Rule2026-00121
Reissuance and Modification of Nationwide Permits
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 8, 2026
Effective
March 15, 2026
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
Nationwide Permits (NWPs) authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that have no more than minimal individual and cumulative adverse environmental effects. The NWPs help protect the aquatic environment and the public interest by providing incentives to reduce impacts to jurisdictional waters. In this final action, the U.S. Army Corps of Engineers (Corps) is reissuing 56 existing nationwide permits (NWPs), general conditions, and definitions, with some modifications. The Corps is also issuing one new NWP.
Full Text
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[Federal Register Volume 91, Number 5 (Thursday, January 8, 2026)]
[Rules and Regulations]
[Pages 768-886]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-00121]
[[Page 767]]
Vol. 91
Thursday,
No. 5
January 8, 2026
Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Chapter II
Reissuance and Modification of Nationwide Permits; Final Action
Federal Register / Vol. 91, No. 5 / Thursday, January 8, 2026 / Rules
and Regulations
[[Page 768]]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
[Docket Number: COE-2025-0002]
RIN 0710-AB56
Reissuance and Modification of Nationwide Permits
AGENCY: Corps of Engineers, Army, DoD.
ACTION: Final action.
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SUMMARY: Nationwide Permits (NWPs) authorize activities under Section
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act
of 1899 that have no more than minimal individual and cumulative
adverse environmental effects. The NWPs help protect the aquatic
environment and the public interest by providing incentives to reduce
impacts to jurisdictional waters. In this final action, the U.S. Army
Corps of Engineers (Corps) is reissuing 56 existing nationwide permits
(NWPs), general conditions, and definitions, with some modifications.
The Corps is also issuing one new NWP.
DATES: The 57 NWPs, the general conditions, and the associated
definitions will go into effect on March 15, 2026. The NWPs will expire
on March 15, 2031.
ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street
NW, Washington, DC 20314-1000.
FOR FURTHER INFORMATION CONTACT: Ms. Katherine McCafferty at 513-310-
4196 or access the U.S. Army Corps of Engineers Regulatory Home Page at
<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:
List of Acronyms
List of Nationwide Permits and General Conditions Issued in This
Final Action
Nationwide Permits (NWPs)
Nationwide Permit General Conditions
I. Background
A. General
B. Overview of Proposed Rule
C. Overview of This Final Action
D. Status of Existing Permits
E. Nationwide Permit Verifications
F. Severability
II. Discussion of Public Comments
A. Overview
B. Responses to General Comments
C. Responses to Comments on Regional Conditions of Nationwide
Permits
D. Responses to Comments on Nature-Based Solutions and the NWP
Program
E. Response to Comments on Notes in the NWPs for Utilities and
Mariculture Activities
F. Responses to Comments on Specific Nationwide Permits
G. Responses to Comments on the Nationwide Permits General
Conditions
H. Responses to Comments on Section D. District Engineer's
Decision
I. Responses to Comments on Section E. Further Information
J. Responses to Comments on Section F. Definitions
III. Compliance With Relevant Statutes
A. National Environmental Policy Act
B. Compliance With 404(e) of the Clean Water Act
C. Compliance With the Endangered Species Act
D. Compliance With Section 106 of the National Historic
Preservation Act
E. Compliance With the Essential Fish Habitat Provisions of the
Magnuson-Stevens Fishery Conservation and Management Act
F. Section 401 of the Clean Water Act
G. Section 307 of the Coastal Zone Management Act (CZMA)
IV. Economic Impact
V. Administrative Requirements
VI. References
Authority
Nationwide Permits, Conditions, Further Information, and Definitions
A. Index of Nationwide Permits, Conditions, District Engineer's
Decision, Further Information, and Definitions
B. Nationwide Permits
C. Nationwide Permit General Conditions
D. District Engineer's Decision
E. Further Information
F. Nationwide Permit Definitions
List of Acronyms
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
FY Fiscal Year
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NWP Nationwide Permit
PCN Pre-Construction Notification
RHA Rivers and Harbors Act of 1899
USCG U.S. Coast Guard
List of Nationwide Permits and General Conditions Issued in This Final
Action
Nationwide Permits (NWPs)
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Ecosystem Restoration, Enhancement, and Establishment
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage and Irrigation Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Mariculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
53. Removal of Low-Head Dams
54. Living Shorelines
55. Seaweed Mariculture Activities
56. [Reserved]
57. Electric Utility Line and Telecommunications Activities
58. Utility Line Activities for Water and Other Substances
59. Water Reclamation and Reuse Facilities
A. Activities To Improve Passage of Fish and Other Aquatic
Organisms
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
[[Page 769]]
7. Water Supply Intakes
8. Adverse Effects From Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United
States
32. Pre-Construction Notification
I. Background
A. General
The U.S. Army Corps of Engineers (Corps) may issue nationwide
permits (NWPs) to authorize activities under Section 404 of the Clean
Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899
(RHA) that will result in no more than minimal individual and
cumulative adverse environmental effects. Under Section 404 of the CWA
(33 U.S.C. 1344), Department of the Army (DA) authorization is required
for discharges of dredged or fill material into waters of the United
States. Under Section 10 of the RHA (33 U.S.C. 403), DA authorization
is required for construction of any structure in, over, or under any
navigable water of the United States; the excavating from or depositing
of material in navigable waters of the United States; or the
accomplishment of any other work affecting the course, location,
condition, or capacity of navigable waters of the United States.
