[Federal Register Volume 90, Number 116 (Wednesday, June 18, 2025)]
[Proposed Rules]
[Pages 26100-26167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-11190]
[[Page 26099]]
Vol. 90
Wednesday,
No. 116
June 18, 2025
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Chapter II
Proposal To Reissue and Modify Nationwide Permits; Proposed Rule
Federal Register / Vol. 90 , No. 116 / Wednesday, June 18, 2025 /
Proposed Rules
[[Page 26100]]
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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
Proposal To Reissue and Modify Nationwide Permits
AGENCY: Corps of Engineers, Army, DoD.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Nationwide Permits (NWPs) are issued by the U.S. Army Corps of
Engineers (Corps) to authorize categories of 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 Corps is proposing to reissue its
existing NWPs and associated general conditions and definitions, with
some modifications. The Corps is proposing to issue one new NWP. The
proposed new NWP would authorize activities to improve the passage of
fish and other aquatic organisms through aquatic ecosystems. In
addition, the Corps is proposing to modify some other NWPs to simplify
and clarify those NWPs. The proposed modifications to the NWPs general
conditions, and definitions are intended to reduce burdens on the
regulated public and continue to comply with the statutory requirement
that NWPs authorize only activities with no more than minimal
individual and cumulative adverse environmental effects. The Corps is
proposing to modify two of the 2021 NWPs (i.e., NWP 48 for commercial
shellfish mariculture activities and NWP 56 for finfish mariculture
activities) to address litigation on those NWPs. The Corps is
requesting comment on all aspects of these proposed NWPs.
DATES: Submit comments on or before July 18, 2025.
ADDRESSES: You may submit comments, identified by docket number COE-
2025-0002 and/or RIN 0710-AB56, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Email: [email protected]. Include the docket
number, COE-2025-0002, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW, Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: If submitting comments through the Federal
eRulemaking Portal, please direct your comments to docket number COE-
2025-0002. All comments received will be included in the public docket
without change and may be made available on-line at http://www.regulations.gov, including any personal information provided,
unless the commenter indicates that the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI, or otherwise protected,
through regulations.gov or email. The regulations.gov website is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email directly to the Corps without going through
regulations.gov your email address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the internet.
Docket: For access to the docket to read background documents or
comments received, go to regulations.gov. All documents in the docket
are listed. Although listed in the index, some information is not
publicly available, such as CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. In accordance with 5 U.S.C. 553(b)(4), a
summary of this rule may be found at www.regulations.gov, in docket
number COE-2025-0002.
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
I. Background
A. General
B. Process for Modifying and Reissuing the NWPs
C. Status of Existing Permits
D. Regional Conditioning of Nationwide Permits
E. Nature-Based Solutions and the NWP Program
F. Notes in NWPs for Utilities and Mariculture Activities
G. Severability
II. Summary of Proposed Rule
A. Discussion of Proposed Modifications to Existing Nationwide
Permits
B. Discussion of the Proposed New Nationwide Permit
C. Discussion of Proposed Modifications to Nationwide Permit
General Conditions
D. Discussion of Proposed Modification to Section D, ``District
Engineer's Decision''
E. Discussion of Proposed Modifications to Section F,
``Definitions''
III. Compliance With Relevant Statutes
A. National Environmental Policy Act Compliance
B. Compliance With Section 404(e) of the Clean Water Act
C. Compliance With the Endangered Species Act
D. Compliance With the Essential Fish Habitat Provisions of the
Magnuson-Stevens Fishery Conservation and Management Act
E. Compliance With Section 401 of the Clean Water Act
F. Section 307 of the Coastal Zone Management Act (CZMA)
G. Compliance With Section 106 of the National Historic
Preservation Act
IV. Economic Impact
V. Administrative Requirements
VI. References
Authority
Nationwide Permits, Conditions, Further Information, and 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
USCG U.S. Coast Guard
List of Proposed Nationwide Permits and General Conditions
Nationwide Permits (NWPs)
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
[[Page 26101]]
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
7. Water Supply Intakes
8. Adverse Effects From Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United
States
32. Pre-Construction Notification
I. Background
A. General
The U.S. Army Corps of Engineers (Corps) issues nationwide permits
(NWPs) to authorize activities under Section 404 of the Clean Water Act
and Section 10 of the Rivers and Harbors Act of 1899 that will result
in no more than minimal individual and cumulative adverse environmental
effects. Under Section 404 of the Clean Water Act (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 Rivers and Harbors Act of 1899 (33 U.S.C. 403), DA
authorization is required for any construction of any structure in or
over 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. After 1977, NWPs have been issued or reissued
in 1982 (47 FR 31794), 1984 (49 FR 39478), 1986 (51 FR 41206), 1991 (56
FR 59110), 1995 (60 FR 38650), 1996 (61 FR 65874), 2000 (65 FR 12818),
2002 (67 FR 2020), 2007 (72 FR 11092), 2012 (77 FR 10184), 2017 (82 FR
1860), and 2021 (86 FR 2744 and 86 FR 73522).
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States for a period of no more than
five years after the date of issuance (33 U.S.C. 1344(e)). The
Secretary's authority to issue 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 impacts (see 33 CFR 330.1(b)). The categories of
activities authorized by NWPs must be similar in nature, cause only
minimal adverse environmental effects when performed separately, and
have only minimal cumulative adverse effect on the environment (33
U.S.C. 1344(e)(1)). The Corps has the 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 Rivers and
Harbors Act of 1899 (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.
Under section 10 of the Rivers and Harbors Act of 1899, the Corps
has the authority to issue general permits and after-the-fact permits
for structures and work in navigable waters of the United States. The
text of 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.'' The text of
section 10 does not require 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 use different types of permits to give its approval
for structures and work in navigable waters of the United States. Since
1975, the Corps has issued general permits under section 10 of the
Rivers and Harbors Act of 1899 (see 40 FR 31335). The Corps has issued
NWPs under the authority of section 10 of the Rivers and Harbors Act
since 1977 (see 42 FR 37140).
Like general permits, the Corps has been issuing after-the-fact
permits for decades and that practice is consistent with section 10 of
the Rivers and Harbors Act of 1899. In its July 25, 1975, final rule,
at 40 FR 31330, the Corps'
[[Page 26102]]
regulations address the use of after-the-fact authorizations for
activities that require DA authorization. Under the Rivers and Harbors
Act of 1899, the Corps' authority to issue after-the-fact permits is
derived from its discretionary enforcement authority under section 12
of that Act, rather than section 10. Under section 12, the removal of
any unauthorized structures ``may'' be enforced and proper proceedings
``may'' be instituted under the direction of the Attorney General of
the United States. Inherent in the Corps' authority to enforce the
Rivers and Harbors Act of 1899 is the Corps' discretion to design and
impose corrective actions to address a violation if the impact on
navigation is negligible and the Corps determines it is not necessary
to require removal of the obstruction. The Corps exercises this
discretion when it issues an after-the-fact permit for an activity that
did not receive prior approval from the Corps.
There are currently 57 NWPs. These NWPs were published in the
January 13, 2021, issue of the Federal Register (86 FR 2744), in which
the Corps reissued 12 existing NWPs and issued four new NWPs, and the
December 27, 2021, issue of the Federal Register (86 FR 73522), in
which the Corps reissued 40 existing NWPs and issued one new NWP. The
NWP general conditions and definitions were reissued in the final rule
published in the January 13, 2021, edition of the Federal Register and
they apply to both final rules. All of the NWPs issued or reissued in
2021 are currently scheduled to expire on March 14, 2026.
Under 33 CFR 330.5(b), anyone may, at any time, suggest to Corps
Headquarters that they consider new NWPs or conditions for issuance, or
changes to existing NWPs. Independent of receiving suggestions to issue
new NWPs or modify existing NWPs, Corps Headquarters has the authority
to periodically review the NWPs and their conditions and initiate the
process for proposing to modify, reissue, or revoke the NWPs (see 33
CFR 330.5(b) and 330.6(b)).
As an example, in March 2022, the Department of the Army issued a
Federal Register notice stating that it would undertake a formal review
of NWP 12 (87 FR 17281). This review included a series of virtual
meetings with the public, a series of virtual meetings with Tribes, and
a docket for receiving written comments which concluded in May 2022. To
avoid potential confusion of having two similar actions processing
simultaneously, this formal review of NWP 12 was withdrawn to be
replaced with the current rulemaking effort to reissue and modify all
of the NWPs, including NWP 12.
The Department of the Army's 2022 review of NWP 12 and the Corps'
proposed rule to reissue the NWPs, including NWP 12, are separate
actions. While not required, the Corps exercised its discretion and
considered the comments obtained during the formal review of NWP 12 as
part of the development of this proposed rule and is proposing to
reissue NWP 12 without modifications. Members of the public and other
parties who have interests regarding the Corps' proposal to reissue NWP
12 without modifications are invited to submit their comments on this
proposed rule in accordance with the instructions provided in the
ADDRESSES section of this proposed rule. The Corps will fully consider
all comments received in response to this proposed rule. Comments
submitted for the 2022 review of NWP 12 may be resubmitted for
consideration for the development of the final rule for the 2026 NWPs.
Comments submitted for the 2022 review of NWP 12 that are not
resubmitted for consideration for the development of the final rule for
the 2026 NWPs will not be considered during the development of that
final rule.
The NWPs provide incentives for project proponents to design
activities that require DA authorization under Section 404 of the Clean
Water Act and/or Section 10 of the Rivers and Harbors Act of 1899 to
avoid and minimize impacts to the aquatic environment 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 those activities
comply 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
review those proposed activities and determine whether they are
authorized by 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
decisions for a specific activity. In Fiscal Year (FY) 2024, the
average processing time for an NWP PCN was 55 days and the average
processing time for a standard individual permit was 253 days. The
reduction in adverse effects on the aquatic environment incentivized by
the NWP Program helps reduce the impacts of activities regulated by the
Corps on the Nation's aquatic resources.
Section 404(e)(1) of the Clean Water Act 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 a specific
activity authorized by an NWP. The phrase ``minimal cumulative adverse
effect on the environment'' refers to the collective direct and
indirect adverse environmental effects caused by all the activities
authorized by a particular NWP during the time period when the NWP is
in effect (a period of no more than 5 years) in a specific geographic
region. These concepts are discussed in paragraph 2 of section D,
``District Engineer's Decision'' in this proposed rule. The appropriate
geographic area for assessing cumulative effects is determined by the
decision-making authority for the general permit (generally, the
district engineer, under 33 CFR 330.5(d)(1)).
Some NWPs include PCN requirements. PCNs give the Corps districts
the opportunity to evaluate certain proposed NWP activities on a case-
by-case basis to ensure that they will cause no more than minimal
adverse environmental effects, individually and cumulatively. Except
for activities conducted by non-federal permittees that require PCNs
under paragraph (c) of the ``Endangered Species'' and ``Historic
Properties'' general conditions (general conditions 18 and 20,
respectively), if the Corps district does not respond to the PCN within
45 days of a receipt of a complete PCN the activity is automatically
authorized by the NWP (see 33 CFR 330.1(e)(1)), unless the district
engineer
[[Page 26103]]
takes action under 33 CFR 330.5(d) to modify, suspend, or revoke the
NWP authorization.
There are 39 Corps district offices and 8 Corps division offices.
The district offices administer the NWP program on a day-to-day basis
by reviewing PCNs for proposed NWP activities. The division offices
oversee district offices and are managed by division engineers.
Division engineers have the authority to modify, suspend, or revoke NWP
authorizations on a regional basis to take into account regional
differences among aquatic resources and ensure that the NWPs authorize
only those activities that result in no more than minimal individual
and cumulative adverse environmental effects in a region (see 33 CFR
330.5(c)). When a Corps district receives a PCN, the district engineer
reviews the PCN and determines whether the proposed activity will
result in no more than minimal individual and cumulative adverse
environmental effects, consistent with the criteria in paragraph 2 of
section D, ``District Engineer's Decision.'' At this point, the
district engineer may add conditions to the NWP authorization to ensure
that the verified NWP activity results in no more than minimal
individual and cumulative adverse environmental effects consistent with
processes and requirements set out in 33 CFR 330.5(d).
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 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 Sec. 330.6(a)(3)(i)).
The case-by-case review of PCNs often results in district engineers
adding activity-specific conditions to NWP authorizations to ensure
that the adverse environmental effects are no more than minimal. These
can include permit conditions such as time-of-year restrictions and use
of best management practices or compensatory mitigation requirements to
offset authorized losses of jurisdictional waters and wetlands so that
the net adverse environmental effects are no more than minimal. Any
compensatory mitigation required for NWP activities must comply with
the Corps' compensatory mitigation regulations at 33 CFR part 332.
Review of a PCN may also result in the district engineer asserting
discretionary authority to require an individual permit from the Corps
for the proposed activity, if he or she determines, based on the
information provided in the PCN and other available information, that
adverse environmental effects will be 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 authorizes structures and/or
work in navigable waters of the United States under Section 10 of the
Rivers and Harbors Act of 1899, the appropriate geographic region for
assessing cumulative effects may be a specific navigable waterbody
(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
Corps district engineers to exercise, on a case-by-case basis,
discretionary authority to require individual permits for proposed
activities that may result in more than minimal individual and
cumulative adverse environmental effects. 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
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
[[Page 26104]]
or state) covered by the supplemental document, along with estimates of
impact acreages and acreages of compensatory mitigation required. When
a district engineer issues a verification letter in response to a PCN
or a voluntary request for a NWP verification, the district engineer
prepares a brief memorandum documenting the issuance of the NWP
verification or explaining why discretionary authority was exercised to
require an individual permit for the proposed activity. The district
engineer's memorandum will also discuss whether the proposed NWP
activity, after considering permit conditions added to the NWP
authorization, 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. 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 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 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 impacts, including
cumulative impacts, 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 impacts would be the number of times
that NWP is used to authorize activities in that specific geographic
area during the 5-year period that NWP is in effect. 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.
Under 33 CFR 330.5(d)(1), when a district engineer considers
cumulative impacts 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 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
[[Page 26105]]
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.
Because Corps Headquarters conducted the required cumulative
effects analyses in the national decision documents for the issuance or
reissuance of each of the NWPs, district engineers do not need to do
comprehensive 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.
B. Process for Modifying and Reissuing the NWPs
The 16 NWPs that were issued or reissued in the final rule that was
published in the Federal Register on January 13, 2021, went into effect
on March 15, 2021. The January 13, 2021, final rule to issue or reissue
those 16 NWPs also reissued the NWP general conditions and definitions
that apply to all of the NWPs, including the NWPs that were issued or
reissued in the final rule that was published in the Federal Register
on December 27, 2021. The 41 NWPs that were issued or reissued in the
final rule published in the Federal Register on December 27, 2021, went
into effect on February 25, 2022. The NWPs issued or reissued by both
final rules expire on March 14, 2026. If these NWPs are not modified or
reissued within five years of their effective dates, they automatically
expire and becomes null and void (see 33 CFR 330.6(b)).
The process for modifying and reissuing the NWPs for the next five-
year cycle starts with today's publication of the proposed NWPs in the
Federal Register for a 30-day comment period and may include a public
hearing. Requests for a public hearing must be submitted in writing via
one of the ways identified in the ADDRESSES section of this proposed
rule. Public hearing requests must explain the reason or reasons why a
public hearing should be held. If the Corps determines that a public
hearing or hearings would assist in making a decision on the proposed
NWPs, general conditions, and definitions, a 30-day advance notice will
be published in the Federal Register to advise interested parties of
the date(s) and location(s) for the public hearing(s). Any announcement
of public hearings would also be posted as a supporting document in
docket number COE-2025-0002 at www.regulations.gov as well as the Corps
Regulatory Program's ``Regulatory Announcements'' page at https://
www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/
.
Shortly after the publication of this Federal Register notice,
Corps district offices will issue public notices to solicit comments on
proposed Corps regional conditions for these NWPs. In their district
public notices, consistent with 33 CFR 330.5(b)(2)(ii), district
engineers may also propose to suspend or revoke some or all of these
NWPs if they have issued, or are proposing to issue, regional general
permits, programmatic general permits, or Clean Water Act section 404
letters of permission for use instead of some or all of these NWPs. The
comment period for these district public notices will usually be 45
days. See Section I.D below titled ``Regional Conditioning of
Nationwide Permits'' for more information on this process.
Prior to the publication of this Federal Register notice, Corps
district offices sent emails or letters to Clean Water Act Section 401
certifying authorities (i.e., states, tribes approved by EPA Regional
Administrators to administer water quality certification programs, and
where appropriate, EPA regions) to request pre-filing meetings with
those certifying authorities. After the pre-filing meeting request
requirements have been completed, Corps districts will request water
quality certification (WQC) for those NWPs that authorize activities
which may result in any discharge from a point source into waters of
the United States. Consistent with 40 CFR 121.6(c), the Corps will
utilize the six month default reasonable period of time. As a result,
certifying authorities will have six months to act on the certification
request.
The six month reasonable period of time for certifying authorities
to act on certification requests for the proposed NWPs was selected
because the rulemaking to issue or reissue the NWPs covers the entire
nation, which has a large number of certifying authorities under
Section 401 of the Clean Water Act, and because it is the default
reasonable period of time identified in EPA's water quality
certification regulations. Because the NWPs are generally available
across the country and there are many certifying authorities in the
United States and its territories, it is not practicable for the Corps
to negotiate a reasonable period of time with each certifying
authority. Another consideration is the expiration of the current NWPs
on March 14, 2026, and the need to issue a final rule to issue or
reissue the NWPs before the current NWPs expire in 2026.
The Corps also believes that six months is sufficient for
certifying authorities to complete their WQC decisions for the proposed
NWPs because the Corps is proposing a small number of changes to the
existing
[[Page 26106]]
NWPs, and proposing to issue only one new NWP.
This water quality certification process for this rulemaking action
is consistent with current WQC procedures, where certifying authorities
conduct their evaluations to determine whether a federally licensed or
permitted activity will comply with applicable water quality
requirements, so that any necessary WQC conditions can be incorporated
into the federal permit before it is issued. It is also consistent with
EPA's Clean Water Act Section 401 Water Quality Certification
Improvement Rule that was published in the Federal Register on
September 27, 2023 (88 FR 66558) that went into effect on November 27,
2023.
After the publication of this Federal Register notice, Corps
district offices will send letters or emails with consistency
determinations pursuant to the Coastal Zone Management Act (CZMA) to
the state agencies responsible for managing their coastal zones. Each
letter or email will request that the state agency review the Corps
district's consistency determination and, if necessary, provide
conditions based on specific enforceable coastal zone management
policies that would allow the state agency to concur with the Corps
district's consistency determination (see 15 CFR 930.4). The state
agency will have at least 60 days to review the Corps district's
consistency determination unless the state agency and Corps agree to an
alternative notification schedule (see 15 CFR 930.41(a)). This review
period will be extended up to 15 days if the state agency, within the
60-day period, requests an extension of time for their review (see 15
CFR 930.41(b)). If the state issues a consistency concurrence with
conditions, the division engineer will make those conditions regional
conditions for the NWP in that state, unless she or he determines that
the conditions do not comply with the provisions of 33 CFR 325.4 (see
33 CFR 330.4(d)(2)). If the division engineer determines the conditions
identified by the state do not comply with the provisions of 33 CFR
325.4, the state's conditional consistency concurrence will be
considered an objection (see 15 CFR 930.4(b)), and project proponents
who want to use those NWPs will need to obtain individual CZMA
consistency concurrences or presumptions of concurrence.
During the period between the issuance of the final NWPs and their
publication in the Federal Register, Corps districts will prepare
supplemental documents and proposed regional conditions for approval by
division engineers before the final NWPs go into effect. The
supplemental documents address the environmental considerations related
to the use of NWPs in a Corps district, state, or other geographic
region. The supplemental documents will certify that the NWPs, with any
regional conditions or geographic suspensions or revocations, will
authorize only those activities that result in no more than minimal
individual and cumulative adverse effects on the environment or any
relevant public interest review factor. The Corps' public interest
review factors are listed in 33 CFR 320.4(a)(1) and are discussed in
more detail in subsequent paragraphs in section 320.4.
The documentation requirements for issuing, modifying, suspending,
or revoking an NWP by Corps Headquarters are described at 33 CFR
330.5(b)(3). For the issuance of an NWP, compliance with the
requirements of the National Environmental Policy Act is completed when
Corps Headquarters issues the final rule for the NWP along with the
national decision document for that NWP. The national decision document
completed for each NWP includes an environmental assessment and a
finding of no significant impact. The national decision document for
each NWP also includes a public interest review conducted in accordance
with the requirements of 33 CFR 320.4. If the NWP authorizes discharges
of dredged or fill material into waters of the United States, the
national decision also includes a Clean Water Act section 404(b)(1)
compliance analysis conducted in accordance with 40 CFR part 230.
After an NWP is issued, each of the eight division engineers
determines whether it is necessary to exercise discretionary authority
to modify, suspend, or revoke authorizations for that NWP for any
specific geographic area, class of activities, or class of waters
within his or her division, including on a statewide basis (see 33 CFR
330.5(c)). Each division engineer prepares supplemental documentation
for the modification, suspension, or revocation of authorizations for
that NWP in a specific geographic area, including whether regional
conditions are necessary ensure that the NWP authorizes only those
activities that result in no more than minimal individual and
cumulative adverse environmental effects. If the division engineer
determines that regional conditions are, or are not, necessary to
ensure use of that NWP results in no more than minimal individual and
cumulative adverse environmental effects, he or she will include a
certification in that supplemental document to memorialize that
determination. The supplemental documents prepared by division
engineers are not NEPA documents, because compliance with NEPA was
completed by the issuance of the national decision document by Corps
Headquarters. Likewise, the supplemental documents prepared by division
engineers do not include a public interest review conducted at the
regional scale because the Corps completed its public interest review
when Corps Headquarters issued the national decision document for that
NWP. In addition, if the NWP authorizes discharges of dredged or fill
material into waters of the United States, the supplemental documents
issued by division engineers do not include a Clean Water Act section
404(b)(1) guidelines analysis conducted at the regional scale because
the Corps fulfilled the requirements of the Clean Water Act section
404(b)(1) guidelines when Corps Headquarters issued the national
decision document for that NWP.
For a specific activity authorized by an NWP, where a district
engineer issues a written verification, with or without activity-
specific conditions, to ensure the NWP activity results in no more than
minimal individual and cumulative adverse environmental effects, the
district engineer prepares a brief document to explain his or her
decision to issue the NWP verification. If the district engineer
determines that it is necessary to exercise discretionary authority to
suspend or revoke the NWP authorization, or require an individual
permit for the proposed activity, he or she prepares a brief document
that explains why it is necessary to exercise that discretionary
authority. The documentation prepared by the district engineer for the
NWP verification, the suspension or revocation of an NWP authorization,
or the exercise of discretionary authority to require an individual
permit, is not a NEPA document because Corps Headquarters fulfilled
NEPA requirements when it issued the national decision document in
support of the issuance of the NWP at the culmination of the rulemaking
process.
C. Status of Existing Permits
Activities authorized by the 2021 NWPs currently remain authorized
by those NWPs until March 14, 2026. Any activity that was completed
under the authorization of an NWP which was in effect at the time the
activity was completed continues to be authorized by that NWP.
[[Page 26107]]
Under 33 CFR 330.6(a)(3)(ii), if the NWP is reissued without
modification or the activity complies with any subsequent modification
of the NWP authorization, the NWP verification letter (i.e., the
written confirmation from the district engineer that the proposed
activity is authorized by NWP) should include a statement that says the
verification will remain valid for the period of time specified in the
verification letter. The specified period of time is usually the
expiration date of the NWP. For the 2021 NWPs, if the previously
verified NWP activity continues to qualify for NWP authorization after
the NWP is reissued or modified, that verification letter continues to
be in effect until March 14, 2026, unless the district engineer
specified a different expiration date in the NWP verification letter.
