Rule2021-27441
Reissuance and Modification of Nationwide Permits
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 27, 2021
Effective
February 25, 2022
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
Nationwide Permits (NWPs) authorize certain activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that have no more than minimal individual and cumulative adverse environmental effects. In a proposed rule published in the September 15, 2020, issue of the Federal Register, the Corps proposed to reissue 52 existing NWPs and issue five new NWPs, plus the NWP general conditions and definitions. In a final rule published in the January 13, 2021, issue of the Federal Register, the Corps reissued 12 of the 52 existing NWPs and four of the five new NWPs, as well as the NWP general conditions and definitions. In this final rule, the Corps is reissuing the remaining 40 existing NWPs and issuing the remaining one new NWP. The NWP general conditions and definitions published in the January 13, 2021, issue of the Federal Register apply to the 41 NWPs reissued or issued in this final rule.
Full Text
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[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73522-73583]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27441]
[[Page 73521]]
Vol. 86
Monday,
No. 245
December 27, 2021
Part III
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Chapter II
Reissuance and Modification of Nationwide Permits; Final Rule
Federal Register / Vol. 86 , No. 245 / Monday, December 27, 2021 /
Rules and Regulations
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
[Docket Number: COE-2020-0002]
RIN 0710-AB29
Reissuance and Modification of Nationwide Permits
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final rule.
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SUMMARY: Nationwide Permits (NWPs) authorize certain activities under
Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act of 1899 that have no more than minimal individual and
cumulative adverse environmental effects. In a proposed rule published
in the September 15, 2020, issue of the Federal Register, the Corps
proposed to reissue 52 existing NWPs and issue five new NWPs, plus the
NWP general conditions and definitions. In a final rule published in
the January 13, 2021, issue of the Federal Register, the Corps reissued
12 of the 52 existing NWPs and four of the five new NWPs, as well as
the NWP general conditions and definitions. In this final rule, the
Corps is reissuing the remaining 40 existing NWPs and issuing the
remaining one new NWP. The NWP general conditions and definitions
published in the January 13, 2021, issue of the Federal Register apply
to the 41 NWPs reissued or issued in this final rule.
DATES: The 41 NWPs in this final rule go into effect on February 25,
2022. The 41 NWPs in this final rule expire on March 14, 2026.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW, Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or
access the U.S. Army Corps of Engineers Regulatory Home Page at <a href="https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/">https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/</a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. General
B. Overview of Proposed Rule
C. Overview of This Final Rule
E. Nationwide Permit Verifications
II. Discussion of Public Comments
A. Overview
B. Responses to General Comments
C. Comments on Regional Conditioning of Nationwide Permits
D. Response to Comments on Specific Nationwide Permits in This
Final Rule
E. Responses to Comments on the Nationwide Permit General
Conditions
F. Responses to Comments on the District Engineer's Decision
G. Discussion of Proposed Modifications to Section F,
Definitions
III. Compliance With Relevant Statutes
A. National Environmental Policy Act Compliance
B. Compliance With Section 404(e) of the Clean Water Act
C. 2020 Revisions to the Definition of ``Waters of the United
States'' (i.e., the Navigable Waters Protection Rule)
D. Compliance With the Endangered Species Act
E. Compliance With the Essential Fish Habitat Provisions of the
Magnuson-Stevens Fishery Conservation and Management Act
F. Compliance With Section 106 of the National Historic
Preservation Act
G. Section 401 of the Clean Water Act
H. Section 307 of the Coastal Zone Management Act (CZMA)
IV. Economic Impact
V. Administrative Requirements
VI. References
List of Acronyms
BMP Best Management Practice
CEQ Council on Environmental Quality
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NPDES National Pollutant Discharge Elimination System
NWP Nationwide Permit
PCN Pre-construction Notification
RGL Regulatory Guidance Letter
List of Nationwide Permits Issued in This Final Rule
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities
28. Modifications of Existing Marinas
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
41. Reshaping Existing Drainage Ditches
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
49. Coal Remining Activities
53. Removal of Low-Head Dams
54. Living Shorelines
59. Water Reclamation and Reuse Facilities
I. Background
A. General
The U.S. Army Corps of Engineers (Corps) issues nationwide permits
(NWPs) to authorize activities under Section 404 of the Clean Water Act
(33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899
(33 U.S.C. 403), where those activities will result in no more than
minimal individual and cumulative adverse environmental effects. NWPs
were first issued by the Corps in 1977 (42 FR 37122) to authorize
categories of activities that have minimal adverse effects on the
aquatic environment with conditions to minimize those adverse effects,
without requiring individual permits for those activities. After 1977,
NWPs have been issued or reissued in 1982 (47 FR 31794), 1984 (49 FR
39478), 1986 (51 FR 41206), 1991 (56 FR 59110), 1995 (60 FR 38650),
1996 (61 FR 65874), 2000 (65 FR 12818), 2002 (67 FR 2020), 2007 (72 FR
11092), 2012 (77 FR 10184), 2017 (82 FR 1860), and 2021 (86 FR 2744).
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States that will cause only minimal
individual and cumulative adverse environmental effects for a period of
no more than five years after the date of issuance (33 U.S.C. 1344(e)).
The Secretary's authority to issue permits has been
[[Page 73523]]
delegated to the Chief of Engineers and designated representatives of
the Chief of Engineers. Nationwide permits are a type of general permit
issued by the Chief of Engineers and are designed to regulate with
little, if any, delay or paperwork certain activities in federally
jurisdictional waters and wetlands, where those activities would have
no more than minimal adverse environmental impacts (see 33 CFR
330.1(b)). The categories of activities authorized by NWPs must be
similar in nature, cause only minimal adverse environmental effects
when performed separately, and have only minimal cumulative adverse
effect on the environment (see 33 U.S.C. 1344(e)(1)). NWPs can be
issued for a period of no more than 5 years (33 U.S.C. 1344(e)(2)), and
the Corps has the authority to modify, reissue, revoke, or suspend the
NWPs before they expire. NWPs can also be issued to authorize
activities pursuant to Section 10 of the Rivers and Harbors Act of 1899
(see 33 CFR 322.2(f)). The NWP program is designed to provide timely
authorizations for the regulated public while protecting the Nation's
aquatic resources.
On September 15, 2020, the Corps published a proposed rule in the
Federal Register (85 FR 57298) to reissue 52 existing NWPs with
modifications, to issue five new NWPs, and to reissue the NWP general
conditions and definitions with modifications. On January 13, 2021, the
Corps published a final rule in the Federal Register (86 FR 2744). In
that final rule, the Corps reissued the following NWPs: NWP 12 (oil or
natural gas pipeline activities); NWP 21 (surface coal mining
activities); NWP 29 (residential developments); NWP 39 (commercial and
institutional developments); NWP 40 (agricultural activities); NWP 42
(recreational facilities); NWP 43 (stormwater management facilities);
NWP 44 (mining activities); NWP 48 (commercial shellfish mariculture
activities); NWP 50 (underground coal mining activities); NWP 51 (land-
based renewable energy generation facilities); and NWP 52 (water-based
renewable energy generation pilot projects). The Corps issued four new
NWPs: NWP 55 (seaweed mariculture activities); NWP 56 (finfish
mariculture activities); NWP 57 (electric utility line and
telecommunications activities); and NWP 58 (utility line activities for
water and other substances). In the final rule published on January 13,
2021, the Corps stated that it would issue a separate final rule for
its decisions on the proposed reissuance of the other 40 proposed NWPs
and the issuance of proposed new NWP E for water reclamation and reuse
facilities.
The 16 NWPs issued or reissued in the final rule that was published
in the January 13, 2021, issue of the Federal Register expire on March
14, 2026. The 41 NWPs published in today's final rule will also expire
on March 14, 2026, so that all of the NWPs issued or reissued in 2021
expire on the same date. Under Section 404(e) of the Clean Water Act
(33 U.S.C. 1344(e)), an NWP cannot be issued for a period of more than
five years, and the Corps has discretion to establish an expiration
date for an NWP that is less than five years after the date the NWP
goes into effect. Establishing the same expiration date for 16 NWPs
issued in January 2021 and the 41 NWPs issued in today's final rule
will help provide consistency and clarity to the regulated public and
the Corps, and align all of the NWPs in terms of scheduling the next
rulemaking to issue or reissue the NWPs. At its discretion, the Corps
may rescind, revise, or suspend one or more NWPs prior to that time.
Consistent with E.O. 13990, Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis, the
Army is also considering whether additional steps should be taken to
ensure the Nationwide Permits program aligns with this Administration's
policies and priorities moving forward.
Nationwide permits authorize categories of activities that are
similar in nature and will cause only minimal adverse environmental
effects when performed separately, and will have only minimal
cumulative adverse effect on the environment. See 33 U.S.C. 1344(e)(1).
The phrase ``minimal adverse environmental effects when performed
separately'' refers to the direct and indirect adverse environmental
effects caused by a specific activity authorized by an NWP. The phrase
``minimal cumulative adverse effect on the environment'' refers to the
collective direct and indirect adverse environmental effects caused by
all the activities authorized by a particular NWP during the time
period when the NWP is in effect (a period of no more than 5 years) in
a specific geographic region (e.g., 40 CFR 230.7(b)(3)). These concepts
are defined in paragraph 2 of section D, ``District Engineer's
Decision.'' The appropriate geographic area for assessing cumulative
effects is determined by the decision-making authority for the general
permit (generally, the district engineer).
Some NWPs include pre-construction notification (PCN) requirements.
PCNs give the Corps the opportunity to evaluate certain proposed NWP
activities on a case-by-case basis to ensure that they will cause no
more than minimal adverse environmental effects, individually and
cumulatively. Except for activities conducted by non-federal permittees
that require PCNs under paragraph (c) of the ``Endangered Species'' and
``Historic Properties'' general conditions (general conditions 18 and
20, respectively), if the Corps district does not respond to the PCN
within 45 days of a receipt of a complete PCN, the activity is deemed
authorized by the NWP (see 33 CFR 330.1(e)(1)).
In fiscal year 2018, the average processing time for an NWP PCN was
45 days and the average processing time for a standard individual
permit was 264 days. This difference in processing time can incentivize
project proponents to reduce the adverse effects of their planned
activities that would otherwise require an individual permit under
Section 404 of the Clean Water Act and/or Section 10 of the Rivers and
Harbors Act of 1899, in order to qualify for NWP authorization. This
reduction in adverse effects can therefore reduce a project's impact on
the Nation's aquatic resources.
There are 38 Corps district offices and 8 Corps division offices.
The district offices administer the NWP program on a day-to-day basis
by reviewing PCNs for proposed NWP activities. The division offices
oversee district offices and are managed by division engineers.
Division engineers have the authority, after public notice and comment,
to modify, suspend, or revoke NWP authorizations on a regional basis to
take into account regional differences among aquatic resources and to
ensure that the NWPs authorize only those activities that result in no
more than minimal individual and cumulative adverse environmental
effects in a region (see 33 CFR 330.5(c)). When a Corps district
receives a PCN, the district engineer reviews the PCN and determines
whether the proposed activity will result in no more than minimal
individual and cumulative adverse environmental effects, consistent
with the criteria in paragraph 2 of section D, ``District Engineer's
Decision.'' At this point, the district engineer may add conditions to
the NWP authorization to ensure that the verified NWP activity results
in no more than minimal individual and cumulative adverse environmental
effects and that it is not contrary to the public interest, consistent
with processes and requirements set out in 33 CFR 330.5(d). See section
II.G for more
[[Page 73524]]
information on regional conditions for the NWPs.
For some NWPs, when submitting a PCN, an applicant may request a
waiver for a particular limit specified in the NWP's terms and
conditions. If the applicant requests a waiver of an NWP limit and the
district engineer determines, after coordinating with the resource
agencies under paragraph (d) of NWP general condition 32, that the
proposed NWP activity will result in no more than minimal adverse
environmental effects, the district engineer may grant such a waiver.
Following the conclusion of the district engineer's review of a PCN,
the district engineer prepares an official, publicly available decision
document. This document discusses the district engineer's findings as
to whether a proposed NWP activity qualifies for NWP authorization,
including compliance with all applicable terms and conditions, and the
rationale for any waivers granted, and activity-specific conditions
needed to ensure that the activity being authorized by the NWP will
have no more than minimal individual and cumulative adverse
environmental effects and will not be contrary to the public interest
(see Sec. 330.6(a)(3)(i)).
The case-by-case review of PCNs often results in district engineers
adding activity-specific conditions to NWP authorizations to ensure
that the adverse environmental effects are no more than minimal. These
can include permit conditions such as time-of-year restrictions and/or
use of best management practices and/or compensatory mitigation
requirements to offset authorized losses of jurisdictional waters and
wetlands so that the net adverse environmental effects caused by the
authorized activity are no more than minimal. Any compensatory
mitigation required for NWP activities must comply with the Corps'
compensatory mitigation regulations at 33 CFR part 332. Review of a PCN
may also result in the district engineer asserting discretionary
authority to require an individual permit from the Corps for the
proposed activity, if the district engineer determines, based on the
information provided in the PCN and other available information, that
the adverse environmental effects will be more than minimal, or
otherwise determines that ``sufficient concerns for the environment or
any other factor of the public interest so requires'' consistent with
33 CFR 330.4(e)(2)).
During the review of PCNs, district engineers assess cumulative
adverse environmental effects caused by NWP activities at an
appropriate regional scale. Cumulative effects are the result of the
accumulation of direct and indirect effects caused by multiple
activities that persist over time in a particular geographic area
(MacDonald 2000), such as a watershed or ecoregion (Gosselink and Lee
1989). Therefore, the geographic and temporal scales for cumulative
effects analysis are larger than the analysis of the direct and
indirect adverse environmental effects caused by specific NWP
activities. For purposes of the NWP program, cumulative effects are the
result of the combined effects of activities authorized by NWPs during
the period the NWPs are in effect. The cumulative effects are assessed
against the current environmental setting (environmental baseline) to
determine whether the cumulative adverse environmental effects are more
than minimal. The district engineer uses his or her discretion to
determine the appropriate regional scale for evaluating cumulative
effects.
For the NWPs, the appropriate regional scale for evaluating
cumulative effects may be a waterbody, watershed, county, state, or a
Corps district, as appropriate. The appropriate regional scale is
dependent, in part, on where the NWP activities are occurring. For
example, for NWPs that authorize structures and/or work in navigable
waters of the United States under Section 10 of the Rivers and Harbors
Act of 1899, the appropriate geographic region for assessing cumulative
effects may be a specific navigable waterbody or a seascape. For NWPs
that authorize discharges of dredged or fill material into non-tidal
jurisdictional wetlands and streams, the appropriate geographic region
for assessing cumulative effects may be a watershed, county, state, or
Corps district. The direct individual adverse environmental effects
caused by activities authorized by NWPs are evaluated within the
project footprint, and the indirect individual adverse environmental
effects caused by activities authorized by NWPs are evaluated within
the geographic area to which those indirect effects extend.
When the district engineer reviews a PCN and determines that the
proposed activity qualifies for NWP authorization, the district
engineer will issue a written NWP verification to the permittee (see 33
CFR 330.6(a)(3)). If an NWP verification includes multiple
authorizations using a single NWP (e.g., linear projects with crossings
of separate and distant waters of the United States authorized by NWPs
12, 14, 57, or 58) or non-linear projects authorized with two or more
different NWPs (e.g., an NWP 28 for reconfiguring an existing marina
basin plus an NWP 19 for minor dredging within that marina basin), the
district engineer will evaluate the cumulative effects of the
applicable NWP authorizations within the geographic area that the
district engineer determines is appropriate for assessing cumulative
effects caused by activities authorized by that NWP. As discussed
above, the geographic area may be a waterbody, watershed, county,
state, Corps district, or other geographic area such as a seascape.
The Corps' regulations for its ``public interest review'' at 33 CFR
320.4(a)(1) require consideration of cumulative impacts for the
issuance of DA permits. Since the required public interest review and
404(b)(1) Guidelines cumulative effects analyses are conducted by Corps
Headquarters in its decision documents for the issuance of the NWPs,
district engineers do not need to do comprehensive cumulative effects
analyses for NWP verifications. For an NWP verification, the district
engineer needs only to include a statement in the administrative record
stating whether the proposed activity to be authorized by an NWP, plus
any required mitigation, will result in no more than minimal individual
and cumulative adverse environmental effects. If the district engineer
determines, after considering mitigation, that a proposed NWP activity
will result in more than minimal cumulative adverse environmental
effects, the district engineer will exercise discretionary authority
and require an application for an individual permit for the proposed
activity that requires Department of the Army (DA) authorization.
There may be activities authorized by NWPs that cross more than one
Corps district or more than a single state. On May 15, 2018, the
Director of Civil Works at Corps Headquarters issued a Director's
Policy Memorandum titled: ``Designation of a Lead USACE District for
Permitting of Non-USACE Projects Crossing Multiple Districts or
States.'' \1\ This Director's Policy Memorandum identified lead
districts for states that have more than one Corps district and
established a policy for designating a lead district for activities
that require DA permits that cross district or state boundaries. Under
this policy, when the Corps receives an NWP PCN or individual permit
application for such activities, a lead Corps district will be
designated by the applicable Corps
[[Page 73525]]
division office(s) using the criteria in the 2018 Director's Policy
Memorandum, and that district will be responsible for serving as a
single point of contact for each permit applicant, forming a Project
Delivery Team comprising representatives of each of the affected
districts, ensuring consistent reviews by the affected districts, and
taking responsibility for identifying and resolving inconsistencies
that may arise during the review. The list of lead districts for states
is also used during the regional conditioning process for the NWPs. For
that process the lead district is responsible for coordinating the
development of the regional conditions and preparing the supplemental
documents required by 33 CFR 330.5(c)(1)(iii).
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\1\ This document is available at: <a href="https://usace.contentdm.oclc.org/digital/collection/p16021coll11/id/2757/">https://usace.contentdm.oclc.org/digital/collection/p16021coll11/id/2757/</a>
(accessed 3/12/2020).
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B. Overview of Proposed Rule
On September 15, 2020, the Corps published in the Federal Register
(85 FR 57298) a proposed regulation to reissue with modification the
existing NWPs and associated general conditions and definitions and to
create five new NWPs (2020 Proposal). The Corps provided a 60-day
public comment period which closed on November 16, 2020. Among other
things, the Corps proposed the following: (1) To reissue all existing
permits (some with proposed modifications); (2) to issue two new NWPs
to authorize certain categories of mariculture activities (i.e.,
seaweed and finfish mariculture) that are not currently authorized by
NWP 48; (3) to issue three NWPs that authorize separate categories of
utility line based on the substances they convey; (4) to issue a new
NWP which would authorize discharges of dredged or fill material into
jurisdictional waters for the construction, expansion, and maintenance
of water reuse and reclamation facilities; and (5) to remove the 300
linear foot limit for losses of stream bed from 10 NWPs (NWPs 21, 29,
39, 40, 42, 43, 44, 50, 51, and 52). The Corps requested comment on
these and all other aspects of the proposal. The final rule published
in the January 13, 2021, issue of the Federal Register (86 FR 2744)
finalized 12 of the existing permits and addressed items (2), (3), and
(5), as well as the NWP general conditions and definitions.