NWPs were first issued by the Corps in 1977 (42 FR 37122) to
authorize categories of activities that have minimal adverse effects on
the aquatic environment and streamline the authorization process for
those minor activities. Since1977, NWPs have been issued or reissued in
1982 (47 FR 31794), 1984 (49 FR 39478), 1986 (51 FR 41206), 1991 (56 FR
59110), 1995 (60 FR 38650), 1996 (61 FR 65874), 2000 (65 FR 12818),
2002 (67 FR 2020), 2007 (72 FR 11092), 2012 (77 FR 10184), 2017 (82 FR
1860), and 2021 (86 FR 2744 and 86 FR 73522).
Section 404(e) of the CWA provides the statutory authority for the
Secretary of the Army, after notice and opportunity for public hearing,
to issue general permits on a nationwide basis for any category of
activities involving discharges of dredged or fill material into waters
of the United States for a period of no more than five years after the
date of issuance (33 U.S.C. 1344 (e)). The Secretary's authority to
issue individual permits and general permits has been delegated to the
Chief of Engineers and his or her designated representatives. NWPs are
a type of general permit issued by the Chief of Engineers and are
designed to regulate activities in federally jurisdictional waters and
wetlands that have no more than minimal adverse environmental effects
(see 33 CFR 330.1(b)). The categories of activities authorized by NWPs
must be similar in nature, cause only minimal adverse environmental
effects when performed separately, and have only minimal cumulative
adverse effect on the environment (33 U.S.C. 1344(e)(1)). The Corps has
discretionary authority to modify or revoke the NWPs before they
expire. NWPs and other general permits can also be issued to authorize
activities pursuant to Section 10 of the RHA (see 33 CFR 322.2(f) and
330.1(g)). The NWP program is designed to provide timely authorizations
for the regulated public while protecting the Nation's aquatic
resources.
Section 10 of the RHA authorizes the Corps to issue general permits
and after-the-fact permits for structures and work in navigable waters
of the United States. Section 10 (33 U.S.C. 403) prohibits any
obstructions to the navigable capacity of any waters of the United
States ``unless the work has been recommended by the Chief of Engineers
and authorized by the Secretary of the Army prior to beginning the
same.'' Section 10 does not mandate that the Corps specify what form
those authorizations should take and does not limit authorization to
permits, either individual permits or general permits. By using the
word ``authorized,'' a term that is broad in scope, Section 10 gives
the Corps the authority to use different types of permits to approve
structures and work in navigable waters of the United States. Since
1975, the Corps has issued general permits under Section 10 of the RHA
(see 40 FR 31335). The Corps has issued NWPs under the authority of
Section 10 of the RHA since 1977 (see 42 FR 37140).
The NWPs provide incentives for project proponents to design
activities that require DA authorization under Section 404 of the CWA
and/or Section 10 of the RHA to avoid and minimize impacts to the
aquatic environment in order to qualify for NWP authorization, because
in most cases those project proponents can obtain NWP verifications
from Corps districts in less time than it takes to receive standard
individual permits. For some NWPs, project proponents can proceed with
the authorized activities without reporting those activities to Corps
district offices as long as the project proponent complies with all
applicable terms and conditions of those NWPs. Other NWPs require
project proponents to submit pre-construction notifications (PCNs) to
Corps districts prior to proceeding with the authorized activities to
give district engineers the opportunity to determine whether the
project proponents' proposed activities are authorized by an NWP. The
former set of NWPs are called non-reporting NWPs and the latter set of
NWPs are called reporting NWPs.
