWP authorizes, to the extent that Department of the Army
authorization is required, temporary structures, fills, and work
necessary for the remediation of inadvertent returns of drilling fluids
to waters of the United States through sub-soil fissures or fractures
that might occur during horizontal directional drilling activities
conducted for the purpose of installing or replacing oil or natural gas
pipelines. These remediation activities must be done as soon as
practicable, to restore the affected waterbody. District engineers may
add special conditions to this NWP to require a remediation plan for
addressing inadvertent returns of drilling fluids to waters of the
United States during horizontal directional drilling activities
conducted for the purpose of installing or replacing oil or natural gas
pipelines.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to conduct the oil or
natural gas pipeline activity. Appropriate measures must be taken to
maintain normal downstream flows and minimize flooding to the maximum
extent practicable, when temporary structures, work, and discharges of
dredged or fill material, including cofferdams, are necessary for
construction activities, access fills, or dewatering of construction
sites. Temporary fills must consist of materials, and be placed in a
manner, that will not be eroded by expected high flows. After
construction, temporary fills must be removed in their entirety and the
affected areas returned to pre-construction elevations. The areas
affected by temporary fills must be revegetated, as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) a section 10 permit is required; (2) the discharge will result
in the loss of greater than \1/10\-acre of waters of the United States;
or (3) the proposed oil or natural gas pipeline activity is associated
with an overall project that is greater than 250 miles in length and
the project purpose is to install new pipeline (vs. conduct repair or
maintenance activities) along the majority of the distance of the
overall project length. If the proposed oil or gas pipeline is greater
than 250 miles in length, the pre-construction notification must
include the locations and proposed impacts (in acres or other
appropriate unit of measure) for all crossings of waters of the United
States that require DA authorization, including those crossings
authorized by an NWP would not otherwise require pre-construction
notification. (See general condition 32.) (Authorities: Sections 10 and
404)
Note 1: Where structures or work are authorized in navigable
waters of the United States (i.e., section 10 waters) within the
coastal United States, the Great Lakes, and United States
territories, the permittee should provide a copy of the `as-built
drawings' and the geographic coordinate system used in the `as-built
drawings' to the National Oceanic and Atmospheric Administration
(NOAA), National Ocean Service (NOS), to inform updates to nautical
charts and Coast Pilot corrections. The information should be
transmitted via email to [email protected].
Note 2: For oil or natural gas pipeline activities crossing a
single waterbody more than one time at separate and distant
locations, or multiple waterbodies at separate and distant
locations, each crossing is considered a single and complete project
for purposes of NWP authorization. Oil or natural gas pipeline
activities must comply with 33 CFR 330.6(d).
Note 3: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the oil or
natural gas pipeline must be removed upon completion of the work, in
accordance with the requirements for temporary fills.
Note 4: Pipes or pipelines used to transport gaseous, liquid,
liquescent, or slurry substances over navigable waters of the United
States are considered to be bridges, and may require a permit from
the U.S. Coast Guard pursuant to the General Bridge Act of 1946.
However, any discharges of dredged or fill material into waters of
the United States associated with such oil or natural gas pipelines
will require a section 404 permit (see NWP 15).
Note 5: This NWP authorizes oil or natural gas pipeline
maintenance and repair activities that do not qualify for the Clean
Water Act section 404(f) exemption for maintenance of currently
serviceable fills or fill structures.
Note 6: For NWP 12 activities that require pre-construction
notification, the PCN must include any other NWP(s), regional
general permit(s), or individual permit(s) used or intended to be
used to authorize any part of the proposed project or any related
activity, including other separate and distant crossings that
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b)(4) of general condition
32). The district engineer will evaluate the PCN in accordance with
Section D, ``District Engineer's Decision.'' The district engineer
may require mitigation to ensure that the authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects (see general condition 23).
Note 7: Where structures or work are proposed in navigable
waters of the United
[[Page 861]]
States, project proponents should ensure they provide the location
and dimensions of the proposed structures to the U.S. Coast Guard
(USCG) prior to submittal of a Pre-Construction Notification, or
prior to beginning construction. The USCG may assess potential
navigation-related concerns associated with the location of proposed
structures or work and may inform project proponents of marking and
lighting requirements necessary to comply with General Condition 1
(Navigation). For assistance identifying the appropriate USCG
District or Sector Waterways Management Staff responsible for the
area of the proposed work, contact USCG at [email protected].
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.
In addition, this NWP authorizes discharges of dredged or fill
material into waters of the United States and structures and work in
navigable waters of the United States to incorporate nature-based
solutions into new and existing bank stabilization activities to
provide habitat and other ecosystem functions and services and to
reduce adverse effects of bank stabilization activities on the aquatic
environment. Examples of nature-based solutions for bank stabilization
activities include the use of construction materials for seawalls and
bulkheads that have textured surfaces, crevices, shelves, benches, and
pits that support attachment and growth of benthic organisms;
vegetative stabilization; bioengineering; the construction of rock
pools next to the bank stabilization activity; the construction of
small pocket beaches next to the bank stabilization activity; the use
of various sizes of rock for revetments to provide different sizes of
spaces between rocks for habitat for various species of organisms; the
placement of rock clusters next to a seawall or bulkhead; the placement
of large wood next to seawalls, bulkheads, and revetments; and the
placement of bags of molluscs or the placement of small reef structures
to provide habitat for molluscs and other sessile aquatic organisms
next to a seawall, bulkhead, or revetment. Nature-based solutions
should be appropriate for the physical and biological characteristics
of the site.
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 1: In coastal waters and the Great Lakes, living
shorelines may be an appropriate option for bank stabilization, and
may be authorized by NWP 54.
Note 2: Under 33 CFR 320.4(g)(2), a landowner has the general
right to protect his or her property from erosion, and the district
engineer can provide general guidance to the landowner regarding
possible alternative methods of protecting his or her property.
Permittees are encouraged to use soft bank stabilization approaches
(e.g., bioengineering, vegetative stabilization) at sites where
those methods are likely to be effective in managing erosion, such
as sites where shorelines and banks are subject to moderate to low
erosive forces. However, hard bank stabilization activities (e.g.,
seawalls, bulkheads, revetments, riprap) may be necessary at sites
where shorelines and banks are subject to strong erosive forces. An
appropriate and effective approach to managing shoreline or bank
erosion at a specific site requires consideration of a variety of
factors, including but not limited to: bank height; bank condition;
the energy of 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 waters
subject to the ebb and flow of tides; shoreline configuration and
orientation; the width of the waterway; and whether there is
infrastructure in the vicinity of the proposed bank stabilization
activity that needs to be protected and the degree of protection
needed.
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
[[Page 862]]
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
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 the General Bridge Act of 1946, 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
[[Page 863]]
state, regional or local contingency plan provided that the Regional
Response Team (if one exists in the area) concurs with the proposed
response efforts. This NWP also authorizes activities required for the
cleanup of oil releases in waters of the United States from electrical
equipment that are governed by EPA's polychlorinated biphenyl spill
response regulations at 40 CFR part 761. This NWP also authorizes the
use of temporary structures and fills in waters of the U.S. for spill
response training exercises. (Authorities: Sections 10 and 404)
21. Surface Coal Mining Activities. Discharges of dredged or fill
material into waters of the United States associated with surface coal
mining and reclamation operations, provided the following criteria are
met:
(a) The activities are already authorized, or are currently being
processed by states with approved programs under Title V of the Surface
Mining Control and Reclamation Act of 1977 or by the Department of the
Interior, Office of Surface Mining Reclamation and Enforcement;
(b) The discharge must not cause the loss of greater than \1/2\-
acre of non-tidal waters of the United States. This NWP does not
authorize discharges of dredged or fill material into tidal waters or
non-tidal wetlands adjacent to tidal waters; and
(c) The discharge is not associated with the construction of valley
fills. A ``valley fill'' is a fill structure that is typically
constructed within valleys associated with steep, mountainous terrain,
associated with surface coal mining activities.
Notification: The permittee must submit a pre-construction
notification to the district engineer. (See general condition 32.)
(Authorities: Sections 10 and 404)
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 Section
106, 109, and 111(1) of the National Environmental Policy Act, 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 changes to approved
categorical exclusions applicable to this NWP will be announced in
the Federal Register and posted on this same website.
24. Indian Tribe or State Administered Section 404 Programs. Any
activity permitted by a state or Indian Tribe administering its own
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899.
(Authority: Section 10)
Note 1: As of the date of the promulgation of this NWP, only
New Jersey and Michigan administer their own 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 Ecosystem 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 rivers and streams and their riparian areas, the restoration and
enhancement of other non-tidal open waters, and the restoration and
enhancement of tidal streams, tidal wetlands, and tidal open waters,
provided those activities result in net increases in aquatic ecosystem
functions and services.
[[Page 864]]
To be authorized by this NWP, the aquatic ecosystem restoration,
enhancement, or establishment activity must be planned, designed, and
implemented so that it results in an aquatic ecosystem that resembles
an ecological reference (i.e., a natural ecosystem). An ecological
reference may be based on the characteristics of aquatic ecosystems or
riparian areas that currently exist in the region, or the
characteristics of aquatic ecosystems or riparian area that existed in
the region in the past. Ecological references include cultural
ecosystems, which are ecosystems that have developed under the joint
influence of natural processes and human management activities (e.g.,
fire stewardship for vegetation management). An ecological reference
may also be based on regional ecological knowledge, including
indigenous and local ecological knowledge, of the target aquatic
ecosystem type or riparian area.
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 ecosystem functions and services.
This NWP does not authorize: (1) dam removal activities; (2) stream
channelization activities; and (3) the conversion of tidal wetlands to
open water impoundments and other aquatic uses unless the conversion is
solely for the purpose of enhancing the functions of tidal wetlands.
Only native plant species should be planted at the site.
Compensatory mitigation is not required for activities authorized by
this NWP because these activities must result in net increases in
aquatic ecosystem functions and services.
Reversion. For aquatic ecosystem restoration, enhancement, 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), Bureau of Land Management
(BLM), 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, BLM, 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 Program requirements are applicable to that type of land at
the time. The requirement that the activity results in a net increase
in aquatic ecosystem 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. The permittee must submit a report containing
information on the proposed aquatic ecosystem restoration, enhancement,
and establishment activity to the district engineer at least 30 days
prior to commencing activities in waters of the United States
authorized by this NWP. The report must include the following
information:
(1) Name, address, and telephone numbers of the prospective
permittee;
(2) Location of the proposed activity;
(3) Information on baseline ecological conditions at the project
site, including a general description and map of aquatic and
terrestrial habitat types on that site. The map of existing aquatic and
terrestrial habitat types and their approximate boundaries on the
project site should be based on recent aerial imagery or similar
information, and verified with photo points or other field-based data
points for each mapped habitat type;
(4) A sketch of the proposed project elements of the NWP 27
activity drawn over a copy of the map of existing aquatic and
terrestrial habitat types on the project site;
(5) The objectives of the proposed aquatic ecosystem restoration,
enhancement, or establishment activity and a description of the
techniques or mechanisms that are proposed to be used to increase
aquatic ecosystem functions and services on the project site to meet
the objectives;
(6) And if applicable, a copy of: (a) the binding stream
enhancement or restoration agreement or wetland enhancement,
restoration, or establishment agreement with the FWS, NRCS, FSA, NMFS,
NOS, USFS, BLM, or their designated state cooperating agencies; (b) the
NRCS or USDA Technical Service Provider documentation for the voluntary
stream enhancement or restoration action or wetland restoration,
enhancement, or establishment action; or (c) the SMCRA permit issued by
OSMRE or the applicable state agency. (Authorities: Sections 10 and
404)
Note 1: 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.
Note 2: If an activity authorized by this NWP requires a PCN
because of an NWP general condition (e.g., NWP general condition 18,
endangered species) or a regional condition imposed by a division
engineer, the information required by paragraph (3) of the Reporting
requirement substitutes for the delineation of waters, wetlands, and
other special aquatic sites required by paragraph (b)(5) of general
condition 32.
28. Modifications of Existing Marinas. Reconfiguration of existing
docking
[[Page 865]]
facilities within an authorized marina area. No dredging, additional
slips, dock spaces, or expansion of any kind within waters of the
United States is authorized by this NWP. (Authority: Section 10)
29. Residential Developments. Discharges of dredged or fill
material into non-tidal waters of the United States for the
construction or expansion of a single residence, a multiple unit
residential development, or a residential subdivision. This NWP
authorizes the construction of building foundations and building pads
and attendant features that are necessary for the use of the residence
or residential development. Attendant features may include but are not
limited to roads, parking lots, garages, yards, utility lines, storm
water management facilities, septic fields, and recreation facilities
such as playgrounds, playing fields, and golf courses (provided the
golf course is an integral part of the residential development).
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters.
Subdivisions: For residential subdivisions, the aggregate total
loss of waters of United States authorized by this NWP cannot exceed
\1/2\-acre. This includes any loss of waters of the United States
associated with development of individual subdivision lots.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
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
[[Page 866]]
mitigation. Once the one-time mitigation described above has been
completed, or a determination made that mitigation is not required, no
further mitigation will be required for maintenance activities within
the maintenance baseline (see Note, below). In determining appropriate
mitigation, the district engineer will give special consideration to
natural water courses that have been included in the maintenance
baseline and require mitigation and/or best management practices as
appropriate.