For most activities authorized by the 2021 NWPs, where the district
engineer issued an NWP verification letter, the verification letter
identified March 14, 2026, as the expiration date for those NWPs. As
long as the verified NWP activities comply with the terms and
conditions of the modified and reissued 2026 NWPs, those activities
continue to be authorized by the applicable NWP(s) until March 14,
2026, unless the district engineer modifies, suspends, or revokes a
specific NWP authorization.
Under 33 CFR 330.6(b), Corps Headquarters may modify, reissue, or
revoke the NWPs at any time. Activities that were authorized by the
previous set of NWPs which have commenced (i.e., are under
construction), or are under contract to commence in reliance upon an
NWP, will remain authorized provided the activity is completed within
twelve months of the date of an NWP's expiration, modification, or
revocation, unless discretionary authority has been exercised by a
division or district engineer on a case-by-case basis to modify,
suspend, or revoke the authorization in accordance with 33 CFR 330.4(e)
and 33 CFR 330.5(c) or (d). This provision applies to activities that
were previously verified by the district engineer as qualifying for NWP
authorization, but no longer qualify for NWP authorization under the
modified or reissued NWP.
An activity completed under the authorization provided by a 2021
NWP continues to be authorized by that NWP (see 33 CFR 330.6(b))
regardless of whether the Corps issues a final rule for the 2026 NWPs.
If the activity no longer qualifies for NWP authorization under the
2026 reissuance or modification of that NWP, the project proponent
would have 12 months to complete the authorized activity as long as
that activity is under construction or under contract to commence
construction before the reissued or modified NWP goes into effect. If
the project proponent does not have the activity under construction or
under contract to commence construction before the reissued or modified
NWP goes into effect, he or she will need to seek another form of DA
authorization for the regulated activity. After that 12 month period,
if those activities no longer qualify for NWP authorization because
they do not meet the terms and conditions of the 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.
D. Regional Conditioning of Nationwide Permits
Under Section 404(e) of the Clean Water Act, NWPs can only be
issued for those activities that result in no more than minimal
individual and cumulative adverse environmental effects. For activities
that require authorization under Section 10 of the Rivers and Harbors
Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f)
impose a similar requirement. Since it can be challenging for the Corps
to write national terms and conditions for the NWPs in such a way that
they account for regional differences in aquatic ecosystem structure,
functions, and services, and other regional environmental concerns or
differences, an important mechanism for ensuring compliance with these
requirements is regional conditions imposed by division engineers to
address those regional differences. 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/Coastal Zone Management
Act consistency concurrence regional conditions. Corps regional
conditions are added to the NWPs by division engineers in accordance
with the procedures at 33 CFR 330.5(c). Water quality certification and
Coastal Zone Management Act consistency concurrence regional conditions
are also added to the NWPs if an appropriate certifying authority
issues a water quality certification or CZMA consistency concurrence
with 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
[[Page 26108]]
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
or reduce 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 Headquarters publishes, in the Federal Register, the
proposed rule to issue, reissue, or modify NWPs, district engineers
issue 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 solicit 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 should be sent to the Corps district that issued
the public notice. Corps districts will also consult or coordinate with
tribes to identify and propose regional conditions to ensure compliance
with general condition 17 (treaty 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 district's local public notice, interested
parties may suggest additional Corps regional conditions or changes to
Corps regional conditions. Interested parties may also suggest
suspension or revocation of NWPs in certain geographic areas, such as
specific watersheds or waterbodies. Such comments should include data
to support the need for the suggested modifications, suspensions, or
revocations of NWPs.
After the public comment period ends for the districts' local
public notices, each Corps district evaluates the comments received in
response to their local public notice and begins preparing, as required
by 33 CFR 330.5(c)(1)(iii), supplemental documents for each NWP. Each
supplemental document will evaluate the NWP on a regional basis (e.g.,
by Corps district geographic area of responsibility or by state) and
discuss 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. If more than one Corps district
operates in a state, the lead district is responsible for preparing the
supplemental documents and coordinating with the other Corps districts.
The supplemental documents include an evaluation of public and agency
comments 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 is posted on its website. Copies of the
district's public notice are also sent to interested parties that are
on the district's public notice mailing list via email or the U.S.
mail. The public notice will also describe, if appropriate, a
grandfathering period as specified by 33 CFR 330.6(b) for those 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)).
Under the current regulations, Corps Headquarters does not have a
role in the districts' proposal of regional conditions, or the review
and approval of Corps' regional conditions by division engineers. Corps
Headquarters provides templates for the supplemental documents required
by 33 CFR 330.5(c)(1)(iii), to promote consistency in the preparation
of the supplemental documents. If requested by district and division
offices, Corps Headquarters also provides advice on appropriate Corps
regional conditions for the NWPs.
The Corps is a highly decentralized organization, with most of the
authority for administering the regulatory program delegated to the 39
district engineers and 8 division engineers (see 33 CFR 320.1(a)(2)).
District engineers are responsible for the day-to-day implementation of
the Corps' Regulatory Program, including the evaluation of applications
for individual permits, evaluating PCNs for proposed NWP activities,
evaluating notifications for activities authorized by regional general
permits, responding to requests for approved and preliminary
jurisdictional determinations, conducting compliance and enforcement
actions, and other tasks.
Division engineers are responsible for overseeing implementation of
the Regulatory Program by their districts, and making permit decisions
referred to them by district engineers under the circumstances
identified in 33 CFR 325.8(b). Under that section of the Corps'
regulations, a division engineer can refer certain permit applications
to the Chief of Engineers for a decision.
[[Page 26109]]
Other than making permit decisions under the circumstances listed in
Sec. 325.8(c), Corps Headquarters is responsible for development of
regulations, guidance, and policies.
Since the purpose of regional conditions is to tailor the NWPs to
account for regional differences in aquatic resource types, the
functions they provide, and their value to the region so that the NWPs
in a particular geographic area authorize only those activities that
result in no more than minimal individual and cumulative adverse
environmental effects, requiring consistency among regional conditions
at a national level would be contrary to the purpose of regional
conditions and would reduce the utility of the NWPs. In other words,
the ability to add restrictions to one or more NWPs at a regional level
to ensure that those activities result in no more than minimal
individual and cumulative adverse environmental effects allows the
national terms and conditions to be less restrictive, and thereby
potentially appropriate, in other areas of the country. This ability to
tailor the NWP program in specific areas of the country allows the NWPs
to 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
Clean Water Act.
Under the Corps' current regulations at 33 CFR 330.5(c), the
authority to approve Corps regional conditions is assigned to division
engineers. A division engineer can take steps to provide consistency in
Corps regional conditions for the districts within 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 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 will be posting 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 the final NWPs are issued, 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. Comments on
regional conditions proposed by Corps districts must be sent to the
Corps district identified in the public notice, not to Corps
Headquarters.
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 rule
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.
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 Clean Water Act
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
[[Page 26110]]
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 Clean Water Act section 401 water quality certification with
conditions, the division engineer will make those water quality
certification conditions regional conditions for the applicable NWPs,
unless 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(b). 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 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.''
E. Nature-Based Solutions and the NWP Program
A number of NWPs currently authorize discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States for the construction and
maintenance of nature-based solutions. ``Nature-based solutions'' have
been defined by Cohen-Shacham and others (2016) as ``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.'' Nature-based solutions have the potential to furnish cost-
effective approaches to providing environmental, social, and economic
benefits, and they may also help build resilience (Raymond et al.
2017). The Corps is proposing to add this definition to the NWPs, in
Section F, Definitions.
Nature-based solutions can currently be authorized by NWP 27
(aquatic ecosystem restoration, enhancement, and establishment
activities), NWP 43 (stormwater management facilities), NWP 13 (bank
stabilization activities), NWP 31 (maintenance of existing flood
control facilities), NWP 41 (reshaping existing drainage and irrigation
ditches), NWP 55 (seaweed mariculture activities), NWP 54 (living
shorelines), and NWP 59 (water reclamation and reuse facilities). The
Corps is proposing 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.
The Corps is proposing to issue a new NWP titled ``Activities to
Improve the Passage of Fish and Other Aquatic Organisms'' (which is
designated as NWP A in this proposed rule; if this NWP is issued, it
will be assigned a number) to authorize activities to restore or
enhance the passage of fish and other aquatic organisms, as well as
other ecological processes such as the transport of water, sediment and
nutrients, around or through barriers so that they can access other
aquatic habitats. Activities authorized by this proposed new NWP would
include nature-like fishways, which are a nature-based solutions that
can help improve the ability of fish and other aquatic organisms to
move around or through barriers and access upstream and downstream
aquatic habitats.
Nature-based solutions can vary in the degree to which they involve
natural or restored ecosystems and engineered components. For example,
subcategories of nature-based solutions may include natural
infrastructure and green infrastructure. Natural infrastructure
consists of existing or restored natural ecosystems, including those
that involve some degree of stewardship by people to maintain the
structure, functions, and dynamics of those ecosystems. Examples of
natural infrastructure include wetland restoration activities where the
restored wetland resembles an ecological reference, or a river or
stream corridor that is restored to a multi-threaded channel
interspersed with wetlands and floodplains, with structure, function,
and dynamics that are similar to undisturbed river or stream valleys
with beaver dams and/or wood jams that supported anastomosing or
anabranching channels interspersed with wetlands and floodplains. Green
infrastructure consists of nature-based solutions involving
combinations of features of natural ecosystems with some (gray)
engineered components. Examples of green infrastructure include rain
gardens, constructed wetlands for wastewater treatment, and stormwater
management facilities.
F. Notes in NWPs for Utilities and Mariculture Activities
A number of NWPs currently authorize structures or work in
navigable waters of the United States under the authority of Section 10
of the Rivers and Harbors Act. Two groups of NWPs which authorize work
and structures in navigable waters of the United States, those that
authorize activities associated with utilities and those that authorize
activities associated with mariculture, each include a Note intended to
protect navigation.
The NWPs that authorize activities associated with utilities, 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) include a Note (designated
as Note 1 in NWP 12, designated as Note 3 in NWP 52, designated as Note
1 in NWP 57, and designated as Note 1 in NWP 58) which directs the
Corps to provide a copy of the NWP verification to the National Oceanic
and Atmospheric Administration (NOAA), National Ocean Service (NOS) for
inclusion on nautical charts. The NWPs that authorize activities
associated with mariculture, NWP 48 (Commercial
[[Page 26111]]
Shellfish Mariculture Activities) and NWP 55 (Seaweed Mariculture
Activities) include a Note (designated as Note 1 in each of these NWP)
which advises the permittee to notify the U.S. Coast Guard (USCG) of
the project.
The Corps is proposing to modify the text of both sets of Notes to
add language to clarify the intent of each Note, to identify
information that should be provided to NOS or USCG, and to provide
contact information for both NOS and USCG. In addition, we are
proposing to modify the NWPs that authorize activities associated with
utilities and those that authorize activities associated with
mariculture to include the revised text of both Notes in each NWP.
The Corps is proposing the modify the Note in the NWPs that
authorize activities associated with utilities to clarify that the
information provided to NOS will be used to update nautical charts and
make Coast Pilot corrections. In addition, the Corps is proposing to
modify the text of the Note to remove the language that directs the
Corps to provide a copy of the NWP verification to NOS and replace it
with language recommending that the permittee provide as-built drawings
and the geographic coordinate system used in the as-built drawings to
NOS. The Corps is also proposing to remove language from the Note which
specifies which structures should be reported to NOS. The Corps is
retaining language to specify that this Note applies to structures and
work authorized in coastal waters, the Great Lakes, and United States
territories. The Corps is also proposing to add a new last sentence to
the Note to state that the information should be transmitted via email
to [email protected].
These revisions remove an administrative burden from the Corps and
encourage permittees to ensure that structures in navigable waters of
the United States are reflected on the appropriate navigation chart.
The Corps is proposing to modify the Notes in the NWPs associated with
utility activities (designated as Note 1 in NWP 12, designated as Note
3 in NWP 52, designated as Note 1 in NWP 57, and designated as Note 1
in NWP 58) as discussed above. The Corps is also proposing to add a new
Note to NWP 48 (to be designated as Note 4) and NWP 55 (to be
designated at Note 4).
The Corps is also seeking comment on the need to add this proposed
revised Note to NWP 4 (Fish and Wildlife Harvesting, Enhancement, and
Attraction Devices and Activities) and NWP 27 (Aquatic Habitat
Restoration, Enhancement, and Establishment Activities). NWP 4
authorizes a variety of fish and wildlife harvesting devices such as
pound nets, crab traps, eel pots, lobster traps, and duck blinds. These
devices may be in place for a short time and may be moved multiple
times in a season. The temporary nature of these devices and the
recurring relocation of these devices may limit the practicability of
notifying NOS of the location of these devices. 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. Activities authorized under NWP 27 must result in aquatic
habitat that resembles an ecological reference.
The current text of the Note in the NWPs that authorize activities
associated with mariculture encourages permittees to notify the USCG of
their project. The Corps is proposing to modify the Note to specify
that this Note applies to proposed structures and work in navigable
waters of the United States. The Corps also proposes to modify the Note
to encourage project proponents to contact USCG before submitting a
Pre-Construction Notification or, if no Pre-Construction Notification
is required, before beginning construction. If a permittee receives an
NWP verification, and subsequently modifies their project after
coordinating with USCG, the permittee may need to contact the Corps to
request a reverification of the NWP. In addition, the Corps is
proposing to modify the Note to recommend that the project proponent
provide USCG with the location and dimensions of the proposed
structures. The Corps also proposes to add a second sentence to inform
project proponents of the assistance that USCG may provide. The Corps
also proposes to modify the note to add a third sentence that will
assist the project proponent in locating the appropriate USCG office.
The Corps proposes to modify Note 1 of NWP 48 and Note 1 of NWP 55
and discussed above. The Corps also proposes to add a new Note to NWP 4
(to be designated as Note 1); NWP 12 (to be designated as Note 7), NWP
52 (to be designated as Note 6), NWP 57 (to be designated as Note 8),
and NWP 58 (to be designated as Note 7) consistent with the proposed
revised Note discussed above.
The Corps is also seeking comment on the need to add this proposed
revised Note to NWP 4 (Fish and Wildlife Harvesting, Enhancement, and
Attraction Devices and Activities) and NWP 27 (Aquatic Habitat
Restoration, Enhancement, and Establishment Activities). NWP 4
authorizes a variety of fish and wildlife harvesting devices such as
pound nets, crab traps, eel pots, lobster traps, and duck blinds. These
devices may be in place for a short time and may be moved multiple
times in a season. The temporary nature of these devices and the
recurring relocation of these devices may limit the practicability of
coordinating with USCG on the location of these devices. 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. Activities authorized under NWP 27 must result in
aquatic habitat that resembles an ecological reference.
G. Severability
The purpose of this section is to clarify the Corps' intent with
respect to the severability of the NWPs in this rule. Each NWP in this
rule operates independently. If any particular NWP of this rule is
determined by judicial review or operation of law to be invalid, that
partial invalidation will not render the remainder of the NWPs in this
rule invalid. Likewise, if the application of any NWP to a particular
circumstance is determined to be invalid, the Corps intends that the
NWP remain applicable to all other circumstances.
II. Summary of Proposed Rule
In this proposed rule, the Corps proposes to reissue 56 of the
existing NWPs with some modifications and to issue one new NWP. The
Corps is not proposing to reissue NWP 56, which authorizes structures
in marine and estuarine waters, including federal waters over the outer
continental shelf, for finfish mariculture activities. The proposed new
NWP A, if issued, would authorize activities that improve the passage
of fish and other aquatic organisms and other important ecological
processes. This new NWP is being proposed to provide NWP authorization
for discharges of dredged or fill material into waters of the United
States or structures or work in navigable waters for activities that
improve the passage of fish and other aquatic organisms, including
nature-based solutions such as nature-like fishways that provide a path
for fish and other aquatic organisms to move past dams and weirs, but
do not quality for authorization under NWP 27 because they involve
engineering features that do not resemble ecological references.
Proposed new NWP A does not replace NWP 56, which the Corps is
proposing to not reissue and which authorized finfish mariculture
activities in ocean and estuarine waters. Proposed new
[[Page 26112]]
NWP A and NWP 56 authorize different categories of activities.
The Corps is proposing to revise the text of NWP 12 (Oil or Natural
Gas Pipeline Activities), NWP 13 (bank stabilization), NWP 15 (U.S.
Coast Guard approved bridges), NWP 23 (approved categorical
exclusions), NWP 24 (Indian tribe or state assumed section 404
program), NWP 27 (aquatic ecosystem restoration, enhancement, and
establishment activities), NWP 48 (commercial shellfish mariculture
activities), NWP 52 (Water-Based Renewable Energy Generation Projects),
NWP 54 (living shorelines), NWP 55 (Seaweed Mariculture Activities),
NWP 57 (Electric Utility Line and Telecommunications Activities), and
NWP 58 (Utility Line Activities for Water and Other Substances to
provide NWP authorization for additional activities or clarify what is
authorized by these NWPs. Some of the proposed modifications to the
NWPs are intended to address litigation that occurred after the 2021
NWPs were issued and went into effect. The Corps is proposing to not
reissue NWP 56 (finfish mariculture activities) because of on-going
litigation. The Corps is also proposing to modify some general
conditions and definitions so that they are clearer and can be more
easily understood by the regulated public, government personnel, and
interested parties, while retaining terms and conditions that help
protect the aquatic environment and recognize when activities requiring
DA authorization would benefit the aquatic environment. Making the text
of the NWPs clearer and easier to understand will also facilitate
compliance with these permits, which will benefit the aquatic
environment. The NWP program allows the Corps to authorize activities
with only minimal adverse environmental impacts in an efficient,
effective, and timely manner. The NWPs contribute to environmental
protection because they encourage project proponents to minimize the
amount of adverse impacts to waters of the United States to qualify for
NWP authorization. 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. Thus, through the NWPs the
Corps is able to better protect the aquatic environment by focusing its
limited resources on more extensive evaluations through the individual
permit process, to provide more rigorous evaluation of activities that
have the potential for causing more severe adverse environmental
effects.
The Corps is soliciting comment on all changes to the nationwide
permits, general conditions, and definitions discussed below, as well
as the nationwide permits, general conditions, and definitions for
which the Corps has not proposed any changes. Minor grammatical
changes, the removal of redundant language, and other small
administrative changes are not discussed in the preamble below.
Therefore, commenters should carefully read each proposed NWP, general
condition, and definition in this proposed rule. The Corps also
welcomes comments on situations that might warrant nationwide permit
coverage but that are not covered by a current nationwide permit.
A. Discussion of Proposed Modifications to Existing Nationwide Permits
NWP 12. Oil or Natural Gas Pipeline Activities. As discussed in the
Preamble Section I.F. above, the Corps is proposing to modify Note 1
and to add a Note (designated as Note 7) to add language to clarify the
intent of each Note, to identify information that should be provided to
NOS or USCG, and to provide contact information for both NOS and USCG.
NWP 13. Bank stabilization activities. The Corps is proposing to
modify NWP 13 by adding a paragraph to clarify that this NWP can be
used to authorize 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 is also proposing 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.
Over the past 15 years or so, there have been numerous publications
and studies that have examined the potential for applying ecological
engineering approaches and nature-based solutions to bank stabilization
activities to reduce the adverse effects of hard bank stabilization
structures on nearshore biodiversity, habitat value, and other
ecosystem functions and services, especially in coastal areas (e.g.,
Chapman and Underwood 2011, Morris et al. 2018, Strain et al. 2017,
O'Shaughnessy et al. 2020). Ecological engineering approaches for bank
stabilization activities can provide nature-based solutions that are
sustainable, help improve environmental quality, and support
biodiversity (Suedel et al. 2022). They can be incorporated into the
planning, design, and implementation of new bank stabilization
activities in coastal environments, or be retrofitted into existing
seawalls, bulkheads, and revetments during maintenance of these
existing structures.
Seawalls and bulkheads can be constructed with materials that have
textured surfaces (e.g., crevices, depressions, pits, grooves, gaps)
that provide structural complexity and microhabitats that habitat-
forming sessile organisms such as barnacles, branching coralline algae,
bivalves, algae, and corals can attach to, grow, and further enhance
habitat structure (Strain et al. 2017) that can be used by 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).
Rocks can be 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
[[Page 26113]]
organisms next to a seawall, bulkhead, or revetment (Suedel et al.
2022).
Revetments can be 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 identified in the proposed new
paragraph is the placement of pieces of large wood in front seawalls,
bulkheads, and revetments. The placement of large wood in marine waters
can add structural complexity, especially in waterbodies with soft
substrates such as sand, that can attract benthic and pelagic organisms
and enhance local biodiversity (Dickson et al. 2023). In the past,
rivers have transported substantial amounts of wood to ocean and
estuarine waters, and that wood has provided food and habitat for a
wide variety of aquatic organisms (Wohl and Iskin 2021). Inputs of wood
to marine and estuarine waters has declined because of logging and
other deforestation activities, dam construction, channel engineering,
removal of large wood, and coastal hardening (Dickson et al. 2023, Wohl
and Iskin 2021). 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).
In some situations, incorporating the ecological engineering and
nature-based solutions to increase habitat functions and other
functions, and to increase biodiversity along shorelines where bank
stabilization activities are proposed or where modifications to
existing bank stabilization are proposed, may require district
engineers to issue waivers for some NWP 13 activities. One of the
quantitative limits in NWP 13 is that the activity cannot 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. NWP 13 allows the district engineer to
waive this limit as long as she or he makes a written determination
concluding that the regulated activity for the bank stabilization
project will result in no more than minimal adverse environmental
effects. When evaluating NWP 13 PCNs that include requests for waivers
of this limit, and the proposed bank stabilization activity includes
nature-based solutions to provide habitat and other functions as
described in the proposed new paragraph, district engineers should
consider the potential gains in habitat functions and other functions
that are likely to result from incorporating nature-based solutions
into bank stabilization activities. Those gains should be considered
when deciding whether the proposed bank stabilization is likely to
result in minimal individual and cumulative adverse environmental
effects and whether the requested waiver of the one cubic yard per
running foot limit should be granted.
The Corps is proposing to add a new Note to NWP 13 (to be
designated as Note 2) to remind potential users of NWP 13 and other
interested parties of the Corps' current regulations regarding
considerations of property ownership and the general right of
landowners to protect their property from erosion. That regulation is
located at 33 CFR 320.4(g)(2), and it states:
Because a landowner has the general right to protect property
from erosion, applications to erect protective structures will
usually receive favorable consideration. However, if the protective
structure may cause damage to the property of others, adversely
affect public health and safety, adversely impact floodplain or
wetland values, or otherwise appears contrary to the public
interest, the district engineer will so advise the applicant and
inform him of possible alternative methods of protecting his
property. Such advice will be given in terms of general guidance
only so as not to compete with private engineering firms nor require
undue use of government resources.
Proposed Note 2 begins by paraphrasing section 320.4(g)(2), and in
response to an NWP 13 PCN, the district engineer can provide general
guidance on potential alternative means of bank stabilization that may
have less adverse environmental impacts than the applicant's proposed
bank stabilization activity. If applicant decides not to follow the
district engineer's general advice, the district engineer will evaluate
the PCN and determine whether the proposed bank stabilization activity
will result in no more than minimal individual and cumulative adverse
environmental effects in accordance with the criteria provided in
Section D, District Engineer's Decision.
The district engineer may add conditions to the NWP 13
authorization to ensure that the authorized activity results in no more
than minimal individual and cumulative adverse environmental effects.