C. Overview of This Final Rule
This final rule reissues the 40 existing NWPs that were previously
issued in the January 6, 2017, final rule (82 FR 1860) but not
finalized on January 13, 2021 and issues one new NWP (NWP 59 for water
reclamation and reuse facilities). This final rule does not address the
16 NWPs, general conditions, and definitions that were finalized on
January 13, 2021. In response to the 2020 Proposal, the Corps received
approximately 22,700 comments. Those comments relating to the January
13, 2021 final rule were addressed as part of that action; those
comments relating to the NWPs in this final rule are discussed below
together with the modifications made in response to those comments.
The January 13, 2021, final rule addressed the comments received in
response to the 2020 Proposal on the NWP general conditions and
definitions. The NWP general conditions and definitions from the final
rule published in the January 13, 2021, issue of the Federal Register
apply to the NWPs published in today's final rule. The text of the NWP
general conditions and definitions are provided in the January 13,
2021, final rule on pages at 86 FR 2867-2877. The 41 NWPs in today's
final rule expire on March 14, 2026, the same date as the 16 NWPs
published in the January 13, 2021, issue of the Federal Register
expire.
D. Status of Existing Permits
When the Corps modifies existing NWPs, the modified NWPs replace
the prior versions of those NWPs so that there are not two sets of NWPs
in effect at the same time. Having two sets of NWPs in effect at the
same time would create regulatory uncertainty if each set of those NWPs
has different limits, requirements, and conditions because permittees
may be unclear as to which limits, requirements, and conditions apply
to their authorized activities. In addition, differences in NWP limits,
requirements, and conditions between two sets of NWPs can create
challenges for district engineers in terms of enforcement and
compliance efforts.
The Corps is modifying the expiration date for 40 existing NWPs
(i.e., NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18,
19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41,
45, 46, 49, 53, and 54) that are issued in this final rule to the day
before February 25, 2022. The expiration date for the 40 existing NWPs
and the new NWP issued in this final rule is March 14, 2026.
Under 33 CFR 330.6(a)(3)(ii), if the NWP is reissued without
modification or the activity complies with any subsequent modification
of the NWP authorization, the NWP verification letter (i.e., the
written confirmation from the district engineer that the proposed
activity is authorized by an NWP) should include a statement that the
verification will remain valid for a period of time specified in the
verification letter. The specified period of time is usually the
expiration date of the NWP. In other words, if the previously verified
activity continues to qualify for NWP authorization under any of the 40
existing NWPs reissued in this final rule, that verification letter
continues to be in effect until March 18, 2022, unless the district
engineer specified a different expiration date in the NWP verification
letter. For most activities authorized by the 2017 NWPs, where the
district engineer issued an NWP verification letter, the verification
letter identified March 18, 2022, as the expiration date. As long as
the verified NWP activities continue to comply with the terms and
conditions of the 40 existing NWPs reissued in this final rule, those
activities continue to be authorized by the applicable NWP(s) until
March 18, 2022, unless a district engineer modifies, suspends, or
revokes a specific NWP authorization.
Under 33 CFR 330.6(b), Corps Headquarters may modify, reissue,
suspend, or revoke the NWPs at any time. Activities that were
authorized by the 2017 NWPs, but no longer qualify for authorization
under any of the 40 existing NWPs that are reissued in this final rule,
continue to be authorized by the 2017 NWP(s) for 12 months as long as
those activities have commenced (i.e., are under construction) or are
under contract to commence in reliance upon an NWP prior to the date on
which the NWP expires. That authorization is contingent on the activity
being completed within twelve months of the date of an NWP's
expiration, modification, or revocation, unless discretionary authority
has been exercised by a division or district engineer on a case-by-case
basis to modify, suspend, or revoke the authorization in accordance
with 33 CFR 330.4(e) and 33 CFR 330.5(c) or (d). This provision applies
to activities that were previously verified by the district engineer as
qualifying for NWP authorization, but no longer qualify for NWP
authorization under the modified or reissued NWP.
The 41 NWPs issued in this final rule go into effect on February
25, 2022. The 2017 versions of the 40 existing NWPs reissued in this
final rule expire on the day before February 25, 2022. The 40 existing
NWPs reissued in this final rule and the new NWP issued in this final
rule (i.e., NWP 59) expire on March 14, 2026.
E. Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN, and thus
request confirmation from the district engineer
[[Page 73526]]
prior to commencing the proposed NWP activity, to ensure that the NWP
activity complies with the terms and conditions of the NWP, including
any conditions the district engineer adds to the NWP authorization in
accordance with 33 CFR 330.6(a)(3)(i). The requirement to submit a PCN
is identified in the NWP text, as well as certain general conditions.
General condition 18 requires non-federal permittees to submit PCNs for
any proposed activity that might affect Endangered Species Act (ESA)-
listed species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed for such designation), if listed
species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed for such designation) are in the
vicinity of the proposed activity, or if the proposed activity is
located in critical habitat or critical habitat proposed for such
designation. General condition 20 requires non-federal permittees to
submit PCNs for any proposed activity that might have the potential to
cause effects to any historic properties listed in, determined to be
eligible for listing in, or potentially eligible for listing in, the
National Register of Historic Places.
In the PCN, the project proponent must specify which NWP or NWPs
the project proponent wants to use to provide the required DA
authorization under Section 404 of the Clean Water Act and/or Section
10 of the Rivers and Harbors Act of 1899. For voluntary NWP
verification requests (where a PCN is not required), the request should
also identify the NWP(s) the project proponent wants to use. The
district engineer should verify the activity under the NWP(s) requested
by the project proponent, as long as the proposed activity complies
with all applicable terms and conditions, including any applicable
regional conditions imposed by the division engineer. All NWPs have the
same general requirements: That the authorized activities may only
cause no more than minimal individual and cumulative adverse
environmental effects. Therefore, if the proposed activity complies
with the terms and all applicable conditions of the NWP the applicant
wants to use, then the district engineer should issue the NWP
verification unless the district engineer exercises discretionary
authority and requires an individual permit. If the proposed activity
does not meet the terms and conditions of the NWP identified in the
applicant's PCN, and that activity meets the terms and conditions of
another NWP identified by the district engineer, the district engineer
will process the PCN under the NWP identified by the district engineer.
If the district engineer exercises discretionary authority, the
district engineer should explain the reasons for determining that the
proposed activity raises sufficient concern for the environment or
otherwise may be contrary to the public interest.
PCN requirements may be added to NWPs by division engineers through
regional conditions to require PCNs for additional activities. For an
activity where a PCN is not required, a project proponent may submit a
PCN voluntarily, if the project proponent wants written confirmation
that the activity is authorized by an NWP. Some project proponents
submit permit applications without specifying the type of authorization
they are seeking. In such cases, the district engineer will review
those applications and determine if the proposed activity qualifies for
NWP authorization or another form of DA authorization, such as a
regional general permit (see 33 CFR 330.1(f)).
In response to a PCN or a voluntary NWP verification request, the
district engineer reviews the information submitted by the prospective
permittee. If the district engineer determines that the activity
complies with the terms and conditions of the NWP, the district
engineer will notify the permittee. Activity-specific conditions, such
as compensatory mitigation requirements, may be added to an NWP
authorization to ensure that the activity to be authorized under the
NWP will result in no more than minimal individual and cumulative
adverse environmental effects and will not be contrary to the public
interest. The activity-specific conditions are incorporated into the
NWP verification, along with the NWP text and the NWP general
conditions. In general, NWP verification letters will expire on the
date the NWP expires (see 33 CFR 330.6(a)(3)(ii)), although district
engineers have the authority to issue NWP verification letters that
will expire before the NWP expires, if it is in the public interest to
do so.
If the district engineer reviews the PCN or voluntary NWP
verification request and determines that the proposed activity does not
comply with the terms and conditions of an NWP, the district engineer
will notify the project proponent and provide instructions for applying
for authorization under a regional general permit or an individual
permit. District engineers will respond to NWP verification requests,
submitted voluntarily or as required through PCNs, within 45 days of
receiving a complete PCN. Except for NWP 49, and for proposed NWP
activities that require ESA Section 7 consultation and/or NHPA Section
106 consultation, if the project proponent has not received a reply
from the Corps within 45 days, the project proponent may assume that
the project is authorized, consistent with the information provided in
the PCN. For NWP 49, and for proposed NWP activities that require ESA
Section 7 consultation and/or NHPA Section 106 consultation, the
project proponent cannot begin work before receiving a written NWP
verification. If the project proponent requested a waiver of a limit in
an NWP, the waiver is not granted unless the district engineer makes a
written determination that the proposed activity will result in no more
than minimal individual and cumulative adverse environmental effects
and issues an NWP verification.
II. Discussion of Public Comments
A. Overview
In response to the 2020 Proposal, the Corps received approximately
22,700 comment letters, of which approximately 22,330 were form
letters. In addition to the various form letters, the Corps received a
few hundred individual comment letters. Those individual comment
letters, as well as examples of the various form letters, are posted in
the <a href="http://www.regulations.gov">www.regulations.gov</a> docket (COE-2020-0002) for this rulemaking
action. The Corps reviewed and fully considered all comments received
in response to the 2020 Proposal. The Corps' responses to the comments
received on the proposed removal of the 300 linear foot limit for
losses of stream bed from 10 existing NWPs, the proposed changes to
NWPs 21 and 50, the proposed reissuance of NWP 48, the proposed
reissuance of NWP 12, and the proposed issuance of four new NWPs (NWPs
55, 56, 57, and 58) are summarized and addressed in the final rule
published in the January 13, 2021, issue of the Federal Register (86 FR
2744). The sections below discuss the comments received and the Corps
responses on the 40 existing NWPs and one new NWP being finalized in
this rule.
B. Responses to General Comments
A summary of general comments submitted to the Corps in response to
the 2020 Proposal, and responses to those general comments, are
provided in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2750-2753.
[[Page 73527]]
(1) Status of Existing Permits
In response to the 2020 Proposal, the Corps received comments
concerning the status of existing NWP authorizations and how the
issuance of the final rule may affect those existing authorizations.
The Corps also invited public comment on changing the expiration date
for the 2017 NWPs to avoid having two sets of NWPs in effect at the
same time. These comments were summarized and addressed in the final
rule published in the January 13, 2021, issue of the Federal Register
at 86 FR 2753-2754.
(2) Pre-Construction Notification Requirements
Comments on PCN requirements for the NWPs in the 2020 Proposal were
addressed in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2754-2755.
(3) Climate Change
Comments on climate change and the NWPs in the 2020 Proposal were
addressed in the final rule published in the January 13, 2021, issue of
the Federal Register at 86 FR 2755. The Corps recognizes the importance
of climate change resiliency and both mitigation and adaptation efforts
to address climate change. The Corps discusses climate change in the
context of the NWP reissuance in each of the national decision
documents for the 41 NWPs. Some activities authorized by various NWPs
may be associated with energy production (including the energy
production through solar, wind, and other renewable resources),
distribution, and use, while other activities authorized by the NWPs
may contribute to adaptation to climate change and help increase the
resilience of communities to the adverse effects of climate change.
(4) Environmental Justice
In response to the 2020 Proposal, the Corps received comments
concerning environmental justice and how it was considered during
development of the final rule. The Corps recognizes the importance of
environmental justice to the Administration and incorporated
consideration of impacts to communities with environmental justice
interests to the extent practicable within its regulatory authorities
in the issuance of this rule. The NWPs issuance are not expected to
have any discriminatory effect or disproportionate negative impact on
any community or group, and therefore are not expected to cause any
disproportionately high and adverse impacts to minority or low-income
communities. The NWPs issued in this final rule can be used by
communities with environmental justice interests that want to conduct
activities that require DA authorization that will help improve
environmental quality within their communities (e.g., NWP 13 for bank
stabilization activities; NWP 27 for aquatic habitat restoration,
establishment, and enhancement activities; NWP 31 for the maintenance
of existing flood control facilities; and NWP 38 for hazardous and
toxic waste clean-up activities).
C. Comments on Regional Conditioning of Nationwide Permits
Under Section 404(e) of the Clean Water Act, NWPs can only be
issued for those activities that result in no more than minimal
individual and cumulative adverse environmental effects. For activities
that require authorization under Section 10 of the Rivers and Harbors
Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f)
have a similar requirement. Since it can be difficult for the Corps to
draft national NWPs in such a way that they account for regional
differences, an important mechanism for ensuring compliance with these
requirements is regional conditions imposed by division engineers to
address local environmental concerns. Effective regional conditions
help protect local aquatic ecosystems and other resources and help
ensure that the NWPs authorize only those activities that result in no
more than minimal individual and cumulative adverse effects on the
environment and are not contrary to the public interest.
Prior to the effective date of the 41 NWPs published in this final
rule, division engineers will complete supplemental documents for these
NWPs, which will include the final regional conditions for these NWPs.
Concurrent with the publication of the 2020 Proposal in the Federal
Register, Corps districts issued public notices seeking comment on
proposed regional conditions for the proposed NWPs. The division
engineers' supplemental documents for the 41 NWPs will summarize the
comments Corps districts received on the proposed regional conditions
for those NWPs, provide responses to those comments, and provide the
division engineers' decisions on whether to approve some or all of the
regional conditions that were proposed by district engineers in their
public notices. After the division engineers approve the regional
conditions and sign the supplemental documents for these 41 NWPs, Corps
districts will issue public notices on their websites announcing the
final Corps regional conditions and when those regional conditions go
into effect (see 33 CFR 330.5(c)(1)(v)). Copies of the district public
notices are also sent to interested parties that are on each district's
public notice mailing list via email or the U.S. mail. The public
notice will also describe, if appropriate, a time period to complete an
authorized activity as specified by 33 CFR 330.6(b) for those who have
commenced work under the NWP or are under contract to commence work
under the NWP (see 33 CFR 330.5(c)(1)(iv)). A copy of all Corps
regional conditions approved by the division engineers for the NWPs are
forwarded to Corps Headquarters (see 33 CFR 330.5(c)(3)). Copies of
district public notices announcing final regional conditions for these
41 NWPs will be posted in the <a href="http://www.regulations.gov">www.regulations.gov</a> docket for the 2021
NWPs (docket number COE-2020-0002), under Supporting and Related
Information so that copies of all district public notices and regional
conditions are available at a central location. If, during
implementation of the 41 NWPs in this final rule, division or district
engineers identify the need for additional regional conditions, or
changes to existing regional conditions, the procedures at 33 CFR
330.5(c)(1) must be followed, including the issuance of district public
notices to provide the public with the opportunity to submit comments
on the proposed new regional conditions or proposed modifications to
existing regional conditions.
Comments on regional conditioning for the NWPs in the 2020 Proposal
were addressed in the final rule published in the January 13, 2021,
issue of the Federal Register at 86 FR 2758-2760.
D. Response to Comments on Specific Nationwide Permits in This Final
Rule
NWP 1. Aids to Navigation. The Corps did not propose any changes to
this NWP. No comments were received on the proposed NWP. This NWP is
reissued as proposed.
NWP 2. Structures in Artificial Canals. The Corps did not propose
any changes to this NWP. No comments were received on the proposed NWP.
This NWP is reissued as proposed.
NWP 3. Maintenance. The Corps proposed to modify paragraph (a) of
this NWP to authorize the repair, rehabilitation, or replacement of any
currently serviceable structure or fill that did not require DA
authorization at the time it was constructed. The Corps also proposed
to modify paragraph (a) of this NWP to authorize the placement of new
or additional riprap to protect the structure, provided the placement
of riprap is the minimum necessary to
[[Page 73528]]
protect the structure or to ensure the safety of the structure, to
reinstate a provision was in the 2007 version of NWP 3 (see 72 FR
11181).
Several commenters stated that they support modifying paragraph (a)
of this NWP to authorize the repair, rehabilitation, or replacement of
any currently serviceable structure that did not require DA
authorization of the time it was constructed. A few commenters
expressed opposition to the proposed modification of this NWP and said
that the text of the 2017 version of this NWP that limits maintenance
to previously authorized and currently serviceable structures should be
retained. Several commenters expressed opposition to the authorization
of any currently serviceable fills that were installed prior to the
Clean Water Act without requiring a PCN because those fills have not
been evaluated under current environmental regulations. One commenter
said that the maintenance of any structures or fills that existed prior
to the Clean Water Act should not require any authorization from the
Corps. One commenter stated that a timeframe should be added to NWP 3
to specify a maximum length of time the structure has been in disrepair
in order to use this NWP to authorize maintenance of the structure.
After considering the comments received in response to the 2020
Proposal, the Corps is reissuing this NWP without modifying paragraph
(a) of this NWP to authorize the repair, rehabilitation, or replacement
of any currently serviceable structure that did not require DA
authorization at the time it was constructed. The repair,
rehabilitation, or replacement of any currently serviceable structure
that did not require DA authorization of the time it was constructed
may be authorized by other forms of DA authorization, such as regional
general permits and individual permits.
The NWP is limited to the repair, rehabilitation, or replacement of
currently serviceable structures or fills, so it is not necessary to
impose a timeframe for NWP 3 eligibility during which the need for
repair, rehabilitation, or replacement activity must be completed in
order to be eligible for NWP 3 authorization. The term ``currently
serviceable'' is defined in section F of the NWPs. This NWP does not
authorize the reconstruction of structures or fills that are no longer
currently serviceable. In addition, changes to a structure or fill that
prompt the need for repair, rehabilitation, or replacement may occur
gradually or abruptly, or at some intermediate rate. The timeframe in
which the structure or fill requires some degree of repair,
rehabilitation, or replacement is not as relevant to ensuring no more
than minimal adverse environmental effects than the constraints imposed
by the ``currently serviceable'' and ``minor deviations'' provisions of
this NWP.
The Corps does not agree that PCNs should be required for
maintenance activities authorized by paragraph (a) of this NWP because
of the limitations in that paragraph.
One commenter stated that the text of this NWP should be modified
to allow for maintenance of any existing infrastructure provided it
does not change the intended use of the structure or fill. A few
commenters requested clarification as to what the term ``currently
serviceable structure'' means, including whether or not the structure
or fill has to be operational. One commenter requested clarification on
the differences between ``replacement'' and ``reconstruction.'' A few
commenters asked for changes in the text of NWP 3 to clarify that any
structures or fill that were previously permitted by the Corps may
utilize NWP 3 for maintenance and repair activities.