Activities not authorized by NWPs, or by regional general permits
or programmatic general permits issued by district engineers, require
individual permits from the Corps. Individual permits are DA
authorizations in the form of standard individual permits or letters of
permission, which require an activity-specific public interest review
and the preparation of appropriate environmental documentation in
support of a permit decision for a specific activity. In Fiscal Year
(FY) 2024, the average processing time for an NWP PCN that was required
or voluntarily submitted, was 55 days and the average processing time
for a standard individual permit was 253 days. The reduced processing
time for NWPs creates a substantial incentive for project proponents to
reduce the impacts of their regulated activities on the aquatic
environment to a no more than minimal level. This incentive to minimize
impacts directly benefits the aquatic resources that CWA and RHA
protect.
Section 404(e)(1) of the CWA states that general permits may be
issued on a state, regional, or nationwide basis for any category of
activities involving discharges of dredged or fill material into waters
of the United States if the activities in such a category are similar
in nature, will cause only minimal adverse environmental effects when
performed separately, and will have only minimal cumulative adverse
effects on the environment. The phrase ``minimal adverse environmental
effects when performed separately'' refers to the direct and indirect
adverse environmental effects caused by the specific activity
authorized by an NWP.
[[Page 770]]
The phrase ``minimal cumulative adverse effect on the environment''
refers to the collective direct and indirect adverse environmental
effects caused by all the activities authorized by a particular NWP
during the time period when the NWP is in effect (a period of no more
than 5 years) in a specific geographic region.
Some NWPs include PCN requirements. When a PCN is submitted, Corps
districts evaluate proposed NWP activities on a case-by-case basis to
ensure that they will cause no more than minimal adverse environmental
effects, individually and cumulatively. In most cases an applicant can
begin their regulated activity if the district does not respond within
45 days of receiving a complete PCN. The exceptions to that general
rule are when: general condition 18 (Endangered Species) or general
condition 20 (Historic Properties) require a non-federal permittee to
submit a PCN; activities subject to General Conditions 16 (Wild and
Scenic Rivers) and 31 (Activities Affecting Structures of Works Built
by the United States); activities proposed for authorization under NWP
49 (Coal Remining Activities; or if the proposed activity requires a
written waiver to exceed specified limits of an NWP. When any of these
exceptions apply, the applicant must wait until they are notified in
writing that the activity may proceed under the NWP. District engineers
also have authority under 33 CFR 330.5(d) to modify, suspend, or revoke
the NWP authorization on a case-specific basis.
There are 39 Corps district offices and eight Corps division
offices. The district offices administer the NWP program on a day-to-
day basis by reviewing PCNs for proposed NWP activities. The division
offices oversee district offices and are managed by division engineers.
Division engineers have the authority to modify, suspend, or revoke NWP
authorizations on a regional basis to take into account regional
differences among aquatic resources and ensure that the NWPs authorize
only those activities that result in no more than minimal individual
and cumulative adverse environmental effects in a region (see 33 CFR
330.5(c)).
When a Corps district receives a PCN, the district engineer reviews
the PCN and determines whether the proposed activity will result in no
more than minimal individual and cumulative adverse environmental
effects, consistent with the criteria in paragraph 2 of Section D,
``District Engineer's Decision.'' At this point, the district engineer
may add conditions to the NWP authorization to ensure that the verified
NWP activity results in no more than minimal individual and cumulative
adverse environmental effects consistent with processes and
requirements set out in 33 CFR 330.5(d).
For some NWPs, when submitting a PCN an applicant may request a
waiver of a particular limit specified in the NWP's terms and
conditions. If the applicant requests a waiver of an NWP limit and the
district engineer determines, after conducting any coordination with
the resource agencies required under paragraph (d) of NWP general
condition 32, that the proposed NWP activity will result in no more
than minimal adverse environmental effects, the district engineer may
grant such a waiver. Following the conclusion of the district
engineer's review of the PCN, the district engineer prepares a document
explaining the decision on whether to issue a waiver for the proposed
NWP activity. This document discusses the district engineer's findings
as to whether a proposed NWP activity qualifies for NWP authorization,
including compliance with all applicable terms and conditions, and the
rationale for any waivers granted, and activity-specific conditions
needed to ensure that the NWP activity will have only minimal
individual and cumulative adverse environmental effects and will not be
contrary to the public interest (see 33 CFR 330.6(a)(3)(i)). Waivers
are only permissible when they are explicitly provided for by a
specific NWP's terms and conditions.