If the district engineer determines the proposed bank stabilization
activity will result in more than minimal individual and cumulative
adverse environmental effects, he or she will give the applicant the
opportunity to propose mitigation measures (i.e., avoidance,
minimization, and/or compensatory mitigation) to reduce the adverse
impacts of the proposed activity so that they are no more than minimal
(see 33 CFR 330.1(e)(1)). If appropriate and practicable mitigation is
not likely to be accomplished, or reasonably enforceable (see the
Corps' regulations at 33 CFR 325.4(a) concerning adding conditions to
DA permits), the district engineer will exercise discretionary
authority to require an individual permit for the proposed bank
stabilization activity. During the individual permit process,
reasonable and practicable alternatives must be considered, and those
reasonable and practicable alternatives may include other approaches to
bank stabilization.
The second and third sentences of proposed Note 2 discuss options
for soft bank stabilization approaches versus hard bank stabilization
approaches. The second sentence states that 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. The third sentence
states that 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. Nonetheless,
where hard bank stabilization is more appropriate there may be
opportunities to incorporate nature based solutions.
The number of factors to consider when identifying, planning, and
designing an appropriate and effective bank stabilization activity for
a particular site make that process complex and not conducive to
establishing a simple hierarchy of preferred bank stabilization
techniques. As discussed in 33 CFR 320.4(g)(2), landowners may want to
seek advice from entities with expertise in planning and designing bank
stabilization activities to propose an option that will be effective in
protecting their land and assets on their property from erosion now and
in the future, especially as the coastal environment changes over time.
In proposed Note 2, the Corps identifies the following factors that
may need to be considered when identifying, planning, and designing a
bank stabilization activity: bank height; bank
[[Page 26114]]
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. The Corps invites public comment on other factors that should
be added to this proposed Note, or factors that should be removed from
this proposed Note.
NWP 15. U.S. Coast Guard Approved Bridges. The Corps is proposing
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.
NWP 23. Approved Categorical Exclusions. The Corps is proposing to
modify paragraph (a) of this NWP by adding references to the National
Environmental Policy Act 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 is
proposing to modify paragraph (a) to reference sections 106, 109, and
111(1) of NEPA.
The Corps is seeking 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. Providing
notice of the approved changes in the Federal Register ensures the
broadest dissemination of the decision and is a more appropriate format
for a decision process that was subject to public comment process. The
list of approved categorical exclusions would still be made available
on the Corps Headquarters website.
NWP 24. Indian Tribe or State Administered Section 404 Programs.
The Corps is proposing to modify this NWP to remove Florida from the
list of states that have been approved by EPA to administer their own
Clean Water Act section 404 permit program under the authority of 33
U.S.C. 1344(g)-(l). EPA's approval of Florida's assumption of the Clean
Water Act section 404 permit program was vacated by the District Court
for the District of Columbia in 2024.
NWP 27. Aquatic Ecosystem Restoration, Enhancement, and
Establishment Activities. 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 for the restoration,
enhancement, and establishment of aquatic ecosystems, as long as those
activities result in net gains in aquatic resource functions and
services. The Corps is proposing numerous changes to NWP 27 to provide
a more efficient, effective, and less costly process for authorizing
voluntary aquatic ecosystem restoration, enhancement, and establishment
activities that are intended to produce net increases in aquatic
ecosystem functions and services. NWP 27 can also be used to authorize
activities to restore and enhance waters of the United States which are
conducted by other federal agencies. These changes will not affect the
availability of NWP 27 to authorize discharges of dredged or fill
material into waters of the United States and structures and work in
navigable waters of the United States for aquatic ecosystem
restoration, enhancement, and establishment activities conducted by
Corps-approved mitigation banks to generate mitigation credits for DA
permits. The review and approval of mitigation banks by the Corps is a
separate process governed by the Corps' regulations at 33 CFR 332.8.
The Corps is proposing 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 is also proposing 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 is
proposing 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 is proposing 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 is proposing to
add a new Note (Note 2) to this NWP to state that if an NWP 27 activity
requires pre-construction notification 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.
NWP 27 is used primarily for voluntary aquatic ecosystem
restoration, enhancement, and establishment activities conducted by
various entities such as non-governmental organizations, tribes, land
stewards, private landowners, and federal, tribal, state, and local
government agencies. NWP 27 is also used for required restoration
activities conducted by other federal agencies. Voluntary aquatic
ecosystem restoration, enhancement, and establishment activities are
not subject to the requirements for compensatory mitigation projects
identified in 33 CFR part 332. For voluntary aquatic ecosystem
restoration, enhancement, and establishment activities, project
proponents can decide whether, and how, they establish goals,
objectives, and ecological performance criteria, and monitor, evaluate,
and report project outcomes. Project proponents can also determine
whether their voluntary aquatic ecosystem restoration, enhancement, or
establishment projects have achieved their goals, objectives, and
ecological performance criteria.
NWP 27 may also be used by third-party mitigation providers (e.g.,
mitigation bank sponsors and in-lieu fee program sponsors) to authorize
activities regulated under section 404 of the Clean Water Act and/or
section 10 of the Rivers and Harbors Act of 1899 for the construction
of mitigation banks and in-lieu fee projects. The mitigation banking
instrument or in-lieu fee program instrument approved by the Corps is
the legal document for the establishment, operation, and use of a
mitigation bank or an in-lieu fee program, but it does not authorize
the regulated activities that may be needed to physically conduct the
aquatic resource restoration, enhancement, or establishment that
generate mitigation bank or in-lieu fee program credits. Those
regulated activities may be authorized by NWP 27, individual permits,
or regional general permits.
In addition, NWP 27 may be used to authorize regulated activities
for implementing permittee-responsible mitigation projects, especially
advance permittee-responsible mitigation projects. When an activity
authorized by a DA permit requires permittee-responsible mitigation,
authorization of the regulated activities that need to be
[[Page 26115]]
conducted to implement the approved mitigation plan for the permittee-
responsible mitigation project is usually included in the DA
authorization for the permitted activity. However, there may be
situations where regulated activities for the permittee-responsible
mitigation are not authorized by the DA permit and a separate DA
authorization is needed to implement the permittee-responsible
mitigation project. Those situations usually include advance permittee-
responsible mitigation, because those permittee-responsible mitigation
projects are implemented in advance of the Corps issuing permits for
the activities that will use the advance permittee-responsible
mitigation to fulfill the required compensatory mitigation. When an
activity is authorized by a general permit, and the district engineer
requires permittee-responsible mitigation to offset permitted impacts,
if the general permit authorization does not cover the regulated
activities needed to implement the required permittee-responsible
mitigation, those activities may be authorized by NWP 27.
Proposed Change to the Title of NWP 27
The Corps is proposing to change the title of this NWP to refer to
``aquatic ecosystems'' instead of ``aquatic habitat'' because this NWP
requires authorized activities to result in net increases in aquatic
resource functions and services. NWP 27 activities must provide net
increases to an appropriate suite of ecosystem functions and services,
including hydrologic, biogeochemical cycling, and habitat support
functions, as well as the ecosystem services (benefits) that may be
produced by those functions. The benefits may be to human populations,
and the benefits may also be to the ecosystems themselves (Comberti et
la. 2015). The suite of functions and services produced by aquatic
ecosystem restoration, enhancement, and establishment activities is
likely to vary on a project-by-project basis, and may be dependent on a
variety of factors such as landscape or seascape context, the legacies
of past land or water use, the various drivers of ecosystem structure
and function at various scales, ecosystem dynamics, and the techniques
used for the aquatic ecosystem restoration, enhancement, or
establishment activities.
The general categories of functions typically performed by wetlands
include hydrologic functions, water quality improvement, vegetation
support, habitat support for animals, and soil functions (National
Research Council (NRC) 2001). For riverine ecosystems (i.e., rivers and
streams and their riparian areas and floodplains), the general
categories of functions they perform include system dynamics,
hydrologic balance, sediment processes and character, biological
support, and chemical processes and pathways (Fischenich 2006). Oceans,
estuaries, lakes, and other aquatic ecosystems may perform some of
these functions and they may perform other functions. In terms of
ecosystem services, there are four general categories performed by
waters and wetlands: provisioning, regulating, supporting, and cultural
(Millennium Ecosystem Assessment 2005). Other classification systems
for ecosystem services may be used, depending on the purpose for
considering ecosystem services (e.g., Costanza 2008).
NWP 27 requires that authorized activities result in net gains in
aquatic ecosystem functions and services, and it may take various
amounts of time after the restoration, enhancement, or establishment
activity is implemented before the net increases in functions and
services are produced by the restored, enhanced, or established aquatic
ecosystem. Different functions usually develop at different rates after
restoration, enhancement, or establishment activities are conducted
(e.g., Lewis et al. 1995, Bullock et al. 2011). For example, in
wetlands hydrologic functions develop fairly quickly after the
restoration activity is initiated, but habitat functions may take
longer to develop as plant and animal communities, and soils, respond
to the restoration action. Restored, enhanced, or establish aquatic
ecosystems need to go through ecosystem development processes to
improve the physical, chemical, and biological process that generate
ecosystem functions and services.
Proposed Changes to Ecological Reference Requirement
In 2017, the Corps added a paragraph to NWP 27 (see 82 FR 1989)
requiring aquatic habitat restoration, enhancement, and establishment
activities to be planned, designed, and implemented to produce aquatic
habitat that resembles ecological references. This change was made in
response to several comments received in response to the June 1, 2016,
proposed rule to reissue and modify the NWPs (81 FR 35186), where
several commenters expressed concern about project proponents using NWP
27 to authorize activities that are not aquatic ecosystem restoration
activities, and they said those activities should be authorized by
other NWPs, regional general permits, or individual permits instead of
NWP 27. Examples of activities identified by those commenters included
bank stabilization activities, culvert replacements, stormwater
management activities, pollutant reduction best management practice
facilities constructed to meet Total Daily Maximum Loads (TMDLs)
established under section 303(d) of the Clean Water Act, and the
construction of living shorelines.
The activities identified in the previous paragraph may be
authorized by NWP 13 (bank stabilization activities), NWP 14 (culvert
replacements for linear transportation projects), NWP 43 (stormwater
management activities and pollutant reduction best management practice
facilities constructed to meet TMDLs established under section 303(d)
of the Clean Water Act), and NWP 54 (living shorelines). The Corps is
proposing to retain the ecological reference requirement in NWP 27,
with some proposed modifications, to keep the DA authorization provided
by this NWP limited to aquatic ecosystem restoration, enhancement, and
establishment activities that resemble ecological references.
Activities intended to produce or improve specific ecological
functions, such as ecological engineering activities that include
engineered or artificial components that do not resemble ecological
references, are more appropriately authorized by other NWPs (e.g., NWP
13 (bank stabilization activities), NWP 14 (culvert replacements for
linear transportation projects), NWP 43 (stormwater management
activities and pollutant reduction best management practice facilities
constructed to meet TMDLs established under section 303(d) of the Clean
Water Act), and NWP 54 (living shorelines)), an appropriate regional
general permit, or an individual permit.
The Corps is proposing to modify the ecological reference
requirement to clarify that ecological references are based on natural
ecosystems. Natural ecosystems are ``developed by natural processes and
are self-organizing and self-maintaining'' (Society for Ecological
Restoration International Science & Policy Working Group 2004).
Ecological references may be based on the characteristics of aquatic
ecosystems or riparian areas that currently exist in the region, or
that existed in the region in the past. Natural ecosystems have been
impacted by human influences to varying degrees and may be managed by
people to varying degrees. The Corps is also proposing to add a
sentence to this NWP stating that ecological references include
cultural ecosystems. Cultural ecosystems are ecosystems that have
[[Page 26116]]
developed under the joint influence of natural processes and human
activities (Clewell and Aronson 2013), specifically ecosystem
management activities such as fire stewardship. Other examples of
stewardship activities conducted by people, including indigenous and
local societies, in cultural ecosystems are soil management and
cultivating and harvesting plant species of cultural importance
(Comberti et al. 2015). 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. Including cultural ecosystems as ecological references is
intended to recognize that people have managed and altered ecosystems
for thousands of years (Ellis 2021) to produce desired functions and
services. The concept of cultural ecosystems also recognizes that
people, including people in indigenous and local societies, have long
had reciprocal relationships with ecosystems (D[igrave]az et al. 2018,
Comberti et al. 2015), with ecosystems providing services to people and
people providing services to ecosystems.
Aquatic ecosystem restoration, enhancement, and establishment
activities may use different types of applicable knowledge, including
indigenous and local ecological knowledge, to guide the planning,
implementation, and stewardship of those activities (Dickson-Hoyle et
al. 2022). Therefore, the Corps is proposing to modify the last
sentence of the second paragraph of this NWP to state that 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 areas.
Proposed Removal of List of Examples of Authorized Activities
The Corps is proposing to remove the third paragraph of the 2021
NWP 27, which provided a list of examples of aquatic ecosystem
restoration, enhancement, or establishment activities that could be
authorized by NWP 27. The Corps is proposing to remove that list of
examples because there are many techniques and approaches to restoring,
enhancing, and establishing aquatic ecosystems that may involve
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States. The
list of examples have been interpreted by some entities as being the
only activities that can be authorized by NWP 27, instead of examples
of techniques and approaches that can be used for aquatic ecosystem
restoration, enhancement, and establishment activities that result in
net increases in aquatic ecosystem functions and services.
New techniques and approaches for aquatic ecosystem restoration,
enhancement, and establishment activities are being developed by
ecosystem restoration practitioners as they gain experience and adapt
to monitoring results and other lessons learned from previous aquatic
ecosystem restoration, enhancement, and establishment efforts.
Effective techniques and approaches for restoring, enhancing, or
establishing aquatic ecosystems may also vary by geographic region to
address regional differences in aquatic ecosystem structure, functions,
and dynamics, the ecosystem services they provide, and how those
aquatic ecosystems are managed. Removing the list of examples from the
text of NWP 27 eliminates the need to add or remove examples as the
knowledge base for ecosystem restoration and management develops and
expands, and more effective ecosystem restoration approaches replace
less effective ecosystem restoration approaches.
NWP 27 is available to authorize regulated activities for the
restoration, enhancement, and establishment of aquatic ecosystems when
those activities resemble ecological references, produce net gains in
aquatic resource functions and services, and cause no more than minimal
individual and cumulative adverse environmental effects, regardless of
the specific techniques used. The determination that an NWP 27 activity
has come to resemble an ecological reference should be made after the
activity has had sufficient time to undergo ecosystem development
processes after the discharges of dredged or fill material into waters
of the United States and/or structures or work in navigable waters of
the United States have been conducted. That timeframe should allow for
any necessary corrective measures or adaptive management actions that
may need to be done by the project proponent to try to achieve the
goals and objectives of the aquatic ecosystem restoration, enhancement,
or establishment activity.
Except for replacing ``resources'' with ``ecosystem'' to be
consistent with the proposed change to the title of this NWP, the Corps
is not proposing changes to the fourth paragraph of the 2021 NWP 27
(now proposed as the third paragraph). That paragraph states that NWP
27 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.
Proposed Changes to List of Activities Not Authorized by NWP 27
The current text of NWP 27 states that it does not authorize the
conversion of a stream or natural wetlands to another aquatic habitat
type or uplands, except for the relocation of non-tidal waters on the
project site. This provision was added to NWP 27 in 2007 (see 72 FR
11185) to prevent NWP 27 from being used to authorize discharges of
dredged or fill material into waters of the United States for the
construction of impoundments in streams to create wetlands, or for
constructing green-tree reservoirs (see 72 FR 11119). This provision
was not intended to prevent NWP 27 from being used to authorize
discharges of dredged or fill material into waters of the United States
for aquatic ecosystem restoration and enhancement activities that aim
to reinitiate or restore natural physical, chemical, and/or biological
processes in dynamic ecosystems where components of those ecosystems
(e.g., stream channels, wetlands, and floodplains) interact with each
other and change over time and space in response to various internal
and external drivers, such as floods, sediment transport and
deposition, changing precipitation patterns, and organisms (e.g.,
vegetation, beaver).
During the implementation of the 2021 NWPs, the Corps received
suggestions from a number of restoration practitioners, including
private entities, government agencies, and non-governmental
organizations, who conduct process-based river and stream restoration
activities (e.g., riverscape restorations) regarding potential changes
to NWP 27 to make it clear that restoration of these dynamic ecosystems
can be authorized by that NWP. Some organizations and restoration
practitioners that fund or implement process-based river and stream
restoration projects have reported that the current text of NWP 27,
especially the provision that prohibits the conversion of a stream or
natural wetlands to another aquatic habitat type, has in some
situations prevented them from using NWP 27 to authorize those aquatic
ecosystem restoration activities. They suggested that the Corps remove
the sentence containing that provision because process-based river and
stream
[[Page 26117]]
restoration projects often produce dynamic systems where the locations
and extents of river and stream channels, floodplains, and wetlands in
a valley or river corridor change in response to flood events and other
drivers and those changes have been viewed by some reviewers in some
instances as ``conversions'' of streams or natural wetlands to another
aquatic use that are not authorized by NWP 27.
In response to those suggestions, the Corps is proposing to modify
this NWP by removing a sentence that specifies that this NWP does not
authorize the conversion of a stream or natural wetland to another
aquatic type. Examples of such process-based river or stream
restoration activities that may have been disqualified from NWP 27
authorization in some situations by that sentence include low-tech
river or stream corridor restoration activities (e.g., Wheaton et al.
2019), including the use of beaver dams or beaver dam analogues to
restore incised streams and their floodplains (e.g., Pollock et al.
2014) and the use of native materials such as large wood harvested on-
site to construct wood jams that promote reconnecting stream channels
to their floodplains (e.g., Ciotti et al. 2021).
The Corps is proposing to remove that sentence from NWP 27 to
facilitate the use of this NWP to authorize regulated activities
associated with process-based river and stream restoration projects,
and the potential gains in aquatic ecosystem functions and services and
other watershed benefits that such restoration projects have the
potential to provide, including greater ecosystem resilience and
sustainability. There are other provisions in NWP 27, including some
proposed modifications discussed in this proposed rule, that will
provide guardrails to help ensure that activities authorized by NWP 27
provide net gains and aquatic ecosystem functions and services and
result in no more than minimal individual and cumulative adverse
environmental effects. One of those provisions is the requirement that
NWP 27 activities resemble ecological references, which was added to
NWP 27 in 2017 (see 82 FR 1989). Another one is the expanded
requirement for project proponents to submit reports to district
engineers to give them 30 days to notify project proponents if their
proposed activities do not qualify for NWP 27.
Process-based river and stream restoration attempts to reestablish
the rates and degrees of physical, chemical, and biological processes
that sustain riverine ecosystems, including their floodplains (Beechie
et al. 2010). They identify four principles for process-based
restoration of rivers and streams: (1) focusing on addressing the root
causes of ecosystem change; (2) tailoring restoration actions to local
potential; (3) matching the scale of restoration to the scale of the
problem causing ecosystem change; and (4) establishing explicit
expectations for restoration outcomes (Beechie et al. 2010). Under a
process-based restoration approach, rivers and streams are not just
seen as channels, but as complex and changing systems within a valley
floor where fluvial processes occur (Ciotti et al. 2021).
Ecosystems, including aquatic ecosystems, are constantly changing,
they typically exhibit non-equilibrium dynamics, and they can exist in
a number of alternative states (e.g., Perring et al. 2015, Holl
2020).The most diverse, ecologically valuable river and stream habitats
are characterized by dynamic migration and flooding (Kondolf 2011).
Where feasible and appropriate, the river or stream corridor should be
given sufficient space (``process space'') for physical, chemical, and
biological processes and the riverine system's intrinsic energy to
drive changes in structure and function (e.g., Ciotti et al. 2021) as
disturbances, changing environmental conditions, and other drivers of
ecosystem structure and function occur.
Process-based restoration approaches may also be used for the
purpose of reconnecting rivers and streams with their floodplains when
those rivers and streams have become incised and disconnected from
their floodplains. Reconnecting rivers and streams with their
floodplains can be accomplished by activities such as reintroducing
beaver with the intent that they would construct dams, and the
installation of log jams that extend across the width of the river or
stream channel (Polvi and Wohl 2013) to slow water and sediment
transport so that the channel aggrades and becomes reconnected to its
floodplain. These objectives may also be accomplished by installing
beaver dam analogues (BDAs) and post assisted log structures (PALS)
(Wheaton et al. 2019). Restored river and stream corridors may have
multi-thread (anastomosing) river and stream channels interspersed with
wetlands and floodplains. Some restored river and stream corridors may
have single-thread river and stream channels with adjacent wetlands,
especially in narrow valleys.
Recent work (e.g., Merritts et al. 2011, Wohl et al. 2021) has
found that multithreaded networks of stream channels and wetlands were
common in North America and Europe before land use changes (especially
deforestation and agricultural conversions), mill dam construction, and
other activities caused substantial sediment deposits to accumulate in
valleys where these anastomosing riverine systems were located. These
sediment deposits often resulted in single thread stream channels that
are now a common target for stream restoration activities. With
increasing awareness of anastomosing river-wetland corridors as
ecosystems that have the potential to provide greater ecological
diversity, complexity, richness, and functionality (Cluer and Thorne
2013), as well as ecosystem services, there is greater interest in
using these anastomosing river-wetland systems as ecological references
for restoration activities in valleys that can accommodate these
restoration targets.
Some process-based river and stream restoration approaches attempt
to restore these aquatic ecosystems to improve their dynamism and
diversity (Powers et al. 2018). They may also attempt to improve
habitat for native fish species, other species that utilize river and
stream channels and riparian areas, and improve or protect water
quality (Flitcroft et al. 2022). They may attempt to restore river and
stream valleys to Stage 0 of a modified river and stream channel
evolution model proposed by Cluer and Thorne (2013). Stage 0 is
described by Cluer and Thorne (2013) as a ``pre-disturbance,
dynamically meta-stable network of anabranching channels and floodplain
with vegetated islands supporting wet woodland or grassland.'' Their
proposed stage 0 addressed research in North America (e.g., Merritts et
al. 2011) that found that pre-disturbance stream-wetland corridors in
North America consisted of multi-threaded (anastomosing or
anabranching) stream channels and their floodplains that were inundated
several times per year. In the eastern United States, these multi-
channel stream-floodplain-wetland systems were disturbed by the
accumulation of sediment in valleys caused by the construction of mill
dams, clearing forests, and the development of agricultural land
(Walter and Merritts 2008), which often changed multi-threaded channels
into single threaded channels as the stream eroded the substantial
depths of sediment that accumulated in the valley over many years.
Stage 0 streams can provide more diverse habitats and ecosystem
functions than single-threaded stream corridor systems (Cluer and
Thorne 2013). The anastomosing stream systems characterized by stage 0
can provide a variety of diverse habitats, refuge areas during flood
events, refuge areas during drought, resistance to natural and
anthropogenic disturbances, and
[[Page 26118]]
improved water quality (Cluer and Thorne 2013). There is increased
interest in using stage 0 stream systems as an ecological reference for
river and stream corridor restoration projects because of the functions
and services they provide, as well as potential for greater resilience
to changing environmental conditions.
Process-based approaches may also be used for wetland restoration,
enhancement, and establishment activities. For wetlands, the focus
would be on re-establishing or establishing appropriate hydrological
conditions (Mitsch and Gosselink 2015) that drive wetland ecosystem
development and the functions and services they provide. Appropriate
hydrological conditions include the hydroperiod, which is the
hydrologic signature of a wetland that establishes and maintains a
wetland's structure and function (Mitsch and Gosselink 2015). The
hydrologic signature consists of hydrologic inputs and outputs, such as
water depth, flow patterns, and the duration and frequency of flooding.