Emergency Situations: In emergency situations, this NWP may be used
to authorize maintenance activities in flood control facilities for
which no maintenance baseline has been approved. Emergency situations
are those which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen, and
significant economic hardship if action is not taken before a
maintenance baseline can be approved. In such situations, the
determination of mitigation requirements, if any, may be deferred until
the emergency has been resolved. Once the emergency has ended, a
maintenance baseline must be established expeditiously, and mitigation,
including mitigation for maintenance conducted during the emergency,
must be required as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer before any maintenance work is
conducted (see general condition 32). The pre-construction notification
may be for activity-specific maintenance or for maintenance of the
entire flood control facility by submitting a five-year (or less)
maintenance plan. The pre-construction notification must include a
description of the maintenance baseline and the disposal site for
dredged or excavated material. (Authorities: Sections 10 and 404)
Note: If the maintenance baseline was approved by the district
engineer under a prior version of NWP 31, and the district engineer
imposed the one-time compensatory mitigation requirement on
maintenance for a specific reach of a flood control project
authorized by that prior version of NWP 31, during the period this
version of NWP 31 is in effect, 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,
[[Page 867]]
must not exceed 10 acres of waters of the United States, including
wetlands. The activity must not result in a net loss of wetland
acreage. This NWP does not authorize any discharge of dredged or fill
material related to other cranberry production activities such as
warehouses, processing facilities, or parking areas. For the purposes
of this NWP, the cumulative total of 10 acres will be measured over the
period that this NWP is valid.
Notification: The permittee must submit a pre-construction
notification to the district engineer once during the period that this
NWP is valid, and the NWP will then authorize discharges of dredge or
fill material at an existing operation for the permit term, provided
the 10-acre limit is not exceeded. (See general condition 32.)
(Authority: Section 404)
35. Maintenance Dredging of Existing Basins. The removal of
accumulated sediment for maintenance of existing marina basins, access
channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever
is less. All dredged material must be deposited and retained in an area
that has no waters of the United States unless otherwise specifically
approved by the district engineer under separate authorization. Proper
sediment controls must be used for the disposal site. (Authority:
Section 10)
36. Boat Ramps. Activities required for the construction, 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 affect the containment, stabilization, or removal of
hazardous or toxic waste materials that are performed, ordered, or
sponsored by a government agency with established legal or regulatory
authority. Court ordered remedial action plans or related settlements
are also authorized by this NWP. This NWP does not authorize the
establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note: Activities undertaken entirely on a Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
site by authority of CERCLA as approved or required by EPA, are not
required to obtain permits under Section 404 of the Clean Water Act
or Section 10 of the Rivers and Harbors Act.
39. Commercial and Institutional Developments. Discharges of
dredged or fill material into non-tidal waters of the United States for
the construction or expansion of commercial and institutional building
foundations and building pads and attendant features that are necessary
for the use and maintenance of the structures. Attendant features may
include, but are not limited to, roads, parking lots, garages, yards,
utility lines, storm water management facilities, wastewater treatment
facilities, and recreation facilities such as playgrounds and playing
fields. Examples of commercial developments include retail stores,
industrial facilities, storage facilities, restaurants, business parks,
data centers (to include for example, artificial intelligence and
machine learning facilities), pharmaceutical manufacturing facilities,
and shopping centers. Examples of institutional developments include
schools, fire stations, government office buildings, judicial
buildings, public works buildings, libraries, hospitals, and places of
worship. The construction of new golf courses and new ski areas is not
authorized by this NWP.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of
[[Page 868]]
dredged or fill material into non-tidal wetlands adjacent to tidal
waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note: For any activity that involves the construction of a wind
energy generating structure, solar tower, or overhead transmission
line, a copy of the PCN and NWP verification will be provided by the
Corps to the Department of Defense Siting Clearinghouse, which will
evaluate potential effects on military activities.
40. Agricultural Activities. Discharges of dredged or fill material
into non-tidal waters of the United States for agricultural activities,
including the construction of building pads for farm buildings.
Authorized activities include the installation, placement, or
construction of drainage tiles, ditches, or levees; mechanized land
clearing; land leveling; the relocation of existing serviceable
drainage ditches constructed in waters of the United States; and
similar activities.
This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams,
provided the farm pond is used solely for agricultural purposes. This
NWP does not authorize the construction of aquaculture ponds.
This NWP also authorizes discharges of dredged or fill material
into non-tidal jurisdictional waters of the United States to relocate
existing serviceable drainage ditches constructed in non-tidal streams.
The discharge must not cause the loss of greater than\1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 404)
Note: Some discharges of dredged or fill material into waters
of the United States for agricultural activities may qualify for an
exemption under Section 404(f) of the Clean Water Act (see 33 CFR
323.4). This NWP authorizes the construction of farm ponds that do
not qualify for the Clean Water Act section 404(f)(1)(C) exemption
because of the recapture provision at section 404(f)(2).
41. Reshaping Existing Drainage and Irrigation Ditches. Discharges
of dredged or fill material into non-tidal waters of the United States,
excluding non-tidal wetlands adjacent to tidal waters, to modify the
cross-sectional configuration of currently serviceable drainage and
irrigation ditches constructed in waters of the United States, for the
purpose of improving water quality by regrading the drainage or
irrigation ditch with gentler slopes, which can reduce erosion,
increase growth of vegetation, and increase uptake of nutrients and
other substances by vegetation. The reshaping of the drainage ditch
cannot increase drainage capacity beyond the original as-built capacity
nor can it expand the area drained by the drainage ditch as originally
constructed (i.e., the capacity of the drainage ditch must be the same
as originally constructed and it cannot drain additional wetlands or
other waters of the United States). Compensatory mitigation is not
required because the work is designed to improve water quality.
This NWP does not authorize the relocation of drainage or
irrigation ditches constructed in waters of the United States; the
location of the centerline of the reshaped drainage or irrigation ditch
must be approximately the same as the location of the centerline of the
original drainage or irrigation ditch. This NWP does not authorize
stream channelization or stream relocation projects. (Authority:
Section 404)
42. Recreational Facilities. Discharges of dredged or fill material
into non-tidal waters of the United States for the construction or
expansion of recreational facilities. Examples of recreational
facilities that may be authorized by this NWP include playing fields
(e.g., football fields, baseball fields), basketball courts, tennis
courts, hiking trails, bike paths, golf courses, ski areas, horse
paths, nature centers, and campgrounds (excluding recreational vehicle
parks). This NWP also authorizes the construction or expansion of small
support facilities, such as maintenance and storage buildings and
stables that are directly related to the recreational activity, but it
does not authorize the construction of hotels, restaurants, racetracks,
stadiums, arenas, or similar facilities.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 404)
43. Stormwater Management Facilities. Discharges of dredged or fill
material into non-tidal waters of the United States for the
construction of stormwater management facilities, including stormwater
detention basins and retention basins and other stormwater management
facilities; the construction of water control structures, outfall
structures and emergency spillways; the construction of nature-based
solutions for managing stormwater and reducing inputs of sediments,
nutrients, and other pollutants into waters. Examples of such nature-
based solutions include, but are not limited to, stream biofilters,
bioretention ponds or swales, rain gardens, vegetated filter strips,
vegetated swales (bioswales), constructed wetlands, infiltration
trenches, and regenerative stormwater conveyances, as well as other
nature-based solutions and other features that are conducted to meet
reduction targets established under Total Maximum Daily Loads set under
the Clean Water Act.
This NWP authorizes, to the extent that a section 404 permit is
required, discharges of dredged or fill material into non-tidal waters
of the United States for the maintenance of stormwater management
facilities, and nature-based solutions for managing stormwater and
reducing inputs of sediments, nutrients, and other pollutants into
waters. The maintenance of stormwater management facilities and nature-
based solutions that do not contain waters of the United States does
not require a section 404 permit.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters. This NWP does not authorize discharges of dredged or
fill material for the construction of new stormwater management
facilities in perennial streams.
Notification: For discharges of dredged or fill material into non-
tidal waters of the United States for the construction of new
stormwater management facilities or nature-based solutions, or the
expansion of existing stormwater management facilities or nature-based
solutions, the permittee must submit a pre-construction notification to
the district engineer prior to commencing the activity. (See general
condition 32.) Maintenance activities do not require pre-construction
notification if they are limited to restoring the original design
capacities of the stormwater management facility or nature-based
solution. (Authority: Section 404)
44. Mining Activities. Discharges of dredged or fill material into
non-tidal waters of the United States for mining activities, except for
coal mining
[[Page 869]]
activities, provided the activity meets all of the following criteria:
(a) For mining activities involving discharges of dredged or fill
material into non-tidal jurisdictional wetlands, the discharge must not
cause the loss of greater than \1/2\-acre of non-tidal jurisdictional
wetlands;
(b) For mining activities involving discharges of dredged or fill
material in non-tidal jurisdictional open waters (e.g., rivers,
streams, lakes, and ponds) or work in non-tidal navigable waters of the
United States (i.e., section 10 waters), the mined area, including
permanent and temporary impacts due to discharges of dredged or fill
material into jurisdictional waters, must not exceed \1/2\-acre; and
(c) The acreage loss under paragraph (a) plus the acreage impact
under paragraph (b) does not exceed \1/2\-acre.
This NWP does not authorize discharges of dredged or fill material
into non-tidal wetlands adjacent to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) If reclamation is required by other
statutes, then a copy of the final reclamation plan must be submitted
with the pre-construction notification. (Authorities: Sections 10 and
404)
45. Repair of Uplands Damaged by Discrete Events. This NWP
authorizes discharges of dredged or fill material, including dredging
or excavation, into all waters of the United States for activities
associated with the restoration of upland areas damaged by storms,
floods, or other discrete events. This NWP authorizes bank
stabilization to protect the restored uplands. The restoration of the
damaged areas, including any bank stabilization, must not exceed the
contours, or ordinary high water mark, that existed before the damage
occurred. The district engineer retains the right to determine the
extent of the pre-existing conditions and the extent of any restoration
work authorized by this NWP. The work must commence, or be under
contract to commence, within two years of the date of damage, unless
this condition is waived in writing by the district engineer. This NWP
cannot be used to reclaim lands lost to normal erosion processes over
an extended period.
This NWP does not authorize beach restoration or nourishment.
Minor dredging is limited to the amount necessary to restore the
damaged upland area and should not significantly alter the pre-existing
bottom contours of the waterbody.
Notification: The permittee must submit a pre-construction
notification to the district engineer (see general condition 32) within
18-months of the date of the damage; for major storms, floods, or other
discrete events, the district engineer may waive the 18-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)
48. Commercial Shellfish Mariculture Activities. Structures or work
in navigable waters of the United States and discharges of dredged or
fill material into waters of the United States necessary for new and
continuing commercial shellfish mariculture operations (i.e., the
cultivation of bivalve molluscs such as oysters, mussels, clams, and
scallops) in authorized project areas. For the purposes of this NWP,
the project area is the area in which the operator is authorized to
conduct commercial shellfish mariculture activities, as identified
through a lease or permit issued by an appropriate state or local
government agency, a treaty, or any easement, lease, deed, contract, or
other legally binding agreement that establishes an enforceable
property interest for the operator. This NWP does not authorize
structures or work in navigable waters of the United States or
discharges of dredged or fill material into waters of the United States
within Washington State.
This NWP authorizes the installation of buoys, floats, racks,
trays, nets, lines, tubes, containers, and other structures into
navigable waters of the United States. This NWP also authorizes
discharges of dredged or fill material into waters of the United States
necessary for shellfish seeding, rearing, cultivating, transplanting,
and harvesting activities. Rafts and other floating structures must be
securely anchored and clearly marked.
This NWP does not authorize:
(a) The cultivation of a nonindigenous species unless that species
has been previously cultivated in the waterbody;
(b) The cultivation of an aquatic nuisance species as defined in
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990;
or
(c) Attendant features such as docks, piers, boat ramps,
stockpiles, or staging areas, or the deposition of shell material back
into waters of the United States as waste.
Notification: The permittee must submit a pre-construction
notification to the district engineer if the activity directly affects
more than \1/2\-acre of submerged aquatic vegetation. If the operator
will be conducting commercial shellfish mariculture activities in
multiple contiguous project areas, he or she can either submit one PCN
for those contiguous project areas or submit a separate PCN for each
project area. (See general condition 32.) (Authorities: Sections 10 and
404)
Note 1: Where structures or work are proposed in navigable
waters of the United States, project proponents should ensure they
provide the location and dimensions of the proposed structures to
the U.S. Coast Guard (USCG) prior to submittal of a Pre-Construction
Notification, or prior to beginning construction. The USCG may
assess potential navigation-related concerns associated with the
location of proposed structures or work, and may inform project
proponents of marking and lighting requirements necessary to comply
with General Condition 1 (Navigation). For assistance identifying
the appropriate USCG District or Sector Waterways Management
[[Page 870]]
Staff responsible for the area of the proposed work, contact USCG at
[email protected].
Note 2: To prevent introduction of aquatic nuisance species, no
material that has been taken from a different waterbody may be
reused in the current project area, unless it has been treated in
accordance with the applicable regional aquatic nuisance species
management plan.
Note 3: The Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 defines ``aquatic nuisance species'' as ``a
nonindigenous species that threatens the diversity or abundance of
native species or the ecological stability of infested waters, or
commercial, agricultural, aquacultural, or recreational activities
dependent on such waters.''
Note 4: Where structures or work are authorized in navigable
waters of the United States (i.e., section 10 waters) within the
coastal United States, the Great Lakes, and United States
territories, the permittee should provide a copy of the `as-built
drawings' and the geographic coordinate system used in the `as-built
drawings' to the National Oceanic and Atmospheric Administration
(NOAA), National Ocean Service (NOS), to inform updates to nautical
charts and Coast Pilot corrections. The information should be
transmitted via email to [email protected].
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)
50. Underground Coal Mining Activities. Discharges of dredged or
fill material into non-tidal waters of the United States associated
with underground coal mining and reclamation operations provided the
activities are authorized, or are currently being processed by the
Department of the Interior, Office of Surface Mining Reclamation and
Enforcement, or by states with approved programs under Title V of the
Surface Mining Control and Reclamation Act of 1977.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters. This NWP does not authorize coal preparation and
processing activities outside of the mine site.
Notification: The permittee must submit a pre-construction
notification to the district engineer. (See general condition 32.) If
reclamation is required by other statutes, then a copy of the
reclamation plan must be submitted with the pre-construction
notification. (Authorities: Sections 10 and 404)
51. Land-Based Renewable Energy Generation Facilities. Discharges
of dredged or fill material into non-tidal waters of the United States
for the construction, expansion, or modification of land-based
renewable energy production facilities, including attendant features.