The case-by-case review of PCNs often results in district engineers
adding activity-specific conditions to NWP authorizations to ensure
that the adverse environmental effects are no more than minimal. These
can include permit conditions such as time-of-year restrictions and use
of best management practices (BMPs) or compensatory mitigation
requirements to offset authorized losses of jurisdictional waters and
wetlands so that the net adverse environmental effects are no more than
minimal. Any compensatory mitigation required for NWP activities must
comply with the Corps' compensatory mitigation regulations at 33 CFR
part 332. Review of a PCN may also result in the district engineer
asserting discretionary authority to require an individual permit from
the Corps for the proposed activity, if he or she determines, based on
the information provided in the PCN and other available information,
that adverse environmental effects will be more than minimal, or
otherwise determines that ``sufficient concerns for the environment or
any other factor of the public interest so requires'' consistent with
33 CFR 330.4(e)(2).
During their reviews of PCNs, district engineers use their
discretion to determine the appropriate regional scale for evaluating
cumulative effects for the purposes of 33 CFR 330.5(d)(1), 33 U.S.C.
1344(e)(1), 33 CFR 322.2(f)(1), and/or 33 CFR 323.2(h)(1). The
appropriate regional scale for evaluating cumulative effects may be a
waterbody, watershed, seascape, county, state, a Corps district, or
other geographic area. The appropriate regional scale is dependent, in
part, on what types of NWP activities are occurring, where they are
occurring, and what types of adverse environmental effects they might
be causing. For example, for NWPs that authorize structures and/or work
in navigable waters of the United States under Section 10 of the RHA,
the appropriate geographic region for assessing cumulative effects may
be a specific navigable waterbody (e.g., a lake), or in the case of
activities in ocean or estuarine waters, a seascape. For NWPs that
authorize discharges of dredged or fill material into non-tidal
wetlands and streams, the appropriate geographic region for assessing
cumulative effects may be a watershed, county, state, or Corps
district. The direct individual adverse environmental effects caused by
activities authorized by NWPs are evaluated within the project
footprint, and the indirect individual adverse environmental effects
caused by activities authorized by NWPs are evaluated within the
geographic area to which those indirect effects may extend.
Through the NWPs, the aquatic environment may also receive
additional protection through regional conditions imposed by division
engineers and activity-specific conditions added to NWPs by district
engineers. These regional conditions and activity-specific conditions
further minimize adverse environmental effects, because these
conditions can only further restrict use of the NWPs. NWPs also allow
district engineers to exercise, on a case-by-case basis, discretionary
authority to require individual permits for proposed activities that
may result in more than minimal individual and cumulative adverse
environmental effects. NWPs help protect the aquatic environment
because they provide incentives to permit applicants to reduce impacts
to jurisdictional waters and wetlands to meet the restrictive
requirements of the NWPs and receive authorization more quickly than
they would through the individual permit process. Regional general
permits issued by district engineers provide similar
[[Page 771]]
environmental protections and incentives to project proponents.
After the NWPs are issued or reissued, division engineers will
issue supplemental documents to determine whether regional conditions
are necessary to ensure that use of the NWPs on a regional basis (e.g.,
within a Corps district or state) will authorize only those activities
with no more than minimal individual and cumulative adverse
environmental effects (see 33 CFR 330.5(c)(1)). The supplemental
documents are prepared by Corps districts but must be approved and
formally issued by the appropriate division engineer, because the NWP
regulations at 33 CFR 330.5(c) state that the division engineer has the
authority to modify, suspend, or revoke NWP authorizations for any
specific geographic area within her or his division. For some Corps
districts, their geographic area of responsibility covers an entire
state. For other states, there is more than one Corps district
responsible for implementing the Corps Regulatory Program, including
the NWP program. In those states, there is a lead Corps district
responsible for preparing the supplemental documents for all of the
NWPs.
When districts prepare supplemental documents for division approval
of regional conditions, or imposing no regional conditions, they assess
cumulative effects by estimating the number of times a particular NWP
might be used in the region (e.g., Corps district or state) covered by
the supplemental document, along with estimates of impact acreages and
acreages of compensatory mitigation required. If the NWP is not
suspended or revoked in a state or a Corps district, the supplemental
document includes a certification that the use of the NWP in that
district, with any applicable regional conditions, will result in no
more than minimal cumulative adverse environmental effects. See 33 CFR
330.5(c)(1).
