Proposed Rule2025-11190
Proposal To Reissue and Modify Nationwide Permits
Primary source
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Published
June 18, 2025
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
Nationwide Permits (NWPs) are issued by the U.S. Army Corps of Engineers (Corps) to authorize categories of activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that have no more than minimal individual and cumulative adverse environmental effects. The Corps is proposing to reissue its existing NWPs and associated general conditions and definitions, with some modifications. The Corps is proposing to issue one new NWP. The proposed new NWP would authorize activities to improve the passage of fish and other aquatic organisms through aquatic ecosystems. In addition, the Corps is proposing to modify some other NWPs to simplify and clarify those NWPs. The proposed modifications to the NWPs general conditions, and definitions are intended to reduce burdens on the regulated public and continue to comply with the statutory requirement that NWPs authorize only activities with no more than minimal individual and cumulative adverse environmental effects. The Corps is proposing to modify two of the 2021 NWPs (i.e., NWP 48 for commercial shellfish mariculture activities and NWP 56 for finfish mariculture activities) to address litigation on those NWPs. The Corps is requesting comment on all aspects of these proposed NWPs.
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[Federal Register Volume 90, Number 116 (Wednesday, June 18, 2025)]
[Proposed Rules]
[Pages 26100-26167]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11190]
[[Page 26099]]
Vol. 90
Wednesday,
No. 116
June 18, 2025
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Chapter II
Proposal To Reissue and Modify Nationwide Permits; Proposed Rule
Federal Register / Vol. 90 , No. 116 / Wednesday, June 18, 2025 /
Proposed Rules
[[Page 26100]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
[Docket Number: COE-2025-0002]
RIN 0710-AB56
Proposal To Reissue and Modify Nationwide Permits
AGENCY: Corps of Engineers, Army, DoD.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Nationwide Permits (NWPs) are issued by the U.S. Army Corps of
Engineers (Corps) to authorize categories of activities under Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
of 1899 that have no more than minimal individual and cumulative
adverse environmental effects. The Corps is proposing to reissue its
existing NWPs and associated general conditions and definitions, with
some modifications. The Corps is proposing to issue one new NWP. The
proposed new NWP would authorize activities to improve the passage of
fish and other aquatic organisms through aquatic ecosystems. In
addition, the Corps is proposing to modify some other NWPs to simplify
and clarify those NWPs. The proposed modifications to the NWPs general
conditions, and definitions are intended to reduce burdens on the
regulated public and continue to comply with the statutory requirement
that NWPs authorize only activities with no more than minimal
individual and cumulative adverse environmental effects. The Corps is
proposing to modify two of the 2021 NWPs (i.e., NWP 48 for commercial
shellfish mariculture activities and NWP 56 for finfish mariculture
activities) to address litigation on those NWPs. The Corps is
requesting comment on all aspects of these proposed NWPs.
DATES: Submit comments on or before July 18, 2025.
ADDRESSES: You may submit comments, identified by docket number COE-
2025-0002 and/or RIN 0710-AB56, by any of the following methods:
Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the
instructions for submitting comments.
Email: <a href="/cdn-cgi/l/email-protection#c3f1f3f1f5ada2b7aaacadb4aaa7a6b3a6b1aeaab7b083b6b0a2a0a6eda2b1aebaedaeaaaf"><span class="__cf_email__" data-cfemail="0e3c3e3c38606f7a67616079676a6b7e6b7c63677a7d4e7b7d6f6d6b206f7c637720636762">[email protected]</span></a>. Include the docket
number, COE-2025-0002, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW, Washington, DC 20314-1000.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: If submitting comments through the Federal
eRulemaking Portal, please direct your comments to docket number COE-
2025-0002. All comments received will be included in the public docket
without change and may be made available on-line at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any personal information provided,
unless the commenter indicates that the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI, or otherwise protected,
through <a href="http://regulations.gov">regulations.gov</a> or email. The <a href="http://regulations.gov">regulations.gov</a> website is an
anonymous access system, which means we will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email directly to the Corps without going through
<a href="http://regulations.gov">regulations.gov</a> your email address will be automatically captured and
included as part of the comment that is placed in the public docket and
made available on the internet.
Docket: For access to the docket to read background documents or
comments received, go to <a href="http://regulations.gov">regulations.gov</a>. All documents in the docket
are listed. Although listed in the index, some information is not
publicly available, such as CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. In accordance with 5 U.S.C. 553(b)(4), a
summary of this rule may be found at <a href="http://www.regulations.gov">www.regulations.gov</a>, in docket
number COE-2025-0002.
FOR FURTHER INFORMATION CONTACT: Ms. Katherine McCafferty at 513-310-
4196 or access the U.S. Army Corps of Engineers Regulatory Home Page at
<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. Process for Modifying and Reissuing the NWPs
C. Status of Existing Permits
D. Regional Conditioning of Nationwide Permits
E. Nature-Based Solutions and the NWP Program
F. Notes in NWPs for Utilities and Mariculture Activities
G. Severability
II. Summary of Proposed Rule
A. Discussion of Proposed Modifications to Existing Nationwide
Permits
B. Discussion of the Proposed New Nationwide Permit
C. Discussion of Proposed Modifications to Nationwide Permit
General Conditions
D. Discussion of Proposed Modification to Section D, ``District
Engineer's Decision''
E. Discussion of Proposed Modifications to Section F,
``Definitions''
III. Compliance With Relevant Statutes
A. National Environmental Policy Act Compliance
B. Compliance With Section 404(e) of the Clean Water Act
C. Compliance With the Endangered Species Act
D. Compliance With the Essential Fish Habitat Provisions of the
Magnuson-Stevens Fishery Conservation and Management Act
E. Compliance With Section 401 of the Clean Water Act
F. Section 307 of the Coastal Zone Management Act (CZMA)
G. Compliance With Section 106 of the National Historic
Preservation Act
IV. Economic Impact
V. Administrative Requirements
VI. References
Authority
Nationwide Permits, Conditions, Further Information, and Definitions
List of Acronyms
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
FY Fiscal Year
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NWP Nationwide Permit
PCN Pre-construction Notification
USCG U.S. Coast Guard
List of Proposed Nationwide Permits and General Conditions
Nationwide Permits (NWPs)
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
[[Page 26101]]
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Ecosystem Restoration, Enhancement, and Establishment
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage and Irrigation Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Mariculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
53. Removal of Low-Head Dams
54. Living Shorelines
55. Seaweed Mariculture Activities
56. [Reserved]
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances
59. Water Reclamation and Reuse Facilities
A. Activities To Improve Passage of Fish and Other Aquatic
Organisms
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects From Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United
States
32. Pre-Construction Notification
I. Background
A. General
The U.S. Army Corps of Engineers (Corps) issues nationwide permits
(NWPs) to authorize activities under Section 404 of the Clean Water Act
and Section 10 of the Rivers and Harbors Act of 1899 that will result
in no more than minimal individual and cumulative adverse environmental
effects. Under Section 404 of the Clean Water Act (33 U.S.C. 1344),
Department of the Army (DA) authorization is required for discharges of
dredged or fill material into waters of the United States. Under
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), DA
authorization is required for any construction of any structure in or
over any navigable water of the United States; the excavating from or
depositing of material in navigable waters of the United States; or the
accomplishment of any other work affecting the course, location,
condition, or capacity of navigable waters of the United States.
NWPs were first issued by the Corps in 1977 (42 FR 37122) to
authorize categories of activities that have minimal adverse effects on
the aquatic environment and streamline the authorization process for
those minor activities. After 1977, NWPs have been issued or reissued
in 1982 (47 FR 31794), 1984 (49 FR 39478), 1986 (51 FR 41206), 1991 (56
FR 59110), 1995 (60 FR 38650), 1996 (61 FR 65874), 2000 (65 FR 12818),
2002 (67 FR 2020), 2007 (72 FR 11092), 2012 (77 FR 10184), 2017 (82 FR
1860), and 2021 (86 FR 2744 and 86 FR 73522).
Section 404(e) of the Clean Water Act provides the statutory
authority for the Secretary of the Army, after notice and opportunity
for public hearing, to issue general permits on a nationwide basis for
any category of activities involving discharges of dredged or fill
material into waters of the United States for a period of no more than
five years after the date of issuance (33 U.S.C. 1344(e)). The
Secretary's authority to issue individual permits and general permits
has been delegated to the Chief of Engineers and his or her designated
representatives. NWPs are a type of general permit issued by the Chief
of Engineers and are designed to regulate activities in federally
jurisdictional waters and wetlands that have no more than minimal
adverse environmental impacts (see 33 CFR 330.1(b)). The categories of
activities authorized by NWPs must be similar in nature, cause only
minimal adverse environmental effects when performed separately, and
have only minimal cumulative adverse effect on the environment (33
U.S.C. 1344(e)(1)). The Corps has the authority to modify or revoke the
NWPs before they expire. NWPs and other general permits can also be
issued to authorize activities pursuant to Section 10 of the Rivers and
Harbors Act of 1899 (see 33 CFR 322.2(f) and 330.1(g)). The NWP program
is designed to provide timely authorizations for the regulated public
while protecting the Nation's aquatic resources.
Under section 10 of the Rivers and Harbors Act of 1899, the Corps
has the authority to issue general permits and after-the-fact permits
for structures and work in navigable waters of the United States. The
text of section 10 (33 U.S.C. 403) prohibits any obstructions to the
navigable capacity of any waters of the United States ``unless the work
has been recommended by the Chief of Engineers and authorized by the
Secretary of the Army prior to beginning the same.'' The text of
section 10 does not require that the Corps specify what form those
authorizations should take and does not limit authorization to permits,
either individual permits or general permits. By using the word
``authorized,'' a term that is broad in scope, section 10 gives the
Corps the authority use different types of permits to give its approval
for structures and work in navigable waters of the United States. Since
1975, the Corps has issued general permits under section 10 of the
Rivers and Harbors Act of 1899 (see 40 FR 31335). The Corps has issued
NWPs under the authority of section 10 of the Rivers and Harbors Act
since 1977 (see 42 FR 37140).
Like general permits, the Corps has been issuing after-the-fact
permits for decades and that practice is consistent with section 10 of
the Rivers and Harbors Act of 1899. In its July 25, 1975, final rule,
at 40 FR 31330, the Corps'
[[Page 26102]]
regulations address the use of after-the-fact authorizations for
activities that require DA authorization. Under the Rivers and Harbors
Act of 1899, the Corps' authority to issue after-the-fact permits is
derived from its discretionary enforcement authority under section 12
of that Act, rather than section 10. Under section 12, the removal of
any unauthorized structures ``may'' be enforced and proper proceedings
``may'' be instituted under the direction of the Attorney General of
the United States. Inherent in the Corps' authority to enforce the
Rivers and Harbors Act of 1899 is the Corps' discretion to design and
impose corrective actions to address a violation if the impact on
navigation is negligible and the Corps determines it is not necessary
to require removal of the obstruction. The Corps exercises this
discretion when it issues an after-the-fact permit for an activity that
did not receive prior approval from the Corps.
There are currently 57 NWPs. These NWPs were published in the
January 13, 2021, issue of the Federal Register (86 FR 2744), in which
the Corps reissued 12 existing NWPs and issued four new NWPs, and the
December 27, 2021, issue of the Federal Register (86 FR 73522), in
which the Corps reissued 40 existing NWPs and issued one new NWP. The
NWP general conditions and definitions were reissued in the final rule
published in the January 13, 2021, edition of the Federal Register and
they apply to both final rules. All of the NWPs issued or reissued in
2021 are currently scheduled to expire on March 14, 2026.
Under 33 CFR 330.5(b), anyone may, at any time, suggest to Corps
Headquarters that they consider new NWPs or conditions for issuance, or
changes to existing NWPs. Independent of receiving suggestions to issue
new NWPs or modify existing NWPs, Corps Headquarters has the authority
to periodically review the NWPs and their conditions and initiate the
process for proposing to modify, reissue, or revoke the NWPs (see 33
CFR 330.5(b) and 330.6(b)).
As an example, in March 2022, the Department of the Army issued a
Federal Register notice stating that it would undertake a formal review
of NWP 12 (87 FR 17281). This review included a series of virtual
meetings with the public, a series of virtual meetings with Tribes, and
a docket for receiving written comments which concluded in May 2022. To
avoid potential confusion of having two similar actions processing
simultaneously, this formal review of NWP 12 was withdrawn to be
replaced with the current rulemaking effort to reissue and modify all
of the NWPs, including NWP 12.
The Department of the Army's 2022 review of NWP 12 and the Corps'
proposed rule to reissue the NWPs, including NWP 12, are separate
actions. While not required, the Corps exercised its discretion and
considered the comments obtained during the formal review of NWP 12 as
part of the development of this proposed rule and is proposing to
reissue NWP 12 without modifications. Members of the public and other
parties who have interests regarding the Corps' proposal to reissue NWP
12 without modifications are invited to submit their comments on this
proposed rule in accordance with the instructions provided in the
ADDRESSES section of this proposed rule. The Corps will fully consider
all comments received in response to this proposed rule. Comments
submitted for the 2022 review of NWP 12 may be resubmitted for
consideration for the development of the final rule for the 2026 NWPs.
Comments submitted for the 2022 review of NWP 12 that are not
resubmitted for consideration for the development of the final rule for
the 2026 NWPs will not be considered during the development of that
final rule.
The NWPs provide incentives for project proponents to design
activities that require DA authorization under Section 404 of the Clean
Water Act and/or Section 10 of the Rivers and Harbors Act of 1899 to
avoid and minimize impacts to the aquatic environment to qualify for
NWP authorization, because in most cases those project proponents can
obtain NWP verifications from Corps districts in less time than it
takes to receive standard individual permits. For some NWPs, project
proponents can proceed with the authorized activities without reporting
those activities to Corps district offices as long as those activities
comply with all applicable terms and conditions of those NWPs. Other
NWPs require project proponents to submit pre-construction
notifications (PCNs) to Corps districts prior to proceeding with the
authorized activities to give district engineers the opportunity to
review those proposed activities and determine whether they are
authorized by NWP. The former set of NWPs are called non-reporting NWPs
and the latter set of NWPs are called reporting NWPs. Activities not
authorized by NWPs, or by regional general permits or programmatic
general permits issued by district engineers, require individual
permits from the Corps. Individual permits are DA authorizations in the
form of standard individual permits or letters of permission, which
require an activity-specific public interest review and the preparation
of appropriate environmental documentation in support of a permit
decisions for a specific activity. In Fiscal Year (FY) 2024, the
average processing time for an NWP PCN was 55 days and the average
processing time for a standard individual permit was 253 days. The
reduction in adverse effects on the aquatic environment incentivized by
the NWP Program helps reduce the impacts of activities regulated by the
Corps on the Nation's aquatic resources.
Section 404(e)(1) of the Clean Water Act states that general
permits may be issued on a state, regional, or nationwide basis for any
category of activities involving discharges of dredged or fill material
into waters of the United States if the activities in such a category
are similar in nature, will cause only minimal adverse environmental
effects when performed separately, and will have only minimal
cumulative adverse effects on the environment. The phrase ``minimal
adverse environmental effects when performed separately'' refers to the
direct and indirect adverse environmental effects caused by a specific
activity authorized by an NWP. The phrase ``minimal cumulative adverse
effect on the environment'' refers to the collective direct and
indirect adverse environmental effects caused by all the activities
authorized by a particular NWP during the time period when the NWP is
in effect (a period of no more than 5 years) in a specific geographic
region. These concepts are discussed in paragraph 2 of section D,
``District Engineer's Decision'' in this proposed rule. The appropriate
geographic area for assessing cumulative effects is determined by the
decision-making authority for the general permit (generally, the
district engineer, under 33 CFR 330.5(d)(1)).
Some NWPs include PCN requirements. PCNs give the Corps districts
the opportunity to evaluate certain proposed NWP activities on a case-
by-case basis to ensure that they will cause no more than minimal
adverse environmental effects, individually and cumulatively. Except
for activities conducted by non-federal permittees that require PCNs
under paragraph (c) of the ``Endangered Species'' and ``Historic
Properties'' general conditions (general conditions 18 and 20,
respectively), if the Corps district does not respond to the PCN within
45 days of a receipt of a complete PCN the activity is automatically
authorized by the NWP (see 33 CFR 330.1(e)(1)), unless the district
engineer
[[Page 26103]]
takes action under 33 CFR 330.5(d) to modify, suspend, or revoke the
NWP authorization.
There are 39 Corps district offices and 8 Corps division offices.
The district offices administer the NWP program on a day-to-day basis
by reviewing PCNs for proposed NWP activities. The division offices
oversee district offices and are managed by division engineers.
Division engineers have the authority to modify, suspend, or revoke NWP
authorizations on a regional basis to take into account regional
differences among aquatic resources and ensure that the NWPs authorize
only those activities that result in no more than minimal individual
and cumulative adverse environmental effects in a region (see 33 CFR
330.5(c)). When a Corps district receives a PCN, the district engineer
reviews the PCN and determines whether the proposed activity will
result in no more than minimal individual and cumulative adverse
environmental effects, consistent with the criteria in paragraph 2 of
section D, ``District Engineer's Decision.'' At this point, the
district engineer may add conditions to the NWP authorization to ensure
that the verified NWP activity results in no more than minimal
individual and cumulative adverse environmental effects consistent with
processes and requirements set out in 33 CFR 330.5(d).
For some NWPs, when submitting a PCN an applicant may request a
waiver for a particular limit specified in the NWP's terms and
conditions. If the applicant requests a waiver of an NWP limit and the
district engineer determines, after conducting any coordination with
the resource agencies required under paragraph (d) of NWP general
condition 32, that the proposed NWP activity will result in no more
than minimal adverse environmental effects, the district engineer may
grant such a waiver. Following the conclusion of the district
engineer's review of the PCN, the district engineer prepares a document
explaining the decision on whether to issue a waiver for the proposed
NWP activity. This document discusses the district engineer's findings
as to whether a proposed NWP activity qualifies for NWP authorization,
including compliance with all applicable terms and conditions, and the
rationale for any waivers granted, and activity-specific conditions
needed to ensure that the NWP activity will have only minimal
individual and cumulative adverse environmental effects and will not be
contrary to the public interest (see Sec. 330.6(a)(3)(i)).
The case-by-case review of PCNs often results in district engineers
adding activity-specific conditions to NWP authorizations to ensure
that the adverse environmental effects are no more than minimal. These
can include permit conditions such as time-of-year restrictions and use
of best management practices or compensatory mitigation requirements to
offset authorized losses of jurisdictional waters and wetlands so that
the net adverse environmental effects are no more than minimal. Any
compensatory mitigation required for NWP activities must comply with
the Corps' compensatory mitigation regulations at 33 CFR part 332.
Review of a PCN may also result in the district engineer asserting
discretionary authority to require an individual permit from the Corps
for the proposed activity, if he or she determines, based on the
information provided in the PCN and other available information, that
adverse environmental effects will be more than minimal, or otherwise
determines that ``sufficient concerns for the environment or any other
factor of the public interest so requires'' consistent with 33 CFR
330.4(e)(2)).
During their reviews of PCNs, district engineers use their
discretion to determine the appropriate regional scale for evaluating
cumulative effects for the purposes of 33 CFR 330.5(d)(1), 33 U.S.C.