Such facilities include infrastructure to collect solar (concentrating
solar power and photovoltaic), wind, biomass, or geothermal energy.
Attendant features may include, but are not limited to roads, parking
lots, and stormwater management facilities within the land-based
renewable energy generation facility.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if the discharge results in the loss of greater than \1/10\-acre of
waters of the United States. (See general condition 32.) (Authorities:
Sections 10 and 404)
Note 1: Electric utility lines constructed to transfer the
energy from the land-based renewable energy generation facility to a
distribution system, regional grid, or other facility are generally
considered to be linear projects and each separate and distant
crossing of a waterbody is eligible for treatment as a separate
single and complete linear project. Those electric utility lines may
be authorized by NWP 57 or another Department of the Army
authorization.
Note 2: If the only activities associated with the
construction, expansion, or modification of a land-based renewable
energy generation facility that require Department of the Army
authorization are discharges of dredged or fill material into waters
of the United States to construct, maintain, repair, and/or remove
electric utility lines and/or road crossings, then NWP 57 and/or NWP
14 shall be used if those activities meet the terms and conditions
of NWPs 57 and 14, including any applicable regional conditions and
any case-specific conditions imposed by the district engineer.
Note 3: For any activity that involves the construction of a
wind energy generating structure, solar tower, or overhead
transmission line, a copy of the PCN and NWP verification will be
provided by the Corps to the Department of Defense Siting
Clearinghouse, which will evaluate potential effects on military
activities.
52. Water-Based Renewable Energy Generation Pilot Projects.
Structures and work in navigable waters of the United States and
discharges of dredged or fill material into waters of the United States
for the construction, expansion, modification, or removal of water-
based wind, water-based solar, wave energy, or hydrokinetic renewable
energy generation pilot projects and their attendant features.
Attendant features may include, but are not limited to, land-based
collection and distribution facilities, control facilities, roads,
parking lots, and stormwater management facilities.
For the purposes of this NWP, the term ``pilot project'' means an
experimental project where the water-based renewable energy generation
units will be monitored to collect information on their performance and
environmental effects at the project site.
The discharge must not cause the loss of greater than \1/2\-acre of
waters of the United States. The placement of a transmission line on
the bed of a navigable water of the United States from the renewable
energy generation unit(s) to a land-based collection and distribution
facility is considered a structure under Section 10 of the Rivers and
Harbors Act of 1899 (see 33 CFR 322.2(b)), and the placement of the
transmission line on the bed of a
[[Page 871]]
navigable water of the United States is not a loss of waters of the
United States for the purposes of applying the \1/2\-acre limit.
For each single and complete project, no more than 10 generation
units (e.g., wind turbines, wave energy devices, or hydrokinetic
devices) are authorized. For floating solar panels in navigable waters
of the United States, each single and complete project cannot exceed
\1/2\-acre in water surface area covered by the floating solar panels.
This NWP does not authorize activities in coral reefs. Structures
in an anchorage area established by the U.S. Coast Guard must comply
with the requirements in 33 CFR 322.5(l)(2). Structures may not be
placed in established danger zones or restricted areas designated in 33
CFR part 334, Federal navigation channels, shipping safety fairways or
traffic separation schemes established by the U.S. Coast Guard (see 33
CFR 322.5(l)(1)), or EPA or Corps designated open water dredged
material disposal areas.
Upon completion of the pilot project, the generation units,
transmission lines, and other structures or fills associated with the
pilot project must be removed to the maximum extent practicable unless
they are authorized by a separate Department of the Army authorization,
such as another NWP, an individual permit, or a regional general
permit. Completion of the pilot project will be identified as the date
of expiration of the Federal Energy Regulatory Commission (FERC)
license, or the expiration date of the NWP authorization if no FERC
license is required.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note 1: Electric utility lines constructed to transfer the
energy from the land-based collection facility to a distribution
system, regional grid, or other facility are generally considered to
be linear projects and each separate and distant crossing of a
waterbody is eligible for treatment as a separate single and
complete linear project. Those electric utility lines may be
authorized by NWP 57 or another Department of the Army
authorization.
Note 2: An activity that is located on an existing locally or
federally maintained U.S. Army Corps of Engineers project requires
separate review and/or approval from the Corps under 33 U.S.C. 408.
Note 3: Where structures or work are authorized in navigable
waters of the United States (i.e., section 10 waters) within the
coastal United States, the Great Lakes, and United States
territories, the permittee should provide a copy of the `as-built
drawings' and the geographic coordinate system used in the `as-built
drawings' to the National Oceanic and Atmospheric Administration
(NOAA), National Ocean Service (NOS), to inform updates to nautical
charts and Coast Pilot corrections. The information should be
transmitted via email to [email protected].
Note 4: Hydrokinetic renewable energy generation projects that
require authorization by the Federal Energy Regulatory Commission
under the Federal Power Act of 1920 do not require separate
authorization from the Corps under section 10 of the Rivers and
Harbors Act of 1899.
Note 5: For any activity that involves the construction of a
wind energy generating structure, solar tower, or overhead
transmission line, a copy of the PCN and NWP verification will be
provided by the Corps to the Department of Defense Siting
Clearinghouse, which will evaluate potential effects on military
activities.
Note 6: Where structures or work are proposed in navigable
waters of the United States, project proponents should ensure they
provide the location and dimensions of the proposed structures to
the U.S. Coast Guard (USCG) prior to submittal of a Pre-Construction
Notification, or prior to beginning construction. The USCG may
assess potential navigation-related concerns associated with the
location of proposed structures or work, and may inform project
proponents of marking and lighting requirements necessary to comply
with General Condition 1 (Navigation). For assistance identifying
the appropriate USCG District or Sector Waterways Management Staff
responsible for the area of the proposed work, contact USCG at
[email protected].
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 shorelines must have a substantial biological
component, either tidal or lacustrine fringe wetlands or oyster or
mussel reef structures, but a portion of a living shoreline may consist
of an unvegetated cobble, gravel, and/or sand beach, (i.e., a pocket
beach). The following conditions must be met:
(a) The structures and fill area, including cobble, gravel, and/or
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
[[Page 872]]
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
cobble, gravel, and/or 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 also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to construct the living
shoreline activity. Appropriate measures must be taken to maintain high
flows, tidal flows or seiches, 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,
tidal flows or seiches. After construction, temporary fills must be
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be
revegetated, as appropriate.
This 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.
55. Seaweed Mariculture Activities. Structures in marine and
estuarine waters, including structures anchored to the seabed in waters
overlying the outer continental shelf, for seaweed mariculture
activities. This NWP also authorizes structures for bivalve shellfish
mariculture if shellfish production is a component of an integrated
multi-trophic mariculture system (e.g., the production of seaweed and
bivalve shellfish on the same structure or a nearby mariculture
structure that is part of the single and complete project).
This NWP authorizes the installation of buoys, long-lines, floats,
anchors, rafts, racks, and other similar structures into navigable
waters of the United States. Rafts, racks and other floating structures
must be securely anchored and clearly marked. To the maximum extent
practicable, the permittee must remove these structures from navigable
waters of the United States if they will no longer be used for seaweed
mariculture activities or multi-trophic mariculture activities.
Structures in an anchorage area established by the U.S. Coast Guard
must comply with the requirements in 33 CFR 322.5(l)(2). Structures may
not be placed in established danger zones or restricted areas
designated in 33 CFR part 334, Federal navigation channels, shipping
safety fairways or traffic separation schemes established by the U.S.
Coast Guard (see 33 CFR 322.5(l)(1)), or EPA or Corps designated open
water dredged material disposal areas.
This NWP does not authorize:
(a) The cultivation of an aquatic nuisance species as defined in
the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990
or the cultivation of a nonindigenous species unless that species has
been previously cultivated in the waterbody; or
(b) Attendant features such as docks, piers, boat ramps,
stockpiles, or staging areas.
Notification: The permittee must submit a pre-construction
notification to the district engineer. (See general condition 32.)
In addition to the information required by paragraph (b) of general
condition 32, the preconstruction notification must also include the
following information: (1) a map showing the locations and dimensions
of the structure(s); (2) the name(s) of the species that will be
cultivated during the period this NWP is in effect; and (3) general
water depths in the project area(s) (a detailed survey is not
required). No more than one pre-construction notification per structure
or group of structures should be submitted for the seaweed mariculture
operation during the effective period of this NWP. The pre-construction
notification should describe all species and culture activities the
operator expects to undertake during the effective period of this NWP.
(Authority: Section 10)
Note 1: Where structures or work are proposed in navigable
waters of the United States, project proponents should ensure they
provide the location and dimensions of the proposed structures to
the U.S. Coast Guard (USCG) prior to submittal of a Pre-Construction
Notification, or prior to beginning construction. The USCG may
assess potential navigation-related concerns associated with the
location of proposed structures or work, and may inform project
proponents of marking and lighting requirements necessary to comply
with General Condition 1 (Navigation). For assistance identifying
the appropriate USCG District or Sector Waterways Management Staff
responsible for the area of the proposed work, contact USCG at
[email protected].
Note 2: To prevent introduction of aquatic nuisance species, no
material that has been taken from a different waterbody may be
reused in the current project area, unless it has been treated in
accordance with the applicable regional aquatic nuisance species
management plan.
Note 3: The Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990
[[Page 873]]
defines ``aquatic nuisance species'' as ``a nonindigenous species
that threatens the diversity or abundance of native species or the
ecological stability of infested waters, or commercial,
agricultural, aquacultural, or recreational activities dependent on
such waters.''
Note 4: Where structures or work are authorized in navigable
waters of the United States (i.e., section 10 waters) within the
coastal United States, the Great Lakes, and United States
territories, the permittee should provide a copy of the `as-built
drawings' and the geographic coordinate system used in the `as-built
drawings' to the National Oceanic and Atmospheric Administration
(NOAA), National Ocean Service (NOS), to inform updates to nautical
charts and Coast Pilot corrections. The information should be
transmitted via email to [email protected].
57. Electric Utility Line and Telecommunications Activities.
Activities required for the construction, maintenance, repair, and
removal of electric utility lines, telecommunication lines, and
associated facilities in waters of the United States, provided the
activity does not result in the loss of greater than \1/2\-acre of
waters of the United States for each single and complete project.
Electric utility lines and telecommunication lines: This NWP
authorizes discharges of dredged or fill material into waters of the
United States and structures or work in navigable waters for crossings
of those waters associated with the construction, maintenance, or
repair of electric utility lines and telecommunication lines. There
must be no change in pre-construction contours of waters of the United
States. An ``electric utility line and telecommunication line'' is
defined as any cable, line, fiber optic line, or wire for the
transmission for any purpose of electrical energy, telephone, and
telegraph messages, and internet, radio, and television communication.
Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided the material is not placed in such a manner that it is
dispersed by currents or other forces. The district engineer may extend
the period of temporary side casting for no more than a total of 180
days, where appropriate. In wetlands, the top 6 to 12 inches of the
trench should normally be backfilled with topsoil from the trench. The
trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel
layers, creating a French drain effect). Any exposed slopes and stream
banks must be stabilized immediately upon completion of the electric
utility line or telecommunication line crossing of each waterbody.
Electric utility line and telecommunications substations: This NWP
authorizes the construction, maintenance, or expansion of substation
facilities associated with an electric utility line or
telecommunication line in non-tidal waters of the United States,
provided the activity, in combination with all other activities
included in one single and complete project, does not result in the
loss of greater than \1/2\-acre of waters of the United States. This
NWP does not authorize discharges of dredged or fill material into non-
tidal wetlands adjacent to tidal waters of the United States to
construct, maintain, or expand substation facilities.
Foundations for overhead electric utility line or telecommunication
line towers, poles, and anchors: This NWP authorizes the construction
or maintenance of foundations for overhead electric utility line or
telecommunication line towers, poles, and anchors in all waters of the
United States, provided the foundations are the minimum size necessary
and separate footings for each tower leg (rather than a larger single
pad) are used where feasible.
Access roads: This NWP authorizes the construction of access roads
for the construction and maintenance of electric utility lines or
telecommunication lines, including overhead lines and substations, in
non-tidal waters of the United States, provided the activity, in
combination with all other activities included in one single and
complete project, does not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters for access roads. Access roads must be the minimum
width necessary (see Note 2, below). Access roads must be constructed
so that the length of the road minimizes any adverse effects on waters
of the United States and must be as near as possible to pre-
construction contours and elevations (e.g., at grade corduroy roads or
geotextile/gravel roads). Access roads constructed above pre-
construction contours and elevations in waters of the United States
must be properly bridged or culverted to maintain surface flows.
This NWP may authorize electric utility lines or telecommunication
lines in or affecting navigable waters of the United States even if
there is no associated discharge of dredged or fill material (see 33
CFR part 322). Electric utility lines or telecommunication lines
constructed over section 10 waters and electric utility lines or
telecommunication lines that are routed in or under section 10 waters
without a discharge of dredged or fill material require a section 10
permit.
This NWP authorizes, to the extent that Department of the Army
authorization is required, temporary structures, fills, and work
necessary for the remediation of inadvertent returns of drilling fluids
to waters of the United States through sub-soil fissures or fractures
that might occur during horizontal directional drilling activities
conducted for the purpose of installing or replacing electric utility
lines or telecommunication lines. These remediation activities must be
done as soon as practicable, to restore the affected waterbody.
District engineers may add special conditions to this NWP to require a
remediation plan for addressing inadvertent returns of drilling fluids
to waters of the United States during horizontal directional drilling
activities conducted for the purpose of installing or replacing
electric utility lines or telecommunication lines.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to conduct the electric
utility line activity. Appropriate measures must be taken to maintain
normal downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges of dredged
or fill material, including cofferdams, are necessary for construction
activities, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. After construction,
temporary fills must be removed in their entirety and the affected
areas returned to pre-construction elevations. The areas affected by
temporary fills must be revegetated, as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) a section 10 permit is required; or (2) the discharge will
result in the loss of greater than 1/10-acre of waters of the United
States. (See general condition 32.) (Authorities: Sections 10 and 404)
Note 1: Where structures or work are authorized in navigable
waters of the United States (i.e., section 10 waters) within the
coastal United States, the Great Lakes, and United States
territories, the permittee should provide a copy of the `as-built
drawings' and the geographic coordinate system used in the `as-built
drawings' to the National Oceanic and Atmospheric
[[Page 874]]
Administration (NOAA), National Ocean Service (NOS), to inform
updates to nautical charts and Coast Pilot corrections. The
information should be transmitted via email to [email protected].