After the NWPs are issued or reissued and go into effect, district
engineers will monitor the use of these NWPs on a regional basis (e.g.,
within a watershed, county, state, Corps district or other appropriate
geographic area), to ensure that the use of a particular NWP is not
resulting in more than minimal cumulative adverse environmental effects
(see 33 CFR 330.5(d)(1)). The Corps staff that evaluate NWP PCNs that
are required by the text of the NWP or by NWP general conditions or
regional conditions imposed by division engineers, or voluntarily
submitted to the Corps district by project proponents to receive
written NWP verifications, often work in a particular geographic area
and have an understanding of the activities that have been authorized
by NWPs, regional general permits, and individual permits over time, as
well as the current environmental setting for that geographic area. If
Corps district staff believe that the use of an NWP in that geographic
region is approaching a threshold above which the cumulative adverse
environmental effects for that category of activities may be more than
minimal, the district engineer may either make a recommendation to the
division engineer to modify, suspend, or revoke the NWP authorization
in that geographic region in accordance with the procedures in 33 CFR
330.5(c). Alternatively, under the procedures at 33 CFR 330.5(d), the
district engineer may also modify, suspend, or revoke NWP
authorizations on a case-by-case basis to ensure that the NWP does not
authorize activities in that region that result in more than minimal
cumulative adverse environmental effects.
For the NWPs, the assessment of cumulative effects occurs at three
levels: national, regional, and the verification stage. Each national
NWP decision document includes a national-scale cumulative effects
analysis to evaluate whether the issuance or reissuance of the NWP
would result in more than minimal cumulative adverse environmental
effects. For all NWPs, an evaluation of the probable effects, including
cumulative effects, of the proposed activity and its intended use on
the public interest is required (see 33 CFR 320.4(a)(1)). For NWPs that
authorize discharges of dredged or fill material into waters of the
United States, an analysis of cumulative effects conducted in
accordance with 40 CFR 230.7(b)(3) is also required.
Cumulative effects are the result of the accumulation of direct and
indirect effects caused by multiple activities that persist over time
in a particular geographic area (MacDonald 2000), such as a watershed
or ecoregion (Gosselink and Lee 1989). For the NWPs, the analysis of
cumulative effects would be the accumulation of impacts caused by
activities authorized by an NWP during the period it is in effect
(i.e., no more than five years) in a watershed, ecoregion, or other
appropriate geographic area, and how those accumulated impacts might
affect the current environmental setting or environmental baseline
within that geographic area. The current environmental setting includes
the present effects of other federal, non-federal, and private actions,
including those that do not require DA authorization, as well as the
effects of other federal, non-federal, and private actions that are
occurring at the same time as the activities authorized by the NWP.
In the context of an NWP issued or reissued by Corps Headquarters,
the ``incremental effects of the action'' would be the direct and
indirect effects on the environment caused by activities authorized by
the NWP during the period it is in effect. The incremental effects
caused by NWP activities are to be added to the effects caused by other
past, present, and reasonably foreseeable actions regardless of what
agency (federal or non-federal) or person authorizes or undertakes
those other past, present, and reasonably foreseeable actions. Oceans,
estuaries, lakes, rivers, streams, wetlands, and other aquatic
ecosystems are affected by a wide variety of federal, non-federal, and
private actions in addition to activities authorized by the Corps under
its permitting authorities, including activities authorized by NWPs in
the past and activities authorized by other types of DA permits, such
as regional general permits, standard individual permits, and letters
of permission. Therefore, when evaluating cumulative effects of
activities authorized by NWPs, context is important, and the severity
of those impacts have to be evaluated against the environmental
baseline to determine whether the cumulative adverse environmental
effects caused by the issuance or reissuance of an NWP are likely to be
no more than minimal, or more than minimal.
For an NWP, the cumulative effects are the collective incremental
environmental effects of the activities that are authorized by an NWP,
including the number of times that NWP is used to authorize activities
in a specific geographic area during the five-year period that NWP is
in effect, as well as the estimates of impact acres and acreages of
compensatory mitigation required. For the issuance or reissuance of an
NWP by Corps Headquarters, the geographic scale of the cumulative
effects analysis is the entire United States, including its
territories. The cumulative effects likely to be caused by activities
authorized by an NWP are evaluated against the environmental baseline,
which has been shaped by human activities and natural disturbances and
other events over time, including activities authorized by prior
versions of that NWP, as well as other federal, non-federal, and
private actions that directly or indirectly affect the aquatic
environment and contribute to the overall cumulative effects that have
influenced the structure and function of that aquatic environment over
time.