1344(e)(1), 33 CFR 322.2(f)(1), and/or 33 CFR 323.2(h)(1). The
appropriate regional scale for evaluating cumulative effects may be a
waterbody, watershed, seascape, county, state, a Corps district, or
other geographic area. The appropriate regional scale is dependent, in
part, on what types of NWP activities are occurring, where they are
occurring, and what types of adverse environmental effects they might
be causing. For example, for NWPs that authorizes structures and/or
work in navigable waters of the United States under Section 10 of the
Rivers and Harbors Act of 1899, the appropriate geographic region for
assessing cumulative effects may be a specific navigable waterbody
(e.g., a lake), or in the case of activities in ocean or estuarine
waters, a seascape. For NWPs that authorize discharges of dredged or
fill material into non-tidal wetlands and streams, the appropriate
geographic region for assessing cumulative effects may be a watershed,
county, state, or Corps district. The direct individual adverse
environmental effects caused by activities authorized by NWPs are
evaluated within the project footprint, and the indirect individual
adverse environmental effects caused by activities authorized by NWPs
are evaluated within the geographic area to which those indirect
effects may extend.
Through the NWPs, the aquatic environment may also receive
additional protection through regional conditions imposed by division
engineers and activity-specific conditions added to NWPs by district
engineers. These regional conditions and activity-specific conditions
further minimize adverse environmental effects, because these
conditions can only further restrict use of the NWPs. NWPs also allow
Corps district engineers to exercise, on a case-by-case basis,
discretionary authority to require individual permits for proposed
activities that may result in more than minimal individual and
cumulative adverse environmental effects. NWPs help protect the aquatic
environment because they provide incentives to permit applicants to
reduce impacts to jurisdictional waters and wetlands to meet the
restrictive requirements of the NWPs and receive authorization more
quickly than they would through the individual permit process. Regional
general permits issued by district engineers provide similar
environmental protections and incentives to project proponents.
After the NWPs are issued or reissued, division engineers will
issue supplemental documents to determine whether regional conditions
are necessary to ensure that use of the NWPs on a regional basis (e.g.,
within a Corps district or state) will authorize only those activities
with no more than minimal individual and cumulative adverse
environmental effects (see 33 CFR 330.5(c)(1)). The supplemental
documents are prepared by Corps districts, but must be approved and
formally issued by the appropriate division engineer, because the NWP
regulations at 33 CFR 330.5(c) state that the division engineer has the
authority to modify, suspend, or revoke NWP authorizations for any
specific geographic area within her or his division. For some Corps
districts, their geographic area of responsibility covers an entire
state. For other states, there is more than one Corps district
responsible for implementing the Corps Regulatory Program, including
the NWP program. In those states, there is a lead Corps district
responsible for preparing the supplemental documents for all of the
NWPs.
When districts prepare supplemental documents for division approval
of regional conditions, or imposing no regional conditions, they assess
cumulative effects by estimating the number of times a particular NWP
might be used in the region (e.g., Corps district
[[Page 26104]]
or state) covered by the supplemental document, along with estimates of
impact acreages and acreages of compensatory mitigation required. When
a district engineer issues a verification letter in response to a PCN
or a voluntary request for a NWP verification, the district engineer
prepares a brief memorandum documenting the issuance of the NWP
verification or explaining why discretionary authority was exercised to
require an individual permit for the proposed activity. The district
engineer's memorandum will also discuss whether the proposed NWP
activity, after considering permit conditions added to the NWP
authorization, such as mitigation requirements, will result in no more
than minimal individual and cumulative adverse environmental effects.
If the NWP is not suspended or revoked in a state or a Corps
district, the supplemental document includes a certification that the
use of the NWP in that district, with any applicable regional
conditions, will result in no more than minimal cumulative adverse
environmental effects. See 33 CFR 330.5(c)(1).
After the NWPs are issued or reissued and go into effect, district
engineers will monitor the use of these NWPs on a regional basis (e.g.,
within a watershed, county, state, Corps district or other appropriate
geographic area), to ensure that the use of a particular NWP is not
resulting in more than minimal cumulative adverse environmental effects
(see 33 CFR 330.5(d)(1)). The Corps staff that evaluate NWP PCNs that
are required by the text of the NWP or by NWP general conditions or
regional conditions imposed by division engineers, or voluntarily
submitted to the Corps district by project proponents to receive
written NWP verifications, often work in a particular geographic area
and have an understanding of the activities that have been authorized
by NWPs, regional general permits, and individual permits over time, as
well as the current environmental setting for that geographic area. If
Corps district staff believe that the use of an NWP in that geographic
region may be approaching a threshold above which the cumulative
adverse environmental effects for that category of activities may be
more than minimal, the district engineer may either make a
recommendation to the division engineer to modify, suspend, or revoke
the NWP authorization in that geographic region in accordance with the
procedures in 33 CFR 330.5(c). Alternatively, under the procedures at
33 CFR 330.5(d), the district engineer may also modify, suspend, or
revoke NWP authorizations on a case-by-case basis to ensure that the
NWP does not authorize activities in that region that result in more
than minimal cumulative adverse environmental effects.
For the NWPs, the assessment of cumulative effects occurs at three
levels: national, regional, and the verification stage. Each national
NWP decision document includes a national-scale cumulative effects
analysis to evaluate whether the issuance or reissuance of the NWP
would result in more than minimal cumulative adverse environmental
effects. For all NWPs, an evaluation of the probable impacts, including
cumulative impacts, of the proposed activity and its intended use on
the public interest is required (see 33 CFR 320.4(a)(1)). For NWPs that
authorize discharges of dredged or fill material into waters of the
United States, an analysis of cumulative effects conducted in
accordance with 40 CFR 230.7(b)(3) is also required.
Cumulative effects are the result of the accumulation of direct and
indirect effects caused by multiple activities that persist over time
in a particular geographic area (MacDonald 2000), such as a watershed
or ecoregion (Gosselink and Lee 1989). For the NWPs, the analysis of
cumulative effects would be the accumulation of impacts caused by
activities authorized by an NWP during the period it is in effect
(i.e., no more than five years) in a watershed, ecoregion, or other
appropriate geographic area, and how those accumulated impacts might
affect the current environmental setting or environmental baseline
within that geographic area. The current environmental setting includes
the present effects of other federal, non-federal, and private actions,
including those that do not require DA authorization, as well as the
effects of other federal, non-federal, and private actions that are
occurring at the same time as the activities authorized by the NWP.
In the context of an NWP issued or reissued by Corps Headquarters,
the ``incremental effects of the action'' would be the direct and
indirect effects on the environment caused by activities authorized by
the NWP during the period it is in effect. The incremental effects
caused by NWP activities are to be added to the effects caused by other
past, present, and reasonably foreseeable actions regardless of what
agency (federal or non-federal) or person authorizes or undertakes
those other past, present, and reasonably foreseeable actions. Oceans,
estuaries, lakes, rivers, streams, wetlands, and other aquatic
ecosystems are affected by a wide variety of federal, non-federal, and
private actions in addition to activities authorized by the Corps under
its permitting authorities, including activities authorized by NWPs in
the past and activities authorized by other types of DA permits, such
as regional general permits, standard individual permits, and letters
of permission. Therefore, when evaluating cumulative effects of
activities authorized by NWPs, context is important, and the severity
of those impacts have to be evaluated against the environmental
baseline to determine whether the cumulative adverse environmental
effects caused by the issuance or reissuance of an NWP are likely to be
no more than minimal, or more than minimal.
For an NWP, the cumulative impacts would be the number of times
that NWP is used to authorize activities in that specific geographic
area during the 5-year period that NWP is in effect. For the issuance
or reissuance of an NWP by Corps Headquarters, the geographic scale of
the cumulative effects analysis is the entire United States, including
its territories. The cumulative effects likely to be caused by
activities authorized by an NWP are evaluated against the environmental
baseline, which has been shaped by human activities and natural
disturbances and other events over time, including activities
authorized by prior versions of that NWP, as well as other federal,
non-federal, and private actions that directly or indirectly affect the
aquatic environment and contribute to the overall cumulative effects
that have influenced the structure and function of that aquatic
environment over time.
Under 33 CFR 330.5(d)(1), when a district engineer considers
cumulative impacts when reviewing a PCN for a proposed NWP activity,
she or he will use a geographic and temporal scale that is larger than
the geographic and temporal scales that were used to evaluate the
direct and indirect adverse environmental effects caused by the
proposed NWP activity. The geographic scope of the district engineer's
consideration of cumulative effects would be the seascape, watershed,
or other appropriate geographic region in which the proposed NWP
activity is located. The district engineer would also consider other
activities that were authorized by that NWP in that geographic area
during the period of time that NWP is in effect, as well as the other
federal, non-federal, and private actions that shaped the environmental
baseline within that geographic region, to determine whether the
incremental contribution of activities authorized by
[[Page 26105]]
that NWP in that geographic region during the time it would be in
effect would not be, or would be, more than minimal. The environmental
baseline includes activities conducted in the past under authorizations
provided by prior issuances of that NWP, activities authorized by other
forms of DA authorization, as well as other federal, non-federal, and
private actions not regulated by the Corps that directly or indirectly
caused changes to, or losses of, waters and wetlands subject to the
Corps' jurisdiction under its permitting authorities. In addition, the
environmental baseline includes the ecological functions and services
the waters and wetlands within that watershed, seascape, or other
geographic area provide, as well as the degree to which those waters
and wetlands provide those ecological functions and services.
When a district engineer reviews a PCN and determines that the
proposed activity qualifies for NWP authorization, he or she will issue
a written NWP verification to the permittee (see 33 CFR 330.6(a)(3)).
If an NWP verification includes multiple authorizations using a single
NWP (e.g., linear projects with crossings of separate and distant
waters of the United States authorized by NWPs 12, 14, 57, and 58) or
non-linear projects authorized with two or more different NWPs (e.g.,
an NWP 28 for reconfiguring an existing marina plus an NWP 19 for minor
dredging within that marina), the district engineer will evaluate the
cumulative effects of the applicable NWP authorizations within the
appropriate geographic area. As discussed above, examples of geographic
areas that may be used for cumulative effects analyses for specific
NWPs may be a waterbody, watershed, county, state, Corps district, or
other geographic area, such as a seascape in ocean or estuarine waters.
Because Corps Headquarters conducted the required cumulative
effects analyses in the national decision documents for the issuance or
reissuance of each of the NWPs, district engineers do not need to do
comprehensive cumulative effects analyses for NWP verifications for a
specific activity authorized by one or more NWPs. For an NWP
verification, the district engineer only needs to include a brief
statement in the administrative record documenting the NWP PCN review
stating her or his determination whether the proposed NWP activity,
plus any required mitigation, will result in no more than minimal
individual and cumulative adverse environmental effects for the
purposes of 33 CFR 330.5(d)(1), as well as 33 U.S.C. 1344(e)(1), 33 CFR
322.2(f)(1), and/or 33 CFR 323.2(h)(1). If the district engineer
determines, after considering mitigation, that a proposed NWP activity
will result in more than minimal cumulative adverse environmental
effects, he or she will exercise discretionary authority and require an
individual permit for the proposed activity.
B. Process for Modifying and Reissuing the NWPs
The 16 NWPs that were issued or reissued in the final rule that was
published in the Federal Register on January 13, 2021, went into effect
on March 15, 2021. The January 13, 2021, final rule to issue or reissue
those 16 NWPs also reissued the NWP general conditions and definitions
that apply to all of the NWPs, including the NWPs that were issued or
reissued in the final rule that was published in the Federal Register
on December 27, 2021. The 41 NWPs that were issued or reissued in the
final rule published in the Federal Register on December 27, 2021, went
into effect on February 25, 2022. The NWPs issued or reissued by both
final rules expire on March 14, 2026. If these NWPs are not modified or
reissued within five years of their effective dates, they automatically
expire and becomes null and void (see 33 CFR 330.6(b)).
The process for modifying and reissuing the NWPs for the next five-
year cycle starts with today's publication of the proposed NWPs in the
Federal Register for a 30-day comment period and may include a public
hearing. Requests for a public hearing must be submitted in writing via
one of the ways identified in the ADDRESSES section of this proposed
rule. Public hearing requests must explain the reason or reasons why a
public hearing should be held. If the Corps determines that a public
hearing or hearings would assist in making a decision on the proposed
NWPs, general conditions, and definitions, a 30-day advance notice will
be published in the Federal Register to advise interested parties of
the date(s) and location(s) for the public hearing(s). Any announcement
of public hearings would also be posted as a supporting document in
docket number COE-2025-0002 at <a href="http://www.regulations.gov">www.regulations.gov</a> as well as the Corps
Regulatory Program's ``Regulatory Announcements'' page at https://
www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/
.
Shortly after the publication of this Federal Register notice,
Corps district offices will issue public notices to solicit comments on
proposed Corps regional conditions for these NWPs. In their district
public notices, consistent with 33 CFR 330.5(b)(2)(ii), district
engineers may also propose to suspend or revoke some or all of these
NWPs if they have issued, or are proposing to issue, regional general
permits, programmatic general permits, or Clean Water Act section 404
letters of permission for use instead of some or all of these NWPs. The
comment period for these district public notices will usually be 45
days. See Section I.D below titled ``Regional Conditioning of
Nationwide Permits'' for more information on this process.
Prior to the publication of this Federal Register notice, Corps
district offices sent emails or letters to Clean Water Act Section 401
certifying authorities (i.e., states, tribes approved by EPA Regional
Administrators to administer water quality certification programs, and
where appropriate, EPA regions) to request pre-filing meetings with
those certifying authorities. After the pre-filing meeting request
requirements have been completed, Corps districts will request water
quality certification (WQC) for those NWPs that authorize activities
which may result in any discharge from a point source into waters of
the United States. Consistent with 40 CFR 121.6(c), the Corps will
utilize the six month default reasonable period of time. As a result,
certifying authorities will have six months to act on the certification
request.
The six month reasonable period of time for certifying authorities
to act on certification requests for the proposed NWPs was selected
because the rulemaking to issue or reissue the NWPs covers the entire
nation, which has a large number of certifying authorities under
Section 401 of the Clean Water Act, and because it is the default
reasonable period of time identified in EPA's water quality
certification regulations. Because the NWPs are generally available
across the country and there are many certifying authorities in the
United States and its territories, it is not practicable for the Corps
to negotiate a reasonable period of time with each certifying
authority. Another consideration is the expiration of the current NWPs
on March 14, 2026, and the need to issue a final rule to issue or
reissue the NWPs before the current NWPs expire in 2026.
The Corps also believes that six months is sufficient for
certifying authorities to complete their WQC decisions for the proposed
NWPs because the Corps is proposing a small number of changes to the
existing
[[Page 26106]]
NWPs, and proposing to issue only one new NWP.
This water quality certification process for this rulemaking action
is consistent with current WQC procedures, where certifying authorities
conduct their evaluations to determine whether a federally licensed or
permitted activity will comply with applicable water quality
requirements, so that any necessary WQC conditions can be incorporated
into the federal permit before it is issued. It is also consistent with
EPA's Clean Water Act Section 401 Water Quality Certification
Improvement Rule that was published in the Federal Register on
September 27, 2023 (88 FR 66558) that went into effect on November 27,
2023.
After the publication of this Federal Register notice, Corps
district offices will send letters or emails with consistency
determinations pursuant to the Coastal Zone Management Act (CZMA) to
the state agencies responsible for managing their coastal zones. Each
letter or email will request that the state agency review the Corps
district's consistency determination and, if necessary, provide
conditions based on specific enforceable coastal zone management
policies that would allow the state agency to concur with the Corps
district's consistency determination (see 15 CFR 930.4). The state
agency will have at least 60 days to review the Corps district's
consistency determination unless the state agency and Corps agree to an
alternative notification schedule (see 15 CFR 930.41(a)). This review
period will be extended up to 15 days if the state agency, within the
60-day period, requests an extension of time for their review (see 15
CFR 930.41(b)). If the state issues a consistency concurrence with
conditions, the division engineer will make those conditions regional
conditions for the NWP in that state, unless she or he determines that
the conditions do not comply with the provisions of 33 CFR 325.4 (see
33 CFR 330.4(d)(2)). If the division engineer determines the conditions
identified by the state do not comply with the provisions of 33 CFR
325.4, the state's conditional consistency concurrence will be
considered an objection (see 15 CFR 930.4(b)), and project proponents
who want to use those NWPs will need to obtain individual CZMA
consistency concurrences or presumptions of concurrence.
During the period between the issuance of the final NWPs and their
publication in the Federal Register, Corps districts will prepare
supplemental documents and proposed regional conditions for approval by
division engineers before the final NWPs go into effect. The
supplemental documents address the environmental considerations related
to the use of NWPs in a Corps district, state, or other geographic
region. The supplemental documents will certify that the NWPs, with any
regional conditions or geographic suspensions or revocations, will
authorize only those activities that result in no more than minimal
individual and cumulative adverse effects on the environment or any
relevant public interest review factor. The Corps' public interest
review factors are listed in 33 CFR 320.4(a)(1) and are discussed in
more detail in subsequent paragraphs in section 320.4.
The documentation requirements for issuing, modifying, suspending,
or revoking an NWP by Corps Headquarters are described at 33 CFR
330.5(b)(3). For the issuance of an NWP, compliance with the
requirements of the National Environmental Policy Act is completed when
Corps Headquarters issues the final rule for the NWP along with the
national decision document for that NWP. The national decision document
completed for each NWP includes an environmental assessment and a
finding of no significant impact. The national decision document for
each NWP also includes a public interest review conducted in accordance
with the requirements of 33 CFR 320.4. If the NWP authorizes discharges
of dredged or fill material into waters of the United States, the
national decision also includes a Clean Water Act section 404(b)(1)
compliance analysis conducted in accordance with 40 CFR part 230.
After an NWP is issued, each of the eight division engineers
determines whether it is necessary to exercise discretionary authority
to modify, suspend, or revoke authorizations for that NWP for any
specific geographic area, class of activities, or class of waters
within his or her division, including on a statewide basis (see 33 CFR
330.5(c)). Each division engineer prepares supplemental documentation
for the modification, suspension, or revocation of authorizations for
that NWP in a specific geographic area, including whether regional
conditions are necessary ensure that the NWP authorizes only those
activities that result in no more than minimal individual and
cumulative adverse environmental effects. If the division engineer
determines that regional conditions are, or are not, necessary to
ensure use of that NWP results in no more than minimal individual and
cumulative adverse environmental effects, he or she will include a
certification in that supplemental document to memorialize that
determination. The supplemental documents prepared by division
engineers are not NEPA documents, because compliance with NEPA was
completed by the issuance of the national decision document by Corps
Headquarters. Likewise, the supplemental documents prepared by division
engineers do not include a public interest review conducted at the
regional scale because the Corps completed its public interest review
when Corps Headquarters issued the national decision document for that
NWP. In addition, if the NWP authorizes discharges of dredged or fill
material into waters of the United States, the supplemental documents
issued by division engineers do not include a Clean Water Act section
404(b)(1) guidelines analysis conducted at the regional scale because
the Corps fulfilled the requirements of the Clean Water Act section
404(b)(1) guidelines when Corps Headquarters issued the national
decision document for that NWP.