A wetland's hydrologic signature influences abiotic factors, including
soil anaerobiosis, nutrient availability, and in coastal wetlands,
salinity, and those abiotic factors determine which plant and animal
species and other organisms will inhabit a wetland (Mitsch and
Gosselink 2015). Wetland restoration, enhancement, and establishment
activities that focus on providing an appropriate hydrologic signature
would allow natural energy, self-organization, and physical, chemical
and biological processes to drive the development of wetland structure
and function. Focusing on restoring wetland processes and giving the
wetland the ability and space to respond to changing environmental
conditions and other anthropogenic and natural disturbances may result
in more resilient and sustainable wetlands.
Process-based river and stream restoration activities may require
less maintenance than other restoration approaches, including form-
based restoration, because of their ability to respond to, and adapt
to, internal and external drivers of ecosystem change (e.g., Kondolf
2011, Ciotti et al. 2021). Attempting to restore aquatic ecosystems to
specific forms, instead reinstating ecological processes that allow for
variability and responding to changing environmental conditions, can
also reduce habitat variability and ecological resilience (Hiers et al.
2016), and may provide fewer ecological functions than restoration
actions that allow rivers and streams to flood and self-adjust (Kondolf
2011) in response to disturbances.
Process-based river and stream corridor restoration projects are
likely to have the ability to self-adjust in response to changes in
hydrology, sediment loads, watershed land use, and other drivers of
river and stream structure and function, as long as those riverine
systems are given sufficient space to make those adjustments. Giving
rivers and streams, and their associated wetlands, floodplains, and
riparian areas, space to adjust within a channel migration zone has the
most potential to produce sustainable river and stream corridor
restoration projects (Kondolf 2011). In contrast, form-based river and
stream restoration approaches such as channel reconstruction and bank
stabilization activities are more likely to require active management
and maintenance activities to address changing environmental
conditions, including land uses within the watershed (Ciotti et al.
2021, Hiers et al. 2016). Form-based river and stream restoration
activities may be more likely to fail as hydrology and sediment loads
change, because those approaches make riverine systems less resilient
to such changes (Tullos et al. 2021).
Modifying NWP 27 by removing the provision prohibiting the use of
the NWP for conversion of a stream or natural wetlands should make it
clear that this NWP authorizes the restoration of river-wetland
corridors even though the dynamics of these corridors generally results
in changes in stream channels, wetlands, riparian areas, and
floodplains over time because of natural processes. This proposed
modification to NWP 27 is consistent with the Corps' definition of
``restoration,'' which is ``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.''
33 CFR 332.2. The definition of restoration is provided in Section F of
this proposed rule, as it has been provided in previous reissuances of
the NWPs since 2007. Because restoration is defined as returning
natural/historic functions to a former or degraded aquatic resource,
activities authorized by NWP 27 should include changes in habitat type
or structure as long as those changes would result in an aquatic
ecosystem restoration or enhancement project that resembles an
ecological reference, whether that ecological reference is based on
existing aquatic ecosystems in the region (including cultural
ecosystems), or historic information concerning aquatic ecosystem
structure, functions, and dynamics that are relevant to the region.
Process-based river and stream corridor restoration projects may
use low-tech approaches, such as beaver dam analogues (BDAs) and post-
assisted log structures (PALS), to restore river-wetland corridors that
have become impaired because of a lack of large wood and beaver dams in
these riverscapes (e.g., Wheaton et al. 2019). The ecological reference
requirement in NWP 27 does not prevent the use of BDAs and PALS to
conduct these process-based river and stream corridor restoration
activities because those structures mimic beaver dams and clusters of
large wood that may be found in ecological references where beaver and
large wood have not been removed or substantially reduced.
In addition, the Corps is proposing to remove the sentence that
states that 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, because the rehabilitated wetland should resemble an ecological
reference that has a similar pattern of wetland hydrology and
hydroperiod. The Corps is also proposing to retain the sentence that
states that NWP 27 does not authorize stream channelization.
Furthermore, the Corps is proposing to retain the provision stating
that NWP 27 does not authorize discharges of dredged or fill material
into waters of the United States, or structures and work in navigable
waters of the United States, to relocate tidal waters or convert tidal
waters, including tidal wetlands, to other aquatic uses such as the
conversion of tidal wetlands into open water impoundments.
The Corps is proposing to add a provision to NWP 27 stating that it
does not authorize dam removal activities. The removal of low-head dams
may be authorized by NWP 53, which was first issued in 2017 (see 82 FR
1997). NWP 53 was reissued in 2021 (see 86 FR 73581) and it generally
defines a ``low-head dam.'' A low-head dam provides little or no
storage function, so the removal of low-head dams is unlikely to result
in substantial releases of sediment downstream when the low-head dam
structure is removed. The proposed modification of NWP 27 that would
not allow it to be used to authorize dam removal activities would apply
to all types of dams, especially storage dams. The removal of storage
dams is more likely to have the potential to cause temporary adverse
impacts to the aquatic environment that are more than
[[Page 26119]]
minimal, such as potential releases of large amounts of sediment that
may have accumulated upstream of the storage dam. The removal of
storage dams can be authorized through the individual permit process,
so that a more thorough evaluation of the potential temporary and
permanent adverse impacts caused by the dam removal activity can be
conducted. NWP 27 can be used to 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 in conjunction with use of
NWP 53 to authorize removal of the low-head dam.
With respect to using NWP 27 to authorize discharges of dredged or
fill material into waters of the United States and/or structures or
work in navigable waters of the United States to construct, maintain,
or expand nature-based solutions, it can only be used to authorize
nature-based solutions that resemble ecological references. Examples of
nature-based solutions that might be authorized by NWP 27 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 channel within the existing floodway
to enhance riverine function and connectivity.
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).
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.
Use of dredged material to re-establish, rehabilitate,
enhance, or establish wetlands or other aquatic habitats.
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.
Nature-based solutions that resemble ecological references can
produce co-benefits that are byproducts of the structure, function, and
dynamics of an ecological reference. One example is reservoir sediment
management activities that provide a co-benefit of maintaining the
storage capacity of the reservoir, which may reduce the need to
construct additional reservoirs in the region. Another example is the
restoration of river-wetland corridors that can provide resilience to
droughts, floods, and wildfires (Tullos et al. 2021).
NWP 27 does not authorize the construction, maintenance, or
expansion of nature-based solutions that consist of a combination of
natural ecosystems and artificial, engineered features because those
activities would not resemble ecological references. Portions of a
single and complete project (as defined in 33 CFR 330.2(i)) that
resemble an ecological reference may be authorized by NWP 27 and other
portions of the same project with artificial, engineered features may
be authorized by other NWPs, such as NWP 13 (bank stabilization), NWP
43 (stormwater management activities), or NWP 54 (living shorelines).
NWP 27 can be used to authorize the removal of culverts and other
obstructions from waters and wetlands, but it cannot be used to replace
existing culverts or structures with new culverts or other artificial
structures, because culverts and similar structures do not resemble
ecological references. The Corps is proposing to issue a new NWP
(proposed new NWP A in this proposed rule) to authorize activities to
improve passage for fish and other aquatic organisms and restore or
enhance other critical ecological processes, such as nature-based
fishways, which are a type of nature-based solution that often have
artificial, engineered features to help fish and other aquatic
organisms move around barriers.
Proposed Changes to the Reversion Provision
In the ``Reversion'' provision of NWP 27, the Corps is proposing to
add the Bureau of Land Management to the list of federal agencies that
can execute binding stream and wetland restoration and enhancement
agreements, or wetland establishment agreements, with landowners. Those
activities may be authorized by this NWP if they result in net gains in
aquatic ecosystem functions and services, resemble ecological
references, and cause no more than minimal individual and cumulative
adverse environmental effects.
Proposed Changes to Reporting Requirements
In 2007, NWP 27 was modified to include a ``Report'' requirement
for proposed activities that do not require PCNs to give district
engineers an opportunity to review those proposed activities to ensure
that they comply with the terms and conditions of this NWP (see 71 FR
56269). District engineers have 30 days to review the reported NWP 27
activities, including the: (1) binding wetland enhancement,
restoration, or establishment agreement, or a project description,
including project plans and location map; (2) the NRCS or USDA
Technical Service Provider documentation for the voluntary wetland
restoration, enhancement, or establishment action; or (3) the Surface
Mining Control and Reclamation Act (SMCRA) permit issued by the Office
of Surface Mining Reclamation and Enforcement (OSMRE) or the applicable
state agency (see 72 FR 11186). If a district engineer determined that
a proposed activity did not qualify for NWP 27 authorization, she or he
would need to notify the project proponent within that 30-day period
that another form of DA authorization would be required for the
proposed activity. The Report requirement was developed so that
standard PCNs would not be required for activities covered under the
three categories listed above, to reduce documentation burdens and
compliance costs for project proponents conducting aquatic habitat
restoration, enhancement, or establishment activities.
The Corps is proposing to expand the ``Report'' requirement to all
activities authorized by this NWP, except for those aquatic ecosystem
restoration, enhancement, or establishment activities that require PCNs
because of NWP general conditions such as general condition 18
(endangered species) or regional conditions imposed by division
engineers that add PCN requirements for NWP 27 activities. Requiring
the submission of reports for proposed NWP 27 activities is intended to
provide a more efficient and effective process for authorizing
voluntary aquatic ecosystem restoration, enhancement, and establishment
activities, and reduce compliance costs for entities undertaking these
environmentally beneficial projects.
[[Page 26120]]
The Corps is proposing to modify the information that project
proponents are required to submit for the required reports. The
proposed information requirements are intended to provide information
to help district engineers assess whether the proposed NWP 27 activity
is likely to resemble an ecological reference, produce a net increase
in aquatic resource functions and services, and cause no more than
minimal individual and cumulative adverse environmental effects. The
report must include the project proponent's name, address, and
telephone numbers, as well as the location of the proposed activity.
The reporting requirement requires the permittee to provide general
information on the baseline ecological conditions at the project site,
including a general description and map of the approximate boundaries
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.
The report also requires the permittee to submit 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 and their
approximate boundaries on the project site to generally depict the
restoration, enhancement, and/or establishment actions the permittee
proposes to take to increase aquatic ecosystem functions and services
at that site. The required 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 will be used by
district engineers to determine whether the proposed NWP 27 activity is
likely to resemble an ecological reference.
The report must also include a description of the techniques or
mechanisms that are proposed to be used to increase aquatic ecosystem
functions and services on the project site. If the project proponent
has executed a binding stream enhancement or restoration agreement or
wetland enhancement, restoration, or establishment agreement with the
U.S. Fish and Wildlife Service, Natural Resources Conservation Service,
Farm Service Agency, National Marine Fisheries Service, National Ocean
Service, U.S. Forest Service, Bureau of Land Management, or their
designated state cooperating agencies, a copy of that agreement must be
included in the report. If applicable, the report must also include the
NRCS or USDA Technical Service Provider documentation for the voluntary
stream enhancement or restoration action or wetland restoration,
enhancement, or establishment action. Lastly, the report must include,
if applicable, the SMCRA permit issued by OSMRE or the applicable state
agency.
Proposed Removal of Notification Requirement
The Corps is proposing to remove the PCN thresholds from this NWP
and in their place require every project proponent to submit a Report
for their proposed activity to give district engineers 30 days to
review the proposed aquatic ecosystem restoration, enhancement, or
establishment activity. If the district engineer reviews the report,
and he or she determines that the proposed activity is unlikely to
resemble and ecological reference, is unlikely to or result in net
increases in aquatic ecosystem functions and services, and/or is likely
to result in more than minimal adverse environmental effects, then she
or he will inform the project proponent that the proposed activity is
not authorized by NWP 27. The Corps is proposing this change to NWP 27
to provide a more efficient and effective process for authorizing
aquatic ecosystem restoration, enhancement, and establishment
activities, especially for voluntary activities conducted by non-
governmental organizations, government agencies, and entities that
conduct aquatic ecosystem restoration, enhancement, and establishment
activities.
Pre-construction notifications will still be required for some NWP
27 activities, when PCNs are required because of NWP general conditions
(e.g., general condition 18, endangered species; general condition 20,
historic properties) or by regional conditions imposed by division
engineers.
Proposed New Note 2
The Corps is proposing to add a new Note to NWP 27 to address one
of the information needs for PCNs when PCNs are required for NWP 27
activities because of NWP general conditions or regional conditions
imposed by division engineers. The current Note in NWP 27 would be
redesignated as ``Note 1.'' The proposed new Note 2 states that if an
NWP 27 activity requires a PCN because of an NWP general condition or a
regional condition imposed by a division engineer, the information on
baseline ecological conditions of the project site provided by item (3)
of the Report requirement, including the general description and map of
aquatic and terrestrial habitat types and their approximate boundaries
on that site, substitutes for the delineation of waters, wetlands, and
other special aquatic sites required by paragraph (b)(5) of NWP general
condition 32, pre-construction notification.
The general description and map of aquatic and terrestrial habitat
types on that project site with their approximate boundaries is similar
to a delineation of waters, wetlands, and other special aquatic sites
that is required for PCNs for other NWP activities under paragraph
(b)(5) of general condition 32. Both the general description and map of
aquatic and terrestrial habitat types on the project site required by
item (3) of the Report requirement in NWP 27 and the delineation of
waters, wetlands, and other special aquatic sites required by paragraph
(b)(5) of general condition 32 for NWP PCNs serve the same purpose of
describing the baseline ecological conditions on a site for a proposed
NWP activity. The baseline ecological information is used by district
engineers to evaluate the potential impacts of a proposed NWP activity,
and for NWP 27 activities, help assess whether the proposed activity is
likely to result in net increases in aquatic ecosystem functions and
services.
NWP 27 does not have any quantitative limits, such as acreage
limits, where determining precise locations of wetland boundaries,
ordinary high water marks, high tide lines, boundaries of special
aquatic sites, or other boundaries may be needed to determine whether
an acreage limit or other quantitative limit of an NWP might be
exceeded by a proposed activity requiring DA authorization. The
criteria used to determine whether a proposed aquatic ecosystem
restoration, enhancement, or establishment activity is authorized by
NWP 27 are qualitative, so precise delineations of boundaries of
waters, wetlands, and other special aquatic sites are not needed for
this NWP.
As a general matter, determining precise boundaries for waters,
wetlands, and other special aquatic sites on the project site is
unnecessary for aquatic ecosystem restoration, enhancement, and
establishment activities because these activities are intended to
provide net increases in aquatic ecosystem functions and services. So
for NWP 27 activities, a general description and map of approximate
boundaries of aquatic and terrestrial habitats on the project site
should be sufficient for providing environmental baseline information
for district engineers to review in Reports
[[Page 26121]]
and, when required, PCNs. Another reason why qualitative ecological
baseline information is sufficient for NWP 27 activities is that
aquatic ecosystems are dynamic and their boundaries are likely to
change over time in response to stochastic variations in ecological
processes, environmental changes, and natural and anthropogenic
disturbances. It should also be noted that in some landscapes (e.g.,
where the gradient between wetlands and uplands is gentle) it might not
be possible to identify a precise location for a wetland-upland
boundary (NRC 1995).
Paragraph (b)(5) of general condition 32 states that wetland
delineations must be prepared in accordance with the current method
required by the Corps. The current wetland delineation method required
by the Corps consists of the 1987 Corps of Engineers Wetlands
Delineation Manual (Technical Report Y-87-1) and the appropriate
regional supplement to the 1987 Wetlands Delineation Manual. There are
10 regional supplements to the 1987 Wetlands Delineation Manual, and
those regional supplements are available at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/ (accessed October 18, 2024).
The 1987 Corps of Engineers Wetlands Delineation Manual (1987
Manual) discusses two general types of wetland delineation methods:
routine and comprehensive. Routine determinations utilize simple,
rapidly applied methods that produce sufficient qualitative information
for making a wetland determination. Comprehensive wetland delineation
methods usually require substantial amounts of time and effort to
gather quantitative information to make the wetland determination.
Section D of Part IV of the 1987 Manual describes general
procedures for making routine wetland determinations. A routine wetland
determination may be made with or without a site visit. Section E of
Part IV of the 1987 Manual describes general procedures for making
comprehensive wetland determinations. Comprehensive wetland
determinations usually involve production of a maximum amount of
information, which is often quantitative information The 1987 Manual
states that comprehensive wetland determinations should only be used
for very complex project areas and/or when the wetland determination
requires rigorous documentation.
For aquatic ecosystem restoration, enhancement, and establishment
activities authorized by NWP 27, a qualitative approach similar to the
routine wetland determination described in Section D of Part IV of the
1987 Manual will normally be sufficient to provide the baseline
information required by proposed item (3) of the Reporting requirement
for NWP 27. If the proposed NWP 27 activity requires a PCN because of
an NWP general condition, such as paragraph (c) of general condition 18
(endangered species), or a regional condition imposed by a division
engineer, then the baseline information provided by item (3) of the
Reporting requirement can substitute for a delineation of waters,
wetlands, and other special aquatic sites prepared under the general
approach described in Section D of Part IV of the 1987 Manual for
routine wetland delineations. Paragraph (b)(5) of general condition 32
only requires the delineation of waters, wetlands, and other special
aquatic sites (i.e., a map or drawing), and it does not specify whether
a routine or comprehensive delineation approach needs to be used.
Paragraph (b)(5) of general condition 32 does not require quantitative
information to be provided in support of a delineation of waters,
wetlands, and other special aquatic sites. In addition, paragraph
(b)(5) does not require the submittal of a wetland delineation report
or data forms with the delineation of waters, wetlands, and other
special aquatic sites. Therefore, the general description and map of
aquatic and terrestrial habitat types on the NWP 27 project site
required by paragraph (3) of the Reporting requirement should be a
sufficient substitute for a delineation prepared to satisfy paragraph
(b)(5) of general condition 32 when an NWP 27 activity requires a PCN.
For waters where the ordinary high water mark indicates the
geographic limit of the Corps' jurisdiction, there have been manuals
developed for identifying ordinary high water marks. Those manuals are
available at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/techbio/ (accessed January 29, 2025)
under ``Stream Channel Identification and Delineation.'' There are
currently no nationally available manuals for identifying the
boundaries of special aquatic sites that are not wetlands, such as
sanctuaries and refuges, mud flats, vegetated shallows, coral reefs,
and riffle and pool complexes, although there may be regional manuals
available that were developed by other agencies or other organizations.
The Corps is proposing to add Note 2 to NWP 27 as part of its
effort to provide a more efficient and cost-effective approach to
authorizing voluntary aquatic ecosystem restoration, enhancement,
establishment activities that are expected to produce net gains in
aquatic ecosystem functions and services and cause no more than minimal
individual and cumulative adverse environmental effects. The costs of
preparing wetland delineations under the comprehensive method described
in the 1987 Manual and using similar approaches for waters and other
special aquatic sites can be cost prohibitive to federal, tribal,
state, and local government entities, non-governmental organizations,
and landowners that want to conduct voluntary aquatic ecosystem
restoration, enhancement, and establishment activities to help improve
the functions and services provided by aquatic ecosystems. The costs of
producing highly detailed, quantitative delineations of waters,
wetlands, and other special aquatic sites can consume funds that could
be more beneficially expended on either conducting those restoration
and enhancement activities over larger areas, or at more sites.
NWP 43. Stormwater Management Facilities. The Corps is proposing 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'' for
natural and nature-based features that can be constructed and
maintained to manage stormwater and reduce inputs of pollutants,
including sediments and nutrients, to downstream waters. To provide
additional clarity to potential permittees, the Corps is also proposing
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.
The Corps is proposing to include the following examples of nature-
based solutions for stormwater management and pollution abatement that
can be authorized by this NWP if they involve discharges of dredged or
fill material into non-tidal waters of the United States: stream
biofilters, bioretention ponds or swales, rain gardens, vegetated
filter strips, vegetated swales (bioswales), constructed wetlands,
infiltration trenches, and regenerative stormwater conveyances. Other
nature-based solutions and other features that are conducted to meet
pollutant reduction targets established under Total Maximum Daily Loads
set under the Clean Water Act may also be authorized by this NWP as
long as they comply with the applicable terms and conditions of this
NWP.
[[Page 26122]]
NWP 48. Commercial Shellfish Mariculture Activities. Because of
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),
which vacated NWP 48 in waters within Washington State, the Corps is
proposing to modify NWP 48 to exclude its use in waters withing
Washington State. Because of those decisions, the Corps has been
authorizing commercial shellfish mariculture activities in Washington
State through standard individual permits and letters of permission,
and is proposing to continue that practice.
Commercial shellfish mariculture activities are currently being
authorized in waters in Washington State by standard individual permits
and letters of permission. Commercial shellfish mariculture activities
have been occurring in waters within Washington State since the mid-
1800s (Washington Sea Grant 2015) and standard individual permits and
letters of permission are a more effective and efficient mechanism for
these on-going activities because the Corps' regulations provide
district engineers with substantial discretion in establishing
expiration dates for standard individual permits and letters of
permission.
General permits issued under the Corps' permitting authorities can
be in effect for no more than 5 years (see 33 CFR 325.2(e)(2) and 33
CFR 330.6(b)). 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 commercial
shellfish mariculture 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).
Authorizing these on-going activities through standard individual
permits and letters of permission can reduce burdens on the regulated
public (e.g., compliance costs for commercial shellfish mariculture
producers) and Corps districts (e.g., administrative costs associated
with reviewing PCNs and issuing verification letters) by authorizing
these on-going activities over longer periods of time. Using the
standard individual permit and letter of permission processes for
authorizing these on-going activities can create efficiencies for both
commercial shellfish producers and Corps districts.
In other areas of the country, 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 letter of permissions for those
activities that would be in effect for periods longer than five years.
As discussed in the Preamble Section I.F. above, the Corps is
proposing to revise Note 1. As discussed in the Preamble Section I.F.
above, the Corps is proposing to add a Note (to be designated as Note
4) to add language to clarify the intent of each Note, to identify
information that should be provided to NOS or USCG, and to provide
contact information for both NOS and USCG.
NWP 52. Water-Based Renewable Energy Generation Facilities. As
discussed in the Preamble Section I.F. above, the Corps is proposing to
revise Note 3 and to add a Note (to be designated as Note 6) to add
language to clarify the intent of each Note, to identify information
that should be provided to NOS or USCG, and to provide contact
information for both NOS and USCG.
NWP 54. Living Shorelines. The Corps is proposing 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. A pocket beach can provide habitat for
larval fishes, juvenile salmon, as well as various invertebrate species
such as copepods and amphipods (Toft et al. 2013). The Corps is also
proposing to modify paragraph (a) of this NWP by adding the phrase
``cobble'' and ``gravel'' before ``sand fills'' because the
unconsolidated sediment in a living shoreline may consist of larger
sized grains (e.g., cobbles and gravels) in addition to sands. Sediment
particle size is strongly correlated to the ability of water to entrain
and move sediment grains through water flows, currents, or wave
activity (NRC 2007), with stronger forces needed to move larger
sediment particle sizes. Therefore, cobbles and gravels may require
more wave energy or stronger tidal flows to be transported by littoral
drift or other sediment movements along shorelines in coastal waters,
and can help living shorelines become less susceptible to erosion and
potential sediment losses through water-mediated transport from a
living shoreline. Cobbles and gravels may also provide suitable habitat
for nearshore species (Emmett et al. 2017).
NWP 55. Seaweed Mariculture Activities. As discussed in the
Preamble Section I.F. above, the Corps is proposing to modify Note 1
and to add a Note 3 (to be designated as Note 2) to add language to
clarify the intent of each Note, to identify information that should be
provided to NOS or USCG, and to provide contact information for both
NOS and USCG.
NWP 56. Finfish Mariculture Activities. The Corps is proposing to
not reissue this NWP. Under this proposed rule, NWP 56 would be allowed
to expire on March 14, 2026, and after that date project proponents who
want to construct structures in navigable waters of the United States
for finfish mariculture activities would have 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 finfish
mariculture activities. In Don't Cage Our Oceans, et al. v. U.S. Army
Corps of Engineers, the U.S. District Court, Western District of
Washington at Seattle, vacated NWP 56, so that standard individual
permits and letters of permission would be required for finfish
mariculture activities.