Note 2: For electric utility line or telecommunications
activities crossing a single waterbody more than one time at
separate and distant locations, or multiple waterbodies at separate
and distant locations, each crossing is considered a single and
complete project for purposes of NWP authorization. Electric utility
line and telecommunications activities must comply with 33 CFR
330.6(d).
Note 3: Electric utility lines or telecommunication lines
consisting of aerial electric power transmission lines crossing
navigable waters of the United States (which are defined at 33 CFR
part 329) must comply with the applicable minimum clearances
specified in 33 CFR 322.5(i).
Note 4: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the electric
utility line or telecommunication line must be removed upon
completion of the work, in accordance with the requirements for
temporary fills.
Note 5: This NWP authorizes electric utility line and
telecommunication line maintenance and repair activities that do not
qualify for the Clean Water Act section 404(f) exemption for
maintenance of currently serviceable fills or fill structures.
Note 6: For overhead electric utility lines and
telecommunication lines authorized by this NWP, a copy of the PCN
and NWP verification will be provided by the Corps to the Department
of Defense Siting Clearinghouse, which will evaluate potential
effects on military activities.
Note 7: For activities that require pre-construction
notification, the PCN must include any other NWP(s), regional
general permit(s), or individual permit(s) used or intended to be
used to authorize any part of the proposed project or any related
activity, including other separate and distant crossings that
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b)(4) of general condition
32). The district engineer will evaluate the PCN in accordance with
Section D, ``District Engineer's Decision.'' The district engineer
may require mitigation to ensure that the authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects (see general condition 23).
Note 8: Where structures or work are proposed in navigable
waters of the United States, project proponents should ensure they
provide the location and dimensions of the proposed structures to
the U.S. Coast Guard (USCG) prior to submittal of a Pre-Construction
Notification, or prior to beginning construction. The USCG may
assess potential navigation-related concerns associated with the
location of proposed structures or work, and may inform project
proponents of marking and lighting requirements necessary to comply
with General Condition 1 (Navigation). For assistance identifying
the appropriate USCG District or Sector Waterways Management Staff
responsible for the area of the proposed work, contact USCG at
[email protected].
58. Utility Line Activities for Water and Other Substances.
Activities required for the construction, maintenance, repair, and
removal of utility lines for water and other substances, excluding oil,
natural gas, products derived from oil or natural gas, and electricity.
Oil or natural gas pipeline activities or electric utility line and
telecommunications activities may be authorized by NWPs 12 or 57,
respectively. This NWP also authorizes associated utility line
facilities in waters of the United States, provided the activity does
not result in the loss of greater than \1/2\-acre of waters of the
United States for each single and complete project.
Utility lines: This NWP authorizes discharges of dredged or fill
material into waters of the United States and structures or work in
navigable waters for crossings of those waters associated with the
construction, maintenance, or repair of utility lines for water and
other substances, including outfall and intake structures. There must
be no change in pre-construction contours of waters of the United
States. A ``utility line'' is defined as any pipe or pipeline for the
transportation of any gaseous, liquid, liquescent, or slurry substance,
for any purpose that is not oil, natural gas, or petrochemicals.
Examples of activities authorized by this NWP include utility lines
that convey water, sewage, stormwater, wastewater, brine, irrigation
water, and industrial products that are not petrochemicals. The term
``utility line'' does not include activities that drain a water of the
United States, such as drainage tile or French drains, but it does
apply to pipes conveying drainage from another area.
Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided the material is not placed in such a manner that it is
dispersed by currents or other forces. The district engineer may extend
the period of temporary side casting for no more than a total of 180
days, where appropriate. In wetlands, the top 6 to 12 inches of the
trench should normally be backfilled with topsoil from the trench. The
trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel
layers, creating a French drain effect). Any exposed slopes and stream
banks must be stabilized immediately upon completion of the utility
line crossing of each waterbody.
Utility line substations: This NWP authorizes the construction,
maintenance, or expansion of substation facilities associated with a
utility line in non-tidal waters of the United States, provided the
activity, in combination with all other activities included in one
single and complete project, does not result in the loss of greater
than \1/2\-acre of waters of the United States. This NWP does not
authorize discharges of dredged or fill material into non-tidal
wetlands adjacent to tidal waters of the United States to construct,
maintain, or expand substation facilities.
Foundations for above-ground utility lines: This NWP authorizes the
construction or maintenance of foundations for above-ground utility
lines in all waters of the United States, provided the foundations are
the minimum size necessary.
Access roads: This NWP authorizes the construction of access roads
for the construction and maintenance of utility lines, including
utility line substations, in non-tidal waters of the United States,
provided the activity, in combination with all other activities
included in one single and complete project, does not cause the loss of
greater than \1/2\-acre of non-tidal waters of the United States. This
NWP does not authorize discharges of dredged or fill material into non-
tidal wetlands adjacent to tidal waters for access roads. Access roads
must be the minimum width necessary (see Note 2, below). Access roads
must be constructed so that the length of the road minimizes any
adverse effects on waters of the United States and must be as near as
possible to pre-construction contours and elevations (e.g., at grade
corduroy roads or geotextile/gravel roads). Access roads constructed
above pre-construction contours and elevations in waters of the United
States must be properly bridged or culverted to maintain surface flows.
This NWP may authorize utility lines in or affecting navigable
waters of the United States even if there is no associated discharge of
dredged or fill material (see 33 CFR part 322). Overhead utility lines
constructed over section 10 waters and utility lines that are routed in
or under section 10 waters without a discharge of dredged or fill
material may require a section 10 permit.
This NWP authorizes, to the extent that Department of the Army
[[Page 875]]
authorization is required, temporary structures, fills, and work
necessary for the remediation of inadvertent returns of drilling fluids
to waters of the United States through sub-soil fissures or fractures
that might occur during horizontal directional drilling activities
conducted for the purpose of installing or replacing utility lines.
These remediation activities must be done as soon as practicable, to
restore the affected waterbody. District engineers may add special
conditions to this NWP to require a remediation plan for addressing
inadvertent returns of drilling fluids to waters of the United States
during horizontal directional drilling activities conducted for the
purpose of installing or replacing utility lines.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to conduct the utility
line activity. Appropriate measures must be taken to maintain normal
downstream flows and minimize flooding to the maximum extent
practicable, when temporary structures, work, and discharges of dredged
or fill material, including cofferdams, are necessary for construction
activities, access fills, or dewatering of construction sites.
Temporary fills must consist of materials, and be placed in a manner,
that will not be eroded by expected high flows. After construction,
temporary fills must be removed in their entirety and the affected
areas returned to pre-construction elevations. The areas affected by
temporary fills must be revegetated, as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) a section 10 permit is required; or (2) the discharge will
result in the loss of greater than \1/10\-acre of waters of the United
States. (See general condition 32.) (Authorities: Sections 10 and 404)
Note 1: Where structures or work are authorized in navigable
waters of the United States (i.e., section 10 waters) within the
coastal United States, the Great Lakes, and United States
territories, the permittee should provide a copy of the `as-built
drawings' and the geographic coordinate system used in the `as-built
drawings' to the National Oceanic and Atmospheric Administration
(NOAA), National Ocean Service (NOS), to inform updates to nautical
charts and Coast Pilot corrections. The information should be
transmitted via email to [email protected].
Note 2: For utility line activities crossing a single waterbody
more than one time at separate and distant locations, or multiple
waterbodies at separate and distant locations, each crossing is
considered a single and complete project for purposes of NWP
authorization. Utility line activities must comply with 33 CFR
330.6(d).
Note 3: Access roads used for both construction and maintenance
may be authorized, provided they meet the terms and conditions of
this NWP. Access roads used solely for construction of the utility
line must be removed upon completion of the work, in accordance with
the requirements for temporary fills.
Note 4: Pipes or pipelines used to transport gaseous, liquid,
liquescent, or slurry substances over navigable waters of the United
States are considered to be bridges, not utility lines, and may
require a permit from the U.S. Coast Guard pursuant to the General
Bridge Act of 1946. However, any discharges of dredged or fill
material into waters of the United States associated with such
pipelines will require a section 404 permit (see NWP 15).
Note 5: This NWP authorizes utility line maintenance and repair
activities that do not qualify for the Clean Water Act section
404(f) exemption for maintenance of currently serviceable fills or
fill structures.
Note 6: For activities that require pre-construction
notification, the PCN must include any other NWP(s), regional
general permit(s), or individual permit(s) used or intended to be
used to authorize any part of the proposed project or any related
activity, including other separate and distant crossings that
require Department of the Army authorization but do not require pre-
construction notification (see paragraph (b)(4) of general condition
32). The district engineer will evaluate the PCN in accordance with
Section D, ``District Engineer's Decision.'' The district engineer
may require mitigation to ensure that the authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects (see general condition 23).
Note 7: Where structures or work are proposed in navigable
waters of the United States, project proponents should ensure they
provide the location and dimensions of the proposed structures to
the U.S. Coast Guard (USCG) prior to submittal of a Pre-Construction
Notification, or prior to beginning construction. The USCG may
assess potential navigation-related concerns associated with the
location of proposed structures or work, and may inform project
proponents of marking and lighting requirements necessary to comply
with General Condition 1 (Navigation). For assistance identifying
the appropriate USCG District or Sector Waterways Management Staff
responsible for the area of the proposed work, contact USCG at
[email protected].
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)
60. Activities to Improve Passage of Fish and Other Aquatic
Organisms. Discharges of dredged or fill material into waters of the
United States and structures and work in navigable waters of the United
States for activities that restore or enhance the ability of fish and
other aquatic organisms to move through aquatic ecosystems. Examples of
activities that may be authorized by this NWP include, but are not
limited to: the construction, maintenance, modification, or expansion
of conventional/technical and nature-like fishways; the construction,
maintenance, modification, or expansion of fish bypass channels around
existing in-stream structures; the replacement of existing structures
(e.g., culverts, low-water crossings) with structures planned,
designed, and constructed to restore or enhance passage of fish and
other aquatic organisms; the installation of fish screens and other
devices to minimize entrainment and entrapment of fish and other
aquatic organisms in irrigation ditches and other features; devices to
guide fish and other aquatic organisms through passage features; fish
lifts and
[[Page 876]]
fish by-pass pipes; the modification of existing in-stream structures,
such as dams or weirs, to improve the ability of fish and other aquatic
organisms to move past those structures.
The activity must not cause the loss of greater than one acre of
waters of the United States.
This NWP does not authorize dam removal activities. This NWP also
does not authorize the construction or installation of new culverts at
crossings of waterbodies where there are not existing culverts.
Notification: For activities resulting in the loss of greater than
1/10-acre of waters of the United States, 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
Note: To qualify for NWP authorization, the prospective
permittee must comply with the following general conditions, as
applicable, in addition to any regional or case-specific conditions
imposed by the division engineer or district engineer. Prospective
permittees should contact the appropriate Corps district office to
determine if regional conditions have been imposed on an NWP.
Prospective permittees should also contact the appropriate Corps
district office to determine the status of Clean Water Act Section
401 water quality certification and/or Coastal Zone Management Act
consistency for an NWP. Every person who may wish to obtain permit
authorization under one or more NWPs, or who is currently relying on
an existing or prior permit authorization under one or more NWPs,
has been and is on notice that all of the provisions of 33 CFR 330.1
through 330.6 apply to every NWP authorization. Note especially 33
CFR 330.5 relating to the modification, suspension, or revocation of
any NWP authorization.
1. Navigation. (a) No activity may cause more than a minimal
adverse effect on navigation.
(b) Any safety lights and signals prescribed by the U.S. Coast
Guard, through regulations or otherwise, must be installed and
maintained at the permittee's expense on authorized facilities in
navigable waters of the United States.
(c) The permittee understands and agrees that, if future operations
by the United States require the removal, relocation, or other
alteration, of the structure or work herein authorized, or if, in the
opinion of the Secretary of the Army or his or her authorized
representative, said structure or work shall cause unreasonable
obstruction to the free navigation of the navigable waters, the
permittee will be required, upon due notice from the Corps of
Engineers, to remove, relocate, or alter the structural work or
obstructions caused thereby, without expense to the United States. No
claim shall be made against the United States on account of any such
removal or alteration.
2. Aquatic Life Movements. No activity may substantially disrupt
the necessary life cycle movements of those species of aquatic life
indigenous to the waterbody, including those species that normally
migrate through the area, unless the activity's primary purpose is to
impound water. All permanent and temporary crossings of waterbodies
shall be suitably culverted, bridged, or otherwise designed and
constructed to maintain low flows to sustain the movement of those
aquatic species. If a bottomless culvert cannot be used, then the
crossing should be designed and constructed to minimize adverse effects
to aquatic life movements.
3. Spawning Areas. Activities in spawning areas during spawning
seasons must be avoided to the maximum extent practicable. Activities
that result in the physical destruction (e.g., through excavation,
fill, or downstream smothering by substantial turbidity) of an
important spawning area are not authorized.
4. Migratory Bird Breeding Areas. Activities in waters of the
United States that serve as breeding areas for migratory birds must be
avoided to the maximum extent practicable.
5. Shellfish Beds. No activity may occur in areas of concentrated
shellfish populations, unless the activity is directly related to a
shellfish harvesting activity authorized by NWPs 4 and 48, or is a
shellfish seeding or habitat restoration activity authorized by NWP 27.
6. Suitable Material. No activity may use unsuitable material
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for
construction or discharged must be free from toxic pollutants in toxic
amounts (see section 307 of the Clean Water Act).
7. Water Supply Intakes. No activity may occur in the proximity of
a public water supply intake, except where the activity is for the
repair or improvement of public water supply intake structures or
adjacent bank stabilization.