For a specific activity authorized by an NWP, where a district
engineer issues a written verification, with or without activity-
specific conditions, to ensure the NWP activity results in no more than
minimal individual and cumulative adverse environmental effects, the
district engineer prepares a brief document to explain his or her
decision to issue the NWP verification. If the district engineer
determines that it is necessary to exercise discretionary authority to
suspend or revoke the NWP authorization, or require an individual
permit for the proposed activity, he or she prepares a brief document
that explains why it is necessary to exercise that discretionary
authority. The documentation prepared by the district engineer for the
NWP verification, the suspension or revocation of an NWP authorization,
or the exercise of discretionary authority to require an individual
permit, is not a NEPA document because Corps Headquarters fulfilled
NEPA requirements when it issued the national decision document in
support of the issuance of the NWP at the culmination of the rulemaking
process.
C. Status of Existing Permits
Activities authorized by the 2021 NWPs currently remain authorized
by those NWPs until March 14, 2026. Any activity that was completed
under the authorization of an NWP which was in effect at the time the
activity was completed continues to be authorized by that NWP.
[[Page 26107]]
Under 33 CFR 330.6(a)(3)(ii), if the NWP is reissued without
modification or the activity complies with any subsequent modification
of the NWP authorization, the NWP verification letter (i.e., the
written confirmation from the district engineer that the proposed
activity is authorized by NWP) should include a statement that says the
verification will remain valid for the period of time specified in the
verification letter. The specified period of time is usually the
expiration date of the NWP. For the 2021 NWPs, if the previously
verified NWP activity continues to qualify for NWP authorization after
the NWP is reissued or modified, that verification letter continues to
be in effect until March 14, 2026, unless the district engineer
specified a different expiration date in the NWP verification letter.
For most activities authorized by the 2021 NWPs, where the district
engineer issued an NWP verification letter, the verification letter
identified March 14, 2026, as the expiration date for those NWPs. As
long as the verified NWP activities comply with the terms and
conditions of the modified and reissued 2026 NWPs, those activities
continue to be authorized by the applicable NWP(s) until March 14,
2026, unless the district engineer modifies, suspends, or revokes a
specific NWP authorization.
Under 33 CFR 330.6(b), Corps Headquarters may modify, reissue, or
revoke the NWPs at any time. Activities that were authorized by the
previous set of NWPs which have commenced (i.e., are under
construction), or are under contract to commence in reliance upon an
NWP, will remain authorized provided the activity is completed within
twelve months of the date of an NWP's expiration, modification, or
revocation, unless discretionary authority has been exercised by a
division or district engineer on a case-by-case basis to modify,
suspend, or revoke the authorization in accordance with 33 CFR 330.4(e)
and 33 CFR 330.5(c) or (d). This provision applies to activities that
were previously verified by the district engineer as qualifying for NWP
authorization, but no longer qualify for NWP authorization under the
modified or reissued NWP.
An activity completed under the authorization provided by a 2021
NWP continues to be authorized by that NWP (see 33 CFR 330.6(b))
regardless of whether the Corps issues a final rule for the 2026 NWPs.
If the activity no longer qualifies for NWP authorization under the
2026 reissuance or modification of that NWP, the project proponent
would have 12 months to complete the authorized activity as long as
that activity is under construction or under contract to commence
construction before the reissued or modified NWP goes into effect. If
the project proponent does not have the activity under construction or
under contract to commence construction before the reissued or modified
NWP goes into effect, he or she will need to seek another form of DA
authorization for the regulated activity. After that 12 month period,
if those activities no longer qualify for NWP authorization because
they do not meet the terms and conditions of the 2026 NWPs (including
any regional conditions imposed by division engineers), the project
proponent will need to obtain an individual permit, or seek
authorization under a regional general permit, if such a general permit
is available in the applicable Corps district and can be used to
authorize the proposed activity.
D. Regional Conditioning of Nationwide Permits
Under Section 404(e) of the Clean Water Act, NWPs can only be
issued for those activities that result in no more than minimal
individual and cumulative adverse environmental effects. For activities
that require authorization under Section 10 of the Rivers and Harbors
Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f)
impose a similar requirement. Since it can be challenging for the Corps
to write national terms and conditions for the NWPs in such a way that
they account for regional differences in aquatic ecosystem structure,
functions, and services, and other regional environmental concerns or
differences, an important mechanism for ensuring compliance with these
requirements is regional conditions imposed by division engineers to
address those regional differences. Effective regional conditions help
protect local aquatic ecosystems and other resources, and the functions
and services they provide. They also help ensure that the NWPs
authorize only those activities that result in no more than minimal
individual and cumulative adverse effects on the aquatic environment
and are not contrary to the public interest.
There are two types of regional conditions: (1) Corps regional
conditions and (2) water quality certification/Coastal Zone Management
Act consistency concurrence regional conditions. Corps regional
conditions are added to the NWPs by division engineers in accordance
with the procedures at 33 CFR 330.5(c). Water quality certification and
Coastal Zone Management Act consistency concurrence regional conditions
are also added to the NWPs if an appropriate certifying authority
issues a water quality certification or CZMA consistency concurrence
with conditions for the issuance, reissuance, or modification of the
NWPs prior to the effective date of the issued, reissued, or modified
NWPs.
Examples of Corps regional conditions include:
<bullet> Restricting the types of waters of the United States where
the NWPs may be used (e.g., fens, bogs, bottomland hardwood forests,
etc.) or prohibiting the use of some or all of the NWPs in those types
of waters or in specific watersheds.
<bullet> Restricting or prohibiting the use of NWPs in an area
covered by a Special Area Management Plan, where regional general
permits are issued to authorize activities that have no more than
minimal individual and cumulative adverse environmental effects and are
consistent with that plan.
<bullet> Revoking certain NWPs in a watershed or other type of
geographic area (e.g., a state or county) to require other forms of DA
authorization (e.g., individual permits) for those activities.
<bullet> Adding PCN requirements to NWPs in certain watersheds or
other types of geographic areas, or in certain types of waters of the
United States, to require notification for all activities or impose
lower PCN thresholds.
<bullet> Reducing NWP acreage limits for activities in certain
types of waters of the United States (e.g., streams) or specific
waterbodies, or in specific watersheds or other types of geographic
regions.
<bullet> Restricting activities authorized by NWPs to certain times
of the year in a particular waterbody, to minimize the adverse effects
of those activities on fish or shellfish spawning, wildlife nesting, or
other ecologically cyclical events.
<bullet> Conditions necessary to facilitate compliance with the
``Endangered Species'' general condition, to enhance protection of
listed species or designated critical habitat under the Endangered
Species Act.
<bullet> Conditions necessary to facilitate compliance with the
``Tribal Rights'' general condition, to enhance protection of tribal
trust resources, including natural and cultural resources and tribal
lands.
<bullet> Conditions necessary for ensuring compliance with the
``Historic Properties'' general condition, to enhance protection of
historic properties.
<bullet> Conditions necessary to ensure that activities authorized
by NWP will have no more than minimal individual and
[[Page 26108]]
cumulative adverse effects on Essential Fish Habitat.
Regional conditions are modifications of the NWPs that are made by
division engineers. Regional conditions can only add conditions to, or
further restrict the applicability of, an NWP (see 33 CFR 330.1(d)).
Corps regional conditions approved by division engineers cannot remove
or reduce any of the terms and conditions of the NWPs, including
general conditions. Corps regional conditions cannot increase PCN
thresholds or remove notification requirements, but they can lower PCN
thresholds to require PCNs for more activities authorized by a specific
NWP. In summary, Corps regional conditions can only be more restrictive
than the NWP terms and conditions established by Corps Headquarters
when it issues or reissues an NWP.
Corps regional conditions may be added to NWPs by division
engineers after a public notice and comment process and coordination
with appropriate federal, state, and local agencies, as well as tribes.
After Corps Headquarters publishes, in the Federal Register, the
proposed rule to issue, reissue, or modify NWPs, district engineers
issue local public notices to announce the availability of the proposed
rule for review and comment and to solicit public comment on proposed
regional conditions and/or proposed suspensions or revocations of NWP
authorizations for specific geographic areas, classes of activities, or
classes of waters (see 33 CFR 330.5(b)(2)(ii)). These local public
notices usually have a 45-day comment period. The local public notices
also solicit suggestions from the public and interested agencies on
additional regional conditions that they believe are necessary to
ensure that the NWPs authorize only those activities that have no more
than minimal adverse environmental effects. Comments on proposed
regional conditions should be sent to the Corps district that issued
the public notice. Corps districts will also consult or coordinate with
tribes to identify and propose regional conditions to ensure compliance
with general condition 17 (treaty rights) and fulfill the Corps' tribal
trust responsibilities. The process for adding Corps regional
conditions to the NWPs is described at 33 CFR 330.5(c). The regulations
for the regional conditioning process were promulgated in 1991, with
the proposed rule published in the Federal Register on April 10, 1991
(56 FR 14598) and the final rule published in the Federal Register on
November 22, 1991 (56 FR 59110).
In response to the district's local public notice, interested
parties may suggest additional Corps regional conditions or changes to
Corps regional conditions. Interested parties may also suggest
suspension or revocation of NWPs in certain geographic areas, such as
specific watersheds or waterbodies. Such comments should include data
to support the need for the suggested modifications, suspensions, or
revocations of NWPs.
After the public comment period ends for the districts' local
public notices, each Corps district evaluates the comments received in
response to their local public notice and begins preparing, as required
by 33 CFR 330.5(c)(1)(iii), supplemental documents for each NWP. Each
supplemental document will evaluate the NWP on a regional basis (e.g.,
by Corps district geographic area of responsibility or by state) and
discuss whether regional conditions are needed for that NWP to ensure
that authorized activities result in no more than minimal individual
and cumulative adverse environmental effects. Each supplemental
document will also include a statement by the division engineer that
will certify that the NWP, with approved regional conditions, will
authorize only those activities that will have no more than minimal
individual and cumulative adverse environmental effects.
The supplemental documents may cover a Corps district, especially
in cases where the geographic area of responsibility for the Corps
district covers an entire state. If more than one Corps district
operates in a state, the lead district is responsible for preparing the
supplemental documents and coordinating with the other Corps districts.
The supplemental documents include an evaluation of public and agency
comments on proposed and suggested regional conditions, with responses
to those comments, to show that the views of potentially affected
parties were fully considered (33 CFR 330.5(c)(1)(ii)). Each
supplemental document also explains how substantive comments submitted
in response to the local public notice were considered. After the
supplemental documents for the NWPs are drafted by the district, they
are sent to the division engineer for review along with the district's
recommendations for regional conditions. The division engineer may
approve the supplemental documents and the district's recommended
regional conditions. Alternatively, the division engineer may also
request changes to one or more supplemental documents, including
changes to the regional conditions recommended by the district in those
supplemental documents.
After the division engineer approves regional conditions for the
NWPs by signing the supplemental documents, the district issues a
public notice announcing the final Corps regional conditions and when
those regional conditions go into effect (see 33 CFR 330.5(c)(1)(v)).
The district's public notice is posted on its website. Copies of the
district's public notice are also sent to interested parties that are
on the district's public notice mailing list via email or the U.S.
mail. The public notice will also describe, if appropriate, a
grandfathering period as specified by 33 CFR 330.6(b) for those project
proponents who have already commenced work under the NWP or are under
contract to commence work under the NWP (see 33 CFR 330.5(c)(1)(iv)).
Copies of all Corps regional conditions approved by the division
engineers for the NWPs are forwarded to Corps Headquarters (see 33 CFR
330.5(c)(3)).
Under the current regulations, Corps Headquarters does not have a
role in the districts' proposal of regional conditions, or the review
and approval of Corps' regional conditions by division engineers. Corps
Headquarters provides templates for the supplemental documents required
by 33 CFR 330.5(c)(1)(iii), to promote consistency in the preparation
of the supplemental documents. If requested by district and division
offices, Corps Headquarters also provides advice on appropriate Corps
regional conditions for the NWPs.
The Corps is a highly decentralized organization, with most of the
authority for administering the regulatory program delegated to the 39
district engineers and 8 division engineers (see 33 CFR 320.1(a)(2)).
District engineers are responsible for the day-to-day implementation of
the Corps' Regulatory Program, including the evaluation of applications
for individual permits, evaluating PCNs for proposed NWP activities,
evaluating notifications for activities authorized by regional general
permits, responding to requests for approved and preliminary
jurisdictional determinations, conducting compliance and enforcement
actions, and other tasks.
Division engineers are responsible for overseeing implementation of
the Regulatory Program by their districts, and making permit decisions
referred to them by district engineers under the circumstances
identified in 33 CFR 325.8(b). Under that section of the Corps'
regulations, a division engineer can refer certain permit applications
to the Chief of Engineers for a decision.
[[Page 26109]]
Other than making permit decisions under the circumstances listed in
Sec. 325.8(c), Corps Headquarters is responsible for development of
regulations, guidance, and policies.
Since the purpose of regional conditions is to tailor the NWPs to
account for regional differences in aquatic resource types, the
functions they provide, and their value to the region so that the NWPs
in a particular geographic area authorize only those activities that
result in no more than minimal individual and cumulative adverse
environmental effects, requiring consistency among regional conditions
at a national level would be contrary to the purpose of regional
conditions and would reduce the utility of the NWPs. In other words,
the ability to add restrictions to one or more NWPs at a regional level
to ensure that those activities result in no more than minimal
individual and cumulative adverse environmental effects allows the
national terms and conditions to be less restrictive, and thereby
potentially appropriate, in other areas of the country. This ability to
tailor the NWP program in specific areas of the country allows the NWPs
to authorize more activities than would be possible if the need for
greater restrictions in one part of the country had to be applied to
the nation as a whole. Corps regional conditions should be written
clearly and provide only the additional restrictions that are necessary
to ensure that NWP activities in the applicable geographic region
result only in minimal individual and cumulative adverse environmental
effects, consistent with the requirements of Section 404(e) of the
Clean Water Act.
Under the Corps' current regulations at 33 CFR 330.5(c), the
authority to approve Corps regional conditions is assigned to division
engineers. A division engineer can take steps to provide consistency in
Corps regional conditions for the districts within her or his division.
However, it should also be noted that the eight Corps divisions
encompass large geographic regions and there can be substantial
differences in aquatic resource types, functions, services, and values
within a Corps division. For example, the Corps' Northwestern Division
extends from the northwest coast to the Midwest, with oceanic and
estuarine waters along the coasts of Oregon and Washington, to inland
wetlands and rivers in Missouri and Nebraska. As another example, the
Mississippi Valley Division extends from Louisiana, with its extensive
coastal wetlands and bottomland hardwood forests to Minnesota, which
has many lakes, bogs, marshes, and swamps.
In addition, there are usually also substantial differences in
other resources that are subject to regional conditions that may be
developed to assist in the Corps' compliance with other applicable
federal laws, such as Section 7 of the Endangered Species Act, the
Essential Fish Habitat provisions of the Magnuson-Stevens Fishery
Conservation and Management Act, Section 106 of the National Historic
Preservation Act, and the Wild and Scenic Rivers Act. The presence and
ranges of endangered and threatened species, and the locations of
designated critical habitat often vary substantially within a Corps
division. Most coastal Corps districts have essential fish habitat in
their geographic areas of responsibility, whereas inland districts do
not. Regional conditions may also be developed to address tribal treaty
rights and trust resources, which likely vary from tribe to tribe.
Therefore, because of these factors consistency in regional conditions
necessary to ensure that NWPs only authorize activities that have no
more than minimal adverse environmental effects cannot be practicably
achieved at a national or division level without reducing the
availability of NWPs in other areas of the country.
Consistent with the Corps' approach to providing more transparency
in the process for proposing and adding regional conditions to the NWPs
that was adopted for the 2021 NWPs, the Corps will be posting copies of
the district public notices soliciting input for proposed and suggested
regional conditions in the <a href="http://www.regulations.gov">www.regulations.gov</a> docket for this
rulemaking action (docket number COE-2025-0002), under ``Supporting and
Related Material.'' In addition, after the final NWPs are issued, the
Corps will post copies of all district public notices announcing the
final regional conditions in the <a href="http://www.regulations.gov">www.regulations.gov</a> docket for this
rulemaking action, so that copies of all these district public notices
are available in a single location. This docket is intended to provide
a central location for interested parties to obtain information on
proposed and finalized Corps regional conditions, as well as the WQC/
CZMA regional conditions added through the water quality certification
process and Coastal Zone Management Act consistency concurrence process
for the issuance and reissuance process for the NWPs. Comments on
regional conditions proposed by Corps districts must be sent to the
Corps district identified in the public notice, not to Corps
Headquarters.
If, after the NWPs go into effect, division or district engineers
receive new information that calls for new or modified Corps regional
conditions to ensure that authorized activities cause no more than
minimal individual and cumulative adverse environmental effects, Corps
division and district engineers may work together to propose and
approve new or modified regional conditions after following the
procedures in 33 CFR 330.5(c). Adding new Corps regional conditions, or
modifying existing Corps regional conditions, after the final rule
issuing or reissuing the NWPs go into effect includes a public notice
and comment process, and amending supplemental documents for those
Corps regional conditions. Information on regional conditions for the
NWPs, and on the suspension or revocation of one or more NWPs in a
particular area, can be obtained from the appropriate district
engineer.
Water Quality Certification and Coastal Zone Management Authorization
Regional Reviews
The processes for states, approved tribes, and EPA to issue water
quality certifications (WQCs) for the issuance of the NWPs, and for
states to issue general CZMA consistency concurrences for the NWPs are
separate from the Corps' process in 33 CFR 330.5(c) for division
engineers adding Corps regional conditions to the NWPs. The WQC process
is governed by EPA's regulations at 40 CFR part 121, and by the
regulations and policies of certifying authorities, such as states,
tribes approved by EPA to administer their own water quality
certification programs, or EPA regions. EPA regions act as the
certifying authorities where no state or tribe has authority to issue
certification (33 U.S.C. 1341(a)(1)). Currently, EPA acts as the
certifying authority in two scenarios: (1) on behalf of tribes without
``treatment in a similar manner as a state'' (TAS) for Clean Water Act
section 401 and (2) on lands of exclusive federal jurisdiction in
relevant respects. The CZMA consistency process is governed by
regulations issued by the Department of Commerce at 15 CFR part 930.
Individuals who are interested in providing comments specific to WQCs
and CZMA consistency determinations for the issuance or reissuance of
the NWPs should submit their comments directly to the appropriate
state, authorized tribe, or EPA regional office. Because these
processes are separate from the Corps' regional conditioning process,
the public notices issued by states, authorized tribes, and EPA
[[Page 26110]]
regions during the WQC and CZMA consistency determination processes
will not be included in the docket for this rulemaking action.
The Corps' regulations for establishing WQC regional conditions for
the NWPs are provided at 33 CFR 330.4(c)(2). If, prior to the issuance
or reissuance of NWPs, a state, authorized tribe, or EPA region issues
a Clean Water Act section 401 water quality certification with
conditions, the division engineer will make those water quality
certification conditions regional conditions for the applicable NWPs,
unless she or he determines those conditions do not comply with 33 CFR
325.4 (see 33 CFR 330.4(c)(2)).