This NWP authorizes the repair, rehabilitation, or replacement of
existing infrastructure while allowing minor deviations due to due to
changes in materials, construction techniques, requirements of other
regulatory agencies, or current construction codes or safety standards.
In addition, the NWP requires the structure or fill to not be put to
uses that differ from the uses originally contemplated for it when the
structure or fill was originally constructed. Repair, rehabilitation,
or replacement activities that exceed the ``minor deviations''
provision of this NWP may be authorized by individual permits, regional
general permits, or another NWP.
The term ``currently serviceable'' is currently defined in section
F of the NWPs as: ``useable as is or with some maintenance, but not so
degraded as to essentially require reconstruction.'' Therefore, there
must be some degree of operability associated with the structure or
fill in order for repair, rehabilitation, and replacement activities to
be authorized by this NWP. The difference between ``replacement'' and
``reconstruction'' is based on the concept of ``currently
serviceable.'' A currently serviceable structure or fill retains some
degree of operability but can be replaced before it degrades to the
extent where it is no longer operable (i.e., incapable of performing
its intended function). In contrast, a structure or fill that is no
longer capable of providing any degree of operability would have to be
reconstructed to perform its intended function. This NWP can be used to
repair, rehabilitate, or replace existing, currently serviceable
structures or fills as long as the proposed activities satisfy the
requirements in the text of the NWP, including any applicable NWP
general conditions, regional conditions imposed by division engineers,
and activity-specific conditions imposed by district engineers. The
Corps declines to modify the text of this NWP to state that it can be
used for maintenance and repair activities for previously permitted
structures or fills because some of those maintenance and repair
activities might not qualify for NWP 3 authorization and may require
individual permits or other forms of DA authorization.
One commenter expressed opposition to authorizing the
rehabilitation or replacement of structures that are derelict or not
operational without a PCN and analyses of individual cumulative
effects. One commenter recommended modifying this NWP to authorize
regular maintenance of drainages to reduce exposed pipelines and
pipeline spans. One commenter stated that without individual permit
review, the Corps has no way of knowing if the structures are being
replaced in kind, and whether those structures would have adverse
environmental effects. This commenter also said that there need to be
practicable alternatives if adverse effects are anticipated by these
activities.
This NWP does not authorize the repair, rehabilitation, or
replacement of structures and fills that are no longer currently
serviceable. If a derelict or non-operational structure requires
repair, rehabilitation, or replacement, and those activities require DA
authorization, they may be authorized by individual permits or regional
general permits. Discharges of dredged or fill material into waters of
the United States that are necessary to rebury pipelines exposed in
drainages or repair pipeline spans that extend over drainages may be
authorized by this NWP or other NWPs, such as NWP 18, which authorizes
minor discharges into waters of the United States. Corps district staff
may conduct compliance actions for activities authorized by NWP 3, to
ensure that authorized activities comply with the conditions of the
NWP, including in-kind replacement. Because this NWP is limited to the
repair, rehabilitation, and replacement of existing, currently
serviceable structures or fills, there are usually no practicable
alternatives for repairing, rehabilitating, or replacing these
structures or fills. Relocating or reconstructing the
[[Page 73529]]
structure or fill in a different location has the potential to result
in more adverse environmental effects than the incremental impact
caused by the repair, rehabilitation, or replacement of the structure
or fill, and might not serve the intended purpose as the original
structure or fill.
Many commenters stated that they support the proposed modification
that authorizes the placement of new or additional riprap to protect
the structure. Several commenters said that authorization of the
placement of riprap under NWP 3 should require a PCN. Some commenters
objected to this proposed modification. One commenter objected to this
proposed modification, stating that it could be used to authorize
substantial amounts of riprap to protect an existing structure or fill,
such as a beach house. One commenter stated that the phrase ``minimum
necessary'' is ambiguous and unquantifiable and NWP 3 activities should
be limited to ensure that no significant adverse effects occur as a
result of the placement of the riprap. One commenter said that riprap
placed to protect the structure or fill should be limited to 25 cubic
yards. One commenter said that riprap placed above the ordinary high
water mark should be covered with topsoil and revegetated, and that
stream-side areas at the ordinary high water mark should be revegetated
with acceptable bioengineering techniques. A few commenters stated that
using the term ``riprap'' in the proposed modification will result in
preferential use of this technique when other forms of protection, such
as bioengineering, may be feasible and less environmentally damaging.
After considering the comments received in response to the 2020
Proposal, the Corps is not reissuing NWP 3 with the proposed
modification that would authorize the placement of new or additional
riprap to protect the structure or fill, as long as the placement of
riprap is the minimum necessary to protect the structure or fill and to
ensure the safety of the structure or fill. The placement of new or
additional riprap to protect the structure or fill may be authorized by
other forms of DA authorization, such as regional general permits and
individual permits. If a project proponent wants to place riprap to
protect a building, such as a beach house constructed in uplands, then
the project proponent can use NWP 13, which may require submittal of a
PCN to the district engineer, or seek DA authorization through the
individual permit process.
Riprap placed in uplands landward of the ordinary high water mark
does not require DA authorization, so the Corps does not have the
authority to require the permittee place topsoil in those upland areas
and install plants in the topsoil. Bioengineering might not be a
practicable alternative to riprap for the purposes of protecting a
repaired, rehabilitated, or replaced structure or fill, or ensuring its
safe operation. A permittee can choose to use bioengineering to protect
a structure or fill from erosion, if appropriate, and bioengineering
activities that require DA authorization may be authorized by NWP 3 if
it is considered a minor deviation due to changes in materials,
construction techniques, requirements of other regulatory agencies, or
current construction codes or safety standards. Bioengineering for bank
stabilization may also be authorized by NWP 13, which authorizes a
variety of bank stabilization techniques.
A few commenters requested clarification on what constitutes a
minor deviation, and what constitutes a small amount of riprap. One
commenter suggested replacing the term ``small'' with ``minor'' when
referring the amount of riprap that can be used to protect the
structure or fill, to be consistent with the 1996 NWP. One of these
commenters said that NWP 3 should have quantitative limits. One
commenter requested that the Corps further restrict the NWP by adding
text that states that the placement of riprap may be used to ensure the
safety of the design, but not for other safety purposes.
As discussed above, the Corps is not reissuing this NWP with
modifications that would authorize the placement of new or additional
riprap to protect the existing structure or fill. What constitutes a
``minor deviation'' is dependent on the degree to which changes in the
structure's configuration or filled area would occur as a result of the
repair, rehabilitation, or replacement activity relative to the size
and shape of the existing structure or fill, as well as any deviations
that are necessary because of changes in materials, construction
techniques, the requirements of other regulatory agencies, or current
construction codes or safety standards. Because this NWP authorizes
structures and work in navigable waters of the United States and
discharges of dredged or fill material into waters of the United States
for the repair, rehabilitation, or replacement of existing, currently
serviceable structures or fills, and only allows minor deviations, it
would not be appropriate to add quantitative limits to the text of the
NWP other than the quantitative limits currently in paragraph (b)
(i.e., the 200 foot limit for the removal of accumulated sediments and
debris). The safety of the structure or fill may be dependent on more
than the design of the structure or fill. For example, the safety of
the structure or fill may be dependent on the types of materials used
for the structure or fill, to help provide greater stability and help
ensure that the structure or fill withstands expected erosive forces or
other forces.
Many commenters stated that they support the removal of
``previously authorized'' from the Note and replacing it with
``currently serviceable.'' Several commenters suggested retaining in
the ``Note'' the text that refers to ``previously authorized''
structures or fills to allow for maintenance of previously authorized
structures or fills. One commenter said that in the Note the phrase
``previously authorized'' should be replaced with the term
``existing.''
In the Note for this NWP, the Corps has retained ``previously
authorized'' because the Corps is not reissuing this NWP with the
proposed changes to paragraph (a), which would have authorized the
repair, rehabilitation, or replacement of any currently serviceable
structure or fill that did not require a permit at the time it was
constructed. If the structure or fill is ``currently serviceable'' it
is an existing structure or fill. Therefore, it is not necessary to
replace the phrase ``previously authorized'' with ``existing.''
One commenter said that the removal of accumulated sediments within
200 feet of a structure is excessive and should be evaluated on a case-
by-case basis. One commenter stated that the provisions allowing
removal of sediment could result in more than minimal impacts on
aquatic organisms. One commenter stated that the PCN requirement for
activities authorized under (b) of this NWP for sediment and debris
removal is unnecessary unless the dredged material is proposed to be
redeposited or retained within waters of the United States.
Paragraph (b) authorizes the removal of accumulated sediments and
debris outside the immediate vicinity of existing structures (e.g.,
bridges, culverted road crossings, water intake structures, etc.) for a
distance of no more than 200 feet from the structure. All activities
authorized by paragraph (b) of this NWP require a PCN to district
engineers. Therefore, district engineers will review these proposed
activities to determine whether removal of accumulated sediments up to
200 feet from the structure will result in no more than minimal
individual and cumulative adverse environmental
[[Page 73530]]
effects. The removal of accumulated sediment and debris is likely to
have temporary impacts on aquatic organisms because those activities
occur on a periodic basis in response to the accumulation of sediment
and debris in these dynamic waterbodies. Communities of aquatic
organisms are likely to recover in the waterbody between sediment and
debris removal activities. Division engineers may add regional
conditions to this NWP to reduce the 200-foot limit in regions where
shorter limits are necessary to ensure that the adverse environmental
effects caused by these activities are no more than minimal. The Corps
is retaining the PCN requirement for activities authorized by paragraph
(b) of this NWP because of the potential for some of these activities
to result in more than minimal adverse environmental effects.
Therefore, district engineers should have the opportunity to review
these proposed activities so that they can exercise discretionary
authority when necessary to require individual permits for certain
activities.
One commenter said that rebuilding existing electric utility lines
should continue to be covered under NWP 3 even though NWP 57 would also
authorize these activities. Numerous commenters stated that PCNs should
be required for all activities authorized by this NWP. Many commenters
stated this permit causes significant adverse impacts which are a
violation of the Clean Water Act, and that this NWP should be withdrawn
or stricter impact limitations should be imposed. One commenter said
that NWP 3 authorizes activities that are not similar in nature, which
violates Section 404(e) of the Clean Water Act. One commenter stated
the draft decision document does not provide enough information to
determine the full extent of impacts associated with this NWP.
This NWP can be used to repair, rehabilitate, or replace electric
utility lines, as well as other structures or fills, as long as those
electric utility lines are currently serviceable. If the electric
utility line must be rebuilt because of destruction or damage by a
storm, flood, fire, or other discrete event, this NWP can be used to
authorize discharges of dredged or fill material into waters of the
United States or structures as well as work in navigable waters of the
United States for those rebuilding activities. Those electric utility
line rebuilding activities may also be authorized by NWP 57. Because
this NWP authorizes structures and work in navigable waters of the
United States and discharges of dredged or fill material into waters of
the United States for the repair, rehabilitation, or replacement of
existing, currently serviceable structures or fills, and only
authorizes minor deviations, the Corps does not believe that PCNs
should be required for activities authorized by paragraph (a). The
activities authorized by NWP 3 are similar in nature, because they are
limited to the repair, rehabilitation, and replacement of currently
serviceable structures or fills, or structures or fills damaged or
destroyed by storms, floods (including tidal floods), fires, or other
discrete events. The current qualitative and quantitative limits in the
text of this NWP are sufficient to ensure that the NWP authorizes only
those activities that result in no more than minimal individual and
cumulative adverse effects, and no additional limits are necessary. The
final decision document for this NWP provides an assessment of
activities that may be authorized by this NWP during the 5-year period
it is anticipated to be in effect, as well as an evaluation of
potential environmental impacts that is commensurate with the
anticipated degree and severity of those environmental impacts. The
decision document has been prepared in compliance with the requirements
of the National Environmental Policy Act (NEPA), the Corps' public
interest review regulations, and the Clean Water Act Section 404(b)(1)
Guidelines.
This NWP is reissued without the proposed modifications.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. The Corps did not propose any changes to this
NWP. No comments were received on the proposed reissuance of this NWP.
This NWP is reissued as proposed.
NWP 5. Scientific Measurement Devices. The Corps did not propose
any changes to this NWP. No comments were received on the proposed
reissuance of this NWP. This NWP is reissued as proposed.
NWP 6. Survey Activities. The Corps did not propose any changes to
this NWP. One commenter expressed support for the reissuance of this
NWP with no changes. One commenter stated that the Corps should clarify
the nature and extent of seismic exploratory operations that qualify
for authorization under this NWP and modify this NWP to require PCNs
for all seismic exploratory operations. This commenter said that
seismic exploration operations may use vehicles that can compact
wetland soils, create tire ruts in wetlands, and cause regulated
discharges of dredged or fill material. A few commenters said seismic
exploratory operations cause adverse effects to waters of the United
States, endangered species, and marine mammals, and should require
authorization through individual permits. One commenter stated that if
seismic testing activities continue to be authorized by this NWP, then
limits should be placed on the amount of exploratory trenching. One
commenter said that this NWP should be modified to impose a 25 cubic
yard limit for discharges of fill material for shot holes, and that
survey activities involving numerous small pads in excess of 25 cubic
yards should require individual permits.
This NWP authorizes survey activities, including seismic
exploratory activities, that involve structures or work in navigable
waters of the United States that require DA authorization under Section
10 of the Rivers and Harbors Act of 1899 and discharges of dredged or
fill material into waters of the United States that require DA
authorization under Section 404 of the Clean Water Act. Seismic
exploratory operations may be conducted in a manner that does not
require DA authorization under any of the Corps' permitting
authorities. Seismic exploratory operations may be conducted using
equipment on or attached to vessels in navigable waters and vehicles
used on land that involve no structures or work in navigable waters or
discharges of dredged or fill material into waters of the United
States. For example, seismic surveying activities in marine waters may
be conducted from vessels carrying or towing seismic surveying
equipment, with no structures or work requiring DA authorization under
Section 10 of the Rivers and Harbors Act of 1899. Those types of
seismic surveying activities in marine waters do not require DA
authorization.
Land-based seismic surveying activities are often conducted from
vehicles that generate the seismic waves and vehicles or other devices
that carry the sensors that receive the seismic waves for analysis.
Driving vehicles in wetlands may cause the formation of ruts as the
wheels move through wet or moist soils. However, driving vehicles such
as trucks, cars, off-road vehicles, or farm tractors through a wetland
in a manner in which such vehicles is designed to be used generally is
not subject to regulation under Section 404 of the Clean Water Act (see
66 FR 4568). Land-based seismic surveying activities may also be
conducted by drilling shot holes and detonating explosive charges in
those shot holes to produce sound that is received by sensors. If those
shot holes are drilled in jurisdictional
[[Page 73531]]
wetlands, backfilling the shot holes in jurisdictional wetlands with
fill material may require DA authorization under Section 404 of the
Clean Water Act.
If survey activities proposed to be conducted by non-federal
permittees involve structures or work in navigable waters of the United
States and/or discharges of dredged or fill material into waters of the
United States, pre-construction notification is required for the
proposed NWP activity if any listed species (or species proposed for
listing) or designated critical habitat (or critical habitat proposed
such designation) might be affected or is in the vicinity of the
activity, or if the proposed activity is located in designated critical
habitat or critical habitat proposed for such designation (see
paragraph (c) of general condition 18, endangered species). District
engineers will review PCNs submitted under paragraph (c) of general
condition 18 and determine whether ESA Section 7 consultation is
required for proposed NWP 6 activities. Project proponents who
undertake survey activities that may result in a take of marine mammals
may be required to obtain an incidental take authorization from the
National Marine Fisheries Service pursuant to the Marine Mammal
Protection Act.
The Corps does not agree that quantitative limits should be placed
on exploratory trenching because the NWP requires restoration of the
area of waters of the United States in which the exploratory trench is
dug to preconstruction elevations upon completion of the survey work.
In addition, the NWP does not authorize exploratory trenching
activities that drain waters of the United States. The Corps also
declines to impose a 25-cubic-yard limit on discharges of dredged or
fill material into waters of the United States for plugging shot holes,
because plugging shot holes helps restore affected areas to pre-
construction elevations. Plugging shot holes also provides safety
benefits by filling holes in the soil that can cause injury to people
and wildlife. This NWP has a 1/10-acre limit for losses of waters of
the United States for temporary pads used for survey activities, so the
Corps does not believe that an additional 25-cubic-yard limit is
necessary to help ensure that this NWP authorizes only those survey
activities that result in no more than minimal adverse environmental
effects.
This NWP is reissued as proposed.
NWP 7. Outfall Structures and Associated Intake Structures. The
Corps did not propose any changes to this NWP. One commenter stated
this NWP should be reissued with no changes. This NWP is reissued as
proposed.
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. The
Corps did not propose any changes to this NWP. One commenter stated
that this NWP should be reissued with no changes. One commenter said
that the Corps must analyze impacts to marine mammals through an
environmental impact statement and consult with NMFS through the ESA
Section 7 consultation process before verifying activities under this
NWP. A commenter stated that the Corps should categorically exclude the
state of Oregon from this NWP because oil and gas drilling activities
in federal waters near Oregon are prohibited, and all activities
authorized by this NWP should require PCNs to provide the necessary
coordination between the district engineer and the state.
Project proponents that use NWP 8 to authorize oil or natural gas
structures on the outer continental shelf under Section 10 of the
Rivers and Harbors Act of 1899 are responsible for complying with the
Marine Mammal Protection Act, including any requirement to obtain
incidental take authorizations from the NMFS. When a district engineer
receives a PCN for a proposed NWP 8 activity, a district engineer will
evaluate potential effects of the proposed structures on marine mammals
that are listed as endangered or threatened under the ESA, as well as
marine mammals species proposed for listing under the ESA. The district
engineer will also evaluate potential effects of the proposed
structures on designated critical habitat, and if applicable, critical
habitat proposed for such designation. If the district engineer
determines the proposed NWP 8 activity may affect listed species or
designated critical habitat, including listed marine mammals and
designated critical habitat for marine mammals, he or she will initiate
ESA Section 7 consultation with the NMFS and, if appropriate, the U.S.
FWS, unless ESA Section 7 consultation has already been conducted by
another federal agency for the proposed oil and gas structures. This
NWP authorizes structures in federal waters overlying the outer
continental shelf; it does not authorize structures in the territorial
seas. Therefore, if a project proponent wants to conduct oil or natural
gas drilling activities in the territorial seas, he or she would need
to obtain DA authorization through the individual permit process, or
through a regional general permit if the Corps district has issued a
regional general permit that authorizes oil or gas structures in the
territorial seas. All activities authorized by this NWP require PCNs,
and the district engineer can elect to coordinate the review of the PCN
with the state.
This NWP is reissued as proposed.