8. Adverse Effects From Impoundments. If the activity creates an
impoundment of water, adverse effects to the aquatic system due to
accelerating the passage of water, and/or restricting its flow must be
minimized to the maximum extent practicable.
9. Management of Water Flows. To the maximum extent practicable,
the pre-construction course, condition, capacity, and location of open
waters must be maintained for each activity, including stream
channelization, storm water management activities, and temporary and
permanent road crossings, except as provided below. The activity must
be constructed to withstand expected high flows, including tidal flows.
The activity must not restrict or impede the passage of normal or high
flows, including tidal flows, unless the primary purpose of the
activity is to impound water or manage high flows. The activity may
alter the pre-construction course, condition, capacity, and location of
open waters if it benefits the aquatic environment (e.g., stream
restoration or relocation activities).
10. Fills Within 100-Year Floodplains. The activity must comply
with applicable FEMA-approved state or local floodplain management
requirements.
11. Equipment. Heavy equipment working in wetlands or mudflats must
be placed on mats, or other measures must be taken to minimize soil
disturbance. If mats are used to minimize soil disturbance, the
affected areas must be returned to pre-construction elevations, and
revegetated as appropriate. In circumstances where the use of mats has
caused significant soil compaction, efforts using techniques (e.g.,
soil reaeration techniques) to break up the compaction should be
employed to return the soil to a pre-construction state prior to
returning to pre-construction elevations.
12. Soil Erosion and Sediment Controls. Appropriate soil erosion
and sediment controls must be used and maintained in effective
operating condition during construction, and all exposed soil and other
fills, as well as any work below the ordinary high water mark or high
tide line, must be permanently stabilized at the earliest practicable
date. Permittees are encouraged to perform work within waters of the
United States during periods of low-flow or no-flow, or during low
tides.
13. Removal of Temporary Structures and Fills. Temporary structures
must be removed, to the maximum extent practicable, after their use has
been discontinued. Temporary fills must be removed in their entirety
and the affected areas returned to pre-construction elevations. The
affected areas must be revegetated, as appropriate.
14. Proper Maintenance. Any authorized structure or fill shall be
properly maintained, including maintenance to ensure public safety and
compliance with applicable NWP
[[Page 877]]
general conditions, as well as any activity-specific conditions added
by the district engineer to an NWP authorization.
15. Single and Complete Project. The activity must be a single and
complete project. The same NWP cannot be used more than once for the
same single and complete project.
16. Wild and Scenic Rivers. (a) No NWP activity may occur in a
component of the National Wild and Scenic River System, or in a river
officially designated by Congress as a ``study river'' for possible
inclusion in the system while the river is in an official study status,
unless the appropriate Federal agency with direct management
responsibility for such river has determined in writing that the
proposed activity will not adversely affect the Wild and Scenic River
designation or study status.
(b) If a proposed NWP activity will occur in a component of the
National Wild and Scenic River System, or in a river officially
designated by Congress as a ``study river'' for possible inclusion in
the system while the river is in an official study status, the
permittee must submit a pre-construction notification (see general
condition 32). The district engineer will coordinate the PCN with the
Federal agency with direct management responsibility for that river.
Permittees shall not begin the NWP activity until notified by the
district engineer that the Federal agency with direct management
responsibility for that river has determined in writing that the
proposed NWP activity will not adversely affect the Wild and Scenic
River designation or study status.
(c) Information on Wild and Scenic Rivers may be obtained from the
appropriate Federal land management agency responsible for the
designated Wild and Scenic River or study river (e.g., National Park
Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish and
Wildlife Service). Information on these rivers is also available at:
http://www.rivers.gov/.
17. Tribal Rights. No activity or its operation may impair reserved
tribal rights, including, but not limited to, reserved water rights and
treaty fishing and hunting rights.
18. Endangered Species. (a) No activity is authorized under any NWP
which is likely to directly or indirectly jeopardize the continued
existence of a threatened or endangered species or a species proposed
for such designation, as identified under the federal Endangered
Species Act (ESA), or which will directly or indirectly destroy or
adversely modify designated critical habitat or critical habitat
proposed for such designation. No activity is authorized under any NWP
which ``may affect'' a listed species or critical habitat, unless ESA
section 7 consultation addressing the consequences of the proposed
activity on listed species or critical habitat has been completed. See
50 CFR 402.02 for the definition of ``effects of the action'' for the
purposes of ESA section 7 consultation.
(b) Federal agencies should follow their own procedures for
complying with the requirements of the ESA (see 33 CFR 330.4(f)(1)). If
pre-construction notification is required for the proposed activity,
the federal permittee must provide the district engineer with the
appropriate documentation to demonstrate compliance with those
requirements. The district engineer will verify that the appropriate
documentation has been submitted. If the appropriate documentation has
not been submitted, additional ESA section 7 consultation may be
necessary for the activity and the respective federal agency would be
responsible for fulfilling its obligation under section 7 of the ESA.
(c) Non-federal permittees must submit a pre-construction
notification to the district engineer if any listed species (or species
proposed for listing) or designated critical habitat (or critical
habitat proposed such designation) might be affected or is in the
vicinity of the activity, or if the activity is located in designated
critical habitat or critical habitat proposed for such designation, and
shall not begin work on the activity until notified by the district
engineer that the requirements of the ESA have been satisfied and that
the activity is authorized. For activities that might affect federally-
listed endangered or threatened species (or species proposed for
listing) or designated critical habitat (or critical habitat proposed
for such designation), the pre-construction notification must include
the name(s) of the endangered or threatened species (or species
proposed for listing) that might be affected by the proposed activity
or that utilize the designated critical habitat (or critical habitat
proposed for such designation) that might be affected by the proposed
activity. The district engineer will determine whether the proposed
activity ``may affect'' or will have ``no effect'' to listed species
and designated critical habitat and will notify the non-federal
applicant of the Corps' determination within 45 days of receipt of a
complete pre-construction notification. For activities where the non-
federal applicant has identified listed species (or species proposed
for listing) or designated critical habitat (or critical habitat
proposed for such designation) that might be affected or is in the
vicinity of the activity, and has so notified the Corps, the applicant
shall not begin work until the Corps has provided notification that the
proposed activity will have ``no effect'' on listed species (or species
proposed for listing or designated critical habitat (or critical
habitat proposed for such designation), or until ESA section 7
consultation or conference has been completed. If the non-federal
applicant has not heard back from the Corps within 45 days, the
applicant must still wait for notification from the Corps.
(d) As a result of formal or informal consultation or conference
with the FWS or NMFS the district engineer may add species-specific
permit conditions to the NWPs.
(e) Authorization of an activity by an NWP does not authorize the
``take'' of a threatened or endangered species as defined under the
ESA. In the absence of separate authorization (e.g., an ESA Section 10
Permit, a Biological Opinion with ``incidental take'' provisions, etc.)
from the FWS or the NMFS, the Endangered Species Act prohibits any
person subject to the jurisdiction of the United States to take a
listed species, where ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or to attempt to engage
in any such conduct. The word ``harm'' in the definition of ``take''
means an act which actually kills or injures wildlife. Such an act may
include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering.
(f) If the non-federal permittee has a valid ESA section
10(a)(1)(B) incidental take permit with an approved Habitat
Conservation Plan for a project or a group of projects that includes
the proposed NWP activity, the non-federal permittee should provide a
copy of that ESA section 10(a)(1)(B) permit with the PCN required by
paragraph (c) of this general condition. The district engineer will
coordinate with the agency that issued the ESA section 10(a)(1)(B)
permit to determine whether the proposed NWP activity and the
associated incidental take were considered in the internal ESA section
7 consultation conducted for the ESA section 10(a)(1)(B) permit. If
that coordination results in concurrence from the agency that the
proposed NWP activity and the associated incidental take were
considered in the internal ESA section 7 consultation for the ESA
section 10(a)(1)(B) permit, the district
[[Page 878]]
engineer does not need to conduct a separate ESA section 7 consultation
for the proposed NWP activity. The district engineer will notify the
non-federal applicant within 45 days of receipt of a complete pre-
construction notification whether the ESA section 10(a)(1)(B) permit
covers the proposed NWP activity or whether additional ESA section 7
consultation is required.
(g) Information on the location of threatened and endangered
species and their critical habitat can be obtained directly from the
offices of the FWS and NMFS or their web pages at http://www.fws.gov/
or http://www.fws.gov/ipac and http://www.nmfs.noaa.gov/pr/species/esa/
respectively.
19. Migratory Birds and Bald and Golden Eagles. The permittee is
responsible for ensuring that an action authorized by an NWP complies
with the Migratory Bird Treaty Act and the Bald and Golden Eagle
Protection Act. The permittee is responsible for contacting the
appropriate local office of the U.S. Fish and Wildlife Service to
determine what measures, if any, are necessary or appropriate to reduce
adverse effects to migratory birds or eagles, including whether
``incidental take'' permits are necessary and available under the
Migratory Bird Treaty Act or Bald and Golden Eagle Protection Act for a
particular activity.
20. Historic Properties. (a) No activity is authorized under any
NWP which may have the potential to cause effects on properties listed,
or eligible for listing, in the National Register of Historic Places
until the requirements of Section 106 of the National Historic
Preservation Act (NHPA) have been satisfied.
(b) Federal permittees should follow their own procedures for
complying with the requirements of section 106 of the National Historic
Preservation Act (see 33 CFR 330.4(g)(1)). If pre-construction
notification is required for the proposed NWP activity, the federal
permittee must provide the district engineer with the appropriate
documentation to demonstrate compliance with those requirements. The
district engineer will verify that the appropriate documentation has
been submitted. If the appropriate documentation is not submitted, then
additional consultation under section 106 may be necessary. The
respective federal agency is responsible for fulfilling its obligation
to comply with section 106.
(c) Non-federal permittees must submit a pre-construction
notification to the district engineer if the NWP activity might have
the potential to cause effects on any historic properties listed on,
determined to be eligible for listing on, or potentially eligible for
listing on the National Register of Historic Places, including
previously unidentified properties. For such activities, the pre-
construction notification must state which historic properties might
have the potential to be affected by the proposed NWP activity or
include a vicinity map indicating the location of the historic
properties or the potential for the presence of historic properties.
Assistance regarding information on the location of, or potential for,
the presence of historic properties can be sought from the State
Historic Preservation Officer, Tribal Historic Preservation Officer, or
designated tribal representative, as appropriate, and the National
Register of Historic Places (see 33 CFR 330.4(g)). When reviewing pre-
construction notifications, district engineers will comply with the
current procedures for addressing the requirements of section 106 of
the National Historic Preservation Act. The district engineer shall
make a reasonable and good faith effort to carry out appropriate
identification efforts commensurate with potential impacts, which may
include background research, consultation, oral history interviews,
sample field investigation, and/or field survey. Based on the
information submitted in the PCN and these identification efforts, the
district engineer shall determine whether the proposed NWP activity has
the potential to cause effects on historic properties. Section 106
consultation is not required when the district engineer determines that
the activity does not have the potential to cause effects on historic
properties (see 36 CFR 800.3(a)). Section 106 consultation is required
when the district engineer determines that the activity has the
potential to cause effects on historic properties. The district
engineer will conduct consultation with consulting parties identified
under 36 CFR 800.2(c) when he or she makes any of the following effect
determinations for the purposes of section 106 of the NHPA: no historic
properties affected, no adverse effect, or adverse effect.
(d) Where the non-federal applicant has identified historic
properties on which the proposed NWP activity might have the potential
to cause effects and has so notified the Corps, the non-federal
applicant shall not begin the activity until notified by the district
engineer either that the activity has no potential to cause effects on
historic properties or that NHPA section 106 consultation has been
completed. For non-federal permittees, the district engineer will
notify the prospective permittee within 45 days of receipt of a
complete pre-construction notification whether NHPA section 106
consultation is required. If NHPA section 106 consultation is required,
the district engineer will notify the non-federal applicant that he or
she cannot begin the activity until section 106 consultation is
completed. If the non-federal applicant has not heard back from the
Corps within 45 days, the applicant must still wait for notification
from the Corps.
(e) Prospective permittees should be aware that section 110k of the
NHPA (54 U.S.C. 306113) prevents the Corps from granting a permit or
other assistance to an applicant who, with intent to avoid the
requirements of section 106 of the NHPA, has intentionally
significantly adversely affected a historic property to which the
permit would relate, or having legal power to prevent it, allowed such
significant adverse effect to occur, unless the Corps, after
consultation with the Advisory Council on Historic Preservation (ACHP),
determines that circumstances justify granting such assistance despite
the adverse effect created or permitted by the applicant. If
circumstances justify granting the assistance, the Corps is required to
notify the ACHP and provide documentation specifying the circumstances,
the degree of damage to the integrity of any historic properties
affected, and proposed mitigation. This documentation must include any
views obtained from the applicant, SHPO/THPO, appropriate Indian tribes
if the undertaking occurs on or affects historic properties on tribal
lands or affects properties of interest to those tribes, and other
parties known to have a legitimate interest in the impacts to the
permitted activity on historic properties.
21. Discovery of Previously Unknown Remains and Artifacts.
Permittees that discover any previously unknown historic, cultural or
archeological remains and artifacts while accomplishing the activities
authorized by NWPs, must immediately notify the district engineer of
what they have found, and to the maximum extent practicable, avoid
construction activities that may affect the remains and artifacts until
the required coordination has been completed. The district engineer
will initiate the federal, tribal, and state coordination required to
determine if the items or remains warrant a recovery effort or if the
site is eligible for listing in the National Register of Historic
Places.
22. Designated Critical Resource Waters. Critical resource waters
include, NOAA-managed marine sanctuaries and marine monuments, and
National
[[Page 879]]
Estuarine Research Reserves. The district engineer may designate, after
notice and opportunity for public comment, additional waters officially
designated by a state as having particular environmental or ecological
significance, such as outstanding national resource waters or state
natural heritage sites. The district engineer may also designate
additional critical resource waters after notice and opportunity for
public comment.