As of September 2024, Corps districts issued six NWP 56
verifications and exercised discretionary authority in response to two
NWP 56 PCNs to require individual permits for those proposed finfish
mariculture structures. The Court's order allowed those NWP 56
verifications to remain in effect, but prohibited the Corps from
issuing additional NWP 56 verifications. Another NWP 56 PCN was
withdrawn to give the applicant more time to respond to recommendations
made by another federal agency concerning his or her proposed finfish
mariculture activity. Given the low frequency of use of NWP 56 and the
proportion of PCNs where district engineers exercised discretionary
authority to require individual permits for proposed finfish
mariculture activities, the Corps believes that finfish mariculture
structures that require authorization under Section 10 of the Rivers
and Harbors Act of 1899 are more appropriately authorized through the
standard individual permit or letter of permission processes. These
activities may also be authorized by regional general permits in marine
and estuarine
[[Page 26123]]
waters where a district engineer develops a regional general permit or
programmatic general permit to authorize structures for finfish
mariculture activities that have no more than minimal individual and
cumulative adverse environmental effects.
NWP 57. Electrical Utility Line and Telecommunication Activities.
As discussed in the Preamble Section I.F. above, the Corps is proposing
to modify Note 1 and to add a Note (to be designated as Note 8) to add
language to clarify the intent of each Note, to identify information
that should be provided to NOS or USCG, and to provide contact
information for both NOS and USCG.
NWP 58. Utility Line Activities for Water and Other Substances. As
discussed in the Preamble Section I.F. above, the Corps is proposing to
modify Note 1 and to add a Note (to be designated as Note 7) to add
language to clarify the intent of each Note, to identify information
that should be provided to NOS or USCG, and to provide contact
information for both NOS and USCG.
B. Discussion of the Proposed New Nationwide Permit
A. Activities to Improve Passage of Fish and Other Aquatic
Organisms. The Corps is proposing to issue a 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.
Proposed new NWP A can be used to authorize regulated activities
associated with compensatory mitigation projects, voluntary activities
to improve the passage of fish and other aquatic organisms, and
activities that fulfill requirements by other federal, tribal, state,
or local government agencies to improve the passage of fish and other
aquatic organisms. It can be used to authorize a variety of activities
that increase the ability of fish and other aquatic organisms to pass
through, or around, infrastructure and other built features, such as
the installation of larger replacement culverts designed and
constructed to improve the upstream and downstream passage of fish and
other aquatic organisms through that culvert. Proposed new NWP A may
also be used to authorize discharges of dredged or fill material into
waters of the United States to modify or replace bridges constructed
over non-navigable waters (i.e., waters that are not navigable waters
of the United States, as defined at 33 CFR part 329) to improve the
ability of fish and other aquatic organisms to migrate past those
bridges. Bridges over navigable waters of the United States are
regulated by the U.S. Coast Guard, not the Corps of Engineers.
The Corps is proposing to include the following examples of
activities that could be authorized by this NWP to improve the ability
of fish and other aquatic organisms to move through aquatic ecosystems:
(1) the construction, maintenance, or expansion of conventional and
nature-like fishways; (2) the construction, maintenance, or expansion
of fish bypass channels around existing in-stream structures, such as
dams or weirs; (3) the replacement of existing culverts or low-water
crossings with culverts planned, designed, and constructed to restore
or enhance passage of fish and other aquatic organisms; (4) the
installation or maintenance of fish screens to prevent fish and other
aquatic organisms from being trapped or stranded in irrigation ditches
and other features; (5) the maintenance, modification, or replacement
of existing tidal gates to improve the ability of fish and other
aquatic organisms to move past those structures; and (6) 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 Corps invites commenters to suggest other
examples that could be added to the text of this proposed new NWP, with
explanations as to how those activities might restore or enhance the
passage of fish and other aquatic organisms through aquatic ecosystems.
Technical or conventional fishways or fish passes include fish
ladders made of concrete, metal, wood, or other materials, with sloping
or stepped channels and partitions comprised of weirs, walls, chutes,
and vanes to facilitate the movement of fish through the fishway
(Selinger and Zeiringer 2018, Silva et al. 2018, Katopodis et al.
2001). Nature-like fishways are constructed to mimic natural habitat,
but often have engineered components, and may be constructed with
natural materials such as rock, wood, and bioengineering materials to
simulate a natural stream with riffles, pools, and passable rapids
(Selinger and Zeiringer 2018, Katopodis et al. 2001). Conventional
fishways often are constructed to facilitate the passage of certain
species of fish, while nature-like fishways can accommodated a wider
range of fish species, and help other types of aquatic organisms (e.g.,
aquatic invertebrates and amphibians) pass around obstructions
(Katopodis et al. 2001). Nature-like fishways 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. 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).
In-stream nature-like fishways include fish ramps, roughened
channels, constructed riffles, and rock-ramp fishways that are
constructed with rocks and coarse sediments at a low gradient that are
resistant to downstream transport to help fish and other aquatic
organisms move around a barrier safely and relatively quickly (Silva et
al. 2018).
Another type of nature-like fishway is a bypass channel that mimics
a natural stream channel to provide a route for fish and other aquatic
organisms to go around an in-stream obstruction such as a hydropower
dam or other type of dam (Tamario et al. 2018). Bypass channels are
constructed with natural materials, such as wood, boulders, gravel,
rocks, and other vegetation that mimic natural rapids or riffles or
pools (Katopodis et al. 2001). Bypass channels can also provide
habitat, shelter, and spawning areas for fish, and support passage by
numerous fish species at various age classes (Tamario et al. 2018).
Culverted fishways convey water from one side of a road embankment
to the other side and can be constructed in a variety of shapes
(Katopodis et al. 2001). They may include riprap, vanes, baffles,
weirs, blocks, or plates to assist fish in passing through the culvert,
and need to be constructed so that fish can enter, pass through, and
exit the culvert with minimal delays (Katopodis et al. 2001). One
example of an approach to designing culverts to improve the passage of
fish and other aquatic organism is the Stream Simulation Design method
developed by the U.S. Forest Service.\1\
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\1\ https://www.fs.usda.gov/internet/FSE_DOCUMENTS/fsm91_054564.pdf (accessed April 27, 2025).
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Tide gates are structures which close to prevent tidal waters or
floodwaters from flowing inland but open to allow upstream waters to
flow downstream when the tidal waters or floodwaters recede.
Modifications to tide gates, such
[[Page 26124]]
as changing the hinge configuration of the gate or adding floats that
cause the tide gate to remain open for a longer period of time allow
fish to move between habitats (Souder, J. and G. Giannico. 2020).
The Corps is proposing a one acre limit for this NWP. The one acre
limit applies to ``losses of waters of the United States'' as that
phrase is defined in Section F of the proposed NWPs. The proposed one
acre limit would apply to waters of the United States that are
permanently adversely affected by filling, flooding, excavation, or
drainage because of the regulated activity. 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.
For NWP A activities solely in rivers and streams, the one acre
limit would apply to the acreage of river or stream bed that is
permanently adversely affected by filling or excavation because of the
regulated activity. For example, the area directly impacted by the
placement of large rocks on the river or stream bed to construct a
step-pool fishway would be considered a ``loss of waters of the United
States'' under the definition provided in Section F of this proposed
rule because those rocks would be permanently placed on the river or
stream bed. However, the area of river or stream bed where those rocks
were placed would continue to exist as an altered river or stream
segment and continue to provide some or all of the functions that river
or stream provided before the step-pool fishway was constructed. In
other words, while the placement of rocks, wood, and other materials on
a river or stream bed to construct a fishway changes the physical and
hydrologic characteristics of a river or stream segment to improve the
passage of fish and other aquatic organisms, that river or stream
segment continues to exist as aquatic habitat and perform other
ecological functions because it is not converted to uplands or dry
land. Therefore, the area of the river or stream segment in which the
fishway is constructed is a ``loss'' (in the sense that there would be
a permanent change in the bed of the river or stream to facilitate the
passage of fish and other aquatic organisms) that is counted towards
the one acre limit proposed for this NWP, but that area of river or
stream segment would not be lost in the sense that it would be
converted to terrestrial habitat or a feature of the built environment
(e.g., grey infrastructure).
Fishways and other activities constructed or expanded to improve
the passage of fish and other aquatic organisms around or through
barriers have to provide aquatic habitat to support those aquatic
organisms while they move through the fishways or other features, even
though that habitat may have some artificial or engineered components.
The area of river or stream bed in which a nature-based fishway is
constructed would likely continue to provide river and stream functions
and services, in contrast to activities authorized by other NWPs such
as NWPs 29 and 39 (which currently have \1/2\-acre limits), which
typically change aquatic habitats to dry land, buildings, grey
infrastructure (e.g., roads, parking lots), and other features of a
built environment.
Because 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, the Corps believes a one-acre limit would be
appropriate for fishways and other approaches to improve connectivity
for fish and other aquatic organisms in aquatic ecosystems. The Corps
invites public comments on alternative acreage limits for this proposed
new NWP. Commenters are encouraged to provide rationales for any
alternative acreage limits they suggest.
The Corps is proposing to require PCNs for proposed activities that
result in the loss of greater than \1/10\-acre of waters of the United
States so that district engineers can review these proposed activities
and determine whether they will result in no more than minimal
individual and cumulative adverse environmental effects. The Corps is
also soliciting public comment on whether a different PCN threshold
should be used for this NWP, such as requiring PCNs for all proposed
activities or for proposed discharges of dredged or fill material into
special aquatic sites.
If a district engineer determines that the proposed NWP activity
would result in more than minimal adverse environmental effects, she or
he will exercise discretionary authority to require an individual
permit for the proposed activity unless the project proponent modifies
the proposed activity to reduce the adverse environmental effects so
that they are no more than minimal, individually and cumulatively (see
33 CFR 330.1(e)(3)). As another safeguard, division engineers can
impose regional conditions on this NWP if it is issued to reduce the
one acre limit or the \1/10\-acre PCN threshold if it is necessary to
do so in a particular watershed or other geographic region to ensure
that this NWP authorizes only those activities that have no more than
minimal individual and cumulative adverse environmental effects.
For activities authorized by this proposed new NWP, PCNs may also
be required by one or more NWP general conditions (e.g., general
condition 18, endangered species, or general condition 20, historic
properties), or regional conditions added by a division engineer in a
Corps district, state, watershed, or other geographic region in
accordance with the procedures at 33 CFR 330.4(c).
In addition, the Corps is proposing to include a sentence in this
NWP to state that it does not authorize dam removal activities, even
though dams are often a primary obstacle to the movement of fish and
other aquatic organisms through river and stream networks. The removal
of low-head dams may be authorized by NWP 53. This NWP could be used to
authorize regulated activities associated with the removal or
modification of a weir, and for those activities that would result in
the loss of greater than \1/10\-acre of waters of the United States,
the district engineer would review the proposed removal or modification
of a weir and determine whether that activity qualifies for
authorization under this NWP.
The removal of other types of dams, especially storage dams,
typically require individual permits because removal of those dams
often results in temporary impacts to the aquatic environment that are
more than minimal because of substantial releases of sediment that
usually occur unless the entity removing the dam removes sediment that
accumulated upstream of the dam before breaching or removing the dam
structure. Therefore, the Corps is proposing to exclude dam removal
activities from this NWP.
On September 25, 2018, the Corps issued Regulatory Guidance Letter
(RGL) 18-01. RGL 18-01 was issued to provide guidance on compensatory
mitigation projects to restore river and stream structure, functions,
and dynamics that involve the removal of obsolete dams and other
structures, including the removal or replacement of undersized or
perched culverts. Compensatory mitigation credits can be
[[Page 26125]]
generated by the removal or replacement of undersized or perched
culverts when the replacement of those structures result in increases
in river and stream functions by increasing connectivity and improving
other aquatic ecosystem and watershed functions, such as water
movement, the transportation of nutrients and energy through the
tributary network, the ability of fish and other aquatic organisms to
move among tributaries and other aquatic habitats within a river or
stream network or within a watershed. Compensatory mitigation may also
be generated by the removal of culverts and other obstructions that
impede or reduce the ability of fish and other aquatic organisms to
move through aquatic ecosystems.
The Corps is proposing this new NWP in part to assist with the
implementation of RGL 18-01. The compensatory mitigation activities
described in RGL 18-01 to restore river and stream structure,
functions, and dynamics through the removal of obsolete dams and other
structures, and the removal or replacement of undersized or perched
culverts may be conducted by mitigation bank sponsors, in-lieu fee
program sponsors, and entities conducting advance permittee-responsible
mitigation. The activities described in RGL 18-01 can be authorized by
individual permits, some NWPs, and if available, regional general
permits issued by district engineers. For example, the removal of low-
head dams can be authorized by NWP 53. The removal or replacement of
undersized or perched culverts associated with linear transportation
projects may be authorized by NWP 14. The removal of culverts from a
river or stream can be authorized by NWP 27, as long as the site is
restored or enhanced to resemble an ecological reference, which would
not include replacing the undersized or perched culvert with a new
culvert. However, proposed new NWP A could be used to replace an
existing culvert with a new culvert that improves the ability of fish
and other aquatic organisms to pass through the culvert.
C. Discussion of Proposed Modifications to Nationwide Permit General
Conditions
GC 9. Management of Water Flows. The Corps is proposing 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.
GC 11. Equipment. The Corps is proposing to modify this general
condition by adding two new sentences to specify that areas affected by
the use of mats, must be restored. Restoration must include returning
the area to pre-construction elevations, and may include revegetation
and addressing soil compaction, if appropriate. The use of mats, and
the operation of heavy equipment on those mats, may result in soil
compaction that can adversely affect water infiltration,
reestablishment of vegetation, and other processes. This proposed
change is intended to address situations where the use of mats during
construction activities may have resulted in soil compaction and
produced depressional areas that may hold surface water and inhibit the
recovery of hydrologic and soil functions, as well as the plant
community, in the area affected by the placement of mats.
GC 18. Endangered Species. The Corps is proposing 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 section 7 interagency
consultation regulations at 50 CFR part 402.
GC 25. Water Quality. The Corps is proposing 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).
GC 28. Use of Multiple Nationwide Permits. General condition 28
addresses the use of more than one NWP to authorize a single and
complete project.
The Corps is proposing modifications to this GC to clarify the
standards that must be met to comply with this general condition. The
first standard is that the total acreage of loss of waters from a
single and complete project cannot exceed the acreage limit of the NWP
with the highest specified limit. That is, when multiple NWPs are used
to authorize a single and complete project, the acreage limits cannot
be combined; the permissible acreage impact is limited to the impact
specified in the NWP with the highest acreage limit. The second
standard is that the acreage loss of waters resulting from the
activities authorized under each NWP cannot exceed the acreage limit
for that NWP. The Corps is proposing a new paragraph (a) that
articulates the first standard.
With the addition of a new paragraph (a), the previous paragraphs
(a) and (b) become (b) and (c) respectively. In addition, text has been
added to paragraph (b) to specify the limits of each NWP in the
example. The Corps is proposing no other changes to this paragraph. If
only one of the NWPs has a specified acreage limit, then that is the
``highest specified acreage limit.''
Similarly, the Corps is proposing to move the text from paragraph
(b) in the current NWPs to paragraph (c) of this general condition and
to clarify the application of this general condition when two or more
NWPs used to authorize a single and complete project have specified
acreage limits. The Corps is proposing to modify the first sentence of
paragraph (c) so that it applies to situations where more than one of
the NWPs used to authorize the single and complete project have
specified acreages limits. This change clarifies that the specified
limit of each NWP used to authorize an activity cannot be exceeded. In
other words, the use of multiple NWPs to authorize a single and
complete project cannot circumvent the specified acreage limit of a
particular NWP for the impacts covered by that particular NWP. In such
situations, the acreage loss of waters of the United States authorized
by each of those NWPs cannot exceed their respective specified acreage
limits. The Corps is proposing to modify the example in the second
sentence of paragraph (c) to make it clear that the two NWPs used in
this example each have different acreage limits: \1/2\-acre for NWP 39
and 1 acre for NWP 46. In this example, 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. The acreage limits of these two
NWPs cannot be combined to limit losses of waters of the United States
to one and a half acres. In other words, under this combination of
NWPs, acreage the loss of waters of the United States authorized by NWP
39, in this example, could not exceed \1/2\-acre and would count
towards the 1-acre limit in NWP 46.
GC 30. Compliance Certification. The Corps is proposing 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. This proposed change is intended to make it
clear that the permittee has to complete the required
[[Page 26126]]
permittee-responsible mitigation to the district engineer's
satisfaction, because the district engineer is responsible for
determining whether the permittee-responsible mitigation project has
complied with the applicable permit conditions and achieved its
ecological performance standards. Use of the word ``success'' in this
sentence lacks clarity as to what the permittee needs to accomplish to
fulfill the permittee-responsible mitigation requirements in their NWP
verifications.
GC 32. Pre-construction notification. The Corps is proposing
modifications to this general condition. The Corps is proposing to
modify paragraph (a)(2), to make it consistent with paragraph (c) of
general condition 18, endangered species.
In paragraph (b)(5) of this general condition, the Corps is
proposing 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 is proposing 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 text of the proposed NWPs do not use the term
``intermittent streams.''
The Corps is also proposing to modify paragraph (b)(5) of this
general condition by adding a new sentence at the end of this
paragraph. The proposed new sentence points permittees using NWP 27 for
aquatic ecosystem restoration, enhancement, and establishment
activities to proposed new Note 2 in NWP 27. Proposed Note 2 in NWP 27
states that if an activity authorized by NWP 27 requires a PCN because
of an NWP general condition or a regional condition imposed by a
division engineer, the information required by subparagraph (3) of the
Reporting requirement of NWP 27 substitutes for the delineation of
waters, wetlands, and other special aquatic sites required by paragraph
(b)(5) of general condition 32.
D. Discussion of Proposed Modification to Section D, ``District
Engineer's Decision''
In Section D, ``District Engineer's Decision,'' the Corps is
proposing to add a sentence to paragraph 3 to clarify that compensatory
mitigation shall not be required for activities authorized by NWP 27
The Corps is proposing to add this clarification because of reports
from users of NWP 27 that some district engineers have required
compensatory mitigation for activities authorized by NWP 27. Since
2012, the text of NWP 27 has explicitly stated that compensatory
mitigation is not required for NWP 27 activities because those
activities are required to result in net increases in aquatic resource
functions and services (see 77 FR 10275). The proposed addition of this
sentence to this paragraph is intended to ensure that a district
engineer's decision is consistent with the terms of NWP 27.
E. Discussion of Proposed Modifications to Section F, ``Definitions''
Ecological reference. The Corps is proposing 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 to be planned,
designed, and implemented to result 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 is also proposing to change this definition to include
cultural ecosystems, which are defined as ``ecosystems that have
developed under the joint influence of natural processes and human-
imposed organization'' (Clewell and Aronson 2013). Over the past 12,000
years, ecosystems have been transformed by human land uses and other
activities, such as hunting, burning, foraging, farming, and industrial
agriculture (Ellis 2021). All ecosystems are cultural ecosystems to
varying degrees, because of pervasive human impacts that have occurred
to those ecosystems over those thousands of years (Evans and Davis
2018) and the varying degrees of those human impacts. In other words,
cultural ecosystems are widespread because of the long history of
people managing ecosystems to provide specific functions and services,
such as food production. Cultural ecosystems also occur in seascapes
because of the interactions of abiotic, biotic, and human processes in
coastal areas that are comprised of marine and estuarine waters and
their adjacent coastal lands (Pungetti et al. 2012).
It should also be understood that ecosystems have benefitted to
varying degrees because of people providing services to ecosystems
(Comberti et al. 2015). Humans have always been important components of
ecosystems and have long played a role in maintaining ecosystem health
(Costanza 2012). The concept of ecosystem services that focuses on a
unidirectional flow of services from ecosystems to people is incorrect
because it does not recognize the important role that people, including
indigenous and local societies, have had in the maintenance and
enhancement of ecosystems (Comberti et al. 2015). The reciprocal
relationships between ecosystems and people may be facilitated by
indigenous and local ecological knowledge, as well as other sources of
ecological knowledge, so the Corps is proposing to include indigenous
and local ecological knowledge as information which can be used to
establish ecological references for NWP 27 activities, consistent with
the Information Quality Act. Traditional management activities,
including those conducted by indigenous people and local (e.g., rural)
societies, may have included practices such as burning regimes, harvest
restrictions, habitat protection, and species protection (Evans and
Davis 2018) to achieve reciprocal relationships between people and
ecosystems goals to influence the structure and functions of those
ecosystems and the services they provide to each other.
Nature-based solutions. The Corps is proposing to add a definition
of ``nature-based solutions'' to Section F. Some of the NWPs proposed
for reissuance, and proposed new NWP A, may be used to authorize
discharges of dredged or fill material into waters of the United States
and/or structure and work in navigable waters of the United States for
the construction and maintenance of nature-based solutions. The source
of the proposed definition is Cohen-Shacham and others (2016).\2\
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\2\ Cohen-Shacham and others (2016) define ``nature-based
solutions'' as ``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.'' (See page 2 of Cohen-Shacham, E.,
Walters, G., Janzen, C. and Maginnis, S. (eds.) (2016). Nature-based
Solutions to address global societal challenges. Gland, Switzerland:
IUCN. xiii + 97pp.)
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Stream bed. The Corps is proposing 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. Organic
substrates in stream beds can include wood pieces, leaves, algae, moss,
and macrophytes,
[[Page 26127]]
and they exhibit substantial variability in size and how long they
remain in streams (Allan and Castillo 2007). Stream structure and
function is strongly influenced by organic materials, including large
wood jams, beaver dams, and living and dead vegetation (Polvi and Wohl
2013).
III. Compliance With Relevant Statutes
A. National Environmental Policy Act Compliance
The Corps has prepared a draft decision document for each proposed
NWP. Each draft decision document contains an environmental assessment
(EA). The EA generally discusses the anticipated impacts the NWP will
have on the human environment. Each draft decision document also
includes a public interest review conducted in accordance with 33 CFR
320.4. If a proposed NWP authorizes discharges of dredged or fill
material into waters of the United States, the draft decision document
for that NWP will also include a Clean Water Act 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 draft decision documents evaluate
the environmental effects of each NWP from a national perspective.
The draft decision documents for the proposed NWPs are available on
the internet at: www.regulations.gov (docket ID number COE-2025-0002)
as ``Supporting and Related Materials.'' The Corps is soliciting
comments on these draft national decision documents, and any comments
received will be considered when preparing the final decision documents
for the NWPs.
B. Compliance With Section 404(e) of the Clean Water Act
The proposed NWPs are to be issued in accordance with Section
404(e) of the Clean Water Act and 33 CFR part 330. These NWPs authorize
categories of activities that are similar in nature. The ``similar in
nature'' requirement does not mean that activities authorized by an NWP
must be identical to each other. We believe that the 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 provide incentives
for project proponents to minimize impacts to jurisdictional waters and
wetlands to qualify for NWP authorization instead of having to apply
for individual permits. Keeping the number of NWPs manageable is a key
component for making the NWPs protective of the environment and
streamlining the authorization process for those general categories of
activities that have no more than minimal individual and cumulative
adverse environmental effects.
These 404(b)(1) Guidelines analyses in the national decision
documents are conducted in accordance with 40 CFR part 230.7. The
404(b)(1) Guidelines analyses in the national decision documents also
include cumulative effects analyses done in accordance with 40 CFR
230.7(b) and 230.11(g).