NWP 9. Structures in Fleeting and Anchorage Areas. The Corps did
not propose any changes to this NWP. No comments were received on the
proposed reissuance of this NWP. This NWP is reissued as proposed.
NWP 10. Mooring Buoys. The Corps did not propose any changes to
this NWP. Several commenters said that PCNs should be required for all
activities authorized by this NWP. Several commenters stated they
oppose the installation of mooring buoys within tribal lands without
coordinating with the tribes. One commenter requested clarification as
to how this NWP will interface with regional conditions.
The Corps does not agree that PCNs should be required for all non-
commercial, single-boat mooring buoys authorized by this NWP because
the installation of these structures in navigable waters of the United
States is unlikely to result in more than minimal individual and
cumulative adverse environmental effects. Certain NWP general
conditions, such as general condition 18 for endangered species and
general condition 20 for historic properties, may trigger PCN
requirements for some mooring buoys proposed to be installed by non-
federal permittees. For example, under paragraph (c) of general
condition 18 non-federal permittees are required to submit PCNs to the
district engineer if any listed species (or species proposed for
listing) or designated critical habitat (or critical habitat proposed
such designation) might be affected or is in the vicinity of the
proposed mooring buoy, or if the proposed mooring buoy is located in
designated critical habitat or critical habitat proposed for such
designation. Activities authorized by this NWP must comply with general
condition 17, tribal rights. During the process for reissuing this NWP,
Corps districts consulted with tribes and those consultation efforts
may have resulted in regional conditions or coordination procedures
with tribes to help ensure compliance with general condition 17. This
NWP interfaces with regional conditions in the same manner as any other
NWP interfaces with regional conditions. If a division engineer imposed
a regional condition on this NWP, in order to qualify for NWP
authorization, the proposed activity must comply with that regional
condition as well as any requirements in the text of the NWP and
applicable NWP general conditions.
This NWP is reissued as proposed.
[[Page 73532]]
NWP 11. Temporary Recreational Structures. The Corps did not
propose any changes to this NWP. No comments were received on the
proposed reissuance of this NWP. This NWP is reissued as proposed.
NWP 13. Bank Stabilization. The Corps proposed to modify this NWP
by adding a ``Note'' that states that in coastal waters and the Great
Lakes, living shorelines may be an appropriate option for bank
stabilization, and may be authorized by NWP 54.
Many commenters objected to the proposed reissuance of NWP 13,
stating that that bank stabilization using bulkheads, revetments, and
other hard structures has deleterious effects on shoreline ecosystems.
Several commenters stated that this NWP should not be reissued so that
bank stabilization activities can be limited to bioengineering or the
construction of living shorelines. Many commenters said that the
proposed NWP would result in significant adverse impacts, and violate
Section 404(e) of the Clean Water Act, the Clean Water Act Section
404(b)(1) Guidelines, the NEPA, and the ESA. One commenter stated that
the reissuance of this NWP should require an environmental impact
statement.
This NWP authorizes a wide variety of bank stabilization activities
because bioengineering and living shorelines are effective bank
stabilization approaches in limited circumstances. This NWP authorizes
both hard bank stabilization activities (e.g., revetments, riprap,
bulkheads) and soft bank stabilization activities (e.g.,
bioengineering, other forms of vegetative stabilization). Living
shorelines may be authorized by NWP 54, as indicated by the Note
proposed to be added to this NWP. Hard bank stabilization activities
may be necessary in riverine, lacustrine, estuarine, and marine
environments subject to strong erosive forces. Soft bank stabilization
activities may be effective at reducing erosion in aquatic habitats
subject to moderate to low erosive forces. This NWP has been issued in
compliance with Section 404(e) of the Clean Water Act (including the
Section 404(b)(1) Guidelines), NEPA, and the ESA. In the national
decision document for the reissuance of this NWP, the Corps prepared an
environmental assessment with a finding of no significant impact to
comply with NEPA requirements. Therefore, the reissuance of this NWP
does not require the preparation of an environmental impact statement.
In the national decision document, the Corps prepared a Clean Water Act
Section 404(b)(1) Guidelines compliance analysis, which also addresses
the requirements of Section 404(e) of the Clean Water Act. In section
8.0 of the national decision document for this NWP, the Corps discusses
compliance with the ESA, including the requirements of general
condition 18 and 33 CFR 330.4(f).
Many commenters said that the secondary, indirect, and cumulative
effects associated with bank stabilization activities authorized by
this NWP are adverse. A few commenters stated that the activities
authorized by this NWP have negative adverse effects on ESA-listed fish
and their critical habitat. One commenter said that bulkheads have more
than minimal cumulative adverse impacts and that the Corps should not
reissue this NWP because it does not know how many NWP 13 activities
occur each year. One commenter said that the activities authorized by
this NWP have substantial sediment-related impacts. One commenter
stated that the Corps should develop a means to measure, monitor, and
enforce sediment limits.
While bank stabilization activities may have adverse effects on the
aquatic environment, to be authorized by this NWP those adverse effects
must be no more than minimal on an individual and cumulative basis.
Activities authorized by this NWP must comply with general condition 18
and 33 CFR 330.4(f), which address compliance with the ESA. Under
paragraph (c) of general condition 18, non-federal permittees are
required to submit a PCN to the district engineer if any listed species
(or species proposed for listing) or designated critical habitat (or
critical habitat proposed such designation) might be affected by the
proposed activity or is in the vicinity of the proposed activity, or if
the proposed activity is located in designated critical habitat or
critical habitat proposed for such designation. District engineers will
review all PCNs for proposed NWP 13 activities for potential effects to
species and critical habitats covered under the ESA and will initiate
ESA Section 7 consultation for any proposed activity that may affect
listed species or designated critical habitat, including ESA-listed
fish species and their designated critical habitat.
This NWP requires a PCN for any proposed activity that: (1)
Involves discharges into special aquatic sites; (2) is in excess of 500
feet in length; or (3) will involve the discharge of greater than an
average of one cubic yard per running foot as measured along the length
of the treated bank, below the plane of the ordinary high water mark or
the high tide line. District engineers will review proposed bulkheads
constructed in wetlands and other special aquatic sites, as well as
proposed bulkheads that are longer than 500 feet in length or involve
the discharge of greater than one cubic yard per running foot as
measured along the bank. The Corps tracks the use of this NWP through
the required and voluntary PCNs for proposed NWP 13 activities that are
submitted to district offices. While not all proposed NWP 13 activities
involving the construction or replacement of bulkheads require PCNs,
consistent with other NWPs that do not require PCNs for all authorized
activities the Corps estimates the number of PCN and non-PCN activities
anticipated to occur during the 5-year period the NWP is expected to be
in effect.
Bank stabilization activities can have adverse effects on sediment
processes in aquatic ecosystems, and this NWP authorizes only those
bank stabilization activities that have no more than minimal individual
and cumulative adverse environmental effects. Bank stabilization
activities may be necessary to reduce erosion to protect buildings and
other structures, as well as infrastructure (e.g., utility lines). Bank
stabilization activities may also help reduce sediment loads to
waterbodies, by reducing erosion caused by flowing water and other
sediment inputs to waterbodies. Under its procedures at 33 CFR part
326, the Corps can take actions to address situations where permittees
do not comply with the terms and conditions of this NWP, including the
cubic yard limit for discharges of dredged or fill material into waters
of the United States.
One commenter said that the Corps needs to consider secondary
effects of structures such as bulkheads in its minimal effects
determination. One commenter suggested limiting use of this NWP to
emergency situations when other bank stabilization techniques, such as
living shorelines and bioengineering, are not available. One commenter
recommended adding emergency provisions to NWP 13. One commenter
expressed opposition to the complete removal of non-native plant
species.
In its national decision document for the reissuance of this NWP,
including the environmental assessment, public interest review, and
Clean Water Act Section 404(b)(1) Guidelines analysis, the Corps
evaluates potential indirect or secondary effects caused by activities
authorized by this NWP. When reviewing required PCNs, as well as
voluntary PCNs, for proposed NWP 13 activities, district engineers
consider the site-specific direct and indirect effects that may be
caused by those activities,
[[Page 73533]]
as required by paragraph 2 of section D, District Engineer's Decision.
As discussed above, living shorelines and bioengineering are effective
bank stabilization techniques under certain circumstances, and
therefore this NWP should not limit the use of hard bank stabilization
measures to emergency situations.
The Corps does not believe it is necessary to add provisions to
this NWP to address emergency situations. Not all activities authorized
by NWP 13 require PCNs, and some emergency bank stabilization measures
may be undertaken without the need to submit a PCN to the Corps. If an
emergency situation arises where bank stabilization activities require
review by the Corps, those bank stabilization activities may be
authorized through the Corps' emergency authorization procedures at 33
CFR 325.2(e)(4). The Corps did not propose any changes to this NWP
regarding the removal of non-native plant species. While paragraph (g)
of this NWP requires the use of native plants appropriate for current
site conditions, including salinity, for bioengineering or vegetative
bank stabilization, it does not require the permittee to remove
individuals of non-native plant species that may become established in
the project area through natural processes.
Many commenters suggested reducing the linear foot limits of this
NWP. One commenter recommended removing the 500 linear foot limit from
this NWP. One commenter suggested removing the 1,000-foot limit for
waivers for bulkheads, to allow district engineers to issue waivers
that authorize bulkheads greater than 1,000 feet in length. One
commenter stated that the waiver provision should be removed from this
NWP because it includes no performance standards and it can be abused.
One commenter said that the Corps should not require permits for longer
reaches of stream banks that would be temporarily impacted.
The Corps is retaining the 500 and 1,000 linear foot limits in this
NWP. The 500 linear foot limit can be waived by the district engineer,
if he or she determines after reviewing a PCN that the proposed
activity will result in no more than minimal individual and cumulative
adverse environmental effects and issues a written verification for the
proposed NWP activity. For proposed bulkheads, the 500 linear foot
limit can be waived up to the 1,000 linear foot limit. If a project
proponent wants to construct more than 1,000 linear feet of bulkhead,
then he or she will need to submit an application for an individual
permit, unless the Corps district has issued a regional general permit
that authorizes bulkheads longer than 1,000 feet in length. Division
engineers can add regional conditions to this NWP to impose lower
linear foot limits on bank stabilization activities, including the
maximum length for bulkheads. The only performance standard that
applies to waivers of the 500 linear foot limit is requirement that the
district engineer issue a written determination that concludes that the
proposed activity will result in no more than minimal individual and
cumulative adverse environmental effects. DA authorization is required
for permanent and temporary impacts to stream banks within the Corps'
jurisdiction if those impacts involve discharges of dredged or fill
material into waters of the United States or structures and work in
navigable waters of the United States.
A few commenters said that this NWP should not authorize discharges
of dredged or fill material below the ordinary high water mark or mean
high water line. One commenter suggested prohibiting building out to
pre-existing bank lines. A few commenters stated that impacts to
special aquatic sites should not be authorized by this NWP.
The purpose of this NWP is to authorize discharges of dredged or
fill material into waters of the United States and structures and work
in navigable waters of the United States for bank stabilization
activities that have no more than minimal individual and cumulative
adverse environmental effects. Prohibiting discharges of dredged or
fill material into waters of the United States below the ordinary high
water mark in jurisdictional non-tidal rivers and streams, or below the
high tide line in tidal streams and other tidal waters would preclude
NWP authorization for many bank stabilization activities that result in
minimal individual and cumulative adverse environmental effects. In
addition, such a prohibition would result in ineffective protection
against erosion since flowing waters and tidal waters would be likely
to undercut the bank stabilization activity. Bank stabilization
activities constructed under that prohibition would likely collapse
after the stream or river bank, lake shore, estuary shore, or ocean
shore is undermined through erosional processes. If there are no
jurisdictional wetlands landward of the bank or shore, then the Corps
has no authority to prevent landowners from discharging fill material
to construct buildings near the banks of streams or rivers, or the
shores of lakes, estuaries, and oceans. All discharges of dredged or
fill material into special aquatic sites require PCNs to the Corps, and
district engineers will review those PCNs to determine whether the
proposed activities will result in no more than minimal individual and
cumulative adverse environmental effects. If the district engineer
reviews a PCN for a proposed discharge of dredged or fill material into
a special aquatic site, and after considering mitigation proposed by
the applicant, determines that the proposed activity will result in
more than minimal individual and cumulative adverse environmental
effects, he or she will exercise discretionary authority and require an
individual permit for that activity.
Many commenters said that PCNs should be required for all
activities authorized by this NWP. Many commenters stated that PCNs
should be required for activities less than 500 feet in length. One
commenter requested clarification regarding when pre-construction
notification is required for activities authorized by this NWP, because
there is a perception that bank stabilization activities in excess of
500 linear feet require authorization by individual permits. One
commenter said that the PCN requirement for discharges into special
aquatic sites should be removed. One commenter stated that PCNs should
be required for all activities authorized by this NWP to ensure that
those activities will not jeopardize ESA-listed species. One commenter
said that all NWP 13 activities should require agency coordination.
The Corps believes that it has established appropriate PCN
thresholds for this NWP, so that PCNs are required for proposed bank
stabilization activities that have the potential to result in more than
minimal individual and cumulative adverse environmental effects. The
PCN review process allows for case-specific review of proposed
activities so that district engineers can determine whether those
proposed activities can be authorized by this NWP. Division engineers
can impose regional conditions on this NWP to require PCNs for proposed
activities that are less than 500 linear feet in length or would
involve the discharge of less than one cubic yard per running foot as
measured along the length of the bank. The district engineer can waive
the 500 linear foot limit if she or he determines in writing, after
evaluating the PCN and any comments received during the agency
coordination conducted under paragraph (d) of general condition 32,
that the proposed activity will result in no more than minimal
individual and
[[Page 73534]]
cumulative adverse environmental effects.
This NWP requires PCNs for all discharges of dredged or fill
material into special aquatic sites so that district engineers can
review all of these proposed activities to determine whether they will
result in no more than minimal adverse environmental effects. Under
paragraph (c) of general condition 18, non-federal permittees are
required to submit a pre-construction notification to the district
engineer if any listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed such
designation) might be affected or is in the vicinity of the proposed
activity, or if the proposed activity is located in designated critical
habitat or critical habitat proposed for such designation. The district
engineer will review the PCN and determine whether ESA Section 7
consultation or conference with the U.S. FWS and/or NMFS is required
for the proposed activity. If ESA Section 7 consultation or conference
is required, the activity is not authorized by NWP until the district
engineer notifies the project proponent that those processes are
completed. Certain activities authorized by NWP 13 require agency
coordination, specifically activities for which permittees are
requesting waivers of the quantitative limits of this NWP or for
discharges into special aquatic sites. The Corps does not agree that
agency coordination should be required for all NWP 13 activities that
require pre-construction notification.
Several commenters expressed support for adding the Note to this
NWP to make permittees aware of the availability of NWP 54 (Living
Shorelines) for bank stabilization activities in coastal waters. Many
commenters suggested modifying this NWP to require a preferential
hierarchy for bioengineering and living shorelines over bank hardening
activities to satisfy requirements to authorize the least
environmentally damaging practicable alternative.
The Corps has added the proposed Note to this NWP. The Corps
encourages waterfront property owners and other project proponents to
use living shorelines, bioengineering, vegetative stabilization, and
other soft bank stabilization approaches in coastal areas and other
waterbodies where those methods are likely to be successful in managing
erosion along coastal waters, along river and stream banks, and
shorelines in lakes and other waterbodies. The use of living
shorelines, bioengineering, vegetative stabilization, and other soft
bank stabilization approaches can help increase the resilience of
waterfront properties, as well as the structures and infrastructure
located on those properties, to the adverse effects of climate change.
The increased use of nature-based approaches such as living shorelines
and bioengineering to bank stabilization is a priority in the
Administration's climate resiliency efforts. Noting this, the Corps
provides that such soft bank stabilization techniques should generally
be considered first when project proponents consider the use of NWP 13.
There are many factors, however, that should be taken into account in
both the proposed and verified bank stabilization project.
The appropriate approach to managing shoreline or bank erosion in
coastal areas and other waterbodies must be determined on a site-
specific basis after considering a variety of factors. Examples of
factors relevant to the planning and design of bank stabilization
activities include, but are not limited to: Bank height; bank
condition; the energy of the tides, waves, currents, or other water
flows that the bank is exposed to; fetch; nearshore water depths; the
potential for storm surges; sediment or substrate type; tidal range in
areas subject to the ebb and flow of the tide; shoreline configuration
and orientation; whether there is infrastructure in the vicinity of the
proposed bank stabilization activity that needs to be protected; the
width of the waterway; the presence of trees in the vicinity of the
bank and whether those trees need to be maintained or protected; and
the distance from a navigation channel or navigable fairway in the
waterbody. With respect to living shorelines, factors to consider
regarding the appropriateness of living shorelines to manage bank
erosion in coastal areas include the fetch of the waterbody, shore
morphology, depth gradients of nearshore waters, the stability of the
existing substrate, tidal range, and marsh elevations (Saleh and
Weinstein 2016).
Project proponents may hire coastal engineers and other consultants
to help determine which bank stabilization techniques might be feasible
and successful at a specific site. District engineers are available to
discuss potential bank stabilization options with waterfront property
owners and their consultants, including the use of living shorelines,
bioengineering, and other soft bank stabilization approaches that may
be effective at controlling erosion at a particular site, as well as
more environmentally beneficial. The Corps cannot mandate the use of a
particular bank stabilization technique at a specific site. District
engineers can require minor project modifications to proposed
activities to reduce adverse environmental impacts (see 33 CFR
320.4(r)(1)(i)). However, district engineers cannot require completely
different designs of proposed activities that require DA authorization
without agreement from the applicant. In addition to the factors
identified in the previous paragraph, there are other factors to
consider when selecting a bank stabilization method, including costs
and maintenance requirements, which can vary substantially among
different bank stabilization approaches. In addition, requiring
specific approaches to bank stabilization may also negatively affect
disadvantaged communities. District engineers will review PCNs for
proposed bank stabilization activities, and if the district engineer
determines that a proposed bank stabilization activity will result in
more than minimal adverse environmental effects, the district engineer
will exercise discretionary authority and require an individual permit.
During the individual permit review process, an alternatives analysis
is required and the alternatives evaluated during the individual permit
review process may include soft bank stabilization approaches.
Waterfront property owners and other project proponents are
responsible for proposing bank stabilization activities for their
properties, and under the NWP program, district engineers review PCNs
for those proposed activities. If a district engineer reviews a PCN for
a proposed bank stabilization activity and determines that the proposed
activity will result in more than minimal adverse environmental
effects, the district engineer will exercise discretionary authority
and require an individual permit for that proposed activity.