[[Page 772]]
In the supplemental documentation, the division engineer analyzes
the cumulative effects in a region, which could be defined as a state
or a Corps district. Under 33 CFR 330.5(d)(1), when a district engineer
considers cumulative effects when reviewing a PCN for a proposed NWP
activity, she or he will use a geographic and temporal scale that is
larger than the geographic and temporal scales that were used to
evaluate the direct and indirect adverse environmental effects caused
by the proposed NWP-specific activity. The geographic scope of the
district engineer's consideration of cumulative effects would be the
seascape, watershed, or other appropriate geographic region in which
the proposed NWP activity is located. The district engineer would also
consider other activities that were authorized by that NWP in that
geographic area during the period of time that NWP is in effect, as
well as the other federal, non-federal, and private actions that shaped
the environmental baseline within that geographic region, to determine
whether the incremental contribution of activities authorized by that
NWP in that geographic region during the time it would be in effect
would not be, or would be, more than minimal. The environmental
baseline includes activities conducted in the past under authorizations
provided by prior issuances of that NWP, activities authorized by other
forms of DA authorization, as well as other federal, non-federal, and
private actions not regulated by the Corps that directly or indirectly
caused changes to, or losses of, waters and wetlands subject to the
Corps' jurisdiction under its permitting authorities. In addition, the
environmental baseline includes the ecological functions and services
the waters and wetlands within that watershed, seascape, or other
geographic area provide, as well as the degree to which those waters
and wetlands provide those ecological functions and services.
When a district engineer reviews a PCN and determines that the
proposed activity qualifies for NWP authorization, he or she will issue
a written NWP verification to the permittee (see 33 CFR 330.6(a)(3)).
If an NWP verification includes multiple authorizations using a single
NWP (e.g., linear projects with crossings of separate and distant
waters of the United States authorized by NWPs 12, 14, 57, and 58) or
non-linear projects authorized with two or more different NWPs (e.g.,
an NWP 28 for reconfiguring an existing marina plus an NWP 19 for minor
dredging within that marina), the district engineer will evaluate the
cumulative effects of the applicable NWP authorizations within the
appropriate geographic area. As discussed above, examples of geographic
areas that may be used for cumulative effects analyses for specific
NWPs may be a waterbody, watershed, county, state, Corps district, or
other geographic area, such as a seascape in ocean or estuarine waters.
Corps Headquarters conducted the required cumulative effects
analyses in the national decision documents for the issuance or
reissuance of each of the NWPs. Therefore, district engineers do not
need to replicate the Headquarters national cumulative effects analyses
for NWP verifications for a specific activity authorized by one or more
NWPs. For an NWP verification, the district engineer only needs to
include a brief statement in the administrative record documenting the
NWP PCN review stating her or his determination whether the proposed
NWP activity, plus any required mitigation, will result in no more than
minimal individual and cumulative adverse environmental effects for the
purposes of 33 CFR 330.5(d)(1), as well as 33 U.S.C. 1344(e)(1), 33 CFR
322.2(f)(1), and/or 33 CFR 323.2(h)(1). If the district engineer
determines, after considering mitigation, that a proposed NWP activity
will result in more than minimal cumulative adverse environmental
effects, he or she will exercise discretionary authority and require an
individual permit for the proposed activity.
An activity that requires DA authorization may include discharges
that would occur within more than one state or within more than one
Corps district or division. When the Corps receives an NWP PCN or
individual permit application for such activities, a lead Corps
district will be designated, and that district will serve as a single
point of contact for each permit applicant.
B. Overview of Proposed Rule
On June 18, 2025, the Corps published in the Federal Register (90
FR 26100) a proposed regulation to reissue 56 of 57 existing NWPs with
some modifications and associated general conditions and definitions,
and to create one new NWP (2025 Proposal). The Corps provided a 30-day
comment period, which closed on July 18, 2025. Among other things, the
Corps proposed the following: (1) to reissue 56 of 57 existing permits
(some with proposed modifications); (2) to issue one new NWP to
authorize activities that improve the passage of fish and other aquatic
organisms; (3) not to reissue NWP 56 (finfish mariculture activities);
and (4) to modify some general conditions and definitions. The Corps
requested comment on these and all other aspects of the proposal.