(a) Discharges of dredged or fill material into waters of the
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31,
35, 39, 40, 42, 43, 44, 49, 50, 51, 52, 57 and 58 for any activity
within, or directly affecting, critical resource waters, including
wetlands adjacent to such waters.
(b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33,
34, 36, 37, 38, and 54, notification is required in accordance with
general condition 32, for any activity proposed by permittees in the
designated critical resource waters including wetlands adjacent to
those waters. The district engineer may authorize activities under
these NWPs only after she or he determines that the impacts to the
critical resource waters will be no more than minimal.
23. Mitigation. The district engineer will consider the following
factors when determining appropriate and practicable mitigation
necessary to ensure that the individual and cumulative adverse
environmental effects are no more than minimal:
(a) The activity must be designed and constructed to avoid and
minimize adverse effects, both temporary and permanent, to waters of
the United States to the maximum extent practicable at the project site
(i.e., on site).
(b) Mitigation in all its forms (avoiding, minimizing, rectifying,
reducing, or compensating for resource losses) will be required to the
extent necessary to ensure that the individual and cumulative adverse
environmental effects are no more than minimal.
(c) Compensatory mitigation at a minimum one-for-one ratio will be
required for all wetland losses that exceed \1/10\-acre and require
pre-construction notification, unless the district engineer determines
in writing that either some other form of mitigation would be more
environmentally appropriate or the adverse environmental effects of the
proposed activity are no more than minimal, and provides an activity-
specific waiver of this requirement. For wetland losses of \1/10\-acre
or less that require pre-construction notification, the district
engineer may determine on a case-by-case basis that compensatory
mitigation is required to ensure that the activity results in only
minimal adverse environmental effects.
(d) Compensatory mitigation at a minimum one-for-one ratio will be
required for all losses of stream bed that exceed \3/100\-acre and
require pre-construction notification, unless the district engineer
determines in writing that either some other form of mitigation would
be more environmentally appropriate or the adverse environmental
effects of the proposed activity are no more than minimal, and provides
an activity-specific waiver of this requirement. This compensatory
mitigation requirement may be satisfied through the restoration or
enhancement of riparian areas next to streams in accordance with
paragraph (e) of this general condition. For losses of stream bed of
\3/100\-acre or less that require pre-construction notification, the
district engineer may determine on a case-by-case basis that
compensatory mitigation is required to ensure that the activity results
in only minimal adverse environmental effects. Compensatory mitigation
for losses of streams should be provided, if practicable, through
stream rehabilitation, enhancement, or preservation, because streams
are difficult-to-replace resources (see 33 CFR 332.3(e)(3)).
(e) Compensatory mitigation plans for NWP activities in or near
streams or other open waters will normally include a requirement for
the restoration or enhancement, maintenance, and legal protection
(e.g., conservation easements) of riparian areas next to open waters.
In some cases, the restoration or maintenance/protection of riparian
areas may be the only compensatory mitigation required. If restoring
riparian areas involves planting vegetation, only native species should
be planted. The width of the required riparian area will address
documented water quality or aquatic habitat loss concerns. Normally,
the riparian area will be 25 to 50 feet wide on each side of the
stream, but the district engineer may require slightly wider riparian
areas to address documented water quality or habitat loss concerns. If
it is not possible to restore or maintain/protect a riparian area on
both sides of a stream, or if the waterbody is a lake or coastal
waters, then restoring or maintaining/protecting a riparian area along
a single bank or shoreline may be sufficient. Where both wetlands and
open waters exist on the project site, the district engineer will
determine the appropriate compensatory mitigation (e.g., riparian areas
and/or wetlands compensation) based on what is best for the aquatic
environment on a watershed basis. In cases where riparian areas are
determined to be the most appropriate form of minimization or
compensatory mitigation, the district engineer may waive or reduce the
requirement to provide wetland compensatory mitigation for wetland
losses.
(f) Compensatory mitigation projects provided to offset losses of
aquatic resources must comply with the applicable provisions of 33 CFR
part 332.
(1) The prospective permittee is responsible for proposing an
appropriate compensatory mitigation option if compensatory mitigation
is necessary to ensure that the activity results in no more than
minimal adverse environmental effects. For the NWPs, the preferred
mechanism for providing compensatory mitigation is mitigation bank
credits or in-lieu fee program credits (see 33 CFR 332.3(b)(2) and
(3)). However, if an appropriate number and type of mitigation bank or
in-lieu credits are not available at the time the PCN is submitted to
the district engineer, the district engineer may approve the use of
permittee-responsible mitigation.
(2) The amount of compensatory mitigation required by the district
engineer must be sufficient to ensure that the authorized activity
results in no more than minimal individual and cumulative adverse
environmental effects (see 33 CFR 330.1(e)(3)). (See also 33 CFR
332.3(f).)
(3) Since the likelihood of success is greater and the impacts to
potentially valuable uplands are reduced, aquatic resource restoration
should be the first compensatory mitigation option considered for
permittee-responsible mitigation.
(4) If permittee-responsible mitigation is the proposed option, the
prospective permittee is responsible for submitting a mitigation plan.
A conceptual or detailed mitigation plan may be used by the district
engineer to make the decision on the NWP verification request, but a
final mitigation plan that addresses the applicable requirements of 33
CFR 332.4(c)(2) through (14) must be approved by the district engineer
before the permittee begins work in waters of the United States, unless
the district engineer determines that prior approval of the final
mitigation plan is not practicable or not necessary to ensure timely
completion of the required compensatory mitigation (see 33 CFR
332.3(k)(3)). If permittee-responsible mitigation is the proposed
option, and the proposed compensatory mitigation site is located on
land in which another federal agency holds an easement, the district
engineer will
[[Page 880]]
coordinate with that federal agency to determine if proposed
compensatory mitigation project is compatible with the terms of the
easement.
(5) If mitigation bank or in-lieu fee program credits are the
proposed option, the mitigation plan needs to address only the baseline
conditions at the impact site and the number of credits to be provided
(see 33 CFR 332.4(c)(1)(ii)).
(6) Compensatory mitigation requirements (e.g., resource type and
amount to be provided as compensatory mitigation, site protection,
ecological performance standards, monitoring requirements) may be
addressed through conditions added to the NWP authorization, instead of
components of a compensatory mitigation plan (see 33 CFR
332.4(c)(1)(ii)).
(g) Compensatory mitigation will not be used to increase the
acreage losses allowed by the acreage limits of the NWPs. For example,
if an NWP has an acreage limit of \1/2\-acre, it cannot be used to
authorize any NWP activity resulting in the loss of greater than \1/2\-
acre of waters of the United States, even if compensatory mitigation is
provided that replaces or restores some of the lost waters. However,
compensatory mitigation can and should be used, as necessary, to ensure
that an NWP activity already meeting the established acreage limits
also satisfies the no more than minimal impact requirement for the
NWPs.
(h) Permittees may propose the use of mitigation banks, in-lieu fee
programs, or permittee-responsible mitigation. When developing a
compensatory mitigation proposal, the permittee must consider
appropriate and practicable options consistent with the framework at 33
CFR 332.3(b). For activities resulting in the loss of marine or
estuarine resources, permittee-responsible mitigation may be
environmentally preferable if there are no mitigation banks or in-lieu
fee programs in the area that have marine or estuarine credits
available for sale or transfer to the permittee. For permittee-
responsible mitigation, the special conditions of the NWP verification
must clearly indicate the party or parties responsible for the
implementation and performance of the compensatory mitigation project,
and, if required, its long-term management.
(i) Where certain functions and services of waters of the United
States are permanently adversely affected by a regulated activity, such
as discharges of dredged or fill material into waters of the United
States that will convert a forested or scrub-shrub wetland to a
herbaceous wetland in a permanently maintained utility line right-of-
way, mitigation may be required to reduce the adverse environmental
effects of the activity to the no more than minimal level.
24. Safety of Impoundment Structures. To ensure that all
impoundment structures are safely designed, the district engineer may
require non-federal applicants to demonstrate that the structures
comply with established state or federal, dam safety criteria or have
been designed by qualified persons. The district engineer may also
require documentation that the design has been independently reviewed
by similarly qualified persons, and appropriate modifications made to
ensure safety.
25. Water Quality. (a) Where the certifying authority (state,
authorized tribe, or EPA, as appropriate) has not previously certified
compliance of an NWP with CWA section 401, a CWA section 401 water
quality certification for the proposed activity which may result in any
discharge from a point source into waters of the United States must be
obtained or waived (see 33 CFR 330.4(c)). If the permittee cannot
comply with all of the conditions of a water quality certification
previously issued by the certifying authority for the issuance of the
NWP, then the permittee must obtain a water quality certification or
waiver for the proposed activity which may result in any discharge from
a point source into waters of the United States in order for the
activity to be authorized by an NWP.
(b) If the NWP activity requires pre-construction notification and
the certifying authority has not previously certified compliance of an
NWP with CWA section 401, the proposed activity which may result in any
discharge from a point source into waters of the United States is not
authorized by an NWP until water quality certification is obtained or
waived. If the certifying authority issues a water quality
certification for the proposed discharge into waters of the United
States, the permittee must submit a copy of the certification to the
district engineer. The discharge into waters of the United States is
not authorized by an NWP until the district engineer has notified the
permittee that the water quality certification requirement has been
satisfied (i.e., by the issuance of a water quality certification or a
waiver and completion of the Section 401(a)(2) process).
(c) The district engineer or certifying authority may require
additional water quality management measures to ensure that the
authorized activity does not result in more than minimal degradation of
water quality.
26. Coastal Zone Management. In coastal states where an NWP has not
previously received a state coastal zone management consistency
concurrence, an individual state coastal zone management consistency
concurrence must be obtained, or a presumption of concurrence must
occur (see 33 CFR 330.4(d)). If the permittee cannot comply with all of
the conditions of a coastal zone management consistency concurrence
previously issued by the state, then the permittee must obtain an
individual coastal zone management consistency concurrence or
presumption of concurrence in order for the activity to be authorized
by an NWP. The district engineer or a state may require additional
measures to ensure that the authorized activity is consistent with
state coastal zone management requirements.
27. Regional and Case-By-Case Conditions. The activity must comply
with any regional conditions that may have been added by the division
engineer (see 33 CFR 330.4(e)) and with any case specific conditions
added by the Corps or by the state, Indian Tribe, or U.S. EPA in its
CWA section 401 Water Quality Certification, or by the state in its
Coastal Zone Management Act consistency determination.
28. Use of Multiple Nationwide Permits. The use of more than one
NWP for a single and complete project is authorized, subject to the
following restrictions:
(a) The total acreage loss of waters of the United States for a
single and complete project cannot exceed the acreage limit of the NWP
with the highest specified acreage limit when multiple NWPs are used to
authorize an activity.
(b) If only one of the NWPs used to authorize the single and
complete project has a specified acreage limit, the acreage loss of
waters of the United States for that single and complete project cannot
exceed that specified acreage limit. For example, if a road crossing
over tidal waters is constructed under NWP 14 (which has an acreage
limit of \1/3\ acre in tidal waters), with associated bank
stabilization authorized by NWP 13 (which does not have a specified
acreage limit), the maximum acreage loss of waters of the United States
for the total project cannot exceed \1/3\-acre.
(c) If two or more of the NWPs used to authorize the single and
complete project have specified acreage limits, the acreage loss of
waters of the United States authorized by each of those NWPs cannot
exceed the specified
[[Page 881]]
acreage limits of each of those NWPs. For example, if a commercial
development is constructed under NWP 39 (which as a \1/2\-acre limit),
and the single and complete project includes the filling of a ditch
authorized by NWP 46 (which has a 1-acre limit), the maximum acreage
loss of waters of the United States for the construction of the
commercial development under NWP 39 cannot exceed \1/2\-acre, and the
total acreage loss of waters of United States caused by the combination
of the NWP 39 and NWP 46 activities cannot exceed 1 acre.
29. Transfer of Nationwide Permit Verifications. If the permittee
sells the property associated with a nationwide permit verification,
the permittee may transfer the nationwide permit verification to the
new owner by submitting a letter to the appropriate Corps district
office to validate the transfer. A copy of the nationwide permit
verification must be attached to the letter, and the letter must
contain the following statement and signature:
``When the structures or work authorized by this nationwide permit
are still in existence at the time the property is transferred, the
terms and conditions of this nationwide permit, including any special
conditions, will continue to be binding on the new owner(s) of the
property. To validate the transfer of this nationwide permit and the
associated liabilities associated with compliance with its terms and
conditions, have the transferee sign and date below.''
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(Transferee)
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(Date)
30. Compliance Certification. Each permittee who receives an NWP
verification letter from the Corps must provide a signed certification
documenting completion of the authorized activity and implementation of
any required compensatory mitigation. The successful completion of any
required permittee-responsible mitigation, including the achievement of
ecological performance standards, will be addressed separately by the
district engineer. The Corps will provide the permittee the
certification document with the NWP verification letter. The
certification document will include:
(a) A statement that the authorized activity was done in accordance
with the NWP authorization, including any general, regional, or
activity-specific conditions;
(b) A statement that the implementation of any required
compensatory mitigation was completed in accordance with the permit
conditions. If credits from a mitigation bank or in-lieu fee program
are used to satisfy the compensatory mitigation requirements, the
certification must include the documentation required by 33 CFR
332.3(l)(3) to confirm that the permittee secured the appropriate
number and resource type of credits; and
(c) The signature of the permittee certifying the completion of the
activity and mitigation.
The completed certification document must be submitted to the
district engineer within 30 days of completion of the authorized
activity or the implementation of any required compensatory mitigation,
whichever occurs later.
31. Activities Affecting Structures or Works Built by the United
States. If an NWP activity also requires review by, or permission from,
the Corps pursuant to 33 U.S.C. 408 because it will alter or
temporarily or permanently occupy or use a U.S. Army Corps of Engineers
(USACE) federally authorized Civil Works project (a ``USACE project''),
the prospective permittee must submit a pre-construction notification.