If the division engineer determines those water quality
certification conditions do not comply with 33 CFR 325.4, then the
conditioned water quality certification will be considered denied, and
the project proponent will need to request an activity-specific water
quality certification for the proposed activity which may result in any
discharge from a point source into waters of the United States from the
certifying authority. That certification request must satisfy the
requirements of 40 CFR 121.5(b). The certifying authority may grant,
grant with conditions, or deny water quality certification for an
individual license or permit, for any activity which may result in any
discharge into waters of the United States (see 40 CFR 121.7),
including an activity-specific discharge into waters of the United
States that may be authorized by an NWP.
A similar process applies to a CZMA consistency concurrence issued
by a state for the issuance of an NWP (see 33 CFR 330.4(d)(2)). If the
division engineer determines those CZMA concurrence conditions do not
comply with 33 CFR 325.4, then the conditioned CZMA consistency
certification will be considered an objection (see 15 CFR 930.4(b)),
and the project proponent will need to request an activity-specific
CZMA consistency concurrence from the state under subpart D of 15 CFR
part 930.
After division engineers finalize Corps regional conditions, and
determined whether conditions in WQCs and CZMA consistency concurrences
for the issuance or reissuance of the NWPs are WQC/CZMA regional
conditions for the NWPs, Corps districts will issue public notices
announcing the final Corps and WQC/CZMA regional conditions, and the
status of WQCs and CZMA consistency concurrences for the final NWPs.
Corps Headquarters will post copies of these district public notices in
the <a href="http://regulations.gov">regulations.gov</a> docket (docket number COE-2025-0002), under
``Supporting and Related Material.''
E. Nature-Based Solutions and the NWP Program
A number of NWPs currently authorize discharges of dredged or fill
material into waters of the United States and/or structures or work in
navigable waters of the United States for the construction and
maintenance of nature-based solutions. ``Nature-based solutions'' have
been defined by Cohen-Shacham and others (2016) as ``actions to
protect, sustainably manage, and restore natural or modified
ecosystems, that address societal challenges effectively and
adaptively, simultaneously providing human well-being and biodiversity
benefits.'' Nature-based solutions have the potential to furnish cost-
effective approaches to providing environmental, social, and economic
benefits, and they may also help build resilience (Raymond et al.
2017). The Corps is proposing to add this definition to the NWPs, in
Section F, Definitions.
Nature-based solutions can currently be authorized by NWP 27
(aquatic ecosystem restoration, enhancement, and establishment
activities), NWP 43 (stormwater management facilities), NWP 13 (bank
stabilization activities), NWP 31 (maintenance of existing flood
control facilities), NWP 41 (reshaping existing drainage and irrigation
ditches), NWP 55 (seaweed mariculture activities), NWP 54 (living
shorelines), and NWP 59 (water reclamation and reuse facilities). The
Corps is proposing modifications to some NWPs (e.g., NWPs 13 and 43) to
enhance the ability of those NWPs to authorize regulated activities
associated with nature-based solutions.
The Corps is proposing to issue a new NWP titled ``Activities to
Improve the Passage of Fish and Other Aquatic Organisms'' (which is
designated as NWP A in this proposed rule; if this NWP is issued, it
will be assigned a number) to authorize activities to restore or
enhance the passage of fish and other aquatic organisms, as well as
other ecological processes such as the transport of water, sediment and
nutrients, around or through barriers so that they can access other
aquatic habitats. Activities authorized by this proposed new NWP would
include nature-like fishways, which are a nature-based solutions that
can help improve the ability of fish and other aquatic organisms to
move around or through barriers and access upstream and downstream
aquatic habitats.
Nature-based solutions can vary in the degree to which they involve
natural or restored ecosystems and engineered components. For example,
subcategories of nature-based solutions may include natural
infrastructure and green infrastructure. Natural infrastructure
consists of existing or restored natural ecosystems, including those
that involve some degree of stewardship by people to maintain the
structure, functions, and dynamics of those ecosystems. Examples of
natural infrastructure include wetland restoration activities where the
restored wetland resembles an ecological reference, or a river or
stream corridor that is restored to a multi-threaded channel
interspersed with wetlands and floodplains, with structure, function,
and dynamics that are similar to undisturbed river or stream valleys
with beaver dams and/or wood jams that supported anastomosing or
anabranching channels interspersed with wetlands and floodplains. Green
infrastructure consists of nature-based solutions involving
combinations of features of natural ecosystems with some (gray)
engineered components. Examples of green infrastructure include rain
gardens, constructed wetlands for wastewater treatment, and stormwater
management facilities.
F. Notes in NWPs for Utilities and Mariculture Activities
A number of NWPs currently authorize structures or work in
navigable waters of the United States under the authority of Section 10
of the Rivers and Harbors Act. Two groups of NWPs which authorize work
and structures in navigable waters of the United States, those that
authorize activities associated with utilities and those that authorize
activities associated with mariculture, each include a Note intended to
protect navigation.
The NWPs that authorize activities associated with utilities, NWP
12 (Oil or Natural Gas Pipeline Activities), NWP 52 (Water-Based
Renewable Energy Generation Pilot Projects), NWP 57 (Electric Utility
Line and Telecommunications Activities), and NWP 58 (Utility Line
Activities for Water and Other Substances) include a Note (designated
as Note 1 in NWP 12, designated as Note 3 in NWP 52, designated as Note
1 in NWP 57, and designated as Note 1 in NWP 58) which directs the
Corps to provide a copy of the NWP verification to the National Oceanic
and Atmospheric Administration (NOAA), National Ocean Service (NOS) for
inclusion on nautical charts. The NWPs that authorize activities
associated with mariculture, NWP 48 (Commercial
[[Page 26111]]
Shellfish Mariculture Activities) and NWP 55 (Seaweed Mariculture
Activities) include a Note (designated as Note 1 in each of these NWP)
which advises the permittee to notify the U.S. Coast Guard (USCG) of
the project.
The Corps is proposing to modify the text of both sets of Notes to
add language to clarify the intent of each Note, to identify
information that should be provided to NOS or USCG, and to provide
contact information for both NOS and USCG. In addition, we are
proposing to modify the NWPs that authorize activities associated with
utilities and those that authorize activities associated with
mariculture to include the revised text of both Notes in each NWP.
The Corps is proposing the modify the Note in the NWPs that
authorize activities associated with utilities to clarify that the
information provided to NOS will be used to update nautical charts and
make Coast Pilot corrections. In addition, the Corps is proposing to
modify the text of the Note to remove the language that directs the
Corps to provide a copy of the NWP verification to NOS and replace it
with language recommending that the permittee provide as-built drawings
and the geographic coordinate system used in the as-built drawings to
NOS. The Corps is also proposing to remove language from the Note which
specifies which structures should be reported to NOS. The Corps is
retaining language to specify that this Note applies to structures and
work authorized in coastal waters, the Great Lakes, and United States
territories. The Corps is also proposing to add a new last sentence to
the Note to state that the information should be transmitted via email
to <a href="/cdn-cgi/l/email-protection#e08f8393ce8e8482a08e8f8181ce878f96"><span class="__cf_email__" data-cfemail="5738342479393335173938363679303821">[email protected]</span></a>.
These revisions remove an administrative burden from the Corps and
encourage permittees to ensure that structures in navigable waters of
the United States are reflected on the appropriate navigation chart.
The Corps is proposing to modify the Notes in the NWPs associated with
utility activities (designated as Note 1 in NWP 12, designated as Note
3 in NWP 52, designated as Note 1 in NWP 57, and designated as Note 1
in NWP 58) as discussed above. The Corps is also proposing to add a new
Note to NWP 48 (to be designated as Note 4) and NWP 55 (to be
designated at Note 4).
The Corps is also seeking comment on the need to add this proposed
revised Note to NWP 4 (Fish and Wildlife Harvesting, Enhancement, and
Attraction Devices and Activities) and NWP 27 (Aquatic Habitat
Restoration, Enhancement, and Establishment Activities). NWP 4
authorizes a variety of fish and wildlife harvesting devices such as
pound nets, crab traps, eel pots, lobster traps, and duck blinds. These
devices may be in place for a short time and may be moved multiple
times in a season. The temporary nature of these devices and the
recurring relocation of these devices may limit the practicability of
notifying NOS of the location of these devices. NWP 27 can be used to
authorize the removal of culverts and other obstructions from waters,
but it cannot be used to add or replace existing structures with new
structures. Activities authorized under NWP 27 must result in aquatic
habitat that resembles an ecological reference.
The current text of the Note in the NWPs that authorize activities
associated with mariculture encourages permittees to notify the USCG of
their project. The Corps is proposing to modify the Note to specify
that this Note applies to proposed structures and work in navigable
waters of the United States. The Corps also proposes to modify the Note
to encourage project proponents to contact USCG before submitting a
Pre-Construction Notification or, if no Pre-Construction Notification
is required, before beginning construction. If a permittee receives an
NWP verification, and subsequently modifies their project after
coordinating with USCG, the permittee may need to contact the Corps to
request a reverification of the NWP. In addition, the Corps is
proposing to modify the Note to recommend that the project proponent
provide USCG with the location and dimensions of the proposed
structures. The Corps also proposes to add a second sentence to inform
project proponents of the assistance that USCG may provide. The Corps
also proposes to modify the note to add a third sentence that will
assist the project proponent in locating the appropriate USCG office.
The Corps proposes to modify Note 1 of NWP 48 and Note 1 of NWP 55
and discussed above. The Corps also proposes to add a new Note to NWP 4
(to be designated as Note 1); NWP 12 (to be designated as Note 7), NWP
52 (to be designated as Note 6), NWP 57 (to be designated as Note 8),
and NWP 58 (to be designated as Note 7) consistent with the proposed
revised Note discussed above.
The Corps is also seeking comment on the need to add this proposed
revised Note to NWP 4 (Fish and Wildlife Harvesting, Enhancement, and
Attraction Devices and Activities) and NWP 27 (Aquatic Habitat
Restoration, Enhancement, and Establishment Activities). NWP 4
authorizes a variety of fish and wildlife harvesting devices such as
pound nets, crab traps, eel pots, lobster traps, and duck blinds. These
devices may be in place for a short time and may be moved multiple
times in a season. The temporary nature of these devices and the
recurring relocation of these devices may limit the practicability of
coordinating with USCG on the location of these devices. NWP 27 can be
used to authorize the removal of culverts and other obstructions from
waters, but it cannot be used to add or replace existing structures
with new structures. Activities authorized under NWP 27 must result in
aquatic habitat that resembles an ecological reference.
G. Severability
The purpose of this section is to clarify the Corps' intent with
respect to the severability of the NWPs in this rule. Each NWP in this
rule operates independently. If any particular NWP of this rule is
determined by judicial review or operation of law to be invalid, that
partial invalidation will not render the remainder of the NWPs in this
rule invalid. Likewise, if the application of any NWP to a particular
circumstance is determined to be invalid, the Corps intends that the
NWP remain applicable to all other circumstances.
II. Summary of Proposed Rule
In this proposed rule, the Corps proposes to reissue 56 of the
existing NWPs with some modifications and to issue one new NWP. The
Corps is not proposing to reissue NWP 56, which authorizes structures
in marine and estuarine waters, including federal waters over the outer
continental shelf, for finfish mariculture activities. The proposed new
NWP A, if issued, would authorize activities that improve the passage
of fish and other aquatic organisms and other important ecological
processes. This new NWP is being proposed to provide NWP authorization
for discharges of dredged or fill material into waters of the United
States or structures or work in navigable waters for activities that
improve the passage of fish and other aquatic organisms, including
nature-based solutions such as nature-like fishways that provide a path
for fish and other aquatic organisms to move past dams and weirs, but
do not quality for authorization under NWP 27 because they involve
engineering features that do not resemble ecological references.
Proposed new NWP A does not replace NWP 56, which the Corps is
proposing to not reissue and which authorized finfish mariculture
activities in ocean and estuarine waters. Proposed new
[[Page 26112]]
NWP A and NWP 56 authorize different categories of activities.
The Corps is proposing to revise the text of NWP 12 (Oil or Natural
Gas Pipeline Activities), NWP 13 (bank stabilization), NWP 15 (U.S.
Coast Guard approved bridges), NWP 23 (approved categorical
exclusions), NWP 24 (Indian tribe or state assumed section 404
program), NWP 27 (aquatic ecosystem restoration, enhancement, and
establishment activities), NWP 48 (commercial shellfish mariculture
activities), NWP 52 (Water-Based Renewable Energy Generation Projects),
NWP 54 (living shorelines), NWP 55 (Seaweed Mariculture Activities),
NWP 57 (Electric Utility Line and Telecommunications Activities), and
NWP 58 (Utility Line Activities for Water and Other Substances to
provide NWP authorization for additional activities or clarify what is
authorized by these NWPs. Some of the proposed modifications to the
NWPs are intended to address litigation that occurred after the 2021
NWPs were issued and went into effect. The Corps is proposing to not
reissue NWP 56 (finfish mariculture activities) because of on-going
litigation. The Corps is also proposing to modify some general
conditions and definitions so that they are clearer and can be more
easily understood by the regulated public, government personnel, and
interested parties, while retaining terms and conditions that help
protect the aquatic environment and recognize when activities requiring
DA authorization would benefit the aquatic environment. Making the text
of the NWPs clearer and easier to understand will also facilitate
compliance with these permits, which will benefit the aquatic
environment. The NWP program allows the Corps to authorize activities
with only minimal adverse environmental impacts in an efficient,
effective, and timely manner. The NWPs contribute to environmental
protection because they encourage project proponents to minimize the
amount of adverse impacts to waters of the United States to qualify for
NWP authorization. For example, in FY 2023, 74 percent of the NWP
verifications involving discharges of dredged or fill material into
waters of the United States had impacts of less than \1/10\-acre, well
below the \1/2\-acre limit in numerous NWPs. Thus, through the NWPs the
Corps is able to better protect the aquatic environment by focusing its
limited resources on more extensive evaluations through the individual
permit process, to provide more rigorous evaluation of activities that
have the potential for causing more severe adverse environmental
effects.
The Corps is soliciting comment on all changes to the nationwide
permits, general conditions, and definitions discussed below, as well
as the nationwide permits, general conditions, and definitions for
which the Corps has not proposed any changes. Minor grammatical
changes, the removal of redundant language, and other small
administrative changes are not discussed in the preamble below.
Therefore, commenters should carefully read each proposed NWP, general
condition, and definition in this proposed rule. The Corps also
welcomes comments on situations that might warrant nationwide permit
coverage but that are not covered by a current nationwide permit.
A. Discussion of Proposed Modifications to Existing Nationwide Permits
NWP 12. Oil or Natural Gas Pipeline Activities. As discussed in the
Preamble Section I.F. above, the Corps is proposing to modify Note 1
and to add a Note (designated as Note 7) to add language to clarify the
intent of each Note, to identify information that should be provided to
NOS or USCG, and to provide contact information for both NOS and USCG.
NWP 13. Bank stabilization activities. The Corps is proposing to
modify NWP 13 by adding a paragraph to clarify that this NWP can be
used to authorize nature-based solutions associated with bank
stabilization activities, including those in conjunction with hard bank
stabilization activities such as seawalls, bulkheads, and revetments.
The Corps is also proposing to modify this NWP by adding a new Note to
encourage project proponents to use soft bank stabilization approaches
and/or nature-based solutions where appropriate to reduce the potential
individual and cumulative adverse environmental effects that may be
caused by bank stabilization activities. The proposed new Note also
provides examples of the numerous factors that likely need to be
considered when planning and designing a proposed bank stabilization
activity, including hard or soft approaches to bank stabilization.
Over the past 15 years or so, there have been numerous publications
and studies that have examined the potential for applying ecological
engineering approaches and nature-based solutions to bank stabilization
activities to reduce the adverse effects of hard bank stabilization
structures on nearshore biodiversity, habitat value, and other
ecosystem functions and services, especially in coastal areas (e.g.,
Chapman and Underwood 2011, Morris et al. 2018, Strain et al. 2017,
O'Shaughnessy et al. 2020). Ecological engineering approaches for bank
stabilization activities can provide nature-based solutions that are
sustainable, help improve environmental quality, and support
biodiversity (Suedel et al. 2022). They can be incorporated into the
planning, design, and implementation of new bank stabilization
activities in coastal environments, or be retrofitted into existing
seawalls, bulkheads, and revetments during maintenance of these
existing structures.
Seawalls and bulkheads can be constructed with materials that have
textured surfaces (e.g., crevices, depressions, pits, grooves, gaps)
that provide structural complexity and microhabitats that habitat-
forming sessile organisms such as barnacles, branching coralline algae,
bivalves, algae, and corals can attach to, grow, and further enhance
habitat structure (Strain et al. 2017) that can be used by other
aquatic organisms. Fish may feed on the aquatic organisms attached to
these seawalls and bulkheads, and aquatic organisms can be attracted to
the structural habitat on these seawalls and bulkheads. Seawalls and
bulkheads constructed with textured surfaces and other features to
increase habitat complexity and are colonized by benthic organisms,
such as seaweeds and sessile animals, and may attract and support
populations of juvenile fish, including salmon species (Morris et al.
2018). Habitat complexity at seawalls and bulkheads that supports more
diverse aquatic organism assemblages can also be enhanced at seawalls
by incorporating water retaining features such as rock or tidal pools
(O'Shaughnessy et al. 2020), ``flower pots'' (Morris et al. 2018), and
benches (Toft et al. 2013), or large or small ledges (Strain et al.
2017).
Rocks can be placed in subtidal and intertidal areas next to
seawalls and bulkheads, or in clusters next to seawalls and bulkheads,
to provide habitat for aquatic organisms (Suedel et al. 2022). Rock
piles next to seawalls and bulkheads can be constructed from rocks of
different sizes or rocks of similar size, and gaps between these rocks
can provide habitat and refuge areas for aquatic organisms. Another
nature-based solution that may increase habitat and biodiversity next
to seawalls, bulkheads, and revetments involves the placement of bags
of molluscs or the placement of small reef structures to provide
habitat for molluscs and other sessile aquatic
[[Page 26113]]
organisms next to a seawall, bulkhead, or revetment (Suedel et al.
2022).
Revetments can be designed and constructed to increase structural
complexity that can provide habitat for benthic and motile aquatic
organisms. Rocks of different sizes can be used to construct revetments
and provide cracks and holes of different sizes that can be used as
habitat by aquatic organisms and plants (Suedel et al. 2022).
Another nature-based solution identified in the proposed new
paragraph is the placement of pieces of large wood in front seawalls,
bulkheads, and revetments. The placement of large wood in marine waters
can add structural complexity, especially in waterbodies with soft
substrates such as sand, that can attract benthic and pelagic organisms
and enhance local biodiversity (Dickson et al. 2023). In the past,
rivers have transported substantial amounts of wood to ocean and
estuarine waters, and that wood has provided food and habitat for a
wide variety of aquatic organisms (Wohl and Iskin 2021). Inputs of wood
to marine and estuarine waters has declined because of logging and
other deforestation activities, dam construction, channel engineering,
removal of large wood, and coastal hardening (Dickson et al. 2023, Wohl
and Iskin 2021). Installing large pieces of wood into marine and
estuarine waters seaward of seawalls, bulkheads, and revetments can
provide habitat for a variety of aquatic organisms, increase the number
of trophic connections among aquatic species, and contribute to local
nutrient cycling, and may help lessen changes in of biodiversity that
may occur as a result of the construction of a seawall, bulkhead, or
revetment (Witte et al. 2024, Dickson et al. 2023).