The various terms and conditions of these NWPs, including the NWP
regulations at 33 CFR 330.1(d) and 330.4(e), allow district engineers
to exercise discretionary authority to modify, suspend, or revoke NWP
authorizations or to require individual permits, and ensure compliance
with section 404(e) of the Clean Water Act. For each NWP that may
authorize discharges of dredged or fill material into waters of the
United States, the national decision documents prepared by Corps
Headquarters include a 404(b)(1) Guidelines analysis. The supplemental
documents prepared by division engineers will discuss regional
circumstances, to provide the basis for division engineers to add
regional conditions to the NWPs to address relevant factors in the
404(b)(1) Guidelines.
C. Compliance With the Endangered Species Act
The Corps has determined that the NWP regulations at 33 CFR
330.4(f) and NWP general condition 18, endangered species, ensure that
all activities authorized by NWPs comply with section 7 of the
Endangered Species Act (ESA). Those regulations and general condition
18 require non-federal permittees to submit PCNs for any activity that
might affect listed species or designated critical habitat. The Corps
then evaluates the PCN and makes an effect determination for the
proposed NWP activity for the purposes of ESA section 7. The Corps
established the ``might affect'' threshold in 33 CFR 330.4(f)(2) and
paragraph (c) of general condition 18 because it is more stringent than
the ``may affect'' threshold for section 7 consultation in the U.S.
Fish and Wildlife Service's (FWS) and National Marine Fisheries
Service's (NMFS) ESA section 7 consultation regulations at 50 CFR part
402. The word ``might'' is defined as having ``less probability or
possibility'' than the word ``may'' (Merriam-Webster's Collegiate
Dictionary, 10th edition). Since ``might'' has a lower probability of
occurring, it is below the threshold (i.e., ``may affect'') that
triggers the requirement for ESA section 7 consultation for a proposed
Federal action.
If the project proponent is required to submit a PCN and the
proposed activity might affect listed species or critical habitat, the
activity is not authorized by NWP until either the Corps district makes
a ``no effect'' determination or makes a ``may affect'' determination
and complies with the applicable ESA section 7 consultation
requirements (including those under 50 CFR 402.05, 402.13, or 402.14).
When evaluating a PCN, the Corps district will either make a ``no
effect'' determination or a ``may affect'' determination. If the Corps
district makes a ``may affect'' determination, it will notify the non-
federal applicant and the activity is not authorized by NWP until the
Corps complies with applicable ESA Section 7 consultation requirements.
If the non-federal project proponent does not comply with 33 CFR
330.4(f)(2) and general condition 18, and does not submit the required
PCN, then the activity is not authorized by NWP. In such situations, it
is an unauthorized activity and the Corps district will determine an
appropriate course of action under its regulations at 33 CFR part 326
to respond to the unauthorized activity.
Federal agencies, including state agencies (e.g., certain state
Departments of Transportation) to which the Federal Highway
Administration has assigned its responsibilities for ESA section 7
consultation pursuant to 23 U.S.C. 327(a)(2)(B), are required to follow
their own procedures for complying with Section 7 of the ESA (see 33
CFR 330.4(f)(1) and paragraph (b) of general condition 18). This
includes circumstances when an NWP activity is part of a larger overall
federal project or action. The federal agency's ESA section 7
compliance covers the NWP activity because it is undertaking the NWP
activity and possibly other related activities that are part of a
larger overall federal project or action. For those NWPs that require
pre-construction notification for proposed activities, the
[[Page 26128]]
federal permittee is required to provide the district engineer with the
appropriate documentation to demonstrate compliance with ESA section 7.
The district engineer will verify that the appropriate documentation
has been submitted. If the appropriate documentation has not been
submitted, additional ESA section 7 consultation may be necessary for
the proposed activity to fulfill both the federal agency's and the
Corps' obligations to comply with section 7 of the ESA.
On October 15, 2012, the Chief Counsel for the Corps issued a
letter to the FWS and NMFS (the Services) clarifying the Corps' legal
position regarding compliance with section 7 of the ESA for the NWPs.
That letter explained that the issuance or reissuance of the NWPs,
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, FWS, and NMFS. The principles discussed
in the Corps' October 15, 2012, letter apply to this proposed issuance/
reissuance of NWPs. Those principles are discussed in more detail
below.
The only activities that are immediately authorized by NWPs are
``no effect'' activities under section 7 of the ESA and its
implementing regulations at 50 CFR part 402. Therefore, the issuance or
reissuance of NWPs does not require ESA section 7 consultation because
no activities authorized by any of the NWPs ``may affect'' listed
species or critical habitat without first completing activity-specific
ESA section 7 consultations with the Services, as required by general
condition 18 and 33 CFR 330.4(f). Regional programmatic ESA section 7
consultations may also be used to satisfy the requirements of the NWPs
in general condition 18 and 33 CFR 330.4(f) if a proposed NWP activity
is covered by a regional programmatic ESA section 7 consultation.
In the May 11, 2015, issue of the Federal Register (80 FR 26832)
the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries
Service (NMFS) published a final rule that amended the incidental take
statement provisions of the implementing regulations for ESA section 7
at 50 CFR part 402. That final rule went into effect on June 10, 2015.
In that final rule, the FWS and NMFS defined two types of programmatic
ESA section 7 consultations, and discussed the circumstances 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.
A framework programmatic action is federal action that approves a
framework for the development of future actions that are authorized,
funded, or carried out at a later time. A mixed programmatic action is
a federal action that approves action(s) that will not be subject to
further section 7 consultation, and approves a framework for the
development of future actions that are authorized, funded, or carried
out at a later time. Definitions of ``framework programmatic action''
and ``mixed programmatic action'' are provided at 50 CFR 402.02. In the
preamble to the 2015 final rule, the FWS and NMFS stated that action
agencies can seek to engage in section 7 consultation on programmatic
actions to gain efficiencies in the section 7 consultation process (80
FR 26836).
The 2015 amendments to 50 CFR part 402 also address the
circumstances when incidental take statements will be provided in
biological opinions for programmatic actions. In their final rule, the
FWS and NMFS stated that when a framework programmatic action does not
authorize any federal action to proceed, no take is anticipated to
result from the framework programmatic action itself, and, therefore,
the FWS and NMFS are not required to provide an incidental take
statement in a biological opinion for a framework programmatic action
(see 80 FR 26835). The FWS and NMFS acknowledged that adoption of a
framework action by the federal action agency would not, by itself,
result in any anticipated take of listed species (see 80 FR 26836).
Therefore, the FWS and NMFS determined that it is appropriate not to
provide an incidental take statement at the program level; any take
that may occur when future actions are implemented under the framework
action would be addressed through activity-specific ESA section 7
consultations. For a national framework programmatic action,
anticipated take from future actions could also be addressed through
incidental take statements in regional programmatic section 7
consultations. In the preamble to the 2015 final rule, the FWS and NMFS
identified the Corps' NWP program as an example of a framework action
at a national scale that can address ESA section 7 consultation
requirements at a later time as appropriate, as specific activities are
authorized, funded, or carried out (see 80 FR 26835). In their 2015
final rule, the FWS and NMFS 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).
The FWS's and NMFS's regulations at 50 CFR 402.14(a) require each
federal agency to review its actions at the earliest possible time to
determine whether a proposed action may affect listed species or
critical habitat. This requirement applies to framework actions,
including framework actions that occur at a national scale. If the
federal agency determines its proposed action may affect listed species
or critical habitat, formal consultation is required unless the FWS
and/or NMFS provide written concurrence that the proposed action is not
likely to adversely affect any listed species or critical habitat.
However, if the federal agency determines that its proposed action,
including any framework action, will have no effect on listed species
or critical habitat, section 7 consultation is not required. The ESA
section 7 consultation regulations at 50 CFR 402.14(a) state that the
Director of FWS or NMFS may request a federal agency to enter into
consultation if he or she identifies any action of that agency that may
affect listed species or critical habitat and for which there has been
no consultation. When such a request is made, the Director shall
forward to the federal agency a written explanation of the basis for
the request. Section 402.14(a) provides a mechanism whereby the NMFS or
FWS can provide their disagreement with a federal agency's ``no
effect'' determination for the purposes of ESA section 7 for a proposed
federal action, including a framework action.
In the April 5, 2024, issue of the Federal Register (89 FR 24268)
the FWS and NMFS published a final rule that amended portions of their
regulations for interagency cooperation under Section 7 of the ESA.
That final rule went into effect on May 6, 2024. With respect to making
effects determinations for proposed federal actions, such as
[[Page 26129]]
activities authorized by NWPs, the FWS and NMFS made two important
changes to 50 CFR part 402: (a) amending the definition of ``effects of
the action'', and (b) amending the definition of ``environmental
baseline.'' The FWS and NMFS also removed section 402.17 from their
regulations at 50 CFR part 402. When the Corps district receives a pre-
construction notification for a proposed NWP activity, it is
responsible for applying the definition of ``effect of the action'' to
the proposed NWP activity and to determine the consequences caused by
the proposed action and which activities are reasonably certain to
occur. The Corps district determines whether the proposed NWP activity
``may affect'' listed species or designated critical habitat and
initiates formal or informal section 7 consultation unless it
determines the proposed NWP activity will have ``no effect'' on listed
species or designated critical habitat. If ESA section 7 consultation
is required for a proposed NWP activity, then application of the
definition of ``environmental baseline'' can be an important element of
that consultation.
Applying the 2024 amendments to the FWS's and NMFS's ESA section 7
regulations to the review of PCNs, for a proposed NWP activity the
``effects of the action'' include all consequences to listed species or
critical habitat that are caused by the proposed NWP activity,
including the consequences of other activities that are caused by the
proposed NWP activity but that are not part of that proposed NWP
activity. A consequence is caused by a proposed NWP activity if it
would not occur but for the proposed NWP activity and it is reasonably
certain to occur.
As discussed in this proposed rule, 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 and informal ESA section 7 consultations for specific NWP
activities (see below), and many Corps districts have worked with the
FWS and NMFS to develop formal and informal regional programmatic
consultations. Focusing ESA section 7 compliance at the activity-
specific scale and regional programmatic scale is more efficient for
the permittees, the Corps, and the FWS and NMFS because it is at the
activity-specific and regional scales that informal consultation
written concurrences and biological opinions with incidental take
statements are completed for proposed NWP activities.
As stated in 50 CFR 402.14(i)(7), for a framework programmatic
action, an incidental take statement is not required at the
programmatic level, and any incidental take resulting from any action
subsequently authorized, funded, or carried out under the program will
be addressed in subsequent section 7 consultation, as appropriate. For
a proposed NWP activity that may affect listed species or designated
critical habitat a biological opinion with an incidental take statement
is needed for the NWP activity to go forward, unless the FWS or NMFS
issued a written concurrence that the proposed NWP activity is not
likely to adversely affect listed species or designated critical
habitat. It is through activity-specific section 7 consultations and
regional programmatic section 7 consultations that effective protection
of listed species and their designated critical habitat is achieved.
After applying the 2015 and 2024 amendments to 50 CFR part 402 to
the NWP rulemaking process, the Corps continues to believe that the
issuance or reissuance of the NWPs has ``no effect'' on listed species
or designated critical habitat, and that the ESA section 7 compliance
is most effectively achieved by applying the requirements of general
condition 18 and 33 CFR 330.4(f) to specific proposed NWP activities
that are identified after the NWPs are issued and go into effect.
District engineers will review PCNs for proposed NWP activities and if
they determine a particular proposed NWP activity ``may affect'' listed
species or designated critical habitat, they will initiate section 7
consultation with the FWS and/or NMFS depending on which listed species
or designated critical habitat may be affected. Compliance with the
requirements of ESA section 7 for proposed NWP activities can also be
achieved by applying appropriate formal or informal regional
programmatic ESA section 7 consultations that have been developed by
Corps districts with regional offices of the FWS and NMFS.
ESA section 7 requires each federal agency to ensure, through
consultation with the Services, that ``any action authorized, funded,
or carried out'' by that agency ``is not likely to jeopardize the
continued existence of listed species or adversely modify designated
critical habitat.'' (See 16 U.S.C. 1536(a)(2).) Accordingly, the
Services' section 7 regulations specify that an action agency must
ensure that the action ``it authorizes,'' including authorization by
permit, does not cause jeopardy or adverse modification. (See 50 CFR
402.01(a) and 402.02). Thus, in assessing application of ESA section 7
to NWPs issued or reissued by the Corps, the proper focus is on the
nature and extent of the specific activities ``authorized'' by the NWPs
and the timing of that authorization.
The issuance or reissuance of the NWPs by the Chief of Engineers
imposes express limitations on activities authorized by those NWPs.
These limitations are imposed by the NWP terms and conditions,
including the general conditions that apply to all NWPs regardless of
whether pre-construction notification is required. With respect to
listed species and critical habitat, general condition 18 expressly
prohibits any activity ``which `may affect' a listed species or
critical habitat, unless section 7 consultation addressing the effects
of the proposed activity has been completed.'' General condition 18
also states that if an activity ``might affect'' a listed species (or a
species proposed for listing) or 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.'' In addition, 33 CFR 330.4(f)(2)
imposes a PCN requirement for proposed NWP activities by non-federal
permittees where listed species or critical habitat might be affected
or are in the vicinity of the proposed NWP activity. Section
330.4(f)(2) also prohibits those permittees from beginning the NWP
activity until notified by the district engineer that the requirements
of the ESA have been satisfied and that the activity is authorized.
Permit applicants that are federal agencies should follow their own
requirements for complying with the ESA (see 33 CFR 330.4(f)(1)), 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).
Thus, because no NWP can or does authorize an activity that may
affect a listed species or critical habitat absent an activity-specific
ESA section 7 consultation or an applicable regional programmatic ESA
section 7 consultation, and because any activity that may affect a
listed species or critical habitat must undergo an activity-specific
consultation or be in compliance with a regional programmatic ESA
section 7 consultation before the district engineer can verify that the
activity is authorized by NWP, the issuance or reissuance of
[[Page 26130]]
NWPs has ``no effect'' on listed species or critical habitat.
Accordingly, the action being ``authorized'' by the Corps (i.e., the
issuance or re-issuance of the NWPs themselves) has no effect on listed
species or critical habitat.
To help ensure protection of listed species and critical habitat,
general condition 18 and 33 CFR 330.4(f) establish a more stringent
threshold than the threshold set forth in the Services' ESA section 7
regulations for initiation of section 7 consultation. Specifically,
while section 7 consultation must be initiated for any activity that
``may affect'' listed species or critical habitat, for non-federal
permittees general condition 18 require submission of a PCN to the
Corps if ``any listed species (or species proposed 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 be affected by the proposed
work or that utilize the designated critical habitat (or critical
habitat proposed for such designation) that might be affected by the
proposed work.'' (See paragraph (b)(7) of the ``Pre-Construction
Notification'' general condition.) Paragraph (f) of general condition
18 notes that information on the location of listed species and their
critical habitat can be obtained from the Services directly or from
their websites.
Paragraph (e) of general condition 18 makes it clear to project
proponents that an NWP does not authorize the ``take'' of an endangered
or threatened species. Paragraph (e) of general condition 18 also
states that a separate authorization (e.g., an ESA section 10 permit or
a biological opinion with an ``incidental take statement'') is required
to take a listed species. In addition, paragraph (a) of general
condition 18 states that no activity is authorized by NWP which is
likely to ``directly or indirectly jeopardize the continued existence
of a threatened or endangered species or a species proposed for such
designation'' or ``which will directly or indirectly destroy or
adversely modify the critical habitat of such species.'' Such
activities would require district engineers to exercise their
discretionary authority and subject the proposed activity to the
individual permit review process, because an activity that would
jeopardize the continued existence of a listed species, or a species
proposed for listing, or that would destroy or adversely modify the
critical habitat of such species would not result in no more than
minimal adverse environmental effects and thus cannot be authorized by
NWP.
The Corps' NWP regulations at 33 CFR 330.1(c) state that an
``activity is authorized under an NWP only if that activity and the
permittee satisfy all of the NWP's terms and conditions.'' Thus, if a
project proponent moves forward with an activity that ``might affect''
an ESA listed species without complying with the PCN requirement or
other requirements of general condition 18, the activity is not
authorized under section 404 of the Clean Water Act or section 10 of
the Rivers and Harbors Act of 1899. In this case, the project proponent
could be subject to enforcement action and penalties under the Clean
Water Act. 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.
For listed species under the jurisdiction of the FWS, information
on listed species that may be present in the vicinity of a proposed
activity is available through the Information Planning and Consultation
(IPaC) system,\3\ an on-line project planning tool developed and
maintained by the FWS.
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\3\ https://ecos.fws.gov/ipac/.
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During the process for developing regional conditions, Corps
districts coordinate or consult with FWS and/or NMFS regional or field
offices to identify regional conditions that can provide additional
assurance of compliance with general condition 18 and 33 CFR
330.4(f)(2). Such regional conditions can add PCN requirements to one
or more NWPs in areas inhabited by listed species (or species proposed
for listing) or where designated critical habitat (or critical habitat
proposed for such designation) occurs. Regional conditions can also be
used to establish time-of-year restrictions when no NWP activity can
take place to ensure that individuals of listed species are not
adversely affected by such activities. Corps districts will continue to
consider through regional consultations, local initiatives, or other
cooperative efforts additional information and measures to ensure
protection of listed species and critical habitat, the requirements
established by general condition 18 (which apply to all uses of all
NWPs), and other provisions of the Corps regulations ensure full
compliance with ESA section 7.Corps district offices meet with local
representatives of the FWS and NMFS to establish or modify existing
procedures, where necessary, to ensure that the Corps has the latest
information regarding the existence and location of any threatened or
endangered species or their critical habitat. Corps districts can also
establish, through local procedures or other means, additional
safeguards that ensure compliance with the ESA. Through ESA section 7
consultation, or through other coordination with the FWS and/or the
NMFS, as appropriate, the Corps establishes procedures to ensure that
NWP activities will not jeopardize any threatened and endangered
species or result in the destruction or adverse modification of
designated critical habitat. Such procedures may result in the
development of regional conditions added to the NWP by the division
engineer, or in activity-specific conditions to be added to an NWP
authorization by a district engineer.
Based on the fact that NWP issuance or reissuance has no effect on
listed species or critical habitat and any proposed NWP activity that
``may affect'' listed species or critical habitat will undergo an
activity-specific ESA section 7 consultation, there is no requirement
that the Corps undertake programmatic consultation for the NWP Program.
The national programmatic consultations conducted in the past for the
NWP Program were voluntary consultations. Regional programmatic
consultation can be conducted by Corps districts and regional or local
offices of the FWS and/or NMFS to provide further assurance against
potential adverse effects on listed species or critical habitat, and
ensure other benefits to listed species or critical habitat, such as
through the establishment of additional procedures, regional NWP
conditions, activity-specific NWP conditions, or other safeguards that
may be employed by Corps district offices based on further discussions
between the Corps and the FWS and NMFS.
The programmatic ESA section 7 consultations the Corps conducted
for the 2007 and 2012 NWPs were voluntary consultations. The voluntary
programmatic consultation conducted with the NMFS for the 2012 NWPs
resulted in a biological opinion issued on February 15, 2012, which was
replaced by a new biological opinion
[[Page 26131]]
issued on November 24, 2014. A new biological opinion was issued by
NMFS after the proposed action was modified and triggered re-initiation
of that programmatic consultation. The programmatic consultation on the
2012 NWPs with the FWS did not result in a biological opinion. For the
2017 or 2021 NWPs, Corps Headquarters did not request a national
programmatic consultation. For the 2021 NWPs, Corps Headquarters issued
a biological assessment concluding that the issuance or reissuance of
NWPs through the rulemaking process has no effect on listed species and
designated critical habitat. 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 2021 Nationwide Permits'') and the
Corps will be revising this biological assessment, especially the list
of active and pending regional programmatic ESA section 7 consultations
that can be used for NWP activities.
In the Corps Regulatory Program's automated information system
(ORM), the Corps collects data on all individual permit applications,
all NWP PCNs, all voluntary requests for NWP verifications where the
NWP or general conditions do not require PCNs, and all verifications of
activities authorized by regional general permits. For all written
authorizations issued by the Corps, the collected data include
authorized impacts and required compensatory mitigation, as well as
information on all consultations conducted under section 7 of the ESA.
Every year, the Corps evaluates approximately 25,000 NWP PCNs and
requests for NWP verifications for activities that do not require PCNs,
and provides written verifications for those activities when district
engineers determine those activities result in no more than minimal
adverse environmental effects. During the evaluation process, district
engineers assess potential impacts to listed species and critical
habitat and conduct section 7 consultations whenever they determine
proposed NWP activities ``may affect'' listed species or critical
habitat. District engineers will exercise discretionary authority and
require individual permits when proposed NWP activities will result in
more than minimal adverse environmental effects.
Each year, the Corps conducts thousands of ESA section 7
consultations with the FWS and NMFS for activities authorized by NWPs.
These section 7 consultations are tracked in ORM. In FY 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. During that time period, the Corps also used regional
programmatic consultations for 4,667 NWP PCNs to comply with ESA
section 7. Therefore, during that year more than 7,500 ESA section 7
consultation actions were conducted where either formal or informal
consultations were conducted for NWP PCNs or the proposed NWP
activities used existing regional programmatic ESA section 7
consultations (formal and informal) to comply with ESA section 7,
including those NWP activities that required PCNs under paragraph (c)
of general condition 18. For a linear project authorized by NWPs 12,
14, 57, or 58 where the district engineer determines that one or more
crossings of waters of the United States that require Corps
authorization ``may affect'' listed species or designated critical
habitat, the district engineer initiates a single section 7
consultation with the FWS and/or NMFS for all of those crossings that
she or he determines ``may affect'' listed species or designate
critical habitat. The number of section 7 consultations provided above
represents the number of NWP PCNs that required some form of ESA
section 7 consultation, not the number of single and complete projects
authorized by NWP that may be included in a single PCN. A single NWP
PCN may include more than one single and complete project, especially
if it is for a linear project such as a utility line or road with
multiple separate and distant crossings of jurisdictional waters and
wetlands from its point of origin to its terminal point.
During the process for reissuing the NWPs, Corps districts will
coordinate with regional and field offices of the FWS and NMFS to
discuss whether new or modified regional conditions should be imposed
on the NWPs to improve protection of listed species and designated
critical habitat and ensure that the NWPs only authorize activities
with no more than minimal individual and cumulative adverse
environmental effects. Regional conditions must comply with the Corps'
regulations at 33 CFR 325.4 for adding permit conditions to DA
authorizations. Division engineers decide whether suggested regional
conditions identified during this coordination are appropriate for the
NWPs. During this coordination, other tools, such as additional
regional programmatic consultations or standard local operating
procedures, might be developed to facilitate compliance with the ESA
while streamlining the process for authorizing activities under the
NWPs. Section 7 consultation on permit conditions, including regional
conditions, occurs only when a Corps district makes a ``may affect''
determination and initiates formal or informal section 7 consultation
with the FWS and/or NMFS, depending on the species that may be affected
by a proposed regional condition. Otherwise, the Corps district
coordinates the regional conditions with the FWS and/or NMFS. Regional
conditions, standard local operating procedures for endangered species
(i.e., SLOPES), and regional programmatic consultations are important
tools for protecting listed species and critical habitat and helping to
tailor the NWP program to address specific species, their habitats, and
the stressors that affect those species.
D. Compliance With the Essential Fish Habitat Provisions of the
Magnuson-Stevens Fishery Conservation and Management Act
The NWP Program's compliance with the essential fish habitat (EFH)
consultation requirements of the Magnuson-Stevens Fishery Conservation
and Management Act will be achieved through EFH consultations between
Corps districts and NMFS regional offices. This approach continues the
EFH Conservation Recommendations provided by NMFS Headquarters to Corps
Headquarters in 1999 for the NWP Program. Corps districts that have EFH
designated within their geographic areas of responsibility will
coordinate with NMFS regional offices, to the extent necessary, to
develop NWP regional conditions that conserve EFH, 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.