The Corps encourages waterfront property owners to first consider
the use of living shorelines, vegetative stabilization, bioengineering,
and other soft bank stabilization approaches before considering hard
bank stabilization techniques such as bulkheads and revetments;
however, the Corps acknowledges that living shorelines and
bioengineering are not effective or appropriate approaches to bank
stabilization in all conditions. For certain types of aquatic
ecosystems and site conditions, such as environments subjected to high
energy erosive forces, hard structural bank stabilization measures such
as revetments and bulkheads may be necessary to reduce erosion and
protect people, buildings,
[[Page 73535]]
and infrastructure. The requirement in the Clean Water Act Section
404(b)(1) Guidelines to permit the least environmentally damaging
practicable alternative applies to activities authorized by individual
permits, not to activities authorized by general permits. The Corps
will include in their NWP 13 verification decision document a summary
of the rationale for the verified bank stabilization measures
reflecting the engineering, cost, technology and other considerations
above, to include discussion of soft bank stabilization techniques and
why it was or was not appropriate for the subject site.
One commenter said that the Corps' draft decision document for this
NWP did not provide an adequate analysis of the direct, indirect, and
cumulative impacts caused by these activities and did not use adequate
scientific information to describe the affected environment and the
impacts of bank stabilization activities. One commenter asserted that
this NWP does not comply with the 404(b)(1) Guidelines. One commenter
said that the Corps should prepare an environmental impact statement
for the proposed reissuance of this NWP. One commenter stated that
activities authorized by this NWP cause significant degradation of
aquatic ecosystems. One commenter suggested that the Corps include sea
level rise in its analysis of this NWP, including its assessment of
cumulative impacts.
The final decision document prepared by Corps Headquarters for the
reissuance of this NWP provides a general analysis of the impacts
expected to be caused by activities authorized by this NWP during the
5-year period it is anticipated to be in effect. In the environmental
assessment, the Corps evaluated the effects or impacts on the human
environment that are reasonably foreseeable and have a reasonably close
causal relationship to the activities authorized by this NWP,
consistent with the Council on Environmental Quality's definition of
``effects or impacts'' at 40 CFR 1508.1(g). In the national decision
document, the Corps also addressed the elements required for a Clean
Water Act Section 404(b)(1) Guidelines analysis for the issuance of a
general permit, including a cumulative effects analysis conducted in
accordance with 40 CFR 230.7(b)(3) and a conclusion that the reissuance
of this NWP would not cause or contribute to significant degradation of
the aquatic environment.
The affected environment of the United States is described in
section 4.0 of the national decision document, using available
information at a national scale to describe the current environmental
baseline. The Corps complied with the requirements of NEPA by preparing
an environmental assessment with a finding of no significant impact.
Therefore, an environmental impact statement is not required for the
reissuance of this NWP. The national decision document for this NWP has
been revised to provide more discussion of sea level rise, including
the need for bank stabilization activities to protect buildings and
infrastructure from increased risks of erosion that may be caused by
rising sea levels. Bank stabilization activities authorized by this NWP
can help protect existing buildings and infrastructure and reduce risks
associated with rising sea levels, as a means of adapting to climate
change. Rising sea levels are an effect of climate change.
One commenter suggested adding a definition of ``bioengineering''
to this NWP. One commenter requested that the Corps enforce current
guidelines to remove non-biodegradable fabric used in previous
projects. One commenter said that the Corps needs to develop functional
assessment tools to better assess individual and cumulative impacts of
bank stabilization on channel and floodplain processes.
The Corps declines to add a definition of ``bioengineering'' to
this NWP to because adding such a definition might impose unnecessary
constraints on potential bioengineering approaches to bank
stabilization that may be authorized by this NWP. Bioengineering
approaches can vary by region, may involve a variety of techniques and
materials, and may vary by resource type. Non-biodegradable fabric may
be used as a component for a variety of bank stabilization techniques
and that fabric needs to permanently remain in place to control erosion
at the site. Requiring the removal of fabric that is used for bank
stabilization activities would likely undermine the efficacy of bank
stabilization projects and their structural integrity because fabric is
often necessary to ensure that soil under revetments and other bank
stabilization structures is not washed away by tidal waters or by water
moving through the soil to the bank or shoreline. If the soil under
revetments and other bank stabilization structures is moved away from
the project site, then those structures may collapse and erosion may be
exacerbated. Adjacent uplands may also collapse or subside, posing a
potential danger to people who live at or use the project site.
While functional assessment tools may be useful in assessing the
individual and cumulative environmental impacts of bank stabilization
activities within a project site, a waterbody, or within a geographic
region, those environmental impacts can be assessed through other
means. When reviewing PCNs for proposed NWP 13 activities, district
engineers will apply the 10 criteria in paragraph 2 of section D,
District Engineer's Decision to determine whether a proposed NWP 13
activity qualifies for NWP authorization. If an appropriate functional
assessment is available, that tool may be used by district engineers
when evaluating PCNs and determining whether a proposed bank
stabilization activity qualifies for NWP 13 authorization.
This NWP is reissued as proposed.
NWP 14. Linear Transportation Projects. The Corps proposed to
modify this NWP by adding ``driveways'' to the list of examples of
activities authorized by this NWP.
Several commenters expressed support for the addition of
``driveways'' to the list of examples of the types of projects
authorized by this NWP. One commenter said that adding ``driveways'' to
the list of examples for the types of projects authorized by this NWP
could confuse applicants and result in an increase of PCNs submitted to
the Corps, and requested that the Corps provide a more detailed
explanation of the type of driveway authorized by this NWP. A commenter
said the text of this NWP should be revised to clarify if NWP 14 would
be used to authorize driveways when a project proponent is using other
NWPs such as NWP 29 (Residential Development) or NWP 39 (Commercial and
Institutional Developments) to authorize a development project that may
include one or more driveways. One commenter stated that driveways
should be limited to vehicle access to a facility and not to large-
scale transportation projects, with an acreage limit that applies to
the driveway.
The Corps has adopted the proposed modification of this NWP to
include ``driveways'' in the list of examples of the types of projects
authorized by this NWP. The term ``driveways'' applies broadly to
include features that are used by vehicles to move to and from
buildings and other facilities, and is not limited to driveways
associated with single unit or multiple unit residences, or driveways
used to go to and from commercial buildings, institutional buildings,
or other types of buildings. Discharges of dredged or fill material
into waters of the United States for the construction or expansion of
driveways may also be authorized by NWPs 29 and 39 as attendant
features to residential developments and commercial and institutional
developments. Adding ``driveways'' to the list of examples of
[[Page 73536]]
the types of projects that may be authorized by NWP 14 can provide some
clarity to the regulated public because the construction of a driveway
may be the only activity that requires DA authorization if a
residential development or commercial or institutional development is
constructed in uplands, and the driveway is needed to cross waters of
the United States to provide vehicular access to the upland
development.
There is usually no need to combine NWP 14 with NWP 29 or NWP 39 to
authorize the construction or expansion of driveways within residential
or commercial or institutional developments, unless the construction of
the driveway involves discharges of dredged or fill material into
waters of the United States that are not authorized by NWPs 29 or 39.
For example, the construction or expansion of a driveway that crosses
tidal waters or non-tidal wetlands adjacent to tidal waters, may be
authorized by NWP 14 because NWPs 29 and 39 do not authorize discharges
of dredged or fill material into tidal waters. A driveway serves a
specific purpose that may be different than other types of linear
transportation projects. Driveways are subject to the same acreage
limits as other linear transportation projects authorized by this NWP,
including larger scale linear transportation projects: 1/2-acre for
losses of non-tidal waters of the United States and 1/3-acre for losses
of tidal waters.
One commenter stated that the cumulative impacts of authorizing
large residential driveways in waters of the United States threatens
nearshore benthic habitat that is important to salmonids. One commenter
recommended modifying this NWP to include a definition for ``stand-
alone project.'' One commenter suggested modifying NWP 14 to authorize
any structure or fill that would facilitate the movement of people and/
or goods, including moving sidewalks, stationary sidewalks, streetcars,
trams, and trollies. One commenter stated that this NWP should
authorize the construction, expansion, or modification of ferry
terminals.
When reviewing PCNs for proposed driveways authorized by this NWP,
the district engineer will determine whether a proposed activity may
affect ESA-listed species or designated critical habitat, including
listed salmon species and their designated critical habitat. If the
district engineer determines a proposed NWP activity may affect listed
species or designated critical habitat, he or she will initiate ESA
Section 7 consultation with the NMFS and/or U.S. FWS as appropriate.
The proposed activity cannot be authorized by NWP until the ESA Section
7 consultation process has been concluded. A non-federal permittee must
submit a pre-construction notification to the district engineer if any
listed species (or species proposed for listing) or designated critical
habitat (or critical habitat proposed such designation) might be
affected or is in the vicinity of the activity, or if the activity is
located in designated critical habitat or critical habitat proposed for
such designation (see paragraph (c) of general condition 18).
The Corps declines to add a definition of ``stand-alone project''
to this NWP because that phrase is not used in this NWP. The first
sentence of this NWP provides examples of linear transportation
projects that may be authorized by this NWP, and those examples include
railways and trails. The list of examples is not an exhaustive list, so
other types of linear transportation projects that require DA
authorization may be authorized by this NWP, including streetcars,
trams, and trollies. Sidewalks may be authorized other NWPs, such as
NWPs 29 and 39 if those sidewalks are attendant features of the types
of developments authorized by those NWPs. This NWP does not authorize
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States for the
construction, modification, expansion, or improvement of ferry
terminals because ferry terminals are not linear transportation
projects. A ferry terminal is a single point within a ferry
transportation system, and is a non-linear feature.
One commenter said that the term ``crossing'' should be defined or
changed to ``placement of dredge or fill and structures'' or ``impacts
to waters of the United States.'' This commenter stated that the term
``crossing'' has been viewed strictly as a crossing or bisecting of
waters of the United States rather than allowing roadway fill in a
wetland along the linear transportation project since the road only
filled a portion of the wetland rather than crossing it.
The NWP uses the term ``crossing'' because linear transportation
projects have a point of origin and a terminal point and may involve
multiple crossings of waterbodies at separate and distant locations to
move people, goods, or services between the point of origin and the
terminal point. A crossing does not have to bisect a water of the
United States. For example, a crossing can consist of dredged or fill
material placed in waters of the United States along the edge of the
linear transportation project without bisecting the waterbody. A
crossing constructed in such a manner can be considered to minimize
impacts to waters of the United States in compliance with paragraph (a)
of general condition 23, mitigation, without a loss of connectivity
within the remaining extent of the waterbody. Paragraph (a) of general
condition 23 requires project proponents to design and construct their
NWP activities to avoid and minimize adverse effects, both temporary
and permanent, to waters of the United States to the maximum extent
practicable at the project site (i.e., on site).
One commenter said that linear transportation projects authorized
by this NWP have devastating impacts on animal populations resulting
from habitat loss, habitat fragmentation, creation of migration
barriers, and increased impervious surface runoff. This commenter said
these impacts must be assessed through the preparation of an
environmental impact statement and through ESA Section 7 consultation.
General condition 2 (aquatic life movements) states that no NWP
activity may substantially disrupt the necessary life cycle movements
of those species of aquatic life indigenous to the waterbody, including
those species that normally migrate through the area, unless the
activity's primary purpose is to impound water. General condition 2
also requires all permanent and temporary crossings of waterbodies to
be suitably culverted, bridged, or otherwise designed and constructed
to maintain low flows to sustain the movement of those aquatic species.
For terrestrial animals, linear transportation projects can be designed
and constructed to provide corridors for animal movement (e.g.,
tunnels, bridges) so that target species can safely move from one side
of the linear transportation project to the other side.
The construction of linear transportation projects may trigger a
requirement by state or local governments to provide stormwater
management facilities to reduce adverse effects to changes in watershed
hydrology that may be caused by the construction of roads and other
impervious surfaces in the watershed. Stormwater management facilities
can reduce surface runoff that may adversely affect rivers, streams,
and other waterbodies. District engineers will conduct ESA Section 7
consultation for proposed NWP 14 activities when they determine that
those activities may affect listed species or designated critical
habitat. This NWP authorizes
[[Page 73537]]
only activities that have no more than minimal individual and
cumulative adverse environmental effects, and NEPA compliance was
completed through the preparation of an environmental assessment by
Corps Headquarters in the national decision document for the reissuance
of this NWP. The Corps concluded the environmental assessment with a
finding of no significant impact. Therefore, the reissuance of this NWP
does not require the preparation of an environmental impact statement.
One commenter said the 1/2-acre limit for losses of non-tidal
waters of the United States and the 1/3-acre limit for losses of tidal
waters is not consistent with other NWPs. One commenter stated that
both acreage limits for this NWP should be reduced to 1/10-acre. One
commenter said the phrase ``minimum necessary'' is ambiguous in the
context of limiting stream channel modifications and recommended
limiting stream channel modifications to 300 linear feet or 1/10-acre.
One commenter said that this NWP should not authorize linear projects
that are more than a few hundred feet in length. One commenter
expressed agreement that an individual permit is required for an entire
linear project if one crossing of waters of the United States does not
satisfy the terms and conditions of the NWP.
The 1/2-acre limit for losses of non-tidal waters of the United
States in this NWP is consistent with the 1/2-acre limit in other NWPs
that authorize discharges of dredged or fill material into non-tidal
waters of the United States, such as NWP 21 (surface coal mining
activities), NWP 29 (residential developments), NWP 39 (commercial and
institutional developments), NWP 40 (agricultural activities), NWP 42
(recreational facilities), NWP 43 (stormwater management facilities),
NWP 44 (mining activities), NWP 50 (underground coal mining
activities), NWP 51 (land-based renewable energy generation
facilities), and NWP 52 (water-based renewable energy generation pilot
projects). The 1/3-acre limit for losses of tidal waters for NWP 14 was
adopted in 1991 (see 56 FR 59142), and the 1/3-acre limit applied to
losses of tidal waters and non-tidal waters. When the Corps issued 5
new NWPs and modified 6 existing NWPs to replace NWP 26 in 2000 (see 65
FR 12818), it modified NWP 14 by increasing the acreage limit for
losses of non-tidal waters for public linear transportation projects to
1/2-acre. The 1/2-acre and 1/3-acre limits, plus the PCN requirements
for this NWP, are sufficient to ensure that activities authorized by
this NWP result in no more than minimal individual and cumulative
adverse environmental effects. In addition, division engineers can add
regional conditions to this NWP to lower the acreage limits in a
particular geographic area to ensure compliance with the ``no more than
minimal adverse environmental effects'' requirement for the NWPs.
The use of the phrase ``to the minimum necessary'' for stream
channel modifications for linear transportation projects requires
project proponents to minimize their stream channel modifications while
providing flexibility to allow district engineers and project
proponents to take into account for project-specific circumstances as
well as design and construction constraints that may be imposed by
site-specific conditions, including stream channel geomorphology, the
topography of the surrounding area, and the purpose of the linear
transportation project. Any loss of stream bed due to filling or
excavation is also subject to the 1/2-acre and 1/3-acre limits of this
NWP, so the Corps does not believe it is necessary to add a 300 linear
foot limit for stream channel modifications. The Corps also declines to
impose an overall linear foot limit to linear transportation projects
since there can be substantial distances between crossings of waters of
the United States, and those crossings may involve different
waterbodies and watersheds. The Corps has retained Note 1 in this NWP,
which references 33 CFR 330.6(d). Section 330.6(d) addresses how NWPs
may or may not be combined with individual permits for activities that
require DA authorization.
One commenter said that for a linear transportation project with
multiple crossings of waters of the United States, the overall linear
transportation project should be considered as the single and complete
project, not the individual crossings of jurisdictional waters and
wetlands. One commenter stated that allowing up to 1/2-acre of losses
of waters of the United States for each single and complete project
could result in extensive cumulative impacts and recommended that the
Corps impose a single, overall limit to the entire linear
transportation project. One commenter stated that linear transportation
projects may cause cumulative impacts not captured in the NWP
cumulative impact analysis because some activities are authorized by
NWP 14 without a requirement to submit PCNs. One commenter said that
allowing the expansion, modification, or improvement of previously
authorized projects for linear transportation projects could result in
cumulative impacts above the acreage limits and therefore these
activities should only be authorized when losses of waters of the
United States for the previously authorized projects plus the losses of
waters of the United States for the proposed expansion, modification,
or improvement project do not exceed the 1/2-acre or 1/3-acre limits.
One commenter said that all crossings of waters of the United States in
a major watershed should be evaluated together as a single and complete
project because the cumulative impacts are to one system, or
alternatively that all activities authorized by this NWP should require
PCNs to allow for the evaluation of cumulative impacts.
The practice for providing NWP authorization for single and
complete linear project, where each separate and distant crossing of
waters of the United States may qualify for its own NWP authorization,
is consistent with the Corps' NWP regulations at 33 CFR 330.2(i), which
were published in the November 22, 1991, issue of the Federal Register
(56 FR 59110)). District engineers will evaluate the separate and
distant crossings of waters of the United States that require PCNs for
linear transportation projects, as well as the additional information
provided in the PCNs for crossings of waters of the United States
authorized by NWP that do not require PCNs. Paragraph (b)(4)(i) of
general condition 32 requires the prospective permittee to identify in
the PCN any other NWP(s), regional general permit(s), or individual
permit(s) used or intended to be used to authorize any part of the
proposed project or any related activity, including other separate and
distant crossings for linear projects that require DA authorization but
do not require pre-construction notification. In addition, paragraph
(b)(4)(ii) requires the prospective permittee to include in the PCN the
quantity of anticipated losses of wetlands, other special aquatic
sites, and other waters for each single and complete crossing of those
wetlands, other special aquatic sites, and other waters (including
those single and complete crossings authorized by an NWP but do not
require PCNs). Because of the requirements of paragraph (b)(4) of
general condition 32, it is not necessary to require PCNs for all
activities authorized by NWP for linear transportation projects.
The district engineer will use the information in the PCN to
evaluate the individual and cumulative adverse environmental effects of
the proposed linear transportation project that are authorized by NWP.
The district engineer determines the appropriate
[[Page 73538]]
geographic scale for evaluating cumulative impacts. The cumulative
effects may be evaluated on a watershed-basis, or by using other types
of geographic regions, such as a Corps district, state, county, or
other geographic area deemed appropriate by the district engineer.
Cumulative effects accrue from multiple uses of an NWP in a geographic
area. Separate and distant crossings of waters of the United States for
a linear transportation project may occur in different waterbodies
within a single watershed, or various waterbodies in more than one
watershed, depending on the length of the linear transportation
project, the distribution of waterbodies in a watershed, and the size
of the watershed(s). Separate and distant crossings authorized by NWP
may also occur in a single waterbody (e.g., a meandering stream), as
long as there is sufficient distance between crossings of waters of the
United States.