C. Overview of This Final Action
This final action reissues 56 of the 57 existing NWPs, with some
changes, and issues one new NWP (NWP A for activities to improve
passage of fish and other aquatic organisms). This action does not
reissue NWP 56 (finfish mariculture activities). This action also
reissues the general conditions and definitions, with some changes.
This final action reissues 56 of 57 existing NWPs that were issued
or reissued in 2021 and 2022 (collectively the 2021 NWPs). This final
action reissues 15 of the 16 NWPs (i.e., NWPs 12, 21, 29, 39, 40, 42,
43, 44, 48, 50, 51, 52, 55, 57, and 58) that were issued or reissued in
the final rule that was published in the Federal Register on January
13, 2021, and went into effect on March 15, 2021 (86 FR 2744) with some
changes. This action reissues the 41 NWPs (i.e., NWPs 1, 2, 3, 4, 5, 6,
7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27,
28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49, 53, 54, and 59)
that were issued or reissued in the final rule published in the Federal
Register on December 27, 2021, and went into effect on February 25,
2022 (86 FR 73522) with some changes. This action also reissues the NWP
general conditions and definitions that were published in the January
13, 2021, final rule with some changes.
These 57 NWPs, the general conditions, and the associated
definitions will go into effect on March 15, 2026. The expiration date
for the NWPs issued or reissued in this final action is March 15, 2031.
D. Status of Existing Permits
When the Corps reissues existing NWPs, the reissued NWPs replace
the prior versions of those NWPs so that there are not two sets of NWPs
in effect at the same time. The expiration date of the 57 NWPs that
went into effect on March 15, 2021, and February 25, 2022, is March 14,
2026. This expiration date was expressly provided for in the
rulemakings establishing these NWPs (see 86 FR 2744 and 86 FR 73522).
An activity completed under the authorization provided by a 2021 NWP
continues to be authorized by that NWP (see 33 CFR part 330.6(b)).
Activities authorized by the 2021 NWPs that have commenced or are under
contract to commence by March 14, 2026, will have one year (i.e., until
March 14, 2027) to complete those activities (see 33 CFR
[[Page 773]]
330.6(b)). Activities previously authorized by the 2021 NWPs that have
not commenced or are not under contract to commence by March 14, 2026,
or that will not be completed by March 14, 2027, will require
reauthorization under the 2026 NWPs, provided those activities still
comply with the terms and conditions, and qualify for authorization
under the 2026 NWPs. If those activities no longer qualify for NWP
authorization because they do not meet the terms and conditions of the
2026 NWPs (including any regional conditions imposed by division
engineers), the project proponent will need to obtain an individual
permit, or seek authorization under a regional general permit, if such
a general permit is available in the applicable Corps district and can
be used to authorize the proposed activity.
One commenter recommended changing the grandfather period for the
activities authorized under the 2021 NWPs to between two and five years
to allow for additional time to complete activities which receive
verifications from the district engineer in the final year of an NWP
authorization. The one-year grandfathering period in 33 CFR 330.6(b)
was established in the November 22, 1991, final rule amending 33 CFR
part 330 (see 56 FR 59110). Experience since this one-year
grandfathering period was established has shown that it has been
adequate to allow project proponents to complete the activities which
were authorized by the NWP or to plan to seek new authorization under a
newly issued NWP or individual permit. Therefore, the Corps declines to
extend the grandfather period.
E. Nationwide Permit Verifications
Certain NWPs require the permittee to submit a PCN prior to
commencing the proposed NWP activity. The requirement to submit a PCN
is identified in the NWP text when it applies, as well as certain
general conditions (e.g., general conditions 18 and 20, Endangered
Species and Historic Properties, respectively).
In the PCN, the project proponent must specify which NWP or NWPs
the project proponent wants to use to provide the required DA
authorization under Section 404 of the CWA and/or Section 10 of the
RHA. The district engineer should verify the activity under the NWP(s)
requested by the project proponent, as long as the proposed activity
complies with all applicable terms and conditions, including any
applicable regional conditions imposed by the division engineer. All
NWPs have the same general requirement: that the authorized activities
may only cause no more than minimal individual and cumulative adverse
environmental effects. Therefore, if the proposed activity complies
with the terms and all applicable conditions of the NWP the applicant
wants to use, then the district engineer should issue the NWP
verification unless the district engineer exercises discretionary
authority to modify the NWP through the addition of conditions, or to
require an individual permit. If the proposed activity does not meet
the terms and conditions of the NWP identified in the applicant's PCN,
and that activity meets the terms and conditions of another NWP
identified by the district engineer, the district engineer will process
the PCN under the NWP identified by the district engineer. If the
district engineer exercises discretionary authority, the district
engineer should explain the reasons for determining that the proposed
activity raises sufficient concern for the environment or otherwise may
be contrary to the public interest.