E. Compliance With Section 401 of the Clean Water Act
A water quality certification granted by a state, authorized tribe,
or EPA, or a waiver thereof, is required by Section 401 of the Clean
Water Act, for an activity authorized by NWP which may result in a
discharge from a point source into waters of the United States. Water
quality certifications may be granted
[[Page 26132]]
without conditions, granted with conditions, denied, or waived for
specific NWPs.
The NWPs are conditioned to ensure that adverse environmental
effects will be no more than minimal and address the types of
activities that would be routinely authorized if evaluated under the
individual permit process. The Corps recognizes that in some states or
tribal lands there will be a need to conduct individual state or tribal
review for some activities, to ensure compliance with applicable water
quality requirements. Each Corps district will initiate discussions
with their respective state(s), tribe(s), and EPA regional offices, as
appropriate, to discuss issues of concern and identify regional
approaches to address the scope of waters, activities, discharges, and
PCN requirements, as appropriate, to resolve any issue, as necessary.
Prior to the publication of this proposed rule in the Federal
Register, Corps districts sent letters to certifying authorities (i.e.,
states, authorized tribes, or EPA regions, as appropriate) to request
pre-filing meetings in accordance with 40 CFR 121.4. After the pre-
filing meeting request requirement is satisfied, or if the certifying
authority waives or shortens the requirement for a pre-filing meeting
request, the Corps districts will submit requests for water quality
certification for these NWPs. The certifying authorities will have six
months to grant (with or without conditions), deny, or waive WQC for
the proposed NWPs. Districts' WQC requests will comply with 40 CFR
121.5 (i.e., will include this Federal Register notice), and may also
include their proposed Corps regional conditions for the proposed NWPs.
After the six month reasonable period of time, Corps districts will
send notifications to the EPA consistent with 40 CFR 121.12 to notify
EPA of the proposed NWPs and the certifications or waivers issued by
the certifying authorities. Clean Water Act section 401(a)(2) provides
EPA with 30 days to determine whether a discharge from a project may
affect the water quality of a neighboring jurisdiction. 33 U.S.C.
1341(a)(2). The 401(a)(2) process is a separate action that occurs
after the certifying authority has granted or waived a certification
request. If the EPA determines that a discharge may affect the water
quality of a neighboring jurisdiction, EPA is required to notify the
neighboring jurisdiction. The statute provides notified neighboring
jurisdictions with 60 days to determine whether the discharge will
violate its water quality requirements, and if so, object to the
issuance of the license or permit, and request a public hearing from
the federal licensing or permitting agency. A federal agency may not
issue the license or permit until the section 401(a)(2) process
concludes.
If a certifying authority denies WQC for the issuance of an NWP,
then the discharges are not authorized by that NWP unless and until a
project proponent obtains WQC for the specific discharge from the
certifying authority, or a waiver of WQC occurs.
Please note that in some states Corps districts have issued state
programmatic general permits (SPGPs) or regional general permits
(RGPs), and within those states some or all of the NWPs may be
suspended or revoked by division engineers. Concurrent with today's
proposal, district engineers may be proposing suspension or revocation
of the NWPs in states where SPGPs or RGPs will be used in place of some
or all of the NWPs.
F. Section 307 of the Coastal Zone Management Act (CZMA)
Any state with a federally-approved CZMA program must concur with
the Corps' determination that activities authorized by NWPs which are
within, or will have reasonably foreseeable effects on any land or
water uses or natural resources of the state's coastal zone, are
consistent with the CZMA program to the maximum extent practicable.
Coastal Zone Management Act consistency concurrences may be issued
without conditions, issued with conditions, or denied for specific
NWPs.
The Corps believes that, in general, the activities authorized by
the NWPs will be consistent with state CZMA programs/enforceable
policies. The NWPs are conditioned to ensure that adverse environmental
effects will be no more than minimal and address the types of
activities that would be routinely authorized if evaluated under the
individual permit process. The Corps recognizes that in some states
there will be a need to conduct individual state review for some
activities, to ensure consistency with the state's CZMA program. Each
Corps district will initiate discussions with their respective state(s)
to discuss issues of concern and identify regional approaches to
address the scope of waters, activities, discharges, and PCN
requirements, as appropriate, to resolve these issues.
This Federal Register notice serves as the Corps' determination
that the activities authorized by these NWPs are, to the maximum extent
practicable, consistent with state CZMA programs. This determination is
contingent upon the addition of state CZMA conditions and/or regional
conditions, by the issuance by the state of an individual consistency
concurrence, or when a presumption of concurrence occurs when the state
does not act within 60 days after receiving a request for concurrence.
The state can request a time extension of up to 15 days. (See 15 CFR
930.41.)
The Corps' CZMA consistency determination only applies to NWP
authorizations for activities that are within, or affect, any land,
water uses or natural resources of a State's coastal zone. A state's
coastal zone management plan may identify geographic areas in federal
waters on the outer continental shelf, where activities that require
federal permits conducted in those areas require consistency
certification from the state because they affect any coastal use or
resource. In its coastal zone management plan, the state may include an
outer continental shelf plan. An outer continental shelf plan is a plan
for ``the exploration or development of, or production from, any area
which has been leased under the Outer Continental Shelf Lands Act'' and
regulations issued under that Act (see 15 CFR 930.73). Activities
requiring federal permits that are not identified in the state's outer
continental shelf plan are considered unlisted activities. If the state
wants to review an unlisted activity under the CZMA, then it must
notify the applicant and the federal permitting agency that it intends
to review the proposed activity. NWP authorizations for activities that
are not within or would not affect a state's coastal zone do not
require the Corps' CZMA consistency determinations and thus are not
contingent on a State's concurrence with the Corps' consistency
determinations.
If a state objects to the Corps' CZMA consistency determination for
an NWP, then the affected activities are not authorized by NWP within
that state until a project proponent obtains an individual CZMA
consistency concurrence, or sufficient time (i.e., six months) passes
after requesting a CZMA consistency concurrence for the applicant to
make a presumption of consistency, as provided in 33 CFR 330.4(d)(6).
However, when applicants request NWP verifications for activities that
require individual consistency concurrences, and the Corps determines
that those activities meet the terms and conditions of the NWP, in
accordance with 33 CFR 330.6(a)(3)(iii) the Corps will issue
provisional NWP verification letters. The provisional verification
letter will contain general and regional conditions as well as any
activity-specific conditions the Corps
[[Page 26133]]
determines are necessary for the NWP authorization. The Corps will
notify the applicant that he or she must obtain an activity-specific
CZMA consistency concurrence or a presumption of concurrence before he
or she is authorized to start work in waters of the United States. That
is, NWP authorization will be contingent upon obtaining the necessary
CZMA consistency concurrence from the state, or a presumption of
concurrence. Anyone wanting to perform such activities where pre-
construction notification to the Corps is not required has an
affirmative responsibility to present a CZMA consistency determination
to the appropriate state agency for concurrence. Upon concurrence with
such CZMA consistency determinations by the state, the activity would
be authorized by the NWP. This requirement is provided at 33 CFR
330.4(d).
G. Compliance With Section 106 of the National Historic Preservation
Act
The NWP regulations at 33 CFR 330.4(g) and the ``Historic
Properties'' general condition (general condition 20), ensure that all
activities authorized by NWPs comply with section 106 of the NHPA. The
``Historic Properties'' general condition requires non-federal
permittees to submit PCNs for any activity that might have the
potential to cause effects to any historic properties listed on,
determined to be eligible for listing on, or potentially eligible for
listing on the National Register of Historic Places, including
previously unidentified properties. The Corps then evaluates the PCN
and makes an effect determination for the proposed NWP activity to
determine whether there are further obligations under NHPA section 106.
The Corps established the ``might have the potential to cause effects''
criterion under its own regulatory authorities in paragraph (c) of the
``Historic Properties'' general condition 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 the
Corps district makes a ``no potential to cause effects'' determination
or completes NHPA section 106 consultation.
When evaluating a PCN, the Corps will either make a ``no potential
to cause effects'' determination or a ``no historic properties
affected,'' ``no adverse effect,'' or ``adverse effect'' determination.
If the Corps makes a ``no historic properties affected,'' ``no adverse
effect,'' or ``adverse effect'' determination, the district engineer
will notify the non-federal applicant and the activity is not
authorized by an NWP until NHPA section 106 consultation has been
completed. If the non-federal project proponent does not comply with
the ``Historic Properties'' general condition, and does not submit the
required PCN, then the activity is not authorized by an NWP. In such
situations, it is an unauthorized activity and the Corps district will
determine an appropriate course of action to respond to the
unauthorized activity.
The only activities that are immediately authorized by NWPs are
``no potential to cause effect'' activities under section 106 of the
NHPA, its implementing regulations at 36 CFR part 800, and the Corps'
``Revised Interim Guidance for Implementing Appendix C of 33 CFR part
325 with the Revised Advisory Council on Historic Preservation
Regulations at 36 CFR part 800,'' dated April 25, 2005, and amended on
January 31, 2007. Therefore, the issuance or reissuance of NWPs does
not require NHPA section 106 consultation because no activities that
might have the potential to cause effects to historic properties can be
authorized by an NWP without first completing activity-specific NHPA
section 106 consultations, as required by the ``Historic Properties''
general condition. Programmatic agreements (see 36 CFR 800.14(b)) may
also be used to satisfy the requirements of the NWPs in the ``Historic
Properties'' general condition if a proposed NWP activity is covered by
that programmatic agreement.
NHPA section 106 requires a federal agency that has authority to
license or permit any undertaking, to take into account the effect of
the undertaking on any district, site, building, structure, or object
that is included in or eligible for inclusion in the National Register,
prior to issuing a license or permit. The head of any such Federal
agency shall afford the Advisory Council on Historic Preservation a
reasonable opportunity to comment on the undertaking. Thus, in
assessing application of NHPA section 106 to NWPs issued or reissued by
the Corps, the proper focus is on the nature and extent of the specific
activities ``authorized'' by the NWPs and the timing of that
authorization.
The issuance or reissuance of the NWPs by the Chief of Engineers
imposes express limitations on activities authorized by those NWPs.
These limitations are imposed by the NWP terms and conditions,
including the general conditions that apply to all NWPs regardless of
whether pre-construction notification is required. With respect to
historic properties, the ``Historic Properties'' general condition
expressly prohibits any activity that ``may have the potential to cause
effects to properties listed, or eligible for listing, in the National
Register of Historic Places,'' until the requirements of NHPA section
106 have been satisfied. The ``Historic Properties'' general condition
also states that if an activity ``might have the potential to cause
effects'' to any historic properties, a non-federal applicant must
submit a PCN and ``shall not begin the activity until notified by the
district engineer either that the activity has no potential to cause
effects to historic properties or that consultation under section 106
of the NHPA has been completed.'' Permit applicants that are federal
agencies should follow their own requirements for complying with
section 106 of the NHPA (see 33 CFR 330.4(g)(1) and paragraph (b) of
the ``Historic Properties'' general condition).
Thus, because no NWP can or does authorize an activity that may
have the potential to cause effects to historic properties, and because
any activity that may have the potential to cause effects to historic
properties must undergo an activity-specific NHPA section 106
consultation (unless that activity is covered under a programmatic
agreement) before the district engineer can verify that the activity is
authorized by an NWP, the issuance or reissuance of NWPs has ``no
potential to cause effects'' on historic properties. Accordingly, the
action being ``authorized'' by the Corps, which is the issuance or re-
issuance of the NWPs by Corps Headquarters, has no potential to cause
effects on historic properties.
To help ensure protection of historic properties, the ``Historic
Properties'' general condition establishes what the Corps believes to
be 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
[[Page 26134]]
properties were present,'' for non-federal permittees the ``Historic
Properties'' general condition 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.'' The ``Historic Properties'' general condition also
prohibits the proponent from conducting the NWP activity ``until
notified by the district engineer either that the activity has no
potential to cause effects to historic properties or that consultation
under section 106 of the NHPA has been completed.'' (See paragraph (d)
of the ``Historic Properties'' general condition.) The PCN must ``state
which historic property might have the potential to be affected by the
proposed activity or include a vicinity map indicating the location of
the historic property.'' (See paragraph (b)(8) of the ``Pre-
Construction Notification'' general condition.)
In emergency situations, consistent with 33 CFR 325.2(e)(4) and 33
CFR 325 Appendix C, paragraph 14, 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 the ``Historic Properties'' general condition and 33 CFR
330.4(g)(2) for NWP activities undertaken by non-federal permittees.
Such regional conditions can add PCN requirements to one or more NWPs
where historic properties occur. Corps districts will continue to
consider through regional consultations, local initiatives, or other
cooperative efforts and additional information and measures to ensure
protection of historic properties, the requirements established by the
``Historic Properties'' general condition (which apply to all uses of
all NWPs), and other provisions of the Corps regulations and guidance
ensure full compliance with NHPA section 106.
Based on the fact that NWP issuance or reissuance has no potential
to cause effects on historic properties and that any activity that
``has the potential to cause effects'' to historic properties will
undergo activity-specific NHPA section 106 consultation, there is no
requirement that the Corps undertake programmatic consultation for the
NWP program. Regional programmatic agreements can be established by
Corps districts and State Historic Preservation Officers and/or Tribal
Historic Preservation Officers to comply with the requirements of
section 106 of the NHPA.
IV. Economic Impact
The proposed NWPs are expected to increase the number of activities
eligible for NWP authorization, and reduce the number of activities
that require individual permits. The Corps estimates that the proposed
NWPs will authorize an additional 123 individual activities each year.
Subsequently, 123 fewer activities each year would require individual
permits. By authorizing more activities by NWP, this proposal will
reduce burden for the regulated public primarily in the form of
compliance costs. The proposed changes would increase the number of
categories of activities authorized by NWP, and subsequently reduce the
number of activities that require individual permits. By increasing the
number of activities that can be authorized by NWPs, the proposed
changes would decrease compliance costs for permit applicants since, as
discussed below, the compliance costs for obtaining NWP authorization
are less than the compliance costs for obtaining individual permits. In
addition, the NWPs provide incentives to project proponents to minimize
impacts to jurisdictional waters and wetlands in exchange for receiving
the required Department of the Army authorization in less time compared
to the amount of time required to obtain individual permits. In fiscal
year 2024, the average time to receive an NWP verification was 55 days
from the date the Corps district receives 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 draft regulatory
impact analysis for this proposed rule, which is available in the
www.regulations.gov docket (docket number COE-2025-0002).
As discussed in the Regulatory Impact Analysis for this proposed
rule, the Corps estimates that a permit applicant's compliance cost for
obtaining NWP authorization in 2024$ (2024 dollars) ranges from $5,289
to $17,631 (Institute for Water Resources (2001),\4\ where the 2001
compliance cost estimates were originally made using 1999$, which the
Corps adjusted to 2024$ to account for inflation using the GDP deflator
approach). 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 the proposed NWPs will increase the number of
activities authorized by NWP each year, the Corps estimates that the
proposal, when compared with the 2021 NWPs, will decrease compliance
costs for the regulated public by approximately $3.5 million per year.
The Corps is soliciting comment on the assumptions and methodology used
to calculate the compliance costs and burden in general associated with
the NWP.
---------------------------------------------------------------------------
\4\ Institute for Water Resources (IWR). 2001. Cost analysis for
the 2000 issuance and modification of nationwide permits. Institute
for Water Resources (Alexandria, VA). 29 pp. plus appendices.
------------------------------------------------------------------------
Nationwide permit(s) Proposed changes Anticipated impacts
------------------------------------------------------------------------
NWP 12............. Revise 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. Add
Note recommending
permittee contact
USCG about project.
[[Page 26135]]
NWP 13............. Add new paragraph May increase number
clarifying that of activities
this NWP authorizes authorized by NWP;
nature-based decrease number of
solutions to 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. Add a stabilization
new Note to activities
reference Corps incorporating
regulations about nature-based
selecting bank solutions.)
stabilization
approaches, and
examples of the
factors to be
considered.
NWP 15............. Add 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 24............. Remove Florida from No change in number
list of states that of NWP
have assumed the authorizations.
Clean Water Act
section 404 permit
program.
NWP 27............. Change title of NWP. Increase number of
Revise ecological activities
reference authorized by NWP;
requirement to decrease number of
include historic activities
ecosystems, requiring
cultural individual permits.
ecosystems, and Decrease number of
indigenous and PCNs.
local ecological
knowledge. Remove
list of examples.
Require reports for
all activities and
modify report
requirements.
Remove PCN
thresholds. Exclude
dam removal
activities. Add new
Note to address
delineation
requirement when
NWP 27 activities
require PCNs
because of general
conditions or
regional conditions
imposed by division
engineers.
NWP 43............. Replace ``green No change in number
infrastructure'' of NWP
and ``low impact authorizations.
development
integrated
management
features'' with
``nature-based
solutions'' and
provide additional
examples of nature-
based solutions
related to
stormwater
management.
NWP 48............. Exclude marine and No change in number
estuarine waters of NWP
within Washington authorizations
State. Revise Note because commercial
recommending shellfish
permittee contact mariculture
USCG about project. activities in
Add 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............. Revise 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. Add
Note recommending
permittee contact
USCG about project.
NWP 54............. Add gravel and No change in number
cobble to types of of NWP
substrate used for authorizations
living shorelines. because using
Propose to clarify cobble and gravel
that small pocket for living
beaches can be shorelines was not
authorized. prohibited and
small portions of a
living shoreline
could be without
living components.
NWP 55............. Revise Note No change in number
recommending of NWP
permittee contact authorizations.
USCG about project.
Revise Add Note
recommending
permittee provide
information to
National Oceanic
and Atmospheric
Administration
(NOAA), National
Ocean Service (NOS)
for charting.
NWP 57............. Revise 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. Add
Note recommending
permittee contact
USCG about project.
NWP 58............. Revise 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. Add
Note recommending
permittee contact
USCG about project.
NWP A.............. Issue new NWP to Increase number of
authorize activities
activities to authorized by NWP;
improve passage of decrease number of
fish and other activities
aquatic organisms. requiring
individual permits.
General condition Add ``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 Add 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 Remove the reference No change in number
18, endangered species. to 50 CFR 402.17 of NWP
because that authorizations.
section was removed
by a final rule
issued by the
Services in 2024.
General condition Add ``into waters of No change in number
25, water quality. the United States'' of NWP
after ``discharge'' authorizations.
to make it clear
that the discharge
must be into waters
of the United
States.
[[Page 26136]]
General condition Modify general No change in number
28, use of multiple NWPs. condition to of NWP
clarify application authorizations.
to NWPs with
different numeric
limits.
General condition Modify 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 proposed rule,
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 proposed NWPs would
slightly increase the total paperwork burden associated with this
program because the Corps estimates that under this proposal 44 more
PCNs would be required each year. This increase is primarily due to the
proposed modification to NWP 13 to incorporate nature-based solutions
into bank stabilization activities and the proposed issuance of NWP A
to authorize activities to improve the passage of fish and other
aquatic organisms. Both of these proposed changes are expected to
result in a reduction in the number of activities requiring individual
permits. The paperwork burden associated with the proposed NWPs is
expected to increase by approximately 484 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 proposed 2026 NWPs.
----------------------------------------------------------------------------------------------------------------
Estimated
Estimated changes in
Number of NWP Estimated changes in number of
Number of NWP activities not changes in NWP number of standard
PCNs per year requiring PCNs PCNs per year authorized NWP individual
per year activities permits per
year
----------------------------------------------------------------------------------------------------------------
2021 NWPs....................... 21,563 31,690 .............. .............. ..............
Proposed 2026 NWPs.............. 21,657 31,719 +44 +123 -123
----------------------------------------------------------------------------------------------------------------
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid Office of Management and Budget (OMB) control number.
For the Corps Regulatory Program under section 10 of the Rivers and
Harbors Act of 1899, Section 404 of the Clean Water Act, and section
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the
current OMB approval number for information collection requirements is
maintained by the Corps of Engineers (OMB approval number 0710-0003).
Executive Order 12866
This action is a significant regulatory action under Executive
Order 12866 (58 FR 51735, October 4, 1993) that was submitted to the
Office of Management and Budget (OMB) for review.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' The proposed issuance and modification of NWPs does not
have federalism implications. The Corps does not believe that the
proposed NWPs will have substantial direct effects on the States, on
the relationship between the federal government and the States, or on
the distribution of power and responsibilities among the various levels
of government. The proposed NWPs will not impose any additional
substantive obligations on state or local governments. Therefore,
Executive Order 13132 does not apply to this proposal.
Regulatory Flexibility Act, as Amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of the proposed issuance and
modification of NWPs on small entities, a small entity is defined as:
(1) a small business based on Small Business Administration size
standards; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district, or special district with a
population of less than 50,000; or (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.
The statutes under which the Corps issues, reissues, or modifies
nationwide permits are Section 404(e) of the Clean Water Act (33 U.S.C.
1344(e)) and section 10 of the Rivers and Harbors Act of 1899 (33
U.S.C. 403). Under section 404, Department of the Army (DA) permits are
required for discharges of dredged or fill material into waters of the
United States. Under section 10, DA permits are required for any
structures or other work that affect the course, location, or condition
of navigable waters of the United States. Small entities proposing to
discharge dredged or fill material into waters of the United States
and/or install structures or conduct work in navigable waters of the
[[Page 26137]]
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 Clean Water Act
states that general permits, including NWPs, can be issued for no more
than five years. If the current NWPs are not modified or reissued, they
will expire on March 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 Clean Water Act and section 10 of the Rivers and Harbors Act of
1899 is a deregulatory action 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 proposed NWPs are expected to
result in decreases in the costs of complying with the permit
requirements of sections 10 and 404. For this proposed rule, the Corps
has prepared a draft Regulatory Impact Analysis in accordance with OMB
Circular A-4 (2003). The draft 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''). The
Corps welcomes public comment on this draft Regulatory Impact Analysis.
In the draft Regulatory Impact Analysis, the Corps estimates that under
the proposed 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 proposed 2026
NWPs represent the cost savings achieved by the proposal 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 Clean Water Act is
that general permits, including nationwide permits, authorize only
those activities that result in no more than minimal adverse
environmental effects, individually and cumulatively. The terms and
conditions of the NWPs, such as acreage limits and mitigation measures,
are imposed to ensure that the NWPs authorize only those activities
that result in no more than minimal adverse effects on the aquatic
environment and other public interest review factors.
After considering the economic impacts of the proposed nationwide
permits on small entities, I certify that this action will not have a
significant impact on a substantial number of small entities. Small
entities may obtain required DA authorizations through the NWPs, in
cases where there are applicable NWPs authorizing those activities and
the proposed work will result in only minimal adverse effects on the
aquatic environment and other public interest review factors. The terms
and conditions of the NWPs proposed to be modified 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 we
are proposing some modifications to the NWPs to authorize additional
activities. Because those activities required authorization through
other forms of DA authorization (e.g., individual permits or regional
general permits) the Corps expects a concurrent decrease in the numbers
of individual permit authorizations required for these activities.
The Corps is interested in the potential impacts of the proposed
NWPs on small entities and welcome comments on issues related to such
impacts.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA,
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
[[Page 26138]]
informing, educating, and advising small governments on compliance with
the regulatory requirements.
The Corps has determined that the proposed NWPs do not contain a
federal mandate that may result in expenditures of $100 million or more
for state, local, and tribal governments, in the aggregate, or the
private sector in any one year. The proposed NWPs are generally
consistent with current agency practice, do not impose new substantive
requirements and therefore do not contain a federal mandate that may
result in expenditures of $100 million or more for state, local, and
tribal governments, in the aggregate, or the private sector in any one
year. Therefore, this proposal is not subject to the requirements of
sections 202 and 205 of the UMRA. For the same reasons, the Corps has
determined that the proposed NWPs contain no regulatory requirements
that might significantly or uniquely affect small governments.