When evaluating PCNs for proposed NWP 14 activities, district
engineers may also consider previously authorized losses of the United
States for linear transportation projects when a project proponent
wants to expand, modify, or improve a previously authorized linear
transportation project. Since the NWPs can be issued for a period of no
more than five years, the cumulative effects caused by an NWP are
limited to the number of times that NWP is used during the five year
period it is in effect (see 40 CFR 230.7(b)(3)). Therefore, if the
proposed expansion, modification, or improvement is for a linear
transportation project that was authorized in the current five-year
cycle for the NWP, the district engineer should take the previously
authorized losses of waters of the United States into account when
determining if the proposed changes to the linear transportation
project will result in no more than minimal individual and cumulative
adverse environmental effects and qualify for NWP 14 authorization. On
the other hand, if the proposed expansion, modification, or improvement
is for a linear transportation project that was authorized by a
previous version of NWP 14 that has expired, the district engineer does
not need to take the previously authorized losses of waters of the
United States into account, because the previously authorized
activities have become part of the current environmental baseline for
evaluating the individual and cumulative adverse environmental effects
of the NWP currently in effect.
One commenter requested clarification regarding whether the PCN
requirement for losses of greater than 1/10-acre of waters of the
United States applies to the overall linear project or each single and
complete project. One commenter stated that agency coordination should
be required for proposed activities in special aquatic sites or that
would result in the loss of greater than 1/10-acre of waters of the
United States. One commenter said that agency coordination should be
required for stream losses of stream bed greater than 300 linear feet.
The PCN thresholds for this NWP apply to each single and complete
project authorized by NWP. However, if the linear transportation
project involves multiple separate and distant crossings of waters of
the United States, and some of those crossings do not require pre-
construction notification, paragraph (b)(4) of general condition 32
requires the project proponent to identify the crossings authorized by
NWP that do not require PCNs, as well as quantity of anticipated losses
of waters of the United States expected to be caused by those non-PCN
NWP activities. The Corps does not agree that agency coordination is
necessary to provide the district engineer with information to assist
in his or her determination whether the proposed activity qualifies for
NWP authorization. District engineers will determine whether proposed
NWP 14 activities qualify for NWP authorization after reviewing the
information in PCNs.
One commenter stated that all linear transportation projects
previously authorized by NWP 14 should require PCNs if the project
proponent wants to use NWP 3 to authorize maintenance activities for
the previously authorized NWP activities. One commenter said there
should be more consistency between NWPs 12 and 14 in terms of acreage
limits, PCN thresholds, and allowing the use of temporary mats, because
both NWPs authorize single and complete linear projects with separate
and distant crossings of waters of the United States that do not have
independent utility.
This NWP can be used to authorize the maintenance of linear
transportation projects, including the replacement of structures and
fills for linear transportation projects that may not qualify NWP 3
authorization. Those replacement activities may not qualify for NWP 3
authorization because the current linear transportation project is not
currently serviceable, or because the project proponent wants to change
the design and/or size of the linear transportation project to
accommodate changes in water flow, improve connectivity for the
movement of aquatic organisms upstream and downstream of the road
crossing, or for other reasons. Changing the size and/or configuration
of the structures and fills for a linear transportation project may be
comprised of more than a minor deviation, which may preclude the use of
NWP 3 for the replacement activity. For example, replacing an
undersized or perched culvert with a larger culvert structure that
improves the passage of aquatic organisms and connectivity may be
considered an improvement of a linear transportation project. NWP 3 may
be more appropriate for certain repair, rehabilitation, or replacement
activities for linear transportation projects, as well as the removal
of accumulated sediment within and near water crossings. The NWP
program provides flexibility to permittees to determine which
applicable NWP to use to provide the required DA authorization under
Section 404 of the Clean Water Act and/or Section 10 of the Rivers and
Harbors Act of 1899.
The acreage limits for NWPs 12 and 14 have some similarities, with
a 1/2-acre limit for losses of non-tidal waters of the United States.
The 1/2-acre limit for NWP 12 also applies to tidal waters, while NWP
14 has a 1/3-acre limit for losses of tidal waters. Nationwide permits
12 and 14 have somewhat different PCN thresholds because of differences
between oil or natural gas pipeline activities and linear
transportation projects. Both NWPs have a PCN threshold for losses of
greater than 1/10-acre of waters of the United States. Both NWP 12 and
14 have provisions authorizing the use of temporary mats, when the use
of those mats requires DA authorization.
This NWP is reissued as proposed.
NWP 15. U.S. Coast Guard Approved Bridges. The Corps did not
propose any changes to this NWP. No comments were received in response
to the proposed reissuance of this NWP. This NWP is reissued as
proposed.
NWP 16. Return Water From Upland Contained Disposal Areas. The
Corps did not propose any changes to this NWP. One commenter stated
that the NWP should require the applicant to ensure toxic substances
are not released back into the water column through re-exposure from
dredging activities. One commenter said that the applicant should
properly characterize the quality and quantity of return water to
ensure state water quality standards are not violated.
This NWP authorizes only the return water from upland contained
disposal areas for dredged material, which is defined as a ``discharge
of dredged material'' under 33 CFR 323.2(d)(1)(ii).
[[Page 73539]]
This NWP does not authorize the dredging activity itself. Discharges
into waters of the United States require water quality certification
from the appropriate certifying authority unless a waiver of the water
quality certification requirement occurs. The certifying authority will
determine whether a discharge into waters of the United States will
comply with applicable water quality requirements.
This NWP is reissued as proposed.
NWP 17. Hydropower Projects. The Corps proposed to modify this NWP
to authorize discharges of dredged or fill material into waters of the
United States associated with hydropower projects with a generating
capacity of less than 10,000 kilowatts (kW), to be consistent with the
current definition of ``small hydroelectric power project.''
Several commenters stated they support the changing the threshold
for ``small hydroelectric projects'' to 10,000 kW or less. Many
commenters objected to the proposed reissuance of this NWP, stating
that hydropower projects typically result in significant adverse
effects and should not be authorized by an NWP. Several commenters
stated that they do not support increasing the threshold for
hydroelectric projects under criterion (a) of this NWP to 10,000 kW.
One commenter said the Corps is not obligated to modify the NWP to be
consistent with the Federal Energy Regulatory Commission's (FERC)
definition of ``small hydroelectric project'' and stated that the Corps
should not increase the threshold for total generating capacity to
10,000 kW.
This NWP is limited to the authorization of discharges of dredged
or fill material into waters of the United States associated with the
construction of hydropower facilities that satisfy criteria (a) or (b)
in the first paragraph of the NWP. The FERC licenses the construction
and operation of hydropower facilities, and is the lead for conducting
the environmental review for these hydropower projects. Permit
requirements for structures and work in navigable waters of the United
States for non-federal hydropower development are met through the
FERC's licensing process under the Federal Power Act of 1920, as
amended. Therefore, separate authorization from the Corps under Section
10 of the Rivers and Harbors Act of 1899 is not required for structures
and work in navigable waters of the United States.
Because criterion (a) of this NWP applies only to existing
reservoirs, the NWP is limited to authorizing discharges of dredged or
fill material into waters of the United States to install the
hydropower generation unit with a total generating capacity of up to
10,000 kW in the existing reservoir. The modification of this NWP is
intended to provide consistency with FERC's definition of ``small
hydroelectric project'' and reduce duplication of agency reviews for
these projects. In addition, hydropower is a renewable energy source
and increasing the threshold for small hydroelectric projects from
5,000 kW to 10,000 kW will provide NWP authorization for activities
that can help provide more electricity to a community or region, and
may help decrease reliance on energy generation facilities that rely on
the combustion of fossil fuels to produce electricity. Therefore,
increasing the energy generation capacity of hydroelectric facilities
can help reduce emissions of greenhouse gases that contribute to global
climate change.
One commenter stated that activities authorized under criterion (b)
of this NWP would exceed the development at existing dams and related
infrastructure and would result in adverse effects. One commenter said
that in certain circumstances, hydropower projects are exempt from FERC
licensing and subsequently do not require authorization under Section
404 of the Clean Water Act or water quality certification from the
applicable certifying authority. One commenter said that the Corps
failed to provide sufficient explanation as to how the proposed change
would continue to authorize activities that have no more than minimal
individual and cumulative adverse environmental effects. A few
commenters said that the text of the NWP should be revised to protect
tribal and village fisheries. One commenter stated that the NWP should
be revised to clarify that the NWP does not authorize the construction
of new dams.
This NWP was issued in 1982 to reduce duplication between the
reviews conducted by FERC and the Corps for small hydropower projects
(see 47 FR 31798). For hydropower projects, the Corps' regulatory
authority is limited to discharges of dredged or fill material into
waters of the United States under Section 404 of the Clean Water Act.
The FERC conducts a review when it grants a licensing exemption under
the statutes identified in criterion (b) of this NWP (i.e., Section 406
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and
Section 30 of the Federal Power Act, as amended (16 U.S.C. 823)). The
NWP authorization covers the discharges of dredged or fill material
into waters of the United States may be necessary to construct the
hydropower project. This NWP requires pre-construction notification for
all authorized activities, and district engineers will review each
proposed NWP 17 activity to determine if the proposed discharge of
dredged or fill material into waters of the United States will result
in no more than minimal individual and cumulative adverse environmental
effects. If the district engineer determines a proposed discharge of
dredged or fill material into waters of the United States will result
in more than minimal adverse environmental effects after considering
mitigation proposed by the applicant, he or she will exercise
discretionary authority and require an individual permit for the
proposed activity. During the review of the PCN, the district engineer
will also assess compliance with general condition 17, tribal rights.
This NWP does not authorize the construction of new dams for hydropower
projects. The FERC may issue an exemption at an existing dam or
project, or within an existing conduit that was constructed for
purposes other than power production.
This NWP is reissued as proposed.
NWP 18. Minor Discharges. The Corps did not propose any changes to
this NWP. One commenter expressed support for the reissuance of this
NWP with no changes. One commenter said that the limits of this NWP
should be increased to 50 cubic yards to match the proposed increase in
the cubic yard limit for minor dredging activities authorized by NWP
19. One commenter stated that this NWP should require PCNs for all
proposed activities, so that the district engineer can evaluate
potential impacts from sediment and other pollutants.
The Corps is retaining the 25-cubic-yard limit for this NWP.
Activities authorized by NWP 18 may convert wetlands and other waters
to uplands. The Corps is also retaining the 25-cubic-yard limit for NWP
19 as discussed below so NWPs 18 and 19 will remain consistent.
The Corps disagrees that PCNs should be required for all activities
authorized by this NWP. This NWP requires PCNs for discharges of
dredged or fill material into special aquatic sites and discharges of
dredged or fill material into waters of the United States greater than
10 cubic yards below the plane of the ordinary high water mark or the
high tide line, and those PCN thresholds are sufficient to help ensure
that activities authorized by this NWP result in no more than minimal
adverse environmental effects. Division engineers can add regional
conditions to this NWP to require PCNs for additional activities
authorized by
[[Page 73540]]
this NWP, if such regional conditions are necessary to provide district
engineer review for proposed activities that may result in more than
minimal individual and cumulative adverse environmental effects. The
Corps does not have the authority to regulate pollutants other than
discharges of dredged or fill material. Discharges of dredged or fill
material into waters of the United States authorized by this NWP
require water quality certification or waivers to comply with Section
401 of the Clean Water Act. Certifying authorities may issue, deny, or
waive water quality certification for discharges authorized by this
NWP. When certifying pursuant to section 401, certifying authorities
may include conditions to ensure that authorized discharges comply with
applicable water quality requirements.
This NWP is reissued as proposed.
NWP 19. Minor Dredging. The Corps proposed to modify this NWP by
changing the cubic yard limit from 25 cubic yards to 50 cubic yards.
Several commenters expressed opposition to increasing the cubic yard
limit for this NWP from 25 cubic yards to 50 cubic yards. Several
commenters voiced their support for the proposed change. One commenter
recommended increasing the cubic yard limit to 100 cubic yards. A
couple of commenters said that the Corps did not provide sufficient
explanation as to why increasing the cubic yard limit to 50 cubic yards
would ensure that the activities authorized by this NWP will result in
no more than minimal adverse environmental effects.
After considering the comments received in response to the 2020
Proposal, the Corps is retaining the 25 cubic yard limit for this NWP.
Where the 25-cubic-yard limit would be exceeded, those activities may
be authorized under regional general permits or individual permits,
including under letters of permission where those tools are available.
In geographic areas where minor dredging activities removing up to 25
cubic yards have the potential to result in more than minimal
individual and cumulative adverse environmental effects, division
engineers can impose regional conditions to reduce the cubic yard limit
from 25 yards to a smaller number of cubic yards. Division engineers
can also add regional conditions to this NWP to require PCNs for some
or all NWP 19 activities to provide district engineers the opportunity
to review these minor dredging activities on a case-by-case basis and
determine whether they qualify for NWP authorization.
One commenter said that applicants should be required to ensure
that toxic substances are not released back into the water column
through re-exposure from the dredging activity. One commenter objected
to the proposed reissuance of this NWP, stating that the authorized
dredging activities will have adverse effects on shellfish beds,
infaunal invertebrates, and macroalgal beds, as well as biogenic
structures such as shell rubble and large woody debris that provide
ecologically valuable habitat, forage areas, or refuge areas for fish,
shellfish, or shorebirds.
Minor dredging activities authorized by this NWP may require water
quality certification under Section 401 of the Clean Water Act. For a
proposed minor dredging activity that may result in a discharge into
waters of the United States, the certifying authority may issue, waive,
or deny water quality certification. The certifying authority may add
conditions to the water quality certification to ensure that the
discharge complies with applicable water quality requirements. This NWP
does not authorize the dredging or degradation through siltation of
coral reefs, sites that support submerged aquatic vegetation,
anadromous fish spawning areas, or wetlands. Bivalve molluscs
inhabiting shellfish beds may be harvested through dredging activities
authorized by other NWPs, such as NWP 4 for fish and wildlife
harvesting, enhancement, and attraction devices and activities, or NWP
48 for commercial shellfish mariculture activities. Infaunal
invertebrates, beds of macroalgae, and shell rubble areas may be
impacted by activities authorized by this NWP, but those impacts are
likely to be no more than minimal in the highly dynamic marine and
estuarine environments in which those organisms and features are
located, where they are subjected to a variety of natural and
anthropogenic disturbances, such as disturbances caused by storms,
vessels, anchors, and fishing activities. The removal of large woody
debris from waterbodies is usually accomplished through snagging rather
than dredging.
One commenter said that federal and state natural resource agency
coordination should be required for proposed activities that occur in
non-tidal waters inhabited by state and/or federally listed threatened
and endangered freshwater mussels. A commenter stated that project
proponents could piecemeal a number of smaller dredging projects under
this NWP to dredge a larger overall area and such activities may
negatively affect fish spawning habitat and water quality. One
commenter said that this NWP should require the use of silt fences,
booms, and bubblers to protect fish, and other natural resources.
Paragraph (c) of general condition 18 requires non-federal
permittees to submit a pre-construction notification to the district
engineer if any listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed such
designation) might be affected or is in the vicinity of the proposed
activity, or if the proposed activity is located in designated critical
habitat or critical habitat proposed for such designation. The district
engineer will review the proposed activity and if he or she determines
that it may affect federally-listed mussel species or other federally-
listed endangered or threatened species, the district engineer will
initiate ESA Section 7 consultation with the U.S. FWS and/or NMFS as
appropriate. Potential impacts to state-listed mussel species are more
appropriately addressed through the permittee's compliance with
applicable state natural resource or wildlife laws and regulations.
General condition 15 states that the same NWP cannot be used more
than once to authorize the same single and complete project. Therefore,
this NWP cannot be used multiple times to dredge larger volumes of
material from a specific waterbody as part of a larger overall dredging
project. The applicant should apply for an individual permit to obtain
DA authorization for the larger dredging project unless a different
general permit is available to authorize that project. Activities
authorized by this NWP can occur in a wide variety of waters, including
ocean waters, estuaries, and rivers, and the use of silt fences, booms,
and bubblers may be appropriate for some minor dredging activities but
not for other minor dredging activities. Therefore, the Corps declines
to modify this NWP at a national level to require these mitigation
measures for all activities authorized by this NWP.
This NWP is reissued without proposed modification.
NWP 20. Response Operations for Oil or Hazardous Substances. The
Corps did not propose any changes to this NWP. One commenter expressed
support for the reissuance of this NWP with no changes.
This NWP is reissued as proposed.
NWP 22. Removal of Vessels. The Corps did not propose any changes
to this NWP. One commenter recommended changing the text of this NWP to
state that land-based alternatives should be considered first for
vessel disposal. This commenter also said that intentional ocean
disposal of
[[Page 73541]]
vessels at sea requires a permit from EPA issued under the Marine,
Protection, Research and Sanctuaries Act, and should only be pursued
when land-based alternatives are not available.
This NWP authorizes temporary structures in navigable waters of the
United States or minor discharges of dredged or fill material into
waters of the United States required for the removal of wrecked,
abandoned, or disabled vessels, or the removal of man-made obstructions
to navigation. The consideration of off-site alternatives is not
required for activities authorized by NWPs (see 40 CFR 230.7(b)(1)). If
a project proponent intends to dispose of the vessel in ocean waters
then a separate authorization from EPA may be required under the
Marine, Protection, Research and Sanctuaries Act. Note 1 has been
revised to clarify EPA requirements for intentional ocean disposal of
vessels under the Marine, Protection, Research and Sanctuaries Act. The
project proponent has an independent responsibility to apply to EPA for
that authorization.
This NWP is reissued as proposed.
NWP 23. Approved Categorical Exclusions. The Corps did not propose
any changes to this NWP. Several commenters requested that the Corps
update Regulatory Guidance Letter 05-07 to include all current Federal
Transit Administration, Federal Rail Administration, and Federal
Highway Administration categorical exclusions so that NWP 23 can be
used to authorize regulated activities covered by those categorical
exclusions. One commenter stated that this NWP violates the public
participation requirements of Section 404(e) of the Clean Water Act
because it does not explain how the Chief of Engineers will solicit
public comment on categorical exclusions proposed to be added for
authorization by this NWP. This commenter also objected to the proposed
reissuance of this NWP, stating that it does not authorize categories
of activities that are similar in nature, and does not identify which
categories of activities are authorized by the NWP. In addition, this
commenter said that this NWP authorizes activities that result in more
than minimal adverse environmental effects.
As stated in the Note in this NWP, federal agencies may submit
requests to Corps Headquarters to seek approval for their categorical
exclusions to be authorized by this NWP. The Note also states that,
upon receipt of a request from a federal agency to add, modify, or
remove categorical exclusions for authorization under this NWP, Corps
Headquarters will solicit public comment on the request, and determine
which categorical exclusions involving discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States will be authorized by the NWP.