In some situations, incorporating the ecological engineering and
nature-based solutions to increase habitat functions and other
functions, and to increase biodiversity along shorelines where bank
stabilization activities are proposed or where modifications to
existing bank stabilization are proposed, may require district
engineers to issue waivers for some NWP 13 activities. One of the
quantitative limits in NWP 13 is that the activity cannot exceed an
average of one cubic yard per running foot, as measured along the
length of the treated bank, below the plane of the ordinary high water
mark or the high tide line. NWP 13 allows the district engineer to
waive this limit as long as she or he makes a written determination
concluding that the regulated activity for the bank stabilization
project will result in no more than minimal adverse environmental
effects. When evaluating NWP 13 PCNs that include requests for waivers
of this limit, and the proposed bank stabilization activity includes
nature-based solutions to provide habitat and other functions as
described in the proposed new paragraph, district engineers should
consider the potential gains in habitat functions and other functions
that are likely to result from incorporating nature-based solutions
into bank stabilization activities. Those gains should be considered
when deciding whether the proposed bank stabilization is likely to
result in minimal individual and cumulative adverse environmental
effects and whether the requested waiver of the one cubic yard per
running foot limit should be granted.
The Corps is proposing to add a new Note to NWP 13 (to be
designated as Note 2) to remind potential users of NWP 13 and other
interested parties of the Corps' current regulations regarding
considerations of property ownership and the general right of
landowners to protect their property from erosion. That regulation is
located at 33 CFR 320.4(g)(2), and it states:
Because a landowner has the general right to protect property
from erosion, applications to erect protective structures will
usually receive favorable consideration. However, if the protective
structure may cause damage to the property of others, adversely
affect public health and safety, adversely impact floodplain or
wetland values, or otherwise appears contrary to the public
interest, the district engineer will so advise the applicant and
inform him of possible alternative methods of protecting his
property. Such advice will be given in terms of general guidance
only so as not to compete with private engineering firms nor require
undue use of government resources.
Proposed Note 2 begins by paraphrasing section 320.4(g)(2), and in
response to an NWP 13 PCN, the district engineer can provide general
guidance on potential alternative means of bank stabilization that may
have less adverse environmental impacts than the applicant's proposed
bank stabilization activity. If applicant decides not to follow the
district engineer's general advice, the district engineer will evaluate
the PCN and determine whether the proposed bank stabilization activity
will result in no more than minimal individual and cumulative adverse
environmental effects in accordance with the criteria provided in
Section D, District Engineer's Decision.
The district engineer may add conditions to the NWP 13
authorization to ensure that the authorized activity results in no more
than minimal individual and cumulative adverse environmental effects.
If the district engineer determines the proposed bank stabilization
activity will result in more than minimal individual and cumulative
adverse environmental effects, he or she will give the applicant the
opportunity to propose mitigation measures (i.e., avoidance,
minimization, and/or compensatory mitigation) to reduce the adverse
impacts of the proposed activity so that they are no more than minimal
(see 33 CFR 330.1(e)(1)). If appropriate and practicable mitigation is
not likely to be accomplished, or reasonably enforceable (see the
Corps' regulations at 33 CFR 325.4(a) concerning adding conditions to
DA permits), the district engineer will exercise discretionary
authority to require an individual permit for the proposed bank
stabilization activity. During the individual permit process,
reasonable and practicable alternatives must be considered, and those
reasonable and practicable alternatives may include other approaches to
bank stabilization.
The second and third sentences of proposed Note 2 discuss options
for soft bank stabilization approaches versus hard bank stabilization
approaches. The second sentence states that permittees are encouraged
to use soft bank stabilization approaches (e.g., bioengineering,
vegetative stabilization) at sites where those methods are likely to be
effective in managing erosion, such as sites where shorelines and banks
are subject to moderate to low erosive forces. The third sentence
states that hard bank stabilization activities (e.g., seawalls,
bulkheads, revetments, riprap) may be necessary at sites where
shorelines and banks are subject to strong erosive forces. Nonetheless,
where hard bank stabilization is more appropriate there may be
opportunities to incorporate nature based solutions.
The number of factors to consider when identifying, planning, and
designing an appropriate and effective bank stabilization activity for
a particular site make that process complex and not conducive to
establishing a simple hierarchy of preferred bank stabilization
techniques. As discussed in 33 CFR 320.4(g)(2), landowners may want to
seek advice from entities with expertise in planning and designing bank
stabilization activities to propose an option that will be effective in
protecting their land and assets on their property from erosion now and
in the future, especially as the coastal environment changes over time.
In proposed Note 2, the Corps identifies the following factors that
may need to be considered when identifying, planning, and designing a
bank stabilization activity: bank height; bank
[[Page 26114]]
condition; the energy of tides, waves, currents, or other water flows
that the bank is exposed to; fetch; nearshore water depths; the
potential for storm surges; sediment or substrate type; tidal range in
waters subject to the ebb and flow of tides; shoreline configuration
and orientation; the width of the waterway; and whether there is
infrastructure in the vicinity of the proposed bank stabilization
activity that needs to be protected and the degree of protection
needed. The Corps invites public comment on other factors that should
be added to this proposed Note, or factors that should be removed from
this proposed Note.
NWP 15. U.S. Coast Guard Approved Bridges. The Corps is proposing
to modify this NWP to refer to the General Bridge Act of 1946 as one of
the statutory authorities that may be used by the U.S. Coast Guard to
authorize a bridge over navigable waters of the United States.
NWP 23. Approved Categorical Exclusions. The Corps is proposing to
modify paragraph (a) of this NWP by adding references to the National
Environmental Policy Act to replace the references from the Council on
Environmental Quality NEPA regulations that were removed from the Code
of Federal Regulations on April 11, 2025 (90 FR 10610). The Corps is
proposing to modify paragraph (a) to reference sections 106, 109, and
111(1) of NEPA.
The Corps is seeking comment on whether a Regulatory Guidance
Letter is the best way to document the categorical exclusions that are
approved under this NWP or if another document, such as a Federal
Register notice, would provide better notice to the public. Providing
notice of the approved changes in the Federal Register ensures the
broadest dissemination of the decision and is a more appropriate format
for a decision process that was subject to public comment process. The
list of approved categorical exclusions would still be made available
on the Corps Headquarters website.
NWP 24. Indian Tribe or State Administered Section 404 Programs.
The Corps is proposing to modify this NWP to remove Florida from the
list of states that have been approved by EPA to administer their own
Clean Water Act section 404 permit program under the authority of 33
U.S.C. 1344(g)-(l). EPA's approval of Florida's assumption of the Clean
Water Act section 404 permit program was vacated by the District Court
for the District of Columbia in 2024.
NWP 27. Aquatic Ecosystem Restoration, Enhancement, and
Establishment Activities. This NWP authorizes discharges of dredged or
fill material into waters of the United States and structures and work
in navigable waters of the United States for the restoration,
enhancement, and establishment of aquatic ecosystems, as long as those
activities result in net gains in aquatic resource functions and
services. The Corps is proposing numerous changes to NWP 27 to provide
a more efficient, effective, and less costly process for authorizing
voluntary aquatic ecosystem restoration, enhancement, and establishment
activities that are intended to produce net increases in aquatic
ecosystem functions and services. NWP 27 can also be used to authorize
activities to restore and enhance waters of the United States which are
conducted by other federal agencies. These changes will not affect the
availability of NWP 27 to authorize discharges of dredged or fill
material into waters of the United States and structures and work in
navigable waters of the United States for aquatic ecosystem
restoration, enhancement, and establishment activities conducted by
Corps-approved mitigation banks to generate mitigation credits for DA
permits. The review and approval of mitigation banks by the Corps is a
separate process governed by the Corps' regulations at 33 CFR 332.8.
The Corps is proposing to change the title of this NWP to refer to
``aquatic ecosystems'' instead of ``aquatic habitats'' because
activities authorized by this NWP should, over time, produce net
increases in a variety of aquatic ecosystem functions and services. The
Corps is also proposing to modify the paragraph that requires NWP 27
activities to resemble ecological references, and include ecological
references that are cultural ecosystems and ecological references based
on indigenous and local ecological knowledge. In addition, the Corps is
proposing to remove the list of examples of activities authorized by
this NWP and modify the list of categories of activities that are not
authorized by this NWP. The Corps is proposing to require the
submission of Reports for all NWP 27 activities and remove the
``Notification'' paragraphs from this NWP. However, PCNs will still be
required when PCN thresholds in the NWP general conditions (e.g.,
general condition 18, endangered species) or regional conditions added
by division engineers are triggered. Lastly, the Corps is proposing to
add a new Note (Note 2) to this NWP to state that if an NWP 27 activity
requires pre-construction notification because of an NWP general
condition or a regional condition imposed by a division engineer, the
baseline information required by paragraph (3) of the Reporting
requirement substitutes for the delineation of waters, wetlands, and
other special aquatic sites required by paragraph (b)(5) of general
condition 32.
NWP 27 is used primarily for voluntary aquatic ecosystem
restoration, enhancement, and establishment activities conducted by
various entities such as non-governmental organizations, tribes, land
stewards, private landowners, and federal, tribal, state, and local
government agencies. NWP 27 is also used for required restoration
activities conducted by other federal agencies. Voluntary aquatic
ecosystem restoration, enhancement, and establishment activities are
not subject to the requirements for compensatory mitigation projects
identified in 33 CFR part 332. For voluntary aquatic ecosystem
restoration, enhancement, and establishment activities, project
proponents can decide whether, and how, they establish goals,
objectives, and ecological performance criteria, and monitor, evaluate,
and report project outcomes. Project proponents can also determine
whether their voluntary aquatic ecosystem restoration, enhancement, or
establishment projects have achieved their goals, objectives, and
ecological performance criteria.
NWP 27 may also be used by third-party mitigation providers (e.g.,
mitigation bank sponsors and in-lieu fee program sponsors) to authorize
activities regulated under section 404 of the Clean Water Act and/or
section 10 of the Rivers and Harbors Act of 1899 for the construction
of mitigation banks and in-lieu fee projects. The mitigation banking
instrument or in-lieu fee program instrument approved by the Corps is
the legal document for the establishment, operation, and use of a
mitigation bank or an in-lieu fee program, but it does not authorize
the regulated activities that may be needed to physically conduct the
aquatic resource restoration, enhancement, or establishment that
generate mitigation bank or in-lieu fee program credits. Those
regulated activities may be authorized by NWP 27, individual permits,
or regional general permits.
In addition, NWP 27 may be used to authorize regulated activities
for implementing permittee-responsible mitigation projects, especially
advance permittee-responsible mitigation projects. When an activity
authorized by a DA permit requires permittee-responsible mitigation,
authorization of the regulated activities that need to be
[[Page 26115]]
conducted to implement the approved mitigation plan for the permittee-
responsible mitigation project is usually included in the DA
authorization for the permitted activity. However, there may be
situations where regulated activities for the permittee-responsible
mitigation are not authorized by the DA permit and a separate DA
authorization is needed to implement the permittee-responsible
mitigation project. Those situations usually include advance permittee-
responsible mitigation, because those permittee-responsible mitigation
projects are implemented in advance of the Corps issuing permits for
the activities that will use the advance permittee-responsible
mitigation to fulfill the required compensatory mitigation. When an
activity is authorized by a general permit, and the district engineer
requires permittee-responsible mitigation to offset permitted impacts,
if the general permit authorization does not cover the regulated
activities needed to implement the required permittee-responsible
mitigation, those activities may be authorized by NWP 27.
Proposed Change to the Title of NWP 27
The Corps is proposing to change the title of this NWP to refer to
``aquatic ecosystems'' instead of ``aquatic habitat'' because this NWP
requires authorized activities to result in net increases in aquatic
resource functions and services. NWP 27 activities must provide net
increases to an appropriate suite of ecosystem functions and services,
including hydrologic, biogeochemical cycling, and habitat support
functions, as well as the ecosystem services (benefits) that may be
produced by those functions. The benefits may be to human populations,
and the benefits may also be to the ecosystems themselves (Comberti et
la. 2015). The suite of functions and services produced by aquatic
ecosystem restoration, enhancement, and establishment activities is
likely to vary on a project-by-project basis, and may be dependent on a
variety of factors such as landscape or seascape context, the legacies
of past land or water use, the various drivers of ecosystem structure
and function at various scales, ecosystem dynamics, and the techniques
used for the aquatic ecosystem restoration, enhancement, or
establishment activities.
The general categories of functions typically performed by wetlands
include hydrologic functions, water quality improvement, vegetation
support, habitat support for animals, and soil functions (National
Research Council (NRC) 2001). For riverine ecosystems (i.e., rivers and
streams and their riparian areas and floodplains), the general
categories of functions they perform include system dynamics,
hydrologic balance, sediment processes and character, biological
support, and chemical processes and pathways (Fischenich 2006). Oceans,
estuaries, lakes, and other aquatic ecosystems may perform some of
these functions and they may perform other functions. In terms of
ecosystem services, there are four general categories performed by
waters and wetlands: provisioning, regulating, supporting, and cultural
(Millennium Ecosystem Assessment 2005). Other classification systems
for ecosystem services may be used, depending on the purpose for
considering ecosystem services (e.g., Costanza 2008).
NWP 27 requires that authorized activities result in net gains in
aquatic ecosystem functions and services, and it may take various
amounts of time after the restoration, enhancement, or establishment
activity is implemented before the net increases in functions and
services are produced by the restored, enhanced, or established aquatic
ecosystem. Different functions usually develop at different rates after
restoration, enhancement, or establishment activities are conducted
(e.g., Lewis et al. 1995, Bullock et al. 2011). For example, in
wetlands hydrologic functions develop fairly quickly after the
restoration activity is initiated, but habitat functions may take
longer to develop as plant and animal communities, and soils, respond
to the restoration action. Restored, enhanced, or establish aquatic
ecosystems need to go through ecosystem development processes to
improve the physical, chemical, and biological process that generate
ecosystem functions and services.
Proposed Changes to Ecological Reference Requirement
In 2017, the Corps added a paragraph to NWP 27 (see 82 FR 1989)
requiring aquatic habitat restoration, enhancement, and establishment
activities to be planned, designed, and implemented to produce aquatic
habitat that resembles ecological references. This change was made in
response to several comments received in response to the June 1, 2016,
proposed rule to reissue and modify the NWPs (81 FR 35186), where
several commenters expressed concern about project proponents using NWP
27 to authorize activities that are not aquatic ecosystem restoration
activities, and they said those activities should be authorized by
other NWPs, regional general permits, or individual permits instead of
NWP 27. Examples of activities identified by those commenters included
bank stabilization activities, culvert replacements, stormwater
management activities, pollutant reduction best management practice
facilities constructed to meet Total Daily Maximum Loads (TMDLs)
established under section 303(d) of the Clean Water Act, and the
construction of living shorelines.
The activities identified in the previous paragraph may be
authorized by NWP 13 (bank stabilization activities), NWP 14 (culvert
replacements for linear transportation projects), NWP 43 (stormwater
management activities and pollutant reduction best management practice
facilities constructed to meet TMDLs established under section 303(d)
of the Clean Water Act), and NWP 54 (living shorelines). The Corps is
proposing to retain the ecological reference requirement in NWP 27,
with some proposed modifications, to keep the DA authorization provided
by this NWP limited to aquatic ecosystem restoration, enhancement, and
establishment activities that resemble ecological references.
Activities intended to produce or improve specific ecological
functions, such as ecological engineering activities that include
engineered or artificial components that do not resemble ecological
references, are more appropriately authorized by other NWPs (e.g., NWP
13 (bank stabilization activities), NWP 14 (culvert replacements for
linear transportation projects), NWP 43 (stormwater management
activities and pollutant reduction best management practice facilities
constructed to meet TMDLs established under section 303(d) of the Clean
Water Act), and NWP 54 (living shorelines)), an appropriate regional
general permit, or an individual permit.
The Corps is proposing to modify the ecological reference
requirement to clarify that ecological references are based on natural
ecosystems. Natural ecosystems are ``developed by natural processes and
are self-organizing and self-maintaining'' (Society for Ecological
Restoration International Science & Policy Working Group 2004).
Ecological references may be based on the characteristics of aquatic
ecosystems or riparian areas that currently exist in the region, or
that existed in the region in the past. Natural ecosystems have been
impacted by human influences to varying degrees and may be managed by
people to varying degrees. The Corps is also proposing to add a
sentence to this NWP stating that ecological references include
cultural ecosystems. Cultural ecosystems are ecosystems that have
[[Page 26116]]
developed under the joint influence of natural processes and human
activities (Clewell and Aronson 2013), specifically ecosystem
management activities such as fire stewardship. Other examples of
stewardship activities conducted by people, including indigenous and
local societies, in cultural ecosystems are soil management and
cultivating and harvesting plant species of cultural importance
(Comberti et al. 2015). Understanding that all ecosystems are cultural
ecosystems to varying degrees because of pervasive human influences on
these ecosystems is important for establishing realistic and achievable
goals and objectives for aquatic ecosystem restoration, enhancement,
and establishment activities, for human-influenced ecological
references. Including cultural ecosystems as ecological references is
intended to recognize that people have managed and altered ecosystems
for thousands of years (Ellis 2021) to produce desired functions and
services. The concept of cultural ecosystems also recognizes that
people, including people in indigenous and local societies, have long
had reciprocal relationships with ecosystems (D[igrave]az et al. 2018,
Comberti et al. 2015), with ecosystems providing services to people and
people providing services to ecosystems.
Aquatic ecosystem restoration, enhancement, and establishment
activities may use different types of applicable knowledge, including
indigenous and local ecological knowledge, to guide the planning,
implementation, and stewardship of those activities (Dickson-Hoyle et
al. 2022). Therefore, the Corps is proposing to modify the last
sentence of the second paragraph of this NWP to state that an
ecological reference may also be based on regional ecological
knowledge, including indigenous and local ecological knowledge, of the
target aquatic ecosystem type or riparian areas.
Proposed Removal of List of Examples of Authorized Activities
The Corps is proposing to remove the third paragraph of the 2021
NWP 27, which provided a list of examples of aquatic ecosystem
restoration, enhancement, or establishment activities that could be
authorized by NWP 27. The Corps is proposing to remove that list of
examples because there are many techniques and approaches to restoring,
enhancing, and establishing aquatic ecosystems that may involve
discharges of dredged or fill material into waters of the United States
or structures or work in navigable waters of the United States. The
list of examples have been interpreted by some entities as being the
only activities that can be authorized by NWP 27, instead of examples
of techniques and approaches that can be used for aquatic ecosystem
restoration, enhancement, and establishment activities that result in
net increases in aquatic ecosystem functions and services.
New techniques and approaches for aquatic ecosystem restoration,
enhancement, and establishment activities are being developed by
ecosystem restoration practitioners as they gain experience and adapt
to monitoring results and other lessons learned from previous aquatic
ecosystem restoration, enhancement, and establishment efforts.