See paragraph (b)(10) of general condition 32. An activity that
requires section 408 permission and/or review is not authorized by an
NWP until the appropriate Corps office issues the section 408
permission or completes its review to alter, occupy, or use the USACE
project, and the district engineer issues a written NWP verification.
32. Pre-Construction Notification. (a) Timing. Where required by
the terms of the NWP, the prospective permittee must notify the
district engineer by submitting a pre-construction notification (PCN)
as early as possible. The district engineer must determine if the PCN
is complete within 30 calendar days of the date of receipt and, if the
PCN is determined to be incomplete, notify the prospective permittee
within that 30 day period to request the additional information
necessary to make the PCN complete. The request must specify the
information needed to make the PCN complete. As a general rule,
district engineers will request additional information necessary to
make the PCN complete only once. However, if the prospective permittee
does not provide all of the requested information, then the district
engineer will notify the prospective permittee that the PCN is still
incomplete and the PCN review process will not commence until all of
the requested information has been received by the district engineer.
The prospective permittee shall not begin the activity until either:
(1) He or she is notified in writing by the district engineer that
the activity may proceed under the NWP with any special conditions
imposed by the district or division engineer; or
(2) 45 calendar days have passed from the district engineer's
receipt of the complete PCN and the prospective permittee has not
received written notice from the district or division engineer.
However, if the permittee was required to notify the Corps pursuant to
general condition 18 that listed species (or species proposed for
listing) or designated critical habitat (or critical habitat proposed
for such designation) might be affected or are in the vicinity of the
activity, or to notify the Corps pursuant to general condition 20 that
the activity might have the potential to cause effects to historic
properties, the permittee cannot begin the activity until receiving
written notification from the Corps that there is ``no effect'' on
listed species or ``no potential to cause effects'' on historic
properties, or that any consultation required under Section 7 of the
Endangered Species Act (see 33 CFR 330.4(f)) and/or section 106 of the
National Historic Preservation Act (see 33 CFR 330.4(g)) has been
completed. If the proposed activity requires a written waiver to exceed
specified limits of an NWP, the permittee may not begin the activity
until the district engineer issues the waiver. If the district or
division engineer notifies the permittee in writing that an individual
permit is required within 45 calendar days of receipt of a complete
PCN, the permittee cannot begin the activity until an individual permit
has been obtained. Subsequently, the permittee's right to proceed under
the NWP may be modified, suspended, or revoked only in accordance with
the procedure set forth in 33 CFR 330.5(d)(2).
(b) Contents of Pre-Construction Notification: The PCN must be in
writing and include the following information:
(1) Name, address and telephone numbers of the prospective
permittee;
(2) Location of the proposed activity;
(3) Identify the specific NWP or NWP(s) the prospective permittee
wants to use to authorize the proposed activity;
(4) (i) A description of the proposed activity; the activity's
purpose; direct and indirect adverse environmental effects the activity
would cause, including the anticipated amount of loss of wetlands,
other special aquatic sites, and other waters expected to result from
the NWP activity, in acres, linear feet, or other appropriate unit of
measure; a
[[Page 882]]
description of any proposed mitigation measures intended to reduce the
adverse environmental effects caused by the proposed activity; and any
other NWP(s), regional general permit(s), or individual permit(s) used
or intended to be used to authorize any part of the proposed project or
any related activity, including other separate and distant crossings
for linear projects that require Department of the Army authorization
but do not require pre-construction notification. The description of
the proposed activity and any proposed mitigation measures should be
sufficiently detailed to allow the district engineer to determine that
the adverse environmental effects of the activity will be no more than
minimal and to determine the need for compensatory mitigation or other
mitigation measures.
(ii) For linear projects where one or more single and complete
crossings require pre-construction notification, the PCN must include
the quantity of anticipated losses of wetlands, other special aquatic
sites, and other waters for each single and complete crossing of those
wetlands, other special aquatic sites, and other waters (including
those single and complete crossings authorized by an NWP but do not
require PCNs). This information will be used by the district engineer
to evaluate the cumulative adverse environmental effects of the
proposed linear project, and does not change those non-PCN NWP
activities into NWP PCNs.
(iii) Sketches should be provided when necessary to show that the
activity complies with the terms of the NWP. (Sketches usually clarify
the activity and when provided results in a quicker decision. Sketches
should contain sufficient detail to provide an illustrative description
of the proposed activity (e.g., a conceptual plan), but do not need to
be detailed engineering plans);
(5) The PCN must include a delineation of waters, wetlands, and
other special aquatic sites on the project site. Wetland delineations
must be prepared in accordance with the current method required by the
Corps. The permittee may ask the Corps to delineate the special aquatic
sites and other waters on the project site, but there may be a delay if
the Corps does the delineation, especially if the project site is large
or contains many wetlands, other special aquatic sites, and other
waters. Furthermore, the 45-day period will not start until the
delineation has been submitted to or completed by the Corps, as
appropriate. For NWP 27 activities that require PCNs because of other
general conditions or regional conditions imposed by division
engineers, see Note 2 of that NWP;
(6) If the proposed activity will result in the loss of greater
than \1/10\-acre of wetlands or \3/100\-acre of stream bed and a PCN is
required, the prospective permittee must submit a statement describing
how the compensatory mitigation requirement will be satisfied, or
explaining why the adverse environmental effects are no more than
minimal and why compensatory mitigation should not be required. As an
alternative, the prospective permittee may submit a conceptual or
detailed mitigation plan.
(7) For non-federal permittees, if any listed species (or species
proposed for listing) or designated critical habitat (or critical
habitat proposed for such designation) might be affected or is in the
vicinity of the activity, or if the activity is located in designated
critical habitat (or critical habitat proposed for such designation),
the PCN must include the name(s) of those endangered or threatened
species (or species proposed for listing) that might be affected by the
proposed activity or utilize the designated critical habitat (or
critical habitat proposed for such designation) that might be affected
by the proposed activity. For NWP activities that require pre-
construction notification, federal permittees must provide
documentation demonstrating compliance with the Endangered Species Act;
(8) For non-federal permittees, if the NWP activity might have the
potential to cause effects to a historic property listed on, determined
to be eligible for listing on, or potentially eligible for listing on,
the National Register of Historic Places, the PCN must state which
historic property might have the potential to be affected by the
proposed activity or include a vicinity map indicating the location of
the historic property. For NWP activities that require pre-construction
notification, federal permittees must provide documentation
demonstrating compliance with section 106 of the National Historic
Preservation Act;
(9) For an activity that will occur in a component of the National
Wild and Scenic River System, or in a river officially designated by
Congress as a ``study river'' for possible inclusion in the system
while the river is in an official study status, the PCN must identify
the Wild and Scenic River or the ``study river'' (see general condition
16); and
(10) For an NWP activity that requires permission from, or review
by, the Corps pursuant to 33 U.S.C. 408 because it will alter or
temporarily or permanently occupy or use a U.S. Army Corps of Engineers
federally authorized civil works project, the pre-construction
notification must include a statement confirming that the project
proponent has submitted a written request for section 408 permission
from, or review by, the Corps office having jurisdiction over that
USACE project.
(c) Form of Pre-Construction Notification: The nationwide permit
pre-construction notification form (Form ENG 6082) should be used for
NWP PCNs. A letter containing the required information may also be
used. Applicants may provide electronic files of PCNs and supporting
materials if the district engineer has established tools and procedures
for electronic submittals.
(d) Agency Coordination: (1) The district engineer will consider
any comments from federal and state agencies concerning the proposed
activity's compliance with the terms and conditions of the NWPs and the
need for mitigation to reduce the activity's adverse environmental
effects so that they are no more than minimal.
(2) Agency coordination is required for: (i) all NWP activities
that require pre-construction notification and result in the loss of
greater than \1/2\-acre of waters of the United States; (ii) NWP 13
activities in excess of 500 linear feet, fills greater than one cubic
yard per running foot, or involve discharges of dredged or fill
material into special aquatic sites; and (iii) NWP 54 activities in
excess of 500 linear feet, or that extend into the waterbody more than
30 feet from the mean low water line in tidal waters or the ordinary
high water mark in the Great Lakes.
(3) When agency coordination is required, the district engineer
will immediately provide (e.g., via email, facsimile transmission,
overnight mail, or other expeditious manner) a copy of the complete PCN
to the appropriate federal or state offices (FWS, state natural
resource or water quality agency, EPA, and, if appropriate, the NMFS).
With the exception of NWP 37, these agencies will have 10 calendar days
from the date the material is transmitted to notify the district
engineer via telephone, facsimile transmission, or email that they
intend to provide substantive, site-specific comments. The comments
must explain why the agency believes the adverse environmental effects
will be more than minimal. If so contacted by an agency, the district
engineer will wait an additional 15 calendar days before making a
decision on the pre-construction notification. The district engineer
will fully consider agency
[[Page 883]]
comments received within the specified time frame concerning the
proposed activity's compliance with the terms and conditions of the
NWPs, including the need for mitigation to ensure that the net adverse
environmental effects of the proposed activity are no more than
minimal. The district engineer will provide no response to the resource
agency, except as provided below. The district engineer will indicate
in the administrative record associated with each pre-construction
notification that the resource agencies' concerns were considered. For
NWP 37, the emergency watershed protection and rehabilitation activity
may proceed immediately in cases where there is an unacceptable hazard
to life or a significant loss of property or economic hardship will
occur. The district engineer will consider any comments received to
decide whether the NWP 37 authorization should be modified, suspended,
or revoked in accordance with the procedures at 33 CFR 330.5.
(4) In cases where the prospective permittee is not a federal
agency, the district engineer will provide a response to NMFS within 30
calendar days of receipt of any Essential Fish Habitat conservation
recommendations, as required by section 305(b)(4)(B) of the Magnuson-
Stevens Fishery Conservation and Management Act.
(5) Applicants are encouraged to provide the Corps with either
electronic files or multiple copies of pre-construction notifications
to expedite agency coordination.
D. District Engineer's Decision
1. In reviewing the PCN for the proposed activity, the district
engineer will determine whether the activity authorized by the NWP will
result in more than minimal individual or cumulative adverse
environmental effects or may be contrary to the public interest. If a
project proponent requests authorization by a specific NWP, the
district engineer should issue the NWP verification for that activity
if it meets the terms and conditions of that NWP, unless he or she
determines, after considering mitigation, that the proposed activity
will result in more than minimal individual and cumulative adverse
effects on the aquatic environment and other aspects of the public
interest and exercises discretionary authority to require an individual
permit for the proposed activity. For a linear project, this
determination will include an evaluation of the single and complete
crossings of waters of the United States that require PCNs to determine
whether they individually satisfy the terms and conditions of the
NWP(s), as well as the cumulative effects caused by all of the
crossings of waters of the United States authorized by an NWP. If an
applicant requests a waiver of an applicable limit, as provided for in
NWPs 13, 36, or 54, the district engineer will only grant the waiver
upon a written determination that the NWP activity will result in only
minimal individual and cumulative adverse environmental effects.
2. When making minimal adverse environmental effects determinations
the district engineer will consider the direct and indirect effects
caused by the NWP activity. He or she will also consider the cumulative
adverse environmental effects caused by activities authorized by an NWP
and whether those cumulative adverse environmental effects are no more
than minimal. The district engineer will also consider site specific
factors, such as the environmental setting in the vicinity of the NWP
activity, the type of resource that will be affected by the NWP
activity, the functions provided by the aquatic resources that will be
affected by the NWP activity, the degree or magnitude to which the
aquatic resources perform those functions, the extent that aquatic
resource functions will be lost as a result of the NWP activity (e.g.,
partial or complete loss), the duration of the adverse effects
(temporary or permanent), the importance of the aquatic resource
functions to the region (e.g., watershed or ecoregion), and mitigation
required by the district engineer. If an appropriate functional or
condition assessment method is available and practicable to use, that
assessment method may be used by the district engineer to assist in the
minimal adverse environmental effects determination. The district
engineer may add activity-specific conditions to the NWP authorization
to address site-specific environmental concerns.
3. If the proposed NWP activity requires a PCN and will result in a
loss of greater than \1/10\-acre of wetlands or \3/100\-acre of stream
bed, the prospective permittee should submit a mitigation proposal with
the PCN. Applicants may also propose compensatory mitigation for NWP
activities with smaller impacts, or for impacts to other types of
waters. However, compensatory mitigation shall not be required for
activities authorized by NWP 27 because those activities must result in
net increases in aquatic resource functions and services (see the text
of NWP 27). The district engineer will consider any proposed
compensatory mitigation or other mitigation measures the applicant has
included in the proposal when determining whether the net adverse
environmental effects of the proposed NWP activity are no more than
minimal. The compensatory mitigation proposal may be either conceptual
or detailed. If the district engineer determines that the proposed
activity complies with the terms and conditions of the NWP and that the
adverse environmental effects are no more than minimal, after
considering mitigation, the district engineer will notify the permittee
and include any activity-specific conditions in the NWP verification
the district engineer deems necessary. Conditions for compensatory
mitigation requirements must comply with the appropriate provisions at
33 CFR 332.3(k). The district engineer must approve the final
mitigation plan before the permittee commences work in waters of the
United States, unless the district engineer determines that prior
approval of the final mitigation plan is not practicable or not
necessary to ensure timely completion of the required compensatory
mitigation. If the prospective permittee elects to submit a
compensatory mitigation plan with the PCN, the district engineer will
expeditiously review the proposed compensatory mitigation plan. The
district engineer must review the proposed compensatory mitigation plan
within 45 calendar days of receiving a complete PCN and determine
whether the proposed mitigation would ensure that the NWP activity
results in no more than minimal adverse environmental effects. If the
net adverse environmental effects of the NWP activity (after
consideration of the mitigation proposal) are determined by the
district engineer to be no more than minimal, the district engineer
will provide a timely written response to the applicant. The response
will state that the NWP activity can proceed under the terms and
conditions of the NWP, including any activity-specific conditions added
to the NWP authorization by the district engineer.