This NWP provides two opportunities for public participation in the
identification of categories of activities authorized by this NWP: (1)
The public notice and comment process associated with the proposal to
reissue this NWP, and (2) the public notice and comment process
associated with the review and approval for specific categorical
exclusions to be authorized by this NWP through the issuance of a
Regulatory Guidance Letter issued by Corps Headquarters.
This NWP authorizes categories of activities that are similar in
nature-- that is activities regulated by the Corps that are undertaken,
assisted, authorized, regulated, funded, or financed, in whole or in
part, by another federal agency or department--where those activities
are determined by the federal agency or department to be categorically
excluded from the requirement to prepare an environmental impact
statement or environmental assessment. The categorical exclusions
approved for use with this NWP are identified in a Regulatory Guidance
Letter issued by the Corps after a public notice and comment process.
Some of these approved categorical exclusions require submittal of PCNs
to Corps districts before commencing the authorized activities, so that
district engineers can review those activities on a case-by-case basis
to ensure that the authorized activities result in no more than minimal
individual and cumulative adverse environmental effects. The activities
associated with approved categorical exclusions that do not require
PCNs were determined by the Corps to result in no more than minimal
individual and cumulative adverse environmental effects when the Corps
approved those categorical exclusions for use with NWP 23. For those
approved categorical exclusions that do not require PCNs, district
engineers retain the ability to exercise discretionary authority on a
case-by-case basis to modify, suspend, or revoke the NWP authorization
if they determine those activities will result in more than minimal
adverse environmental effects.
This NWP is reissued as proposed.
NWP 24. Indian Tribe or State Administered Section 404 Programs.
The Corps did not propose any changes to this NWP. No comments were
received on the proposed reissuance of this NWP. After the comment
period for the 2020 Proposal ended on November 16, 2020, the State of
Florida was granted approval by the U.S. Environmental Protection
Agency to assume the Clean Water Act Section 404 permit program in
Florida. Therefore, the Corps has modified Note 1 of this NWP to
include Florida in the list of states with approved Clean Water Act
Section 404 permit programs. This NWP is reissued with the modification
discussed above.
NWP 25. Structural Discharges. The Corps did not propose any
changes to this NWP. One commenter objected to the proposed reissuance
of this NWP, stating that it contains no limits or other constraints to
ensure that it authorizes only activities that have no more than
minimal individual and cumulative adverse environmental effects.
This NWP does not have any quantitative limits because it
authorizes discharges of dredged or fill material into tightly sealed
forms that are used to construct structural components for pile
supported structures such as bridges or for mooring cells for general
navigation. The losses of waters of the United States authorized by
this NWP are limited by the dimensions of the piles, mooring cells, or
other structures for general navigation. The dimensions of these
tightly sealed forms for supported structures or structures for general
navigation will be determined by engineering standards for safe and
functional structures, as well as the purpose of the proposed supported
structure or navigational structure. These limited size of these
structures help ensure that the authorized discharges of dredged or
fill material into waters of the United States result in no more than
minimal individual and cumulative adverse environmental effects.
In addition, as stated in the text of the NWP, structures in
navigable waters of the United States subject to Section 10 of the
Rivers and Harbors Act of 1899 require separate authorization because
this NWP authorizes only discharges of dredged or fill material into
waters of the United States. The section 10 permit process would
address the potential impacts of the structure, including the size of
the proposed structure, on navigation, the aquatic environment, and the
Corps' other public interest review factors.
This NWP is reissued as proposed.
NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement
Activities. The Corps proposed to modify this NWP by changing the
second sentence of the second paragraph of this NWP to state that an
[[Page 73542]]
ecological reference may be based on the characteristics of one or more
intact aquatic habitats or riparian areas. The Corps also proposed to
modify this NWP by adding coral restoration or relocation activities to
the list of examples of activities authorized by this NWP and stating
that PCNs are not required for permittees that propose to conduct coral
restoration or relocation activities in accordance with a binding
agreement with the NMFS or any of its designated state cooperating
agencies. In addition, the Corps proposed to add ``releasing sediment
from reservoirs to restore downstream habitat'' to the list of examples
of aquatic restoration or enhancement activities that may be authorized
by this NWP.
One commenter expressed support for the reissuance of this NWP
because it allows for expedited permitting for much needed aquatic
habitat restoration and enhancement projects, especially in coastal
areas. One commenter stated that broad application of this NWP supports
proactive state planning efforts on resiliency and flooding master
plans. One commenter recommended revising the text of this NWP to make
it clear that it provides approval for restoration projects,
particularly those activities that will provide documented net
ecological uplifts and have already undergone federal and/or state
review through integrated and advance planning activities. One
commenter also suggested modifying this NWP to authorize the removal of
low-head dams and culverts for stream mitigation credits.
The Corps acknowledges that this NWP provides an expedited
authorization process for aquatic habitat restoration, enhancement, and
establishment activities that result in net increases in aquatic
resource functions and services and have no more than minimal
individual and cumulative adverse environmental effects. The aquatic
resource restoration, enhancement, and establishment activities
authorized by this NWP can be located in coastal areas. The aquatic
habitat restoration, enhancement, and establishment activities
authorized by this NWP can also provide water retention and storage
functions that contribute to ecological services such as natural hazard
mitigation, including water storage to reduce flood hazards. The
activities authorized by this NWP may have also been reviewed by state
agencies and other federal agencies, but review by these agencies is
not required before the Corps authorizes these activities under Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
of 1899. The removal of low-head dams to produce stream mitigation
credits may be authorized by NWP 53. In the third paragraph of NWP 27,
the removal of stream barriers (such as undersized culverts, fords, and
grade control structures) is included in the list of examples of
activities authorized by this NWP. The removal of undersized or perched
culverts may be authorized by this NWP and successful completion of
those activities may generate stream compensatory mitigation credits.
A few commenters expressed support for allowing the use of more
than one ecological reference site. One commenter said that this NWP
should be modified to address inconsistences in triggering mitigation
requirements. One commenter said that the word ``delineation'' be
replaced with ``description'' in the text of this NWP. Commenter stated
preparing an aquatic resources delineation per the Corps' delineation
standards and guidelines is a costly and time-consuming component of
project planning and does not seem to provide any additional protection
to waters and wetlands.
The Corps has adopted the proposed change regarding the use of one
or more intact aquatic habitats or riparian areas as an ecological
reference site. The sixth paragraph of this NWP states that
compensatory mitigation is not required for activities authorized by
this NWP because the authorized activities must result in net increases
in aquatic resource functions and services. Therefore, there should be
no compensatory mitigation requirements for aquatic habitat
restoration, enhancement, or establishment activities authorized by
this NWP.
The reports required for NWP 27 activities that do not require PCNs
must include a delineation of wetlands, streams, and/or other aquatic
habitats on the project site. Delineation is necessary to provide
district engineers with a sufficient description of the baseline
ecological conditions for that site to assist the Corps in determining
whether the reported activity is likely to result in net increases in
aquatic resource functions and services. A description of aquatic
resources on the project site is not sufficient to help district
engineers determine whether a proposed activity will satisfy the
requirements of this NWP. The project plans for the proposed aquatic
habitat restoration, enhancement, or establishment activity, plus the
delineation of aquatic resources on the project site, are necessary for
making certain determinations. Those determinations are whether net
gains in aquatic resource functions and services are likely to occur as
a result of the discharges of dredged or fill material into waters of
the United States and/or structures or work in navigable waters of the
United States, and whether any potential changes to existing aquatic
resources on the project site will help ensure that such net gains will
occur.
One commenter said that this NWP should be changed to clarify that
it authorizes actions by a third-party ecological restoration provider
in connection with a compensatory mitigation project, a restoration
project, or a resiliency-focused project that generates net ecological
uplift. One commenter stated that this NWP should be modified to allow
waters and wetland conversions to natural conditions for a different
aquatic habitat type if the proposed activity as a whole will result in
a net increase in aquatic resource functions and services.
As stated in the ``Note'' in this NWP, this NWP authorizes aquatic
habitat restoration, enhancement, and establishment activities that are
conducted by third-party ecological restoration providers for the
purposes of compensatory mitigation for NWPs and other forms of DA
authorization, such as individual permits and regional general permits.
This NWP can also be used to authorize aquatic habitat restoration
projects that are conducted for the purpose of increasing the functions
and services provided by degraded aquatic habitat, but are not being
conducted for providing compensatory mitigation for NWPs or other types
of DA permits. Resiliency projects may be authorized by this NWP as
long as they are aquatic habitat restoration, enhancement, or
establishment projects, result in net gains in aquatic resource
functions and services and resemble ecological references. Some
resiliency projects, such as nature-based solutions that are modified
ecosystems designed and constructed to provide ecosystem functions and
services (National Academy of Sciences 2019), might not resemble
ecological references because they consist of combinations of natural
and engineered components. Living shorelines are an example of
resiliency projects in coastal areas that do not resemble ecological
references because they may include engineered structures such as sills
or breakwaters. Living shorelines can be authorized by NWP 54. Green
infrastructure projects constructed to manage stormwater, such as rain
gardens or constructed wetlands, might not resemble ecological
references and may be authorized by NWP 43 or other NWPs, or by
individual permits.
The Corps is retaining the current prohibitions on conversions of
streams or natural wetlands to other aquatic
[[Page 73543]]
habitat types because those conversions typically focus on increasing a
specific aquatic resource function or service while resulting in net
losses in most of the other ecological functions and services performed
by the impacted aquatic habitat type. These converted aquatic habitats
may also result in hybrid aquatic habitats that do not resemble
ecological references. This NWP also retains the prohibitions on the
conversion of tidal waters and tidal wetlands to other aquatic uses, to
ensure that activities authorized by NWP 27 result in no more than
minimal individual and cumulative adverse environmental effects.
Conversions of natural wetlands, streams, and other types of waters to
different aquatic habitat types result in artificial conditions, not
natural conditions, and project proponents can seek DA authorization
for these activities through other means, such as the individual permit
process, other NWPs, or if available, regional general permits.
One commenter said that the Corps should issue a separate NWP for
voluntary wetland restoration projects to distinguish those projects
from development projects. One commenter stated that the text of this
NWP should include a definition for voluntary wetland restoration
projects that includes restoration projects that occur in altered,
degraded, and former wetlands. A commenter said that a new federal
process should be established for permitting voluntary wetland
restoration projects. One commenter said that to ensure that voluntary
wetland restoration projects result in net increases of wetland
functions and services, those projects should be prohibited as serving
to fulfilling mitigation requirements. One commenter stated that this
NWP should clarify that it authorizes permittee-responsible mitigation
activities.
This NWP authorizes both voluntary wetland restoration projects and
wetland restoration projects that are required by regulatory agencies
or other agencies. This NWP does not authorize development activities.
Other NWPs, such as NWP 29 (residential developments) and NWP 39
(commercial and institutional developments), may be used to authorize
development activities. The Corps declines to add a definition of
``voluntary wetland restoration project,'' because this NWP does not
distinguish between voluntary wetland restoration projects and wetland
restoration projects that may be conducted for other reasons, such as
wetland restoration requirements imposed by other federal, tribal,
state, or local government agencies. There is no need to establish a
new federal permitting process for voluntary wetland restoration
projects because the Corps currently authorizes wetland restoration
projects through its permitting authorities under Section 404 of the
Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.
While this NWP can be used to authorize discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States for wetland restoration projects,
those activities can also be authorized by individual permits and
regional general permits.
Voluntary wetland restoration projects are conducted by people or
organizations for the purpose of increasing wetland acreage and the
associated wetland functions and services, or the level of wetland
functions and services performed by areas of existing, degraded
wetlands. Wetland restoration for compensatory mitigation serves a
different purpose, which is to offset losses of wetland functions and
services caused by permitted activities. Third-party mitigation
providers (e.g., mitigation bank sponsors and in-lieu fee program
sponsors) may conduct wetland restoration projects to provide
compensatory mitigation for NWPs and other DA permits, or to fulfill
other federal, state, or local government mitigation requirements
without being driven to do so by regulatory requirements. Both
voluntary wetland restoration projects and wetland compensatory
mitigation projects are expected to result in net increases in wetland
functions and services, which is a basic requirement of this NWP. This
NWP can be used to authorize permittee-responsible mitigation projects,
including advance permittee-responsible mitigation projects where there
is no DA permit to authorize discharges of dredged or fill material
into waters of the United States or structures or work in navigable
waters of the United States for the advance permittee-responsible
mitigation project.
One commenter said that this NWP should be modified to explicitly
add the restoration of vegetated and unvegetated intertidal and
subtidal areas--including mudflats, sandflats, and submerged aquatic
vegetation--to the list of examples of activities authorized by this
NWP. Commenter said that the activities authorized by this NWP will
alter and destroy open water habitats in tidal estuaries and convert
them to types of habitat that were never historically present in those
waters. This commenter also stated that the activities authorized by
this NWP would make open water sites unusable by fishermen and species
that currently rely on those open water habitats. One commenter said
that the authorization of structures and fills by this NWP creates
overlap between NWP 27 and NWP 54 (living shorelines) and should be
revised. One commenter stated that the text of this NWP should be
clarified regarding the degradation of downstream waters.
As stated in the first paragraph of this NWP, it authorizes the
rehabilitation and enhancement of tidal streams, tidal wetlands, and
tidal open waters as long as those activities result in net increases
in aquatic resource functions and services. This includes vegetated and
unvegetated intertidal areas (e.g., mud flats and sand flats) and
vegetated and unvegetated subtidal areas (e.g., submerged aquatic
vegetation). Tidal open waters include mud flats and sand flats. Tidal
wetlands include submerged aquatic vegetation. The fifth paragraph of
this NWP states that it does not authorize activities that convert
tidal waters, including tidal wetlands, to other aquatic uses.
Therefore, this NWP cannot be used to authorize discharges of dredged
or fill material that convert tidal waters into uplands or non-tidal
aquatic habitats. In addition, because the text of this NWP states that
it authorizes the rehabilitation and enhancement of tidal open waters,
it limits the authorized activities to those that improve either the
suite of functions or a smaller number of functions performed by tidal
waters. It does not authorize activities that degrade or destroy tidal
waters, or render them unusable by fishermen. Aquatic habitat
restoration and enhancement activities may alter which species use the
restored or enhanced site, and which habitat functions support or deter
certain species.
Activities authorized by NWP 27 must result in an aquatic habitat
that resembles an ``ecological reference,'' consistent with the
definition of that term in section F of the NWPs. A living shoreline
usually consists of living components (e.g., marsh grasses, oysters)
and engineered components (e.g., sills or breakwaters constructed from
stone), and may not resemble an ecological reference. There is no
overlap between NWP 27 and NWP 54, although tidal wetlands restored or
enhanced as a result of the activities authorized by this NWP may help
reduce erosion as an ecological service.
Several commenters stated that NWP 27 has PCN thresholds that are
inconsistent with, and more stringent than, the PCN thresholds for
other NWPs, such as NWP 12 and the two
[[Page 73544]]
new NWPs 57 and 58 that were issued in the final rule published in the
January 13, 2021, issue of the Federal Register (86 FR 2744). Some of
these commenters suggested that this NWP should be modified to require
PCNs for proposed discharges of dredged or fill material into non-
wetland special aquatic sites or if the proposed activity results in
loss of greater than 1/10-acre of wetland. One commenter stated support
of the PCN notification exemption to continue to allow statewide
aquatic habitat restoration and enhancement activities to be conducted
in an efficient and timely manner. One commenter said that in order to
reduce unnecessary delays and expenses from the PCN process, this NWP
should be modified by removing the exception from the requirement to
submit PCNs for activities on non-federal public lands and private
lands conducted under agreements between the landowner and federal
agencies or their designated state cooperating agencies.
The PCN thresholds for this NWP are no more stringent that the PCN
thresholds for many other NWPs. All activities authorized by this NWP
require some form of advance notification to district engineers before
commencing authorized activities, to provide district engineers with
the opportunity to take action on those proposed activities that do not
comply with the requirements of the NWP, such as activities that are
not expected to result in net gains in aquatic resource functions and
services or activities that are not likely to resemble ecological
references. The advance notification takes the form of either: (1) Pre-
construction, or (2) reporting. The activities identified in the
``Notification'' paragraph require PCNs and reports are required for
the activities identified in the ``Reporting'' paragraph. Most of the
NWPs require PCNs for all authorized activities, or for a subset of
authorized activities.
The suggested PCN thresholds for discharges of dredged or fill
material into non-wetland special aquatic sites or for losses of
greater than 1/10-acre of wetland are not appropriate for an NWP that
authorizes discharges of dredged or fill material or structures or work
into all types of waters of the United States. Wetlands are a subset of
jurisdictional waters in which this NWP can be used to authorize
regulated activities associated with aquatic habitat restoration,
enhancement, and establishment. This NWP authorizes activities in tidal
and non-tidal wetlands, rivers and streams, lakes, estuaries, and ocean
waters. Some form of case-by-case review is needed for all authorized
activities to ensure their compliance with the NWP and that they will
result in no more than minimal individual and cumulative adverse
environmental effects.
This NWP does not have an acreage or other quantitative limits.
Instead of a quantitative limit, this NWP requires that aquatic habitat
restoration, enhancement, and establishment activities result in net
increases in aquatic resource functions and services and resemble
ecological references. Aquatic habitat restoration, enhancement, and
establishment activities can occur over large or small areas, and the
PCN and reporting requirements facilitate the expedited review process
for activities that provide benefits for the aquatic environment, as
well as ecological services for people. The reporting requirement was
established for certain NWP 27 activities on non-federal public lands
and private lands to reduce costs associated with preparing PCNs, while
providing district engineers with the opportunity to review proposed
activities that do not require PCNs. The reporting requirement provides
district engineers with the opportunity to take action if they
determine that a proposed activity does not qualify for NWP 27
authorization because it is not an aquatic habitat restoration,
enhancement, or establishment activity; it is not likely to result in
net gains in aquatic resource functions and services; or it does not
resemble an ecological reference.
Several commenters expressed support for adding coral restoration
activities to the list of examples of activities that may be authorized
by NWP 27. One commenter stated that authorizing coral restoration
activities under this NWP would streamline and simplify restoration
activities and reduce burdens on the local agencies.
The Corps has added coral restoration activities and coral
relocation activities to the list of examples of activities authorized
by this NWP when those activities require DA authorization under
Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of
the Clean Water Act.
Many commenters stated opposition to the proposed inclusion of
reservoir sediment releases as an example of an activity authorized by
NWP 27 while many commenters expressed support for the proposed
inclusion of that activity as an example of activities authorized by
this NWP. A few commenters stated that controlled sediment releases can
benefit downstream river and stream beds and embankments. One commenter
asserted that these activities should require individual permits. One
commenter suggested rewording the proposed modification to the
following: ``reservoir sediment management to provide continuity in
sediment transport through reservoirs.''