Effective techniques and approaches for restoring, enhancing, or
establishing aquatic ecosystems may also vary by geographic region to
address regional differences in aquatic ecosystem structure, functions,
and dynamics, the ecosystem services they provide, and how those
aquatic ecosystems are managed. Removing the list of examples from the
text of NWP 27 eliminates the need to add or remove examples as the
knowledge base for ecosystem restoration and management develops and
expands, and more effective ecosystem restoration approaches replace
less effective ecosystem restoration approaches.
NWP 27 is available to authorize regulated activities for the
restoration, enhancement, and establishment of aquatic ecosystems when
those activities resemble ecological references, produce net gains in
aquatic resource functions and services, and cause no more than minimal
individual and cumulative adverse environmental effects, regardless of
the specific techniques used. The determination that an NWP 27 activity
has come to resemble an ecological reference should be made after the
activity has had sufficient time to undergo ecosystem development
processes after the discharges of dredged or fill material into waters
of the United States and/or structures or work in navigable waters of
the United States have been conducted. That timeframe should allow for
any necessary corrective measures or adaptive management actions that
may need to be done by the project proponent to try to achieve the
goals and objectives of the aquatic ecosystem restoration, enhancement,
or establishment activity.
Except for replacing ``resources'' with ``ecosystem'' to be
consistent with the proposed change to the title of this NWP, the Corps
is not proposing changes to the fourth paragraph of the 2021 NWP 27
(now proposed as the third paragraph). That paragraph states that NWP
27 authorizes the relocation of non-tidal waters, including non-tidal
wetlands, and streams, on the project site provided there are net
increases in aquatic ecosystem functions and services.
Proposed Changes to List of Activities Not Authorized by NWP 27
The current text of NWP 27 states that it does not authorize the
conversion of a stream or natural wetlands to another aquatic habitat
type or uplands, except for the relocation of non-tidal waters on the
project site. This provision was added to NWP 27 in 2007 (see 72 FR
11185) to prevent NWP 27 from being used to authorize discharges of
dredged or fill material into waters of the United States for the
construction of impoundments in streams to create wetlands, or for
constructing green-tree reservoirs (see 72 FR 11119). This provision
was not intended to prevent NWP 27 from being used to authorize
discharges of dredged or fill material into waters of the United States
for aquatic ecosystem restoration and enhancement activities that aim
to reinitiate or restore natural physical, chemical, and/or biological
processes in dynamic ecosystems where components of those ecosystems
(e.g., stream channels, wetlands, and floodplains) interact with each
other and change over time and space in response to various internal
and external drivers, such as floods, sediment transport and
deposition, changing precipitation patterns, and organisms (e.g.,
vegetation, beaver).
During the implementation of the 2021 NWPs, the Corps received
suggestions from a number of restoration practitioners, including
private entities, government agencies, and non-governmental
organizations, who conduct process-based river and stream restoration
activities (e.g., riverscape restorations) regarding potential changes
to NWP 27 to make it clear that restoration of these dynamic ecosystems
can be authorized by that NWP. Some organizations and restoration
practitioners that fund or implement process-based river and stream
restoration projects have reported that the current text of NWP 27,
especially the provision that prohibits the conversion of a stream or
natural wetlands to another aquatic habitat type, has in some
situations prevented them from using NWP 27 to authorize those aquatic
ecosystem restoration activities. They suggested that the Corps remove
the sentence containing that provision because process-based river and
stream
[[Page 26117]]
restoration projects often produce dynamic systems where the locations
and extents of river and stream channels, floodplains, and wetlands in
a valley or river corridor change in response to flood events and other
drivers and those changes have been viewed by some reviewers in some
instances as ``conversions'' of streams or natural wetlands to another
aquatic use that are not authorized by NWP 27.
In response to those suggestions, the Corps is proposing to modify
this NWP by removing a sentence that specifies that this NWP does not
authorize the conversion of a stream or natural wetland to another
aquatic type. Examples of such process-based river or stream
restoration activities that may have been disqualified from NWP 27
authorization in some situations by that sentence include low-tech
river or stream corridor restoration activities (e.g., Wheaton et al.
2019), including the use of beaver dams or beaver dam analogues to
restore incised streams and their floodplains (e.g., Pollock et al.
2014) and the use of native materials such as large wood harvested on-
site to construct wood jams that promote reconnecting stream channels
to their floodplains (e.g., Ciotti et al. 2021).
The Corps is proposing to remove that sentence from NWP 27 to
facilitate the use of this NWP to authorize regulated activities
associated with process-based river and stream restoration projects,
and the potential gains in aquatic ecosystem functions and services and
other watershed benefits that such restoration projects have the
potential to provide, including greater ecosystem resilience and
sustainability. There are other provisions in NWP 27, including some
proposed modifications discussed in this proposed rule, that will
provide guardrails to help ensure that activities authorized by NWP 27
provide net gains and aquatic ecosystem functions and services and
result in no more than minimal individual and cumulative adverse
environmental effects. One of those provisions is the requirement that
NWP 27 activities resemble ecological references, which was added to
NWP 27 in 2017 (see 82 FR 1989). Another one is the expanded
requirement for project proponents to submit reports to district
engineers to give them 30 days to notify project proponents if their
proposed activities do not qualify for NWP 27.
Process-based river and stream restoration attempts to reestablish
the rates and degrees of physical, chemical, and biological processes
that sustain riverine ecosystems, including their floodplains (Beechie
et al. 2010). They identify four principles for process-based
restoration of rivers and streams: (1) focusing on addressing the root
causes of ecosystem change; (2) tailoring restoration actions to local
potential; (3) matching the scale of restoration to the scale of the
problem causing ecosystem change; and (4) establishing explicit
expectations for restoration outcomes (Beechie et al. 2010). Under a
process-based restoration approach, rivers and streams are not just
seen as channels, but as complex and changing systems within a valley
floor where fluvial processes occur (Ciotti et al. 2021).
Ecosystems, including aquatic ecosystems, are constantly changing,
they typically exhibit non-equilibrium dynamics, and they can exist in
a number of alternative states (e.g., Perring et al. 2015, Holl
2020).The most diverse, ecologically valuable river and stream habitats
are characterized by dynamic migration and flooding (Kondolf 2011).
Where feasible and appropriate, the river or stream corridor should be
given sufficient space (``process space'') for physical, chemical, and
biological processes and the riverine system's intrinsic energy to
drive changes in structure and function (e.g., Ciotti et al. 2021) as
disturbances, changing environmental conditions, and other drivers of
ecosystem structure and function occur.
Process-based restoration approaches may also be used for the
purpose of reconnecting rivers and streams with their floodplains when
those rivers and streams have become incised and disconnected from
their floodplains. Reconnecting rivers and streams with their
floodplains can be accomplished by activities such as reintroducing
beaver with the intent that they would construct dams, and the
installation of log jams that extend across the width of the river or
stream channel (Polvi and Wohl 2013) to slow water and sediment
transport so that the channel aggrades and becomes reconnected to its
floodplain. These objectives may also be accomplished by installing
beaver dam analogues (BDAs) and post assisted log structures (PALS)
(Wheaton et al. 2019). Restored river and stream corridors may have
multi-thread (anastomosing) river and stream channels interspersed with
wetlands and floodplains. Some restored river and stream corridors may
have single-thread river and stream channels with adjacent wetlands,
especially in narrow valleys.
Recent work (e.g., Merritts et al. 2011, Wohl et al. 2021) has
found that multithreaded networks of stream channels and wetlands were
common in North America and Europe before land use changes (especially
deforestation and agricultural conversions), mill dam construction, and
other activities caused substantial sediment deposits to accumulate in
valleys where these anastomosing riverine systems were located. These
sediment deposits often resulted in single thread stream channels that
are now a common target for stream restoration activities. With
increasing awareness of anastomosing river-wetland corridors as
ecosystems that have the potential to provide greater ecological
diversity, complexity, richness, and functionality (Cluer and Thorne
2013), as well as ecosystem services, there is greater interest in
using these anastomosing river-wetland systems as ecological references
for restoration activities in valleys that can accommodate these
restoration targets.
Some process-based river and stream restoration approaches attempt
to restore these aquatic ecosystems to improve their dynamism and
diversity (Powers et al. 2018). They may also attempt to improve
habitat for native fish species, other species that utilize river and
stream channels and riparian areas, and improve or protect water
quality (Flitcroft et al. 2022). They may attempt to restore river and
stream valleys to Stage 0 of a modified river and stream channel
evolution model proposed by Cluer and Thorne (2013). Stage 0 is
described by Cluer and Thorne (2013) as a ``pre-disturbance,
dynamically meta-stable network of anabranching channels and floodplain
with vegetated islands supporting wet woodland or grassland.'' Their
proposed stage 0 addressed research in North America (e.g., Merritts et
al. 2011) that found that pre-disturbance stream-wetland corridors in
North America consisted of multi-threaded (anastomosing or
anabranching) stream channels and their floodplains that were inundated
several times per year. In the eastern United States, these multi-
channel stream-floodplain-wetland systems were disturbed by the
accumulation of sediment in valleys caused by the construction of mill
dams, clearing forests, and the development of agricultural land
(Walter and Merritts 2008), which often changed multi-threaded channels
into single threaded channels as the stream eroded the substantial
depths of sediment that accumulated in the valley over many years.
Stage 0 streams can provide more diverse habitats and ecosystem
functions than single-threaded stream corridor systems (Cluer and
Thorne 2013). The anastomosing stream systems characterized by stage 0
can provide a variety of diverse habitats, refuge areas during flood
events, refuge areas during drought, resistance to natural and
anthropogenic disturbances, and
[[Page 26118]]
improved water quality (Cluer and Thorne 2013). There is increased
interest in using stage 0 stream systems as an ecological reference for
river and stream corridor restoration projects because of the functions
and services they provide, as well as potential for greater resilience
to changing environmental conditions.
Process-based approaches may also be used for wetland restoration,
enhancement, and establishment activities. For wetlands, the focus
would be on re-establishing or establishing appropriate hydrological
conditions (Mitsch and Gosselink 2015) that drive wetland ecosystem
development and the functions and services they provide. Appropriate
hydrological conditions include the hydroperiod, which is the
hydrologic signature of a wetland that establishes and maintains a
wetland's structure and function (Mitsch and Gosselink 2015). The
hydrologic signature consists of hydrologic inputs and outputs, such as
water depth, flow patterns, and the duration and frequency of flooding.
A wetland's hydrologic signature influences abiotic factors, including
soil anaerobiosis, nutrient availability, and in coastal wetlands,
salinity, and those abiotic factors determine which plant and animal
species and other organisms will inhabit a wetland (Mitsch and
Gosselink 2015). Wetland restoration, enhancement, and establishment
activities that focus on providing an appropriate hydrologic signature
would allow natural energy, self-organization, and physical, chemical
and biological processes to drive the development of wetland structure
and function. Focusing on restoring wetland processes and giving the
wetland the ability and space to respond to changing environmental
conditions and other anthropogenic and natural disturbances may result
in more resilient and sustainable wetlands.
Process-based river and stream restoration activities may require
less maintenance than other restoration approaches, including form-
based restoration, because of their ability to respond to, and adapt
to, internal and external drivers of ecosystem change (e.g., Kondolf
2011, Ciotti et al. 2021). Attempting to restore aquatic ecosystems to
specific forms, instead reinstating ecological processes that allow for
variability and responding to changing environmental conditions, can
also reduce habitat variability and ecological resilience (Hiers et al.
2016), and may provide fewer ecological functions than restoration
actions that allow rivers and streams to flood and self-adjust (Kondolf
2011) in response to disturbances.
Process-based river and stream corridor restoration projects are
likely to have the ability to self-adjust in response to changes in
hydrology, sediment loads, watershed land use, and other drivers of
river and stream structure and function, as long as those riverine
systems are given sufficient space to make those adjustments. Giving
rivers and streams, and their associated wetlands, floodplains, and
riparian areas, space to adjust within a channel migration zone has the
most potential to produce sustainable river and stream corridor
restoration projects (Kondolf 2011). In contrast, form-based river and
stream restoration approaches such as channel reconstruction and bank
stabilization activities are more likely to require active management
and maintenance activities to address changing environmental
conditions, including land uses within the watershed (Ciotti et al.
2021, Hiers et al. 2016). Form-based river and stream restoration
activities may be more likely to fail as hydrology and sediment loads
change, because those approaches make riverine systems less resilient
to such changes (Tullos et al. 2021).
Modifying NWP 27 by removing the provision prohibiting the use of
the NWP for conversion of a stream or natural wetlands should make it
clear that this NWP authorizes the restoration of river-wetland
corridors even though the dynamics of these corridors generally results
in changes in stream channels, wetlands, riparian areas, and
floodplains over time because of natural processes. This proposed
modification to NWP 27 is consistent with the Corps' definition of
``restoration,'' which is ``the manipulation of the physical, chemical,
or biological characteristics of a site with the goal of returning
natural/historic functions to a former or degraded aquatic resource.''
33 CFR 332.2. The definition of restoration is provided in Section F of
this proposed rule, as it has been provided in previous reissuances of
the NWPs since 2007. Because restoration is defined as returning
natural/historic functions to a former or degraded aquatic resource,
activities authorized by NWP 27 should include changes in habitat type
or structure as long as those changes would result in an aquatic
ecosystem restoration or enhancement project that resembles an
ecological reference, whether that ecological reference is based on
existing aquatic ecosystems in the region (including cultural
ecosystems), or historic information concerning aquatic ecosystem
structure, functions, and dynamics that are relevant to the region.
Process-based river and stream corridor restoration projects may
use low-tech approaches, such as beaver dam analogues (BDAs) and post-
assisted log structures (PALS), to restore river-wetland corridors that
have become impaired because of a lack of large wood and beaver dams in
these riverscapes (e.g., Wheaton et al. 2019). The ecological reference
requirement in NWP 27 does not prevent the use of BDAs and PALS to
conduct these process-based river and stream corridor restoration
activities because those structures mimic beaver dams and clusters of
large wood that may be found in ecological references where beaver and
large wood have not been removed or substantially reduced.
In addition, the Corps is proposing to remove the sentence that
states that changes in wetland plant communities that occur when
wetland hydrology is more fully restored during wetland rehabilitation
activities are not considered a conversion to another aquatic habitat
type, because the rehabilitated wetland should resemble an ecological
reference that has a similar pattern of wetland hydrology and
hydroperiod. The Corps is also proposing to retain the sentence that
states that NWP 27 does not authorize stream channelization.
Furthermore, the Corps is proposing to retain the provision stating
that NWP 27 does not authorize discharges of dredged or fill material
into waters of the United States, or structures and work in navigable
waters of the United States, to relocate tidal waters or convert tidal
waters, including tidal wetlands, to other aquatic uses such as the
conversion of tidal wetlands into open water impoundments.
The Corps is proposing to add a provision to NWP 27 stating that it
does not authorize dam removal activities. The removal of low-head dams
may be authorized by NWP 53, which was first issued in 2017 (see 82 FR
1997). NWP 53 was reissued in 2021 (see 86 FR 73581) and it generally
defines a ``low-head dam.'' A low-head dam provides little or no
storage function, so the removal of low-head dams is unlikely to result
in substantial releases of sediment downstream when the low-head dam
structure is removed. The proposed modification of NWP 27 that would
not allow it to be used to authorize dam removal activities would apply
to all types of dams, especially storage dams. The removal of storage
dams is more likely to have the potential to cause temporary adverse
impacts to the aquatic environment that are more than
[[Page 26119]]
minimal, such as potential releases of large amounts of sediment that
may have accumulated upstream of the storage dam. The removal of
storage dams can be authorized through the individual permit process,
so that a more thorough evaluation of the potential temporary and
permanent adverse impacts caused by the dam removal activity can be
conducted. NWP 27 can be used to authorize discharges of dredged or
fill material into waters of the United States or structures or work in
navigable waters to restore the stream in the vicinity of the low-head
dam, including the former impoundment area in conjunction with use of
NWP 53 to authorize removal of the low-head dam.
With respect to using NWP 27 to authorize discharges of dredged or
fill material into waters of the United States and/or structures or
work in navigable waters of the United States to construct, maintain,
or expand nature-based solutions, it can only be used to authorize
nature-based solutions that resemble ecological references. Examples of
nature-based solutions that might be authorized by NWP 27 include:
<bullet> Thin-layer placement of dredged material to sustain
wetlands and other aquatic habitats.
<bullet> Placement of spoil material to elevate a degraded riverbed
and restore geomorphic processes.
<bullet> Alignments of river channel within the existing floodway
to enhance riverine function and connectivity.
<bullet> Reservoir sediment management activities to maintain
continuity of sediment transport through the river network to sustain
downstream aquatic habitats (e.g., downstream geomorphology) and
terrestrial habitats (non-wetland riparian areas and floodplains) (see
86 FR 73544-73548).
<bullet> Restoration of fringe wetlands in estuaries and lakes to
reduce bank erosion.
<bullet> Restoration of oyster reefs, coral reefs, and other types
of subtidal or intertidal habitats to provide habitat, support
biodiversity, and provide a variety of co-benefits (e.g., reduced
shoreline or bank erosion).
<bullet> The re-establishment, rehabilitation, establishment, or
enhancement of riparian areas and wetlands to trap or transform
sediments and pollutants carried by surface run-off or shallow
subsurface flows before that water reaches rivers, streams, lakes,
estuaries, ocean waters.
<bullet> Use of dredged material to re-establish, rehabilitate,
enhance, or establish wetlands or other aquatic habitats.
<bullet> Process-based restoration of river corridors (i.e., river
and stream channels and their associated floodplains, riparian areas,
and wetlands), to increase the functions and services provided by river
corridors and provide increased resilience to drought and wildfires.
Nature-based solutions that resemble ecological references can
produce co-benefits that are byproducts of the structure, function, and
dynamics of an ecological reference. One example is reservoir sediment
management activities that provide a co-benefit of maintaining the
storage capacity of the reservoir, which may reduce the need to
construct additional reservoirs in the region. Another example is the
restoration of river-wetland corridors that can provide resilience to
droughts, floods, and wildfires (Tullos et al. 2021).
NWP 27 does not authorize the construction, maintenance, or
expansion of nature-based solutions that consist of a combination of
natural ecosystems and artificial, engineered features because those
activities would not resemble ecological references. Portions of a
single and complete project (as defined in 33 CFR 330.2(i)) that
resemble an ecological reference may be authorized by NWP 27 and other
portions of the same project with artificial, engineered features may
be authorized by other NWPs, such as NWP 13 (bank stabilization), NWP
43 (stormwater management activities), or NWP 54 (living shorelines).
NWP 27 can be used to authorize the removal of culverts and other
obstructions from waters and wetlands, but it cannot be used to replace
existing culverts or structures with new culverts or other artificial
structures, because culverts and similar structures do not resemble
ecological references. The Corps is proposing to issue a new NWP
(proposed new NWP A in this proposed rule) to authorize activities to
improve passage for fish and other aquatic organisms and restore or
enhance other critical ecological processes, such as nature-based
fishways, which are a type of nature-based solution that often have
artificial, engineered features to help fish and other aquatic
organisms move around barriers.