4. If the district engineer determines that the adverse
environmental effects of the proposed NWP activity are more than
minimal, then the district engineer will notify the applicant either:
(a) that the activity does not qualify for authorization under the NWP
and instruct the applicant on the procedures to seek authorization
under an individual permit; (b) that the activity is authorized under
the NWP subject to the applicant's submission of a mitigation plan that
would reduce the adverse environmental effects so that they are no more
than minimal; or (c) that the activity is authorized under the
[[Page 884]]
NWP with specific modifications or conditions. Where the district
engineer determines that mitigation is required to ensure no more than
minimal adverse environmental effects, the activity will be authorized
within the 45-day PCN review period (unless additional time is required
to comply with general conditions 16, 18, 20, and/or 31), with
activity-specific conditions that state the mitigation requirements.
The authorization will include the necessary conceptual or detailed
mitigation plan or a requirement that the applicant submit a mitigation
plan that would reduce the adverse environmental effects so that they
are no more than minimal. When compensatory mitigation is required, no
work in waters of the United States may occur until the district
engineer has approved a specific mitigation plan or has determined that
prior approval of a final mitigation plan is not practicable or not
necessary to ensure timely completion of the required compensatory
mitigation.
E. Further Information
1. District engineers have authority to determine if an activity
complies with the terms and conditions of an NWP.
2. NWPs do not obviate the need to obtain other federal, state, or
local permits, approvals, or authorizations required by law.
3. NWPs do not grant any property rights or exclusive privileges.
4. NWPs do not authorize any injury to the property or rights of
others.
5. NWPs do not authorize interference with any existing or proposed
Federal project (see general condition 31).
F. Nationwide Permit Definitions
Best management practices (BMPs): Policies, practices, procedures,
or structures implemented to mitigate the adverse environmental effects
on surface water quality resulting from development. BMPs are
categorized as structural or non-structural.
Compensatory mitigation: The restoration (re-establishment or
rehabilitation), establishment (creation), enhancement, and/or in
certain circumstances preservation of aquatic resources for the
purposes of offsetting unavoidable adverse impacts which remain after
all appropriate and practicable avoidance and minimization has been
achieved.
Currently serviceable: Useable as is or with some maintenance, but
not so degraded as to essentially require reconstruction.
Direct effects: Effects that are caused by the activity and occur
at the same time and place.
Discharge: The term ``discharge'' means any discharge of dredged or
fill material into waters of the United States.
Ecological reference: A model used to plan and design an aquatic
ecosystem restoration, enhancement, or establishment activity under NWP
27. An ecological reference may be based on: (1) the structure,
functions, and dynamics of an aquatic ecosystem type or a riparian area
type that currently exists in the region; (2) the structure, functions,
and dynamics of an aquatic ecosystem type or riparian area type that
existed in the region in the past; and/or (3) indigenous and local
ecological knowledge that apply to the aquatic ecosystem type or
riparian area type (i.e., a cultural ecosystem). Cultural ecosystems
are ecosystems that have developed under the joint influence of natural
processes and human management activities (e.g., fire stewardship). An
ecological reference takes into account the range of variation of the
aquatic habitat type or riparian area type in the region.
Enhancement: The manipulation of the physical, chemical, or
biological characteristics of an aquatic resource to heighten,
intensify, or improve a specific aquatic resource function(s).
Enhancement results in the gain of selected aquatic resource
function(s), but may also lead to a decline in other aquatic resource
function(s). Enhancement does not result in a gain in aquatic resource
area.
Establishment (creation): The manipulation of the physical,
chemical, or biological characteristics present to develop an aquatic
resource that did not previously exist at an upland site. Establishment
results in a gain in aquatic resource area.
High Tide Line: The line of intersection of the land with the
water's surface at the maximum height reached by a rising tide. The
high tide line may be determined, in the absence of actual data, by a
line of oil or scum along shore objects, a more or less continuous
deposit of fine shell or debris on the foreshore or berm, other
physical markings or characteristics, vegetation lines, tidal gages, or
other suitable means that delineate the general height reached by a
rising tide. The line encompasses spring high tides and other high
tides that occur with periodic frequency but does not include storm
surges in which there is a departure from the normal or predicted reach
of the tide due to the piling up of water against a coast by strong
winds such as those accompanying a hurricane or other intense storm.
Historic Property: Any prehistoric or historic district, site
(including archaeological site), building, structure, or other object
included in, or eligible for inclusion in, the National Register of
Historic Places maintained by the Secretary of the Interior. This term
includes artifacts, records, and remains that are related to and
located within such properties. The term includes properties of
traditional religious and cultural importance to an Indian tribe or
Native Hawaiian organization and that meet the National Register
criteria (36 CFR part 60).
Independent utility: A test to determine what constitutes a single
and complete non-linear project in the Corps Regulatory Program. A
project is considered to have independent utility if it would be
constructed absent the construction of other projects in the project
area. Portions of a multi-phase project that depend upon other phases
of the project do not have independent utility. Phases of a project
that would be constructed even if the other phases were not built can
be considered as separate single and complete projects with independent
utility.
Indirect effects: Effects that are caused by the activity and are
later in time or farther removed in distance, but are still reasonably
foreseeable.
Loss of waters of the United States: Waters of the United States
that are permanently adversely affected by filling, flooding,
excavation, or drainage because of the regulated activity. The loss of
stream bed includes the acres of stream bed that are permanently
adversely affected by filling or excavation because of the regulated
activity. Permanent adverse effects include permanent discharges of
dredged or fill material that change an aquatic area to dry land,
increase the bottom elevation of a waterbody, or change the use of a
waterbody. The acreage of loss of waters of the United States is a
threshold measurement of the impact to jurisdictional waters or
wetlands for determining whether a project may qualify for an NWP; it
is not a net threshold that is calculated after considering
compensatory mitigation that may be used to offset losses of aquatic
functions and services. Waters of the United States temporarily filled,
flooded, excavated, or drained, but restored to pre-construction
contours and elevations after construction, are not included in the
measurement of loss of waters of the United States. Impacts resulting
from activities that do not require Department of the Army
authorization, such as activities eligible for exemptions under section
404(f) of the Clean Water Act, are not considered
[[Page 885]]
when calculating the loss of waters of the United States.
Nature-based solutions: Actions to protect, sustainably manage, and
restore natural or modified ecosystems, that address societal
challenges effectively and adaptively, simultaneously providing human
well-being and biodiversity benefits.
Navigable waters: Waters subject to section 10 of the Rivers and
Harbors Act of 1899. These waters are defined at 33 CFR part 329.
Non-tidal wetland: A non-tidal wetland is a wetland that is not
subject to the ebb and flow of tidal waters. Non-tidal wetlands
contiguous to tidal waters are located landward of the high tide line
(i.e., spring high tide line).
Open water: For purposes of the NWPs, an open water is any area
that in a year with normal patterns of precipitation has water flowing
or standing above ground to the extent that an ordinary high water mark
can be determined. Aquatic vegetation within the area of flowing or
standing water is either non-emergent, sparse, or absent. Vegetated
shallows are considered to be open waters. Examples of ``open waters''
include rivers, streams, lakes, and ponds.
Ordinary High Water Mark: The term ordinary high water mark means
that line on the shore established by the fluctuations of water and
indicated by physical characteristics such as a clear, natural line
impressed on the bank, shelving, changes in the character of soil,
destruction of terrestrial vegetation, the presence of litter and
debris, or other appropriate means that consider the characteristics of
the surrounding areas.
Perennial stream: A perennial stream has surface water flowing
continuously year-round during a typical year.
Practicable: Available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of
overall project purposes.
Pre-construction notification: A request submitted by the project
proponent to the Corps for confirmation that a particular activity is
authorized by nationwide permit. The request may be a permit
application, letter, or similar document that includes information
about the proposed work and its anticipated environmental effects. Pre-
construction notification may be required by the terms and conditions
of a nationwide permit, or by regional conditions. A pre-construction
notification may be voluntarily submitted in cases where pre-
construction notification is not required and the project proponent
wants confirmation that the activity is authorized by nationwide
permit.
Preservation: The removal of a threat to, or preventing the decline
of, aquatic resources by an action in or near those aquatic resources.
This term includes activities commonly associated with the protection
and maintenance of aquatic resources through the implementation of
appropriate legal and physical mechanisms. Preservation does not result
in a gain of aquatic resource area or functions.
Re-establishment: The manipulation of the physical, chemical, or
biological characteristics of a site with the goal of returning
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and
results in a gain in aquatic resource area and functions.
Rehabilitation: The manipulation of the physical, chemical, or
biological characteristics of a site with the goal of repairing
natural/historic functions to a degraded aquatic resource.
Rehabilitation results in a gain in aquatic resource function, but does
not result in a gain in aquatic resource area.
Restoration: The manipulation of the physical, chemical, or
biological characteristics of a site with the goal of returning
natural/historic functions to a former or degraded aquatic resource.
For the purpose of tracking net gains in aquatic resource area,
restoration is divided into two categories: re-establishment and
rehabilitation.
Riffle and pool complex: Riffle and pool complexes are special
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes
sometimes characterize steep gradient sections of streams. Such stream
sections are recognizable by their hydraulic characteristics. The rapid
movement of water over a course substrate in riffles results in a rough
flow, a turbulent surface, and high dissolved oxygen levels in the
water. Pools are deeper areas associated with riffles. A slower stream
velocity, a streaming flow, a smooth surface, and a finer substrate
characterize pools.
Riparian areas: Riparian areas are lands next to streams, lakes,
and estuarine-marine shorelines. Riparian areas are transitional
between terrestrial and aquatic ecosystems, through which surface and
subsurface hydrology connects riverine, lacustrine, estuarine, and
marine waters with their adjacent wetlands, non-wetland waters, or
uplands. Riparian areas provide a variety of ecological functions and
services and help improve or maintain local water quality. (See general
condition 23.)
Shellfish seeding: The placement of shellfish seed and/or suitable
substrate to increase shellfish production. Shellfish seed consists of
immature individual shellfish or individual shellfish attached to
shells or shell fragments (i.e., spat on shell). Suitable substrate may
consist of shellfish shells, shell fragments, or other appropriate
materials placed into waters for shellfish habitat.
Single and complete linear project: A linear project is a project
constructed for the purpose of getting people, goods, or services from
a point of origin to a terminal point, which often involves multiple
crossings of one or more waterbodies at separate and distant locations.
The term ``single and complete project'' is defined as that portion of
the total linear project proposed or accomplished by one owner/
developer or partnership or other association of owners/developers that
includes all crossings of a single water of the United States (i.e., a
single waterbody) at a specific location. For linear projects crossing
a single or multiple waterbodies several times at separate and distant
locations, each crossing is considered a single and complete project
for purposes of NWP authorization. However, individual channels in a
braided stream or river, or individual arms of a large, irregularly
shaped wetland or lake, etc., are not separate waterbodies, and
crossings of such features cannot be considered separately.
Single and complete non-linear project: For non-linear projects,
the term ``single and complete project'' is defined at 33 CFR 330.2(i)
as the total project proposed or accomplished by one owner/developer or
partnership or other association of owners/developers. A single and
complete non-linear project must have independent utility (see
definition of ``independent utility''). Single and complete non-linear
projects may not be ``piecemealed'' to avoid the limits in an NWP
authorization.
Stormwater management: Stormwater management is the mechanism for
controlling stormwater runoff for the purposes of reducing downstream
erosion, water quality degradation, and flooding and mitigating the
adverse effects of changes in land use on the aquatic environment.
Stormwater management facilities: Stormwater management facilities
are those facilities, including but not limited to, stormwater
retention and detention ponds and best management practices, which
retain water for a period of time to control runoff and/or improve the
quality (i.e., by reducing the concentration of nutrients,
[[Page 886]]
sediments, hazardous substances and other pollutants) of stormwater
runoff.
Stream bed: The substrate of the stream channel between the
ordinary high water marks. The substrate may be bedrock or inorganic
particles that range in size from clay to boulders. The substrate may
also be comprised, in part, of organic matter, such as large or small
wood fragments, leaves, algae, and other organic materials. Wetlands
contiguous to the stream bed, but outside of the ordinary high water
marks, are not considered part of the stream bed.
Stream channelization: The manipulation of a stream's course,
condition, capacity, or location that causes more than minimal
interruption of normal stream processes. A channelized jurisdictional
stream remains a water of the United States.
Structure: An object that is arranged in a definite pattern of
organization. Examples of structures include, without limitation, any
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater,
bulkhead, revetment, riprap, jetty, artificial island, artificial reef,
permanent mooring structure, power transmission line, permanently
moored floating vessel, piling, aid to navigation, or any other manmade
obstacle or obstruction.
Tidal wetland: A tidal wetland is a jurisdictional wetland that is
inundated by tidal waters. Tidal waters rise and fall in a predictable
and measurable rhythm or cycle due to the gravitational pulls of the
moon and sun. Tidal waters end where the rise and fall of the water
surface can no longer be practically measured in a predictable rhythm
due to masking by other waters, wind, or other effects. Tidal wetlands
are located channelward of the high tide line.
Tribal lands: Any lands title to which is either: (1) held in trust
by the United States for the benefit of any Indian tribe or individual;
or (2) held by any Indian tribe or individual subject to restrictions
by the United States against alienation.
Tribal rights: Those rights legally accruing to a tribe or tribes
by virtue of inherent sovereign authority, unextinguished aboriginal
title, treaty, statute, judicial decisions, executive order or
agreement, and that give rise to legally enforceable remedies.
Vegetated shallows: Vegetated shallows are special aquatic sites
under the 404(b)(1) Guidelines. They are areas that are permanently
inundated and under normal circumstances have rooted aquatic
vegetation, such as seagrasses in marine and estuarine systems and a
variety of vascular rooted plants in freshwater systems.
Waterbody: For purposes of the NWPs, a waterbody is a ``water of
the United States.'' If a wetland is adjacent to a waterbody determined
to be a water of the United States, that waterbody and any adjacent
wetlands are considered together as a single aquatic unit (see 33 CFR
328.4(c)(2)).
[FR Doc. 2026-00121 Filed 1-7-26; 8:45 am]
BILLING CODE 3720-58-P