The Corps is adding ``releases of sediment from reservoirs to
maintain sediment transport continuity to restore downstream habitats''
to the list of examples of activities authorized by this NWP instead of
the proposed text of ``releasing sediment from reservoirs to restore
downstream habitat.'' These activities can be conducted in a manner
that improves the functions and services performed by downstream river
and stream habitats and results in no more than minimal individual and
cumulative adverse environmental effects. The revised text is intended
to emphasize the notion of rehabilitating downstream habitats and
improving the functions and services performed by those habitats by
maintaining continuity of sediment transport through reservoirs rather
than emphasizing reservoir management activities. Sediment releases
from reservoirs must have the purpose of maintaining sediment transport
through rivers that sustains or improves downstream habitat that is
adversely affected by the reservoir because that reservoir disrupts
normal sediment transport processes in the river. The Corps declines to
revise the text to refer to reservoir sediment management activities
because the modification of this NWP addresses only one approach to
reservoir sediment management.
The movement of sediment via flowing water through watersheds and
river and stream networks is a natural watershed process (Black 1997).
Reservoirs trap sediment and disrupt the continuity of sediment
transport though the river network in a watershed, which reduces the
amount of sediment transported downstream that helps maintain river
channel form as well as adjacent riparian areas and floodplains
(Kondolf et al. 2014). Periodic releases of sediment stored in
reservoirs can help maintain the continuity of sediment transport in
riverine systems and help sustain or enhance downstream riverine and
riparian habitats, including floodplains. In coastal areas, periodic
releases of sediment from reservoirs can provide sediment that helps
sustain coastal wetlands and unvegetated coastal habitats (Kondolf et
al. 2014). Those sediments can accrete in coastal wetlands and help
those wetlands adjust to sea level rise. The activities authorized by
this NWP require either PCNs or reports to district engineers, so
[[Page 73545]]
it is not necessary to add a PCN requirement specific to releases of
sediment from reservoirs to maintain sediment transport continuity in
riverine systems to restore or enhance downstream habitats. District
engineers will review these proposed activities through either PCNs or
reporting documentation submitted by project proponents to Corps
district offices.
Releases of sediment from reservoirs may or may not require DA
authorization, depending on how those sediment releases are conducted.
Guidance is provided in Regulatory Guidance Letter (RGL) 05-04:
``Guidance on the Discharge of Sediments From or Through a Dam and the
Breaching of Dams, for Purposes of Section 404 of the Clean Water Act
and Section 10 of the Rivers and Harbors Act of 1899.'' The RGL
explains the circumstances in which sediment releases from reservoir do
not require DA authorization, and how reservoir sediment releases can
be conducted without the need to obtain Clean Water Act Section 404
authorization from the Corps. In general, releases of sediments that
are incidental to normal reservoir operations--such as releases of
water through the dam to restore reservoir capacity during events like
spring run-off, flooding, or storms--are considered de minimis
discharges of dredged material. They do not require DA authorization
under section 404 so long as the sediment loads of waters released from
reservoirs are consistent with the sediment loads entering the
reservoir from the upstream waters. The modification of this NWP
clarifies that this NWP can be used to provide DA authorization under
Section 404 of the Clean Water Act and Section 10 of the Rivers and
Harbors Act for sediment releases from reservoirs that require such
authorization, as long as those sediment releases rehabilitate
downstream habitats and result in net gains in aquatic resource
functions and services.
Several commenters stated that sediment releases from reservoirs
authorized by this NWP should have quantitative limits to ensure that
no more than minimal adverse impacts occur as a result of these
activities. One commenter said that the text of this NWP should clarify
that sediment releases from reservoirs must be linked to a clear
restoration action or plan and should not be authorized by this NWP
solely for the purpose of reservoir management or dam maintenance. Many
commenters stated that PCNs should be required for all sediment
releases authorized by this NWP. Several commenters objected to the
proposed modification, stating that sediment release activities under
NWP 27 should require PCNs when dam removal projects would result in
large amounts of sediments being released. One commenter said that a
PCN threshold should be added to this NWP to address discharges
associated with sediment releases and the frequency of those sediment
releases, to ensure that those activities result in no more than
minimal adverse environmental effects.
The Corps does not agree that there should be quantitative limits
for reservoir sediment releases authorized by this NWP because of the
variability in hydrology and sediment transport in rivers and streams
across the country and the variability in reservoir characteristics,
such as their dimensions, how they are operated, and the hydrologic and
sediment regimes of the watershed in which a reservoir is located. In
addition, the appropriate amount of sediment that may be released from
a reservoir to maintain continuity of sediment transport to restore
downstream habitats is affected by a number of factors, which makes it
infeasible to establish a national quantitative limit for these
activities. Such factors include water and sediment inputs to the
river, including upstream, lateral, and downstream inputs; valley
geometry, substrate, and vegetation; river geometry, including the
cross sectional geometry, planform, and gradient; and the disturbance
regime of the river (Wohl et al. 2015). These factors vary considerably
among rivers across the United States. Therefore, the appropriate
amount of sediment to be released from reservoirs, as well as the
timing of those releases, to provide sediment transport continuity and
rehabilitate downstream habitats needs to be determined on a case-by-
case basis.
Activities authorized by NWP 27, including wetland and stream
restoration and enhancement activities, do not require formal
restoration plans, although a project proponent may provide restoration
plans with the PCN or report if she or he believes that information
would help the district engineer determine whether the proposed
activity is authorized by this NWP. The Corps does not believe it is
necessary to require more information for proposed releases of sediment
from reservoirs than it requires for other aquatic habitat restoration,
enhancement, or establishment activities authorized by this NWP.
Wetland and stream restoration activities can involve substantial
amounts of earth moving and sediment releases, and the Corps believes
that proposed releases of sediment from reservoirs do not require a
higher information standard than wetland and stream restoration
activities. The sediment releases from reservoirs to rehabilitate
downstream habitats do not require a formal restoration plan, but the
reservoir operator may develop an operations plan that establishes
protocols for sediment releases that are intended to maintain sediment
transport continuity to restore downstream habitats. The project
proponent can provide a copy of that plan with the PCN or report.
To be authorized by this NWP, the sediment releases from reservoirs
must result in net gains in aquatic habitat functions and services.
This NWP does not authorize sediment releases that are conducted
primarily for the purpose of reservoir management or maintenance. The
primary purpose of the authorized activity must be to restore
downstream habitats. However, controlled releases of sediment from
reservoirs to maintain sediment transport continuity to restore or
enhance downstream habitats may have a secondary benefit of prolonging
the operational life of reservoirs and reducing the need to construct
additional reservoirs in a region (Kondolf et al. 2014). This NWP does
not authorize releases of large amounts of sediment from reservoirs
that would adversely affect downstream habitats and result in net
losses, rather than net gains, in aquatic resource functions and
services.
Several commenters said that the text of this NWP should clarify
whether the sediment releases from reservoirs are one-time activities
or they can be conducted on a recurring, routine basis. One commenter
said that PCNs for proposed sediment releases from reservoirs should
indicate whether the proposed release is part of a single event or
proposed as a routine management technique and should include a plan
describing the amount, frequency, timing, and duration of sediment to
be released. A few commenters support adding releases of sediment from
reservoirs into downstream habitats to the examples in NWP 27, but said
that sediment releases should have established criteria as determined
by state resource managers to maintain balanced sediment levels within
individual watersheds.
The timing and frequency of sediment releases from reservoirs to
restore downstream habitats are likely to differ because of the
variability in climate, watersheds, and rivers across the country, and
the variability in water and sediment regimes in rivers. Sediment
releases from reservoirs that trigger a
[[Page 73546]]
requirement for DA authorization under Section 404 of the Clean Water
Act and/or Section 10 of the Rivers and Harbors Act of 1899 may occur
during multiple times during the 5-year period this NWP is in effect.
This NWP includes a number of examples of authorized activities that
may occur more than once during the 5-year period the NWP is in effect,
such as the removal of accumulated sediments from waterbodies,
shellfish seeding activities, plowing or discing activities for seeding
and planting wetland species, and mechanized land clearing to remove
non-native invasive, exotic, or nuisance vegetation. If the project
proponent anticipates conducting multiple sediment releases during the
period this NWP authorization is in effect, in the PCN or report for
the proposed activity he or she should provide information on the
anticipated number of releases during that time. If the proposed
activity requires a PCN, the description of the proposed activity
required by paragraph (b)(4)(i) of general condition 32 should
including the number of anticipated sediment releases from the
reservoir and their timing. Sediment transport in rivers typically
occurs in a non-linear, episodic manner (Wohl et al. 2015), and
releasing sediments in smaller pulses may more closely mimic non-
linear, episodic natural sediment transport processes. This NWP does
not authorize large sediment releases that will cause losses of aquatic
resource functions and services.
The Corps does not agree that there should be coordination of
proposed activities between district engineers and state resource
managers. None of the other aquatic habitat restoration, enhancement,
and establishment activities authorized by this NWP require
coordination between district engineers and state resource managers.
Therefore, releases of sediment to restore or enhance downstream
habitat should not be subject to a coordination requirement between
district engineers and state resource managers. However, district
engineers have the discretion to coordinate proposed NWP 27 activities
requiring DA authorization with other federal, tribal, state, or local
resource agencies on a case-by-case basis, within the timeframes for
reviewing PCNs (generally 45 days) and reports (30 days), if they want
assistance with their evaluations of those PCNs and reports.
A few commenters stated that sediment releases authorized by this
NWP should be clearly linked to a restoration plan and not be solely
for the purpose of reservoir or dam maintenance. Several commenters
stated that PCNs for proposed sediment releases from reservoirs should
include study results that evaluated and addressed the volume of
sediment to be released, sediment size and distribution, reach
conditions, downstream habitat and aquatic species impacts, and the
time of year for releases. Another commenter stated that PCNs for
sediment release activities authorized by this NWP should include the
plan used for sediment releases and the benefits of each activity must
be clarified regarding the resulting changes on hydrology,
geomorphology, and habitat, as well as watershed stability.
Aquatic habitat restoration, enhancement, and establishment
activities authorized by NWP 27 do not require comprehensive
restoration plans. Releases of sediment from reservoirs to maintain
sediment transport continuity to restore downstream habitats that
require DA authorization will require either PCNs or reporting to
district engineers. The Corps does not agree that it is necessary to
establish information requirements for releases of sediment from
reservoirs that differ from the information requirements for the wide
variety of other aquatic habitat restoration, enhancement, or
establishment activities authorized by this NWP. The Corps is applying
the same PCN information requirements for proposed sediment releases
from reservoirs that it requires for all other aquatic habitat
restoration, enhancement, and establishment activities authorized by
this NWP. Those other aquatic habitat restoration, enhancement, and
establishment activities, including wetland and stream restoration
activities, can involve substantial amounts of discharges of dredged or
fill material into waters of the United States and other regulated
activities to restore, enhance, or establish aquatic habitats so that
they provide net increases in aquatic resource functions and services
after completion of the authorized activities.
For those activities that require PCNs, paragraph (b)(4)(i) of
general condition 32 requires the following: A description of the
proposed activity; the activity's purpose; direct and indirect adverse
environmental effects the activity would cause, including the
anticipated amount of loss of wetlands, other special aquatic sites,
and other waters expected to result from the NWP activity; and a
description of any proposed mitigation measures intended to reduce the
adverse environmental effects caused by the proposed activity. The
amount and type of information to be provided in the description of the
proposed activity in the PCN should be appropriate to the type of
aquatic habitat restoration, enhancement, or establishment activity the
project proponent wants to conduct under the NWP 27 authorization. For
example, for proposed sediment releases to restore downstream aquatic
habitats, in the description of the proposed activity the project
proponent should describe the amount, frequency, timing, and duration
of sediment to be released from the reservoir. A formal study is not
required for a complete PCN. The project description should be in
sufficient detail to provide the district engineer with enough
information to determine whether the proposed activity will result in a
net increase in aquatic resource functions and services.
For releases of sediment from reservoirs that may be authorized by
this NWP, the PCN should also describe any mitigation measures the
project proponent intends to implement to reduce adverse environmental
effects and ensure that the authorized activity results in net gains in
aquatic resource functions and services. Mitigation measures may
include releasing sediment in pulses during periods of sufficient water
flow so that the released sediments restore or enhance, rather than
degrade, downstream habitats. Releases of sediment from reservoirs to
maintain continuity of sediment transport and restore downstream
habitats can have a secondary benefit of helping maintain the water
storage capacity of reservoirs. However, if the PCN or report states
that primary purpose of the sediment releases are for reservoir
maintenance, then the district engineer should notify the project
proponent that the proposed activity is not authorized by NWP 27, and
that another type of DA authorization will be needed for the proposed
reservoir or dam maintenance activities.
The sediment releases from reservoirs authorized by this NWP are
not likely to result in substantial changes in hydrology,
geomorphology, aquatic habitat, or watershed stability because they are
intended to maintain continuity in sediment transport to restore or
enhance downstream habitats that have been adversely affected by the
disruption in sediment transport processes caused by the construction
of a reservoir. The activities authorized by this NWP must result in
net gains in aquatic resource functions and services. These activities
are likely to improve watershed functioning and the sustainability of
aquatic habitats within the watershed to some degree by maintaining the
continuity of sediment transport in rivers within the watershed.
One commenter stated additional clarification on the definition for
the
[[Page 73547]]
term ``release'' is needed to encourage natural sediment transport
downstream if that is the intent of the proposed change to this NWP.
One commenter expressed concern with authorizing sediment releases from
reservoirs under this NWP because of uncertainty of the objectives and
nature of potential sediment releases. One commenter said that
releasing sediment from reservoirs to restore downstream habitat is not
suitable for NWP authorization because while it can improve habitat, it
can also result in adverse effects on wetlands and riparian areas.
The term ``release'' applies to discharges of dredged or fill
material regulated under Section 404 of the Clean Water Act and
``work'' regulated under Section 10 of the Rivers and Harbors Act of
1899 because those are the types of activities authorized by this NWP
under the permitting authorities for NWP 27. There are circumstances
where releases of sediment from reservoirs do not require DA
authorization (see Regulatory Guidance Letter 05-04). The intent of
adding ``releases of sediment from reservoirs to maintain sediment
transport continuity to restore downstream habitats'' to the list of
examples of activities authorized by this NWP is to clarify that this
NWP can be used to authorize sediment releases from reservoirs that
require DA authorization as long as those activities result in net
gains in aquatic resource functions and services and have no more than
minimal adverse environmental effects. The third paragraph of this NWP
is a list of examples of aquatic habitat restoration, enhancement, and
establishment activities that may be authorized by this NWP when those
activities require DA authorization. This addition to the list of
examples of activities authorized by this NWP is highly specific; it is
limited to sediment releases from reservoirs that maintain sediment
transport continuity to restore downstream habitat. It does not cover
sediment releases from reservoirs for other purposes, such as
maintaining the designed water storage capacity of the reservoir. The
objective of this addition to the list of examples of activities
authorized by this NWP is to provide sediment for downstream habitats
that have been adversely affected by the disruption of sediment
transport caused by the dam that created the reservoir, so that
continuity of sediment transport is maintained to a degree that helps
sustain or improve the structure, functions, and dynamics of downstream
riverine and riparian habitats, and in coastal areas, downstream
coastal habitats.
Sediment releases from reservoirs can be conducted in a manner that
does not require DA authorization. Sediment releases from reservoirs
can also be conducted in a manner so that they result in no more than
minimal individual and cumulative adverse environmental effects. This
NWP requires that releases of sediment from reservoirs that require DA
authorization result in net gains in aquatic resource functions and
services. Sediment releases from reservoirs that require DA
authorization but do not result in net gains in aquatic resource
functions and services are not authorized by this NWP. The construction
of reservoirs disrupts sediment transport to downstream habitats,
including wetlands and riparian areas. When sediment transport
processes are disrupted by the construction of a dam across a river,
downstream riverine wetlands and riparian areas may erode when sediment
supplies from upstream waters diminish as sediment is trapped by the
reservoir. Coastal wetlands also require periodic inputs of sediment to
sustain their structure and function, and sediment releases from
reservoirs in coastal areas can help sustain these wetlands (Kondolf et
al. 2014). While this NWP may authorize the removal of small water
control structures, it does not authorize the removal of large dams.
Low-head dam removals may be authorized by NWP 53.
Several commenters stated that the timing, location, and magnitude
of sediment releases are crucial factors, as they could be beneficial
for some species that require turbidity for spawning, or harmful for
species that require clean substrate for nest building. One commenter
said that the Corps' decision document for this NWP should provide
further clarification of the positive and negative impacts on the
aquatic environment downstream from sediment releases and that the NWP
should provide a mechanism that will carefully consider these potential
impacts and offer practices aimed to reduce negative impacts. One
commenter stated that the NWPs are designed for minor discharges with
no more than minimal adverse environmental impacts and that individual
permits should be required for discharges of sediment for habitat
improvement. One commenter said that large amounts of sediments being
released downstream should require full evaluation of best management
options.
The Corps agrees that the timing, location, and magnitude of
sediment releases are crucial factors, and that these activities need
to be carefully planned and implemented to ensure that the sediment
releases from reservoirs result in net increases in aquatic resource
functions and services. The degrees to which some species may benefit
from the sediment released from reservoirs and other species may be
adversely affected weighs into the determination as to whether the
sediment releases result in net gains in aquatic resource functions and
services. As with many aquatic habitat restoration, enhancement, and
establishment activities, there may be short-term, temporary adverse
effects while authorized activities such as discharges of dredged or
fill material into waters of the United States are conducted. But over
the long-term, as the aquatic habitat responds to the restoration,
enhancement, or establishment activities through ecosystem development
processes, there should be more permanent, sustainable gains in aquatic
habitat functions and services. The Corps has revised its national
decision document for this NWP to provide additional discussion of the
positive and negative impacts of releases of sediment from reservoirs
to maintain sediment transport continuity to rehabilitate downstream
aquatic habitats.
If the district engineer reviews the PCN or report and determines
the proposed activity may affect listed species or designated critical
habitats, the district engineer will conduct ESA Section 7 consultation
with the U.S. FWS and/or NMFS as appropriate, unless another federal
agency has conducted ESA Section 7 consultation for the proposed
activity. The information requirements for these activities are similar
to the information requirements for other aquatic habitat restoration,
enhancement, and establishment activities authorized by this NWP, and
project proponents can provide additional information voluntarily if
they think that additional information will help with receiving an NWP
verification letter from the district engineer.
When evaluating PCNs for proposed NWP 27 activities, district
engineers will consider the 10 criteria in para
[…truncated; see source link]Indexed from Federal Register on December 27, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.