Proposed Changes to the Reversion Provision
In the ``Reversion'' provision of NWP 27, the Corps is proposing to
add the Bureau of Land Management to the list of federal agencies that
can execute binding stream and wetland restoration and enhancement
agreements, or wetland establishment agreements, with landowners. Those
activities may be authorized by this NWP if they result in net gains in
aquatic ecosystem functions and services, resemble ecological
references, and cause no more than minimal individual and cumulative
adverse environmental effects.
Proposed Changes to Reporting Requirements
In 2007, NWP 27 was modified to include a ``Report'' requirement
for proposed activities that do not require PCNs to give district
engineers an opportunity to review those proposed activities to ensure
that they comply with the terms and conditions of this NWP (see 71 FR
56269). District engineers have 30 days to review the reported NWP 27
activities, including the: (1) binding wetland enhancement,
restoration, or establishment agreement, or a project description,
including project plans and location map; (2) the NRCS or USDA
Technical Service Provider documentation for the voluntary wetland
restoration, enhancement, or establishment action; or (3) the Surface
Mining Control and Reclamation Act (SMCRA) permit issued by the Office
of Surface Mining Reclamation and Enforcement (OSMRE) or the applicable
state agency (see 72 FR 11186). If a district engineer determined that
a proposed activity did not qualify for NWP 27 authorization, she or he
would need to notify the project proponent within that 30-day period
that another form of DA authorization would be required for the
proposed activity. The Report requirement was developed so that
standard PCNs would not be required for activities covered under the
three categories listed above, to reduce documentation burdens and
compliance costs for project proponents conducting aquatic habitat
restoration, enhancement, or establishment activities.
The Corps is proposing to expand the ``Report'' requirement to all
activities authorized by this NWP, except for those aquatic ecosystem
restoration, enhancement, or establishment activities that require PCNs
because of NWP general conditions such as general condition 18
(endangered species) or regional conditions imposed by division
engineers that add PCN requirements for NWP 27 activities. Requiring
the submission of reports for proposed NWP 27 activities is intended to
provide a more efficient and effective process for authorizing
voluntary aquatic ecosystem restoration, enhancement, and establishment
activities, and reduce compliance costs for entities undertaking these
environmentally beneficial projects.
[[Page 26120]]
The Corps is proposing to modify the information that project
proponents are required to submit for the required reports. The
proposed information requirements are intended to provide information
to help district engineers assess whether the proposed NWP 27 activity
is likely to resemble an ecological reference, produce a net increase
in aquatic resource functions and services, and cause no more than
minimal individual and cumulative adverse environmental effects. The
report must include the project proponent's name, address, and
telephone numbers, as well as the location of the proposed activity.
The reporting requirement requires the permittee to provide general
information on the baseline ecological conditions at the project site,
including a general description and map of the approximate boundaries
of aquatic and terrestrial habitat types on that site. The map of
existing aquatic and terrestrial habitat types and their approximate
boundaries on the project site should be based on recent aerial imagery
or similar information, and verified with photo points or other field-
based data points for each mapped habitat type.
The report also requires the permittee to submit a sketch of the
proposed project elements of the NWP 27 activity drawn over a copy of
the map of existing aquatic and terrestrial habitat types and their
approximate boundaries on the project site to generally depict the
restoration, enhancement, and/or establishment actions the permittee
proposes to take to increase aquatic ecosystem functions and services
at that site. The required sketch of the proposed project elements of
the NWP 27 activity drawn over a copy of the map of existing aquatic
and terrestrial habitat types on the project site will be used by
district engineers to determine whether the proposed NWP 27 activity is
likely to resemble an ecological reference.
The report must also include a description of the techniques or
mechanisms that are proposed to be used to increase aquatic ecosystem
functions and services on the project site. If the project proponent
has executed a binding stream enhancement or restoration agreement or
wetland enhancement, restoration, or establishment agreement with the
U.S. Fish and Wildlife Service, Natural Resources Conservation Service,
Farm Service Agency, National Marine Fisheries Service, National Ocean
Service, U.S. Forest Service, Bureau of Land Management, or their
designated state cooperating agencies, a copy of that agreement must be
included in the report. If applicable, the report must also include the
NRCS or USDA Technical Service Provider documentation for the voluntary
stream enhancement or restoration action or wetland restoration,
enhancement, or establishment action. Lastly, the report must include,
if applicable, the SMCRA permit issued by OSMRE or the applicable state
agency.
Proposed Removal of Notification Requirement
The Corps is proposing to remove the PCN thresholds from this NWP
and in their place require every project proponent to submit a Report
for their proposed activity to give district engineers 30 days to
review the proposed aquatic ecosystem restoration, enhancement, or
establishment activity. If the district engineer reviews the report,
and he or she determines that the proposed activity is unlikely to
resemble and ecological reference, is unlikely to or result in net
increases in aquatic ecosystem functions and services, and/or is likely
to result in more than minimal adverse environmental effects, then she
or he will inform the project proponent that the proposed activity is
not authorized by NWP 27. The Corps is proposing this change to NWP 27
to provide a more efficient and effective process for authorizing
aquatic ecosystem restoration, enhancement, and establishment
activities, especially for voluntary activities conducted by non-
governmental organizations, government agencies, and entities that
conduct aquatic ecosystem restoration, enhancement, and establishment
activities.
Pre-construction notifications will still be required for some NWP
27 activities, when PCNs are required because of NWP general conditions
(e.g., general condition 18, endangered species; general condition 20,
historic properties) or by regional conditions imposed by division
engineers.
Proposed New Note 2
The Corps is proposing to add a new Note to NWP 27 to address one
of the information needs for PCNs when PCNs are required for NWP 27
activities because of NWP general conditions or regional conditions
imposed by division engineers. The current Note in NWP 27 would be
redesignated as ``Note 1.'' The proposed new Note 2 states that if an
NWP 27 activity requires a PCN because of an NWP general condition or a
regional condition imposed by a division engineer, the information on
baseline ecological conditions of the project site provided by item (3)
of the Report requirement, including the general description and map of
aquatic and terrestrial habitat types and their approximate boundaries
on that site, substitutes for the delineation of waters, wetlands, and
other special aquatic sites required by paragraph (b)(5) of NWP general
condition 32, pre-construction notification.
The general description and map of aquatic and terrestrial habitat
types on that project site with their approximate boundaries is similar
to a delineation of waters, wetlands, and other special aquatic sites
that is required for PCNs for other NWP activities under paragraph
(b)(5) of general condition 32. Both the general description and map of
aquatic and terrestrial habitat types on the project site required by
item (3) of the Report requirement in NWP 27 and the delineation of
waters, wetlands, and other special aquatic sites required by paragraph
(b)(5) of general condition 32 for NWP PCNs serve the same purpose of
describing the baseline ecological conditions on a site for a proposed
NWP activity. The baseline ecological information is used by district
engineers to evaluate the potential impacts of a proposed NWP activity,
and for NWP 27 activities, help assess whether the proposed activity is
likely to result in net increases in aquatic ecosystem functions and
services.
NWP 27 does not have any quantitative limits, such as acreage
limits, where determining precise locations of wetland boundaries,
ordinary high water marks, high tide lines, boundaries of special
aquatic sites, or other boundaries may be needed to determine whether
an acreage limit or other quantitative limit of an NWP might be
exceeded by a proposed activity requiring DA authorization. The
criteria used to determine whether a proposed aquatic ecosystem
restoration, enhancement, or establishment activity is authorized by
NWP 27 are qualitative, so precise delineations of boundaries of
waters, wetlands, and other special aquatic sites are not needed for
this NWP.
As a general matter, determining precise boundaries for waters,
wetlands, and other special aquatic sites on the project site is
unnecessary for aquatic ecosystem restoration, enhancement, and
establishment activities because these activities are intended to
provide net increases in aquatic ecosystem functions and services. So
for NWP 27 activities, a general description and map of approximate
boundaries of aquatic and terrestrial habitats on the project site
should be sufficient for providing environmental baseline information
for district engineers to review in Reports
[[Page 26121]]
and, when required, PCNs. Another reason why qualitative ecological
baseline information is sufficient for NWP 27 activities is that
aquatic ecosystems are dynamic and their boundaries are likely to
change over time in response to stochastic variations in ecological
processes, environmental changes, and natural and anthropogenic
disturbances. It should also be noted that in some landscapes (e.g.,
where the gradient between wetlands and uplands is gentle) it might not
be possible to identify a precise location for a wetland-upland
boundary (NRC 1995).
Paragraph (b)(5) of general condition 32 states that wetland
delineations must be prepared in accordance with the current method
required by the Corps. The current wetland delineation method required
by the Corps consists of the 1987 Corps of Engineers Wetlands
Delineation Manual (Technical Report Y-87-1) and the appropriate
regional supplement to the 1987 Wetlands Delineation Manual. There are
10 regional supplements to the 1987 Wetlands Delineation Manual, and
those regional supplements are available at: <a href="https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/">https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/reg_supp/</a> (accessed October 18, 2024).
The 1987 Corps of Engineers Wetlands Delineation Manual (1987
Manual) discusses two general types of wetland delineation methods:
routine and comprehensive. Routine determinations utilize simple,
rapidly applied methods that produce sufficient qualitative information
for making a wetland determination. Comprehensive wetland delineation
methods usually require substantial amounts of time and effort to
gather quantitative information to make the wetland determination.
Section D of Part IV of the 1987 Manual describes general
procedures for making routine wetland determinations. A routine wetland
determination may be made with or without a site visit. Section E of
Part IV of the 1987 Manual describes general procedures for making
comprehensive wetland determinations. Comprehensive wetland
determinations usually involve production of a maximum amount of
information, which is often quantitative information The 1987 Manual
states that comprehensive wetland determinations should only be used
for very complex project areas and/or when the wetland determination
requires rigorous documentation.
For aquatic ecosystem restoration, enhancement, and establishment
activities authorized by NWP 27, a qualitative approach similar to the
routine wetland determination described in Section D of Part IV of the
1987 Manual will normally be sufficient to provide the baseline
information required by proposed item (3) of the Reporting requirement
for NWP 27. If the proposed NWP 27 activity requires a PCN because of
an NWP general condition, such as paragraph (c) of general condition 18
(endangered species), or a regional condition imposed by a division
engineer, then the baseline information provided by item (3) of the
Reporting requirement can substitute for a delineation of waters,
wetlands, and other special aquatic sites prepared under the general
approach described in Section D of Part IV of the 1987 Manual for
routine wetland delineations. Paragraph (b)(5) of general condition 32
only requires the delineation of waters, wetlands, and other special
aquatic sites (i.e., a map or drawing), and it does not specify whether
a routine or comprehensive delineation approach needs to be used.
Paragraph (b)(5) of general condition 32 does not require quantitative
information to be provided in support of a delineation of waters,
wetlands, and other special aquatic sites. In addition, paragraph
(b)(5) does not require the submittal of a wetland delineation report
or data forms with the delineation of waters, wetlands, and other
special aquatic sites. Therefore, the general description and map of
aquatic and terrestrial habitat types on the NWP 27 project site
required by paragraph (3) of the Reporting requirement should be a
sufficient substitute for a delineation prepared to satisfy paragraph
(b)(5) of general condition 32 when an NWP 27 activity requires a PCN.
For waters where the ordinary high water mark indicates the
geographic limit of the Corps' jurisdiction, there have been manuals
developed for identifying ordinary high water marks. Those manuals are
available at: <a href="https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/techbio/">https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/techbio/</a> (accessed January 29, 2025)
under ``Stream Channel Identification and Delineation.'' There are
currently no nationally available manuals for identifying the
boundaries of special aquatic sites that are not wetlands, such as
sanctuaries and refuges, mud flats, vegetated shallows, coral reefs,
and riffle and pool complexes, although there may be regional manuals
available that were developed by other agencies or other organizations.
The Corps is proposing to add Note 2 to NWP 27 as part of its
effort to provide a more efficient and cost-effective approach to
authorizing voluntary aquatic ecosystem restoration, enhancement,
establishment activities that are expected to produce net gains in
aquatic ecosystem functions and services and cause no more than minimal
individual and cumulative adverse environmental effects. The costs of
preparing wetland delineations under the comprehensive method described
in the 1987 Manual and using similar approaches for waters and other
special aquatic sites can be cost prohibitive to federal, tribal,
state, and local government entities, non-governmental organizations,
and landowners that want to conduct voluntary aquatic ecosystem
restoration, enhancement, and establishment activities to help improve
the functions and services provided by aquatic ecosystems. The costs of
producing highly detailed, quantitative delineations of waters,
wetlands, and other special aquatic sites can consume funds that could
be more beneficially expended on either conducting those restoration
and enhancement activities over larger areas, or at more sites.
NWP 43. Stormwater Management Facilities. The Corps is proposing to
modify this NWP to reference the broader term of ``nature-based
solutions'' instead of the narrower terms of ``green infrastructure''
and ``low-impact development integrated management features'' for
natural and nature-based features that can be constructed and
maintained to manage stormwater and reduce inputs of pollutants,
including sediments and nutrients, to downstream waters. To provide
additional clarity to potential permittees, the Corps is also proposing
to add more examples to the text of this NWP of nature-based solutions
for stormwater management and reducing pollution loads to waters and
wetlands.
The Corps is proposing to include the following examples of nature-
based solutions for stormwater management and pollution abatement that
can be authorized by this NWP if they involve discharges of dredged or
fill material into non-tidal waters of the United States: stream
biofilters, bioretention ponds or swales, rain gardens, vegetated
filter strips, vegetated swales (bioswales), constructed wetlands,
infiltration trenches, and regenerative stormwater conveyances. Other
nature-based solutions and other features that are conducted to meet
pollutant reduction targets established under Total Maximum Daily Loads
set under the Clean Water Act may also be authorized by this NWP as
long as they comply with the applicable terms and conditions of this
NWP.
[[Page 26122]]
NWP 48. Commercial Shellfish Mariculture Activities. Because of
federal court decisions in The Coalition to Protect Puget Sound v. U.S.
Army Corps of Engineers (U.S. District Court, Western District Court of
Washington at Seattle and U.S. Court of Appeals for the Ninth Circuit),
which vacated NWP 48 in waters within Washington State, the Corps is
proposing to modify NWP 48 to exclude its use in waters withing
Washington State. Because of those decisions, the Corps has been
authorizing commercial shellfish mariculture activities in Washington
State through standard individual permits and letters of permission,
and is proposing to continue that practice.
Commercial shellfish mariculture activities are currently being
authorized in waters in Washington State by standard individual permits
and letters of permission. Commercial shellfish mariculture activities
have been occurring in waters within Washington State since the mid-
1800s (Washington Sea Grant 2015) and standard individual permits and
letters of permission are a more effective and efficient mechanism for
these on-going activities because the Corps' regulations provide
district engineers with substantial discretion in establishing
expiration dates for standard individual permits and letters of
permission.
General permits issued under the Corps' permitting authorities can
be in effect for no more than 5 years (see 33 CFR 325.2(e)(2) and 33
CFR 330.6(b)). Commercial shellfish mariculture activities typically
involve on-going discharges of dredged or fill material into waters of
the United States and structures and work in navigable waters of the
United States throughout the five year period a general permit is in
effect. When that general permit expires, the on-going commercial
shellfish mariculture activities must be reauthorized in order for the
regulated activities to continue to be authorized by general permit,
assuming the general permit is reissued by the appropriate permitting
authority (i.e., Corps Headquarters for an NWP, a district engineer for
a regional general permit or a programmatic general permit).
Authorizing these on-going activities through standard individual
permits and letters of permission can reduce burdens on the regulated
public (e.g., compliance costs for commercial shellfish mariculture
producers) and Corps districts (e.g., administrative costs associated
with reviewing PCNs and issuing verification letters) by authorizing
these on-going activities over longer periods of time. Using the
standard individual permit and letter of permission processes for
authorizing these on-going activities can create efficiencies for both
commercial shellfish producers and Corps districts.
In other areas of the country, commercial shellfish mariculture
operators can choose to utilize NWP 48 or other general permits to
provide DA authorization for their activities, or they can apply for
standard individual permits or letters of permission for those
activities and if they would like to request that Corps districts issue
standard individual permits or letter of permissions for those
activities that would be in effect for periods longer than five years.
As discussed in the Preamble Section I.F. above, the Corps is
proposing to revise Note 1. As discussed in the Preamble Section I.F.
above, the Corps is proposing to add a Note (to be designated as Note
4) to add language to clarify the intent of each Note, to identify
information that should be provided to NOS or USCG, and to provide
contact information for both NOS and USCG.
NWP 52. Water-Based Renewable Energy Generation Facilities. As
discussed in the Preamble Section I.F. above, the Corps is proposing to
revise Note 3 and to add a Note (to be designated as Note 6) to add
language to clarify the intent of each Note, to identify information
that should be provided to NOS or USCG, and to provide contact
information for both NOS and USCG.
NWP 54. Living Shorelines. The Corps is proposing to modify the
first paragraph of this NWP to state that a portion of a living
shoreline can consist of an unvegetated cobble or sand beach, which can
be considered a pocket beach. A pocket beach can provide habitat for
larval fishes, juvenile salmon, as well as various invertebrate species
such as copepods and amphipods (Toft et al. 2013). The Corps is also
proposing to modify paragraph (a) of this NWP by adding the phrase
``cobble'' and ``gravel'' before ``sand fills'' because the
unconsolidated sediment in a living shoreline may consist of larger
sized grains (e.g., cobbles and gravels) in addition to sands. Sediment
particle size is strongly correlated to the ability of water to entrain
and move sediment grains through water flows, currents, or wave
activity (NRC 2007), with stronger forces needed to move larger
sediment particle sizes. Therefore, cobbles and gravels may require
more wave energy or stronger tidal flows to be transported by littoral
drift or other sediment movements along shorelines in coastal waters,
and can help living shorelines become less susceptible to erosion and
potential sediment losses through water-mediated transport from a
living shoreline. Cobbles and gravels may also provide suitable habitat
for nearshore species (Emmett et al. 2017).
NWP 55. Seaweed Mariculture Activities. As discussed in the
Preamble Section I.F. above, the Corps is proposing to modify Note 1
and to add a Note 3 (to be designated as Note 2) to add language to
clarify the intent of each Note, to identify information that should be
provided to NOS or USCG, and to provide contact information for both
NOS and USCG.
NWP 56. Finfish Mariculture Activities. The Corps is proposing to
not reissue this NWP. Under this proposed rule, NWP 56 would be allowed
to expire on March 14, 2026, and after that date project proponents who
want to construct structures in navigable waters of the United States
for finfish mariculture activities would have to obtain individual
permits (i.e., standard individual permits or letters of permission)
for those activities unless the Corps district has issued a regional
general permit or a programmatic general permit to authorize finfish
mariculture activities. In Don't Cage Our Oceans, et al. v. U.S. Army
Corps of Engineers, the U.S. District Court, Western District of
Washington at Seattle, vacated NWP 56, so that standard individual
permits and letters of permission would be required for finfish
mariculture activities.