Therefore, the proposed 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 proposed rule on children, and explain
why the regulation is preferable to other potentially effective and
reasonably feasible alternatives.
The proposed NWPs are not subject to this Executive Order because
they are not economically significant as defined in Executive Order
12866. In addition, the proposed NWPs do not concern an environmental
health or safety risk that 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 proposal to issue NWPs does not have tribal implications. It is
generally consistent with current agency practice and will not have
substantial direct effects on tribal governments, on the relationship
between the federal government and the tribes, or on the distribution
of power and responsibilities between the federal government and
tribes. Therefore, Executive Order 13175 does not apply to this
proposal. However, in the spirit of Executive Order 13175, we
specifically request comment from tribal officials on the proposed
rule. Each Corps district will be conducting government-to-government
consultation with tribes, to identify regional conditions or other
local NWP modifications that may be necessary to protect aquatic
resources of interest to tribes, as part of the Corps' responsibility
to protect trust resources.
Environmental Documentation
A draft decision document has been prepared for each proposed NWP.
Each draft decision document includes a draft environmental assessment
and public interest review determination. If an NWP authorizes
discharges of dredged or fill material into waters of the United
States, the draft decision document includes a 404(b)(1) Guidelines
analysis. These draft decision documents are available at:
www.regulations.gov (docket ID number COE-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.
Executive Order 13211
The proposed reissuance and modifications of the NWPs are not a
``significant energy action'' as defined in Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
VI. References
A complete list of all references cited in this document is
available on the internet at http://www.regulations.gov 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 proposing to reissue 56 existing NWPs and issue 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.
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
[[Page 26139]]
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
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
[[Page 26140]]
dewatering of construction sites. Temporary fills must consist of
materials, and be placed in a manner, that will not be eroded by
expected high flows. After conducting the maintenance activity,
temporary fills must be removed in their entirety and the affected
areas returned to pre-construction elevations. The areas affected by
temporary fills must be revegetated, as appropriate.
(d) This NWP does not authorize maintenance dredging for the
primary purpose of navigation. This NWP does not authorize beach
restoration. This NWP does not authorize new stream channelization or
stream relocation projects.
Notification: For activities authorized by paragraph (b) of this
NWP, the permittee must submit a pre-construction notification to the
district engineer prior to commencing the activity (see general
condition 32). The pre-construction notification must include
information regarding the original design capacities and configurations
of the outfalls, intakes, small impoundments, and canals. (Authorities:
Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the
Clean Water Act (Sections 10 and 404))
Note: This NWP authorizes the repair, rehabilitation, or
replacement of any previously authorized structure or fill that does
not qualify for the Clean Water Act Section 404(f) exemption for
maintenance.
4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. Fish and wildlife harvesting devices and
activities such as pound nets, crab traps, crab dredging, eel pots,
lobster traps, duck blinds, and clam and oyster digging, fish
aggregating devices, and small fish attraction devices such as open
water fish concentrators (sea kites, etc.). This NWP does not authorize
artificial reefs or impoundments and semi-impoundments of waters of the
United States for the culture or holding of motile species such as
lobster, or the use of covered oyster trays or clam racks.
(Authorities: Sections 10 and 404)
5. Scientific Measurement Devices. Devices, whose purpose is to
measure and record scientific data, such as staff gages, tide and
current gages, meteorological stations, water recording and biological
observation devices, water quality testing and improvement devices, and
similar structures. Small weirs and flumes constructed primarily to
record water quantity and velocity are also authorized provided the
discharge of dredged or fill material is limited to 25 cubic yards.
Upon completion of the use of the device to measure and record
scientific data, the measuring device and any other structures or fills
associated with that device (e.g., foundations, anchors, buoys, lines,
etc.) must be removed to the maximum extent practicable and the site
restored to pre-construction elevations. (Authorities: Sections 10 and
404)
6. Survey Activities. Survey activities, such as core sampling,
seismic exploratory operations, plugging of seismic shot holes and
other exploratory-type bore holes, exploratory trenching, soil surveys,
sampling, sample plots or transects for wetland delineations, and
historic resources surveys. For the purposes of this NWP, the term
``exploratory trenching'' means mechanical land clearing of the upper
soil profile to expose bedrock or substrate, for the purpose of mapping
or sampling the exposed material. The area in which the exploratory
trench is dug must be restored to its pre-construction elevation upon
completion of the work and must not drain a water of the United States.
In wetlands, the top 6 to 12 inches of the trench should normally be
backfilled with topsoil from the trench. This NWP authorizes the
construction of temporary pads, provided the discharge of dredged or
fill material does not exceed \1/10\-acre in waters of the U.S.
Discharges of dredged or fill material and structures associated with
the recovery of historic resources are not authorized by this NWP.
Drilling and the discharge of excavated material from test wells for
oil and gas exploration are not authorized by this NWP; the plugging of
such wells is authorized. Fill placed for roads and other similar
activities is not authorized by this NWP. The NWP does not authorize
any permanent structures. The discharge of drilling mud and cuttings
may require a permit under Section 402 of the Clean Water Act.
(Authorities: Sections 10 and 404)
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
[[Page 26141]]
or fill material into waters of the United States and structures or
work in navigable waters for crossings of those waters associated with
the construction, maintenance, or repair of oil and natural gas
pipelines. There must be no change in pre-construction contours of
waters of the United States. An ``oil or natural gas pipeline'' is
defined as any pipe or pipeline for the transportation of any form of
oil or natural gas, including products derived from oil or natural gas,
such as gasoline, jet fuel, diesel fuel, heating oil, petrochemical
feedstocks, waxes, lubricating oils, and asphalt.
Material resulting from trench excavation may be temporarily
sidecast into waters of the United States for no more than three
months, provided the material is not placed in such a manner that it is
dispersed by currents or other forces. The district engineer may extend
the period of temporary side casting for no more than a total of 180
days, where appropriate. In wetlands, the top 6 to 12 inches of the
trench should normally be backfilled with topsoil from the trench. The
trench cannot be constructed or backfilled in such a manner as to drain
waters of the United States (e.g., backfilling with extensive gravel
layers, creating a French drain effect). Any exposed slopes and stream
banks must be stabilized immediately upon completion of the utility
line crossing of each waterbody.
Oil or natural gas pipeline substations: This NWP authorizes the
construction, maintenance, or expansion of substation facilities (e.g.,
oil or natural gas or gaseous fuel custody transfer stations, boosting
stations, compression stations, metering stations, pressure regulating
stations) associated with an oil or natural gas pipeline in non-tidal
waters of the United States, provided the activity, in combination with
all other activities included in one single and complete project, does
not result in the loss of greater than \1/2\-acre of waters of the
United States. This NWP does not authorize discharges of dredged or
fill material into non-tidal wetlands adjacent to tidal waters of the
United States to construct, maintain, or expand substation facilities.
Foundations for above-ground oil or natural gas pipelines: This NWP
authorizes the construction or maintenance of foundations for above-
ground oil or natural gas pipelines in all waters of the United States,
provided the foundations are the minimum size necessary.
Access roads: This NWP authorizes the construction of access roads
for the construction and maintenance of oil or natural gas pipelines,
in non-tidal waters of the United States, provided the activity, in
combination with all other activities included in one single and
complete project, does not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters for access roads. Access roads must be the minimum
width necessary (see Note 2, below). Access roads must be constructed
so that the length of the road minimizes any adverse effects on waters
of the United States and must be as near as possible to pre-
construction contours and elevations (e.g., at grade corduroy roads or
geotextile/gravel roads). Access roads constructed above pre-
construction contours and elevations in waters of the United States
must be properly bridged or culverted to maintain surface flows.
This NWP may authorize oil or natural gas pipelines in or affecting
navigable waters of the United States even if there is no associated
discharge of dredged or fill material (see 33 CFR part 322). Oil or
natural gas pipelines routed in, over, or under section 10 waters
without a discharge of dredged or fill material may require a section
10 permit.
This NWP authorizes, to the extent that Department of the Army
authorization is required, temporary structures, fills, and work
necessary for the remediation of inadvertent returns of drilling fluids
to waters of the United States through sub-soil fissures or fractures
that might occur during horizontal directional drilling activities
conducted for the purpose of installing or replacing oil or natural gas
pipelines. These remediation activities must be done as soon as
practicable, to restore the affected waterbody. District engineers may
add special conditions to this NWP to require a remediation plan for
addressing inadvertent returns of drilling fluids to waters of the
United States during horizontal directional drilling activities
conducted for the purpose of installing or replacing oil or natural gas
pipelines.
This NWP also authorizes temporary structures, fills, and work,
including the use of temporary mats, necessary to conduct the oil or
natural gas pipeline activity. Appropriate measures must be taken to
maintain normal downstream flows and minimize flooding to the maximum
extent practicable, when temporary structures, work, and discharges of
dredged or fill material, including cofferdams, are necessary for
construction activities, access fills, or dewatering of construction
sites. Temporary fills must consist of materials, and be placed in a
manner, that will not be eroded by expected high flows. After
construction, temporary fills must be removed in their entirety and the
affected areas returned to pre-construction elevations. The areas
affected by temporary fills must be revegetated, as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) a section 10 permit is required; (2) the discharge will result
in the loss of greater than \1/10\-acre of waters of the United States;
or (3) the proposed oil or natural gas pipeline activity is associated
with an overall project that is greater than 250 miles in length and
the project purpose is to install new pipeline (vs. conduct repair or
maintenance activities) along the majority of the distance of the
overall project length. If the proposed oil or gas pipeline is greater
than 250 miles in length, the pre-construction 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
[[Page 26142]]
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 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.
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; 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.
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
[[Page 26143]]
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 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
[[Page 26144]]
degradation through siltation of coral reefs, sites that support
submerged aquatic vegetation (including sites where submerged aquatic
vegetation is documented to exist but may not be present in a given
year), anadromous fish spawning areas, or wetlands, or the connection
of canals or other artificial waterways to navigable waters of the
United States (see 33 CFR 322.5(g)). All dredged material must be
deposited and retained in an area that has no waters of the United
States unless otherwise specifically approved by the district engineer
under separate authorization. (Authorities: Sections 10 and 404)
20. Response Operations for Oil or Hazardous Substances. Activities
conducted in response to a discharge or release of oil or hazardous
substances that are subject to the National Oil and Hazardous
Substances Pollution Contingency Plan (40 CFR part 300) including
containment, cleanup, and mitigation efforts, provided that the
activities are done under either: (1) the Spill Control and
Countermeasure Plan required by 40 CFR 112.3; (2) the direction or
oversight of the federal on-scene coordinator designated by 40 CFR part
300; or (3) any approved existing state, regional or local contingency
plan provided that the Regional Response Team (if one exists in the
area) concurs with the proposed response efforts. This NWP also
authorizes activities required for the cleanup of oil releases in
waters of the United States from electrical equipment that are governed
by EPA's polychlorinated biphenyl spill response regulations at 40 CFR
part 761. This NWP also authorizes the use of temporary structures and
fills in waters of the U.S. for spill response training exercises.
(Authorities: Sections 10 and 404)
21. Surface Coal Mining Activities. Discharges of dredged or fill
material into waters of the United States associated with surface coal
mining and reclamation operations, provided the following criteria are
met:
(a) The activities are already authorized, or are currently being
processed by states with approved programs under Title V of the Surface
Mining Control and Reclamation Act of 1977 or 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
Regulatory Guidance Letters and posted on this same website.
24. Indian Tribe or State Administered Section 404 Programs. Any
activity permitted by a state or Indian Tribe administering its own
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899.
(Authority: Section 10)
Note 1: As of the date of the promulgation of this NWP, only New
Jersey and Michigan administer their own 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
[[Page 26145]]
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.
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.
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) A description of the techniques or mechanisms that are proposed
to be used to increase aquatic ecosystem functions and services on the
project site, and if applicable;
(6) 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
[[Page 26146]]
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 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
[[Page 26147]]
considered abandoned if the prospective permittee is in the process of
obtaining other authorizations or approvals required for maintenance
activities and is experiencing delays in obtaining those authorizations
or approvals.
Mitigation: The district engineer will determine any required
mitigation one-time only for impacts associated with maintenance work
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse
environmental effects are no more than minimal, both individually and
cumulatively. Such mitigation will only be required once for any
specific reach of a flood control project. However, if one-time
mitigation is required for impacts associated with maintenance
activities, the district engineer will not delay needed maintenance,
provided the district engineer and the permittee establish a schedule
for identification, approval, development, construction and completion
of any such required mitigation. Once the one-time mitigation described
above has been completed, or a determination made that mitigation is
not required, no further mitigation will be required for maintenance
activities within the maintenance baseline (see Note, below). In
determining appropriate mitigation, the district engineer will give
special consideration to natural water courses that have been included
in the maintenance baseline and require mitigation and/or best
management practices as appropriate.
Emergency Situations: In emergency situations, this NWP may be used
to authorize maintenance activities in flood control facilities for
which no maintenance baseline has been approved. Emergency situations
are those which would result in an unacceptable hazard to life, a
significant loss of property, or an immediate, unforeseen, and
significant economic hardship if action is not taken before a
maintenance baseline can be approved. In such situations, the
determination of mitigation requirements, if any, may be deferred until
the emergency has been resolved. Once the emergency has ended, a
maintenance baseline must be established expeditiously, and mitigation,
including mitigation for maintenance conducted during the emergency,
must be required as appropriate.
Notification: The permittee must submit a pre-construction
notification to the district engineer before any maintenance work is
conducted (see general condition 32). The pre-construction notification
may be for activity-specific maintenance or for maintenance of the
entire flood control facility by submitting a five-year (or less)
maintenance plan. The pre-construction notification must include a
description of the maintenance baseline and the disposal site for
dredged or excavated material. (Authorities: Sections 10 and 404)
Note: If the maintenance baseline was approved by the district
engineer under a prior version of NWP 31, and the district engineer
imposed the one-time compensatory mitigation requirement on
maintenance for a specific reach of a flood control project
authorized by that prior version of NWP 31, during the period this
version of NWP 31 is in effect, 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
[[Page 26148]]
located in navigable waters of the United States. (See 33 CFR part
322.)
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if the activity is conducted in navigable waters of the United States
(i.e., section 10 waters) (see general condition 32). The pre-
construction notification must include a restoration plan showing how
all temporary fills and structures will be removed and the area
restored to pre-project conditions. (Authorities: Sections 10 and 404)
34. Cranberry Production Activities. Discharges of dredged or fill
material for dikes, berms, pumps, water control structures or leveling
of cranberry beds associated with expansion, enhancement, or
modification activities at existing cranberry production operations.
The cumulative total acreage of disturbance per cranberry production
operation, including but not limited to, filling, flooding, ditching,
or clearing, must not exceed 10 acres of waters of the United States,
including wetlands. The activity must not result in a net loss of
wetland acreage. This NWP does not authorize any discharge of dredged
or fill material related to other cranberry production activities such
as warehouses, processing facilities, or parking areas. For the
purposes of this NWP, the cumulative total of 10 acres will be measured
over the period that this NWP is valid.
Notification: The permittee must submit a pre-construction
notification to the district engineer once during the period that this
NWP is valid, and the NWP will then authorize discharges of dredge or
fill material at an existing operation for the permit term, provided
the 10-acre limit is not exceeded. (See general condition 32.)
(Authority: Section 404)
35. Maintenance Dredging of Existing Basins. The removal of
accumulated sediment for maintenance of existing marina basins, access
channels to marinas or boat slips, and boat slips to previously
authorized depths or controlling depths for ingress/egress, whichever
is less. All dredged material must be deposited and retained in an area
that has no waters of the United States unless otherwise specifically
approved by the district engineer under separate authorization. Proper
sediment controls must be used for the disposal site. (Authority:
Section 10)
36. Boat Ramps. Activities required for the construction, repair,
or replacement of boat ramps, provided the activity meets all of the
following criteria:
(a) The discharge of dredged or fill material into waters of the
United States does not exceed 50 cubic yards of concrete, rock, crushed
stone or gravel into forms, or in the form of pre-cast concrete planks
or slabs, unless the district engineer waives the 50 cubic yard limit
by making a written determination concluding that the discharge of
dredged or fill material will result in no more than minimal adverse
environmental effects;
(b) The boat ramp does not exceed 20 feet in width, unless the
district engineer waives this criterion by making a written
determination concluding that the discharge of dredged or fill material
will result in no more than minimal adverse environmental effects;
(c) The base material is crushed stone, gravel or other suitable
material;
(d) The excavation is limited to the area necessary for site
preparation and all excavated material is removed to an area that has
no waters of the United States; and,
(e) No material is placed in special aquatic sites, including
wetlands.
The use of unsuitable material that is structurally unstable is not
authorized. If dredging in navigable waters of the United States is
necessary to provide access to the boat ramp, the dredging must be
authorized by another NWP, a regional general permit, or an individual
permit.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity
if: (1) The discharge of dredged or fill material into waters of the
United States exceeds 50 cubic yards, or (2) the boat ramp exceeds 20
feet in width. (See general condition 32.) (Authorities: Sections 10
and 404)
37. Emergency Watershed Protection and Rehabilitation. Work done by
or funded by:
(a) The Natural Resources Conservation Service for a situation
requiring immediate action under its emergency Watershed Protection
Program (7 CFR part 624);
(b) The U.S. Forest Service under its Burned-Area Emergency
Rehabilitation Handbook (FSH 2509.13);
(c) The Department of the Interior for wildland fire management
burned area emergency stabilization and rehabilitation (DOI Manual part
620, Ch. 3);
(d) The Office of Surface Mining, or states with approved programs,
for abandoned mine land reclamation activities under Title IV of the
Surface Mining Control and Reclamation Act (30 CFR subchapter R), where
the activity does not involve coal extraction; or
(e) The Farm Service Agency under its Emergency Conservation
Program (7 CFR part 701).
In general, the permittee should wait until the district engineer
issues an NWP verification or 45 calendar days have passed before
proceeding with the watershed protection and rehabilitation activity.
However, in cases where there is an unacceptable hazard to life or a
significant loss of property or economic hardship will occur, the
emergency watershed protection and rehabilitation activity may proceed
immediately and the district engineer will consider the information in
the pre-construction notification and any comments received as a result
of agency coordination to decide whether the NWP 37 authorization
should be modified, suspended, or revoked in accordance with the
procedures at 33 CFR 330.5.
Notification: Except in cases where there is an unacceptable hazard
to life or a significant loss of property or economic hardship will
occur, the permittee must submit a pre-construction notification to the
district engineer prior to commencing the activity (see general
condition 32). (Authorities: Sections 10 and 404)
38. Cleanup of Hazardous and Toxic Waste. Specific activities
required to effect the containment, stabilization, or removal of
hazardous or toxic waste materials that are performed, ordered, or
sponsored by a government agency with established legal or regulatory
authority. Court ordered remedial action plans or related settlements
are also authorized by this NWP. This NWP does not authorize the
establishment of new disposal sites or the expansion of existing sites
used for the disposal of hazardous or toxic waste.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note: Activities undertaken entirely on a Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
site by authority of CERCLA as approved or required by EPA, are not
required to obtain permits under Section 404 of the Clean Water Act
or Section 10 of the Rivers and Harbors Act.
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
[[Page 26149]]
not limited to, roads, parking lots, garages, yards, utility lines,
storm water management facilities, wastewater treatment facilities, and
recreation facilities such as playgrounds and playing fields. Examples
of commercial developments include retail stores, industrial
facilities, restaurants, business parks, and shopping centers. Examples
of institutional developments include schools, fire stations,
government office buildings, judicial buildings, public works
buildings, libraries, hospitals, and places of worship. The
construction of new golf courses and new ski areas is not authorized by
this NWP.
The discharge must not cause the loss of greater than \1/2\-acre of
non-tidal waters of the United States. This NWP does not authorize
discharges of dredged or fill material into non-tidal wetlands adjacent
to tidal waters.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authorities: Sections 10 and 404)
Note: For any activity that involves the construction of a wind
energy generating structure, solar tower, or overhead transmission
line, a copy of the PCN and NWP verification will be provided by the
Corps to the Department of Defense Siting Clearinghouse, which will
evaluate potential effects on military activities.
40. Agricultural Activities. Discharges of dredged or fill material
into non-tidal waters of the United States for agricultural activities,
including the 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.
[[Page 26150]]
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 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
12 months of the date of the damage; for major storms, floods, or other
discrete events, the district engineer may waive the 12-month limit for
submitting a pre-construction notification if the permittee can
demonstrate funding, contract, or other similar delays. The pre-
construction notification must include documentation, such as a recent
topographic survey or photographs, to justify the extent of the
proposed restoration. (Authorities: Sections 10 and 404)
Note: The uplands themselves that are lost as a result of a
storm, flood, or other discrete event can be replaced without a
Clean Water Act Section 404 permit, if the uplands are restored to
the ordinary high water mark (in non-tidal waters) or high tide line
(in tidal waters). (See also 33 CFR 328.5.) This NWP authorizes
discharges of dredged or fill material into waters of the United
States associated with the restoration of uplands.
46. Discharges in Ditches. Discharges of dredged or fill material
into non-tidal ditches that are (1) constructed in uplands, (2) receive
water from an area determined to be a water of the United States prior
to the construction of the ditch, (3) divert water to an area
determined to be a water of the United States prior to the construction
of the ditch, and (4) determined to be waters of the United States. The
discharge of dredged or fill material must not cause the loss of
greater than one acre of waters of the United States.
This NWP does not authorize discharges of dredged or fill material
into ditches constructed in streams or other waters of the United
States, or in streams that have been relocated in uplands. This NWP
does not authorize discharges of dredged or fill material that increase
the capacity of the ditch and drain those areas determined to be waters
of the United States prior to construction of the ditch.
Notification: The permittee must submit a pre-construction
notification to the district engineer prior to commencing the activity.
(See general condition 32.) (Authority: Section 404)
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
[[Page 26151]]
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 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,
[[Page 26152]]
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 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''
[[Page 26153]]
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 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 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.
[[Page 26154]]
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].
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
[[Page 26155]]
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 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 require a section 10 permit.
This NWP authorizes, to the extent that Department of the Army
[[Page 26156]]
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)
A. 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, or expansion of conventional
and nature-like fishways; the construction or expansion of fish bypass
channels around existing in-stream structures; the replacement of
existing culverts or low-water crossings with culverts planned,
designed, and constructed to restore or enhance passage of fish and
other aquatic organisms; the installation of fish screens to prevent
fish and other aquatic organisms from being trapped or stranded in
irrigation ditches and other features; 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.
[[Page 26157]]
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.
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 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.
[[Page 26158]]
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 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
[[Page 26159]]
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 activity
authorized by an NWP, they must immediately notify the district
engineer of what they have found, and to the maximum extent
practicable, avoid construction activities that may affect the remains
and artifacts until the required coordination has been completed. The
district engineer will initiate the federal, tribal, and state
coordination required to determine if the items or remains warrant a
recovery effort or if the site is eligible for listing in the National
Register of Historic Places.
22. Designated Critical Resource Waters. Critical resource waters
include, NOAA-managed marine sanctuaries and marine monuments, and
National Estuarine Research Reserves. The district engineer may
designate, after notice and opportunity for public comment, additional
waters officially designated by a state as having particular
environmental or ecological significance, such as outstanding national
resource waters or state natural
[[Page 26160]]
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 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
[[Page 26161]]
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 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
[[Page 26162]]
(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 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
[[Page 26163]]
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 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
[[Page 26164]]
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 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
[[Page 26165]]
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 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
[[Page 26166]]
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, 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, inorganic
particles that range in size from clay to boulders. The
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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. 2025-11190 Filed 6-17-25; 8:45 am]
BILLING CODE 3720-58-P