As of September 2024, Corps districts issued six NWP 56
verifications and exercised discretionary authority in response to two
NWP 56 PCNs to require individual permits for those proposed finfish
mariculture structures. The Court's order allowed those NWP 56
verifications to remain in effect, but prohibited the Corps from
issuing additional NWP 56 verifications. Another NWP 56 PCN was
withdrawn to give the applicant more time to respond to recommendations
made by another federal agency concerning his or her proposed finfish
mariculture activity. Given the low frequency of use of NWP 56 and the
proportion of PCNs where district engineers exercised discretionary
authority to require individual permits for proposed finfish
mariculture activities, the Corps believes that finfish mariculture
structures that require authorization under Section 10 of the Rivers
and Harbors Act of 1899 are more appropriately authorized through the
standard individual permit or letter of permission processes. These
activities may also be authorized by regional general permits in marine
and estuarine
[[Page 26123]]
waters where a district engineer develops a regional general permit or
programmatic general permit to authorize structures for finfish
mariculture activities that have no more than minimal individual and
cumulative adverse environmental effects.
NWP 57. Electrical Utility Line and Telecommunication Activities.
As discussed in the Preamble Section I.F. above, the Corps is proposing
to modify Note 1 and to add a Note (to be designated as Note 8) to add
language to clarify the intent of each Note, to identify information
that should be provided to NOS or USCG, and to provide contact
information for both NOS and USCG.
NWP 58. Utility Line Activities for Water and Other Substances. As
discussed in the Preamble Section I.F. above, the Corps is proposing to
modify Note 1 and to add a Note (to be designated as Note 7) to add
language to clarify the intent of each Note, to identify information
that should be provided to NOS or USCG, and to provide contact
information for both NOS and USCG.
B. Discussion of the Proposed New Nationwide Permit
A. Activities to Improve Passage of Fish and Other Aquatic
Organisms. The Corps is proposing to issue a new NWP to authorize
structures and work in navigable waters of the United States and
discharges of dredged or fill material into waters of the United States
for activities that restore or enhance the passage of fish and other
aquatic organisms through river and stream networks as well as other
types of waters.
Proposed new NWP A can be used to authorize regulated activities
associated with compensatory mitigation projects, voluntary activities
to improve the passage of fish and other aquatic organisms, and
activities that fulfill requirements by other federal, tribal, state,
or local government agencies to improve the passage of fish and other
aquatic organisms. It can be used to authorize a variety of activities
that increase the ability of fish and other aquatic organisms to pass
through, or around, infrastructure and other built features, such as
the installation of larger replacement culverts designed and
constructed to improve the upstream and downstream passage of fish and
other aquatic organisms through that culvert. Proposed new NWP A may
also be used to authorize discharges of dredged or fill material into
waters of the United States to modify or replace bridges constructed
over non-navigable waters (i.e., waters that are not navigable waters
of the United States, as defined at 33 CFR part 329) to improve the
ability of fish and other aquatic organisms to migrate past those
bridges. Bridges over navigable waters of the United States are
regulated by the U.S. Coast Guard, not the Corps of Engineers.
The Corps is proposing to include the following examples of
activities that could be authorized by this NWP to improve the ability
of fish and other aquatic organisms to move through aquatic ecosystems:
(1) the construction, maintenance, or expansion of conventional and
nature-like fishways; (2) the construction, maintenance, or expansion
of fish bypass channels around existing in-stream structures, such as
dams or weirs; (3) the replacement of existing culverts or low-water
crossings with culverts planned, designed, and constructed to restore
or enhance passage of fish and other aquatic organisms; (4) the
installation or maintenance of fish screens to prevent fish and other
aquatic organisms from being trapped or stranded in irrigation ditches
and other features; (5) the maintenance, modification, or replacement
of existing tidal gates to improve the ability of fish and other
aquatic organisms to move past those structures; and (6) the
modification of existing in-stream structures, such as dams or weirs,
to improve the ability of fish and other aquatic organisms to move past
those structures. The Corps invites commenters to suggest other
examples that could be added to the text of this proposed new NWP, with
explanations as to how those activities might restore or enhance the
passage of fish and other aquatic organisms through aquatic ecosystems.
Technical or conventional fishways or fish passes include fish
ladders made of concrete, metal, wood, or other materials, with sloping
or stepped channels and partitions comprised of weirs, walls, chutes,
and vanes to facilitate the movement of fish through the fishway
(Selinger and Zeiringer 2018, Silva et al. 2018, Katopodis et al.
2001). Nature-like fishways are constructed to mimic natural habitat,
but often have engineered components, and may be constructed with
natural materials such as rock, wood, and bioengineering materials to
simulate a natural stream with riffles, pools, and passable rapids
(Selinger and Zeiringer 2018, Katopodis et al. 2001). Conventional
fishways often are constructed to facilitate the passage of certain
species of fish, while nature-like fishways can accommodated a wider
range of fish species, and help other types of aquatic organisms (e.g.,
aquatic invertebrates and amphibians) pass around obstructions
(Katopodis et al. 2001). Nature-like fishways use ecological
engineering principles to provide nature-based solutions to improve the
ability of fish and other aquatic organisms to pass around obstacles to
access other aquatic habitats. Fishways can be designed to reduce the
ability of large bodied predatory fish or non-native species to move
through the fishway, such as designing the fishway to have shallow
water depths that larger individuals cannot pass through (Tamario et
al. 2018).
In-stream nature-like fishways include fish ramps, roughened
channels, constructed riffles, and rock-ramp fishways that are
constructed with rocks and coarse sediments at a low gradient that are
resistant to downstream transport to help fish and other aquatic
organisms move around a barrier safely and relatively quickly (Silva et
al. 2018).
Another type of nature-like fishway is a bypass channel that mimics
a natural stream channel to provide a route for fish and other aquatic
organisms to go around an in-stream obstruction such as a hydropower
dam or other type of dam (Tamario et al. 2018). Bypass channels are
constructed with natural materials, such as wood, boulders, gravel,
rocks, and other vegetation that mimic natural rapids or riffles or
pools (Katopodis et al. 2001). Bypass channels can also provide
habitat, shelter, and spawning areas for fish, and support passage by
numerous fish species at various age classes (Tamario et al. 2018).
Culverted fishways convey water from one side of a road embankment
to the other side and can be constructed in a variety of shapes
(Katopodis et al. 2001). They may include riprap, vanes, baffles,
weirs, blocks, or plates to assist fish in passing through the culvert,
and need to be constructed so that fish can enter, pass through, and
exit the culvert with minimal delays (Katopodis et al. 2001). One
example of an approach to designing culverts to improve the passage of
fish and other aquatic organism is the Stream Simulation Design method
developed by the U.S. Forest Service.\1\
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\1\ <a href="https://www.fs.usda.gov/internet/FSE_DOCUMENTS/fsm91_054564.pdf">https://www.fs.usda.gov/internet/FSE_DOCUMENTS/fsm91_054564.pdf</a> (accessed April 27, 2025).
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Tide gates are structures which close to prevent tidal waters or
floodwaters from flowing inland but open to allow upstream waters to
flow downstream when the tidal waters or floodwaters recede.
Modifications to tide gates, such
[[Page 26124]]
as changing the hinge configuration of the gate or adding floats that
cause the tide gate to remain open for a longer period of time allow
fish to move between habitats (Souder, J. and G. Giannico. 2020).
The Corps is proposing a one acre limit for this NWP. The one acre
limit applies to ``losses of waters of the United States'' as that
phrase is defined in Section F of the proposed NWPs. The proposed one
acre limit would apply to waters of the United States that are
permanently adversely affected by filling, flooding, excavation, or
drainage because of the regulated activity. For activities that are
intended to improve the passage of fish and other aquatic organisms
through river or stream networks or other components of the aquatic
environment, permanent fills in rivers and streams or other aquatic
habitats may occur through the placement of boulders, cobbles, large
wood and other materials to construct a nature-like fishway or the
construction of a conventional fishway, or the replacement of a
culvert. The construction of bypass channels around dams or weirs could
involve filling or excavating wetlands or river or stream channels.
For NWP A activities solely in rivers and streams, the one acre
limit would apply to the acreage of river or stream bed that is
permanently adversely affected by filling or excavation because of the
regulated activity. For example, the area directly impacted by the
placement of large rocks on the river or stream bed to construct a
step-pool fishway would be considered a ``loss of waters of the United
States'' under the definition provided in Section F of this proposed
rule because those rocks would be permanently placed on the river or
stream bed. However, the area of river or stream bed where those rocks
were placed would continue to exist as an altered river or stream
segment and continue to provide some or all of the functions that river
or stream provided before the step-pool fishway was constructed. In
other words, while the placement of rocks, wood, and other materials on
a river or stream bed to construct a fishway changes the physical and
hydrologic characteristics of a river or stream segment to improve the
passage of fish and other aquatic organisms, that river or stream
segment continues to exist as aquatic habitat and perform other
ecological functions because it is not converted to uplands or dry
land. Therefore, the area of the river or stream segment in which the
fishway is constructed is a ``loss'' (in the sense that there would be
a permanent change in the bed of the river or stream to facilitate the
passage of fish and other aquatic organisms) that is counted towards
the one acre limit proposed for this NWP, but that area of river or
stream segment would not be lost in the sense that it would be
converted to terrestrial habitat or a feature of the built environment
(e.g., grey infrastructure).
Fishways and other activities constructed or expanded to improve
the passage of fish and other aquatic organisms around or through
barriers have to provide aquatic habitat to support those aquatic
organisms while they move through the fishways or other features, even
though that habitat may have some artificial or engineered components.
The area of river or stream bed in which a nature-based fishway is
constructed would likely continue to provide river and stream functions
and services, in contrast to activities authorized by other NWPs such
as NWPs 29 and 39 (which currently have \1/2\-acre limits), which
typically change aquatic habitats to dry land, buildings, grey
infrastructure (e.g., roads, parking lots), and other features of a
built environment.
Because activities that are planned, designed, and constructed to
improve the ability of fish and other aquatic organisms to pass through
or around barriers are unlikely to result in the conversion of aquatic
habitats to dry land, the Corps believes a one-acre limit would be
appropriate for fishways and other approaches to improve connectivity
for fish and other aquatic organisms in aquatic ecosystems. The Corps
invites public comments on alternative acreage limits for this proposed
new NWP. Commenters are encouraged to provide rationales for any
alternative acreage limits they suggest.
The Corps is proposing to require PCNs for proposed activities that
result in the loss of greater than \1/10\-acre of waters of the United
States so that district engineers can review these proposed activities
and determine whether they will result in no more than minimal
individual and cumulative adverse environmental effects. The Corps is
also soliciting public comment on whether a different PCN threshold
should be used for this NWP, such as requiring PCNs for all proposed
activities or for proposed discharges of dredged or fill material into
special aquatic sites.
If a district engineer determines that the proposed NWP activity
would result in more than minimal adverse environmental effects, she or
he will exercise discretionary authority to require an individual
permit for the proposed activity unless the project proponent modifies
the proposed activity to reduce the adverse environmental effects so
that they are no more than minimal, individually and cumulatively (see
33 CFR 330.1(e)(3)). As another safeguard, division engineers can
impose regional conditions on this NWP if it is issued to reduce the
one acre limit or the \1/10\-acre PCN threshold if it is necessary to
do so in a particular watershed or other geographic region to ensure
that this NWP authorizes only those activities that have no more than
minimal individual and cumulative adverse environmental effects.
For activities authorized by this proposed new NWP, PCNs may also
be required by one or more NWP general conditions (e.g., general
condition 18, endangered species, or general condition 20, historic
properties), or regional conditions added by a division engineer in a
Corps district, state, watershed, or other geographic region in
accordance with the procedures at 33 CFR 330.4(c).
In addition, the Corps is proposing to include a sentence in this
NWP to state that it does not authorize dam removal activities, even
though dams are often a primary obstacle to the movement of fish and
other aquatic organisms through river and stream networks. The removal
of low-head dams may be authorized by NWP 53. This NWP could be used to
authorize regulated activities associated with the removal or
modification of a weir, and for those activities that would result in
the loss of greater than \1/10\-acre of waters of the United States,
the district engineer would review the proposed removal or modification
of a weir and determine whether that activity qualifies for
authorization under this NWP.
The removal of other types of dams, especially storage dams,
typically require individual permits because removal of those dams
often results in temporary impacts to the aquatic environment that are
more than minimal because of substantial releases of sediment that
usually occur unless the entity removing the dam removes sediment that
accumulated upstream of the dam before breaching or removing the dam
structure. Therefore, the Corps is proposing to exclude dam removal
activities from this NWP.
On September 25, 2018, the Corps issued Regulatory Guidance Letter
(RGL) 18-01. RGL 18-01 was issued to provide guidance on compensatory
mitigation projects to restore river and stream structure, functions,
and dynamics that involve the removal of obsolete dams and other
structures, including the removal or replacement of undersized or
perched culverts. Compensatory mitigation credits can be
[[Page 26125]]
generated by the removal or replacement of undersized or perched
culverts when the replacement of those structures result in increases
in river and stream functions by increasing connectivity and improving
other aquatic ecosystem and watershed functions, such as water
movement, the transportation of nutrients and energy through the
tributary network, the ability of fish and other aquatic organisms to
move among tributaries and other aquatic habitats within a river or
stream network or within a watershed. Compensatory mitigation may also
be generated by the removal of culverts and other obstructions that
impede or reduce the ability of fish and other aquatic organisms to
move through aquatic ecosystems.
The Corps is proposing this new NWP in part to assist with the
implementation of RGL 18-01. The compensatory mitigation activities
described in RGL 18-01 to restore river and stream structure,
functions, and dynamics through the removal of obsolete dams and other
structures, and the removal or replacement of undersized or perched
culverts may be conducted by mitigation bank sponsors, in-lieu fee
program sponsors, and entities conducting advance permittee-responsible
mitigation. The activities described in RGL 18-01 can be authorized by
individual permits, some NWPs, and if available, regional general
permits issued by district engineers. For example, the removal of low-
head dams can be authorized by NWP 53. The removal or replacement of
undersized or perched culverts associated with linear transportation
projects may be authorized by NWP 14. The removal of culverts from a
river or stream can be authorized by NWP 27, as long as the site is
restored or enhanced to resemble an ecological reference, which would
not include replacing the undersized or perched culvert with a new
culvert. However, proposed new NWP A could be used to replace an
existing culvert with a new culvert that improves the ability of fish
and other aquatic organisms to pass through the culvert.
C. Discussion of Proposed Modifications to Nationwide Permit General
Conditions
GC 9. Management of Water Flows. The Corps is proposing to add
``tidal flows'' to the text of this general condition to clarify that
expected high flows, and normal or high flows, include the flow of
water caused by tides.
GC 11. Equipment. The Corps is proposing to modify this general
condition by adding two new sentences to specify that areas affected by
the use of mats, must be restored. Restoration must include returning
the area to pre-construction elevations, and may include revegetation
and addressing soil compaction, if appropriate. The use of mats, and
the operation of heavy equipment on those mats, may result in soil
compaction that can adversely affect water infiltration,
reestablishment of vegetation, and other processes. This proposed
change is intended to address situations where the use of mats during
construction activities may have resulted in soil compaction and
produced depressional areas that may hold surface water and inhibit the
recovery of hydrologic and soil functions, as well as the plant
community, in the area affected by the placement of mats.
GC 18. Endangered Species. The Corps is proposing to modify the
last sentence of the first paragraph of this general condition by
removing language referring to 50 CFR 402.17. In a final rule published
in the Federal Register on April 5, 2024 (89 FR 24268), the U.S. Fish
and Wildlife Service and National Marine Fisheries Service removed
section 402.17 from their Endangered Species Act section 7 interagency
consultation regulations at 50 CFR part 402.
GC 25. Water Quality. The Corps is proposing to modify the text of
this general condition to clarify that the proposed activity which may
result in any discharge from a point source would have to be into a
water of the United States in order to trigger the requirement for
water quality certification. This proposed change would make the text
of this general condition consistent with EPA's current water quality
certification regulations at 40 CFR part 121, which defines ``license
or permit'' as consistent with See 40 CFR 121.1(f).
GC 28. Use of Multiple Nationwide Permits. General condition 28
addresses the use of more than one NWP to authorize a single and
complete project.
The Corps is proposing modifications to this GC to clarify the
standards that must be met to comply with this general condition. The
first standard is that the total acreage of loss of waters from a
single and complete project cannot exceed the acreage limit of the NWP
with the highest specified limit. That is, when multiple NWPs are used
to authorize a single and complete project, the acreage limits cannot
be combined; the permissible acreage impact is limited to the impact
specified in the NWP with the highest acreage limit. The second
standard is that the acreage loss of waters resulting from the
activities authorized under each NWP cannot exceed the acreage limit
for that NWP. The Corps is proposing a new paragraph (a) that
articulates the first standard.
With the addition of a new paragraph (a), the previous paragraphs
(a) and (b) become (b) and (c) respectively. In addition, text has been
added to paragraph (b) to specify the limits of each NWP in the
example. The Corps is proposing no other changes to this paragraph. If
only one of the NWPs has a specified acreage limit, then that is the
``highest specified acreage limit.''
Similarly, the Corps is proposing to move the text from paragraph
(b) in the current NWPs to paragraph (c) of this general condition and
to clarify the application of this general condition when two or more
NWPs used to authorize a single and complete project have specified
acreage limits. The Corps is proposing to modify the first sentence of
paragraph (c) so that it applies to situations where more than one of
the NWPs used to authorize the single and complete project have
specified acreages limits. This change clarifies that the specified
limit of each NWP used to authorize an activity cannot be exceeded. In
other words, the use of multiple NWPs to authorize a single and
complete project cannot circumvent the specified acreage limit of a
particular NWP for the impacts covered by that particular NWP. In such
situations, the acreage loss of waters of the United States authorized
by each of those NWPs cannot exceed their respective specified acreage
limits. The Corps is proposing to modify the example in the second
sentence of paragraph (c) to make it clear that the two NWPs used in
this example each have different acreage limits: \1/2\-acre for NWP 39
and 1 acre for NWP 46. In this example, the total acreage loss of
waters of United States caused by the combination of the NWP 39 and NWP
46 activities cannot exceed 1 acre. The acreage limits of these two
NWPs cannot be combined to limit losses of waters of the United States
to one and a half acres. In other words, under this combination of
NWPs, acreage the loss of waters of the United States authorized by NWP
39, in this example, could not exceed \1/2\-acre and would count
towards the 1-acre limit in NWP 46.
GC 30. Compliance Certification. The Corps is proposing to modify
the second sentence of this general condition to refer to the
``successful completion'' of any required permittee-responsible
mitigation instead of the ``success'' of any required permittee-
responsible mitigation. This proposed change is intended to make it
clear that the permittee has to complete the required
[[Page 26126]]
permittee-responsible mitigation to the district engineer's
satisfaction, because the district engineer is responsible for
determining whether the permittee-responsible mitigation project has
complied with the applicable permit conditions and achieved its
ecological performance standards. Use of the word ``success'' in this
sentence lacks clarity as to what the permittee needs to accomplish to
fulfill the permittee-responsible mitigation requirements in their NWP
verifications.
GC 32. Pre-construction notification. The Corps is proposing
modifications to this general condition. The Corps is proposing to
modify paragraph (a)(2), to make it consistent with paragraph (c) of
general condition 18, endangered species.
In paragraph (b)(5) of this general condition, the Corps is
proposing to simplify the first sentence to state that the PCN
[…truncated; see source link]Indexed from Federal Register on June 18, 2025.
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