PCN requirements may be added to NWPs by division engineers through
regional conditions to require PCNs for additional activities. For an
activity where a PCN is not required, a project proponent may submit a
PCN voluntarily, if the project proponent wants written confirmation
that the activity is authorized by an NWP. Some project proponents
submit permit applications without specifying the type of authorization
they are seeking. In such cases, the district engineer will review
those applications and determine if the proposed activity qualifies for
NWP authorization or another form of DA authorization, such as a
regional general permit (see 33 CFR 330.1(f)).
In response to a PCN or a voluntary NWP verification request, the
district engineer reviews the information submitted by the prospective
permittee. If the district engineer determines that the activity
complies with the terms and conditions of the NWP, the district
engineer will notify the permittee. Activity-specific conditions, such
as compensatory mitigation requirements, may be added to an NWP
authorization to ensure that the activity to be authorized under the
NWP will result in no more than minimal individual and cumulative
adverse environmental effects and will not be contrary to the public
interest. The activity-specific conditions are incorporated into the
NWP verification letter (i.e., the written confirmation from the
district engineer that the proposed activity is authorized by an NWP),
along with the NWP text and the NWP general conditions. In general, NWP
verification letters will expire on the date the NWP expires (see 33
CFR 330.6(a)(3)(ii)), although district engineers have the authority to
issue NWP verification letters that will expire before the NWP expires,
if it is in the public interest to do so.
If the district engineer reviews the PCN or voluntary NWP
verification request and determines that the proposed activity does not
comply with the terms and conditions of an NWP, the district engineer
will notify the project proponent and provide instructions for applying
for authorization under a regional general permit or an individual
permit. District engineers will respond to NWP verification requests,
submitted voluntarily or as required through PCNs, within 45 days of
receiving a complete PCN. Except for activities conducted by non-
federal permittees that require PCNs under paragraph (c) of general
conditions 18 (Endangered Species) and 20 (Historic Properties),
activities subject to General Conditions 16 (Wild and Scenic Rivers)
and 31 (Activities Affecting Structures of Works Built by the United
States), and activities proposed for authorization under NWP 49 (Coal
Remining Activities), if the Corps district does not respond to the PCN
within 45 days of a receipt of a complete PCN, the project proponent
may assume that the project is authorized, consistent with the
information provided in the PCN. For NWP 49, and activities conducted
by non-federal permittees that require PCNs under paragraph (c) of
general conditions 18 (Endangered Species) and 20 (Historic
Properties), activities subject to General Conditions 16 (Wild and
Scenic Rivers) and 31 (Activities Affecting Structures of Works Built
by the United States), the project proponent cannot begin work before
receiving a written NWP verification. If the project proponent
requested a waiver of a limit in an NWP, the waiver is not granted
unless the district engineer makes a written determination that the
proposed activity will result in no more than minimal individual and
cumulative adverse environmental effects and issues an NWP
verification.
F. Severability
The purpose of this section is to clarify the Corps' intent with
respect to the severability of the NWPs in this action. Each NWP in
this action operates independently and is an individual agency action.
If any particular NWP of this action is determined by judicial review
or operation of law to be invalid, that partial invalidation will not
render the
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remainder of the NWPs in this action invalid. Likewise, if the
application of any NWP to a specific activity in a particular location
is determined to be invalid, the Corps intends that the NWP remain
applicable to all other eligible activities.
II. Discussion of Public Comments
A. Overview
In response to the 2025 Proposal, the Corps received comments from
more than 450 states, tribes, organizations, and individuals. Many
commenters co-signed joint letters commenting on the 2025 Proposal. The
Corps received around two hundred individual comment letters. One
commenter attached more than 750 documents to their comments. The
attached documents were comments originally submitted in response to
the Department of the Army's March 2022 Federal Register notice (87 FR
17281) and were specific to NWP 12. The individual comment letters,
including the attached comments that were re-submitted from the 2022
docket, are posted on <a href="http://regulations.gov">regulations.gov</a> docket (COE-2025-0002) for this
rulemaking action. The Corps reviewed and considered all comments
received in response to the 2025 Proposal.
B. Responses to General Comments
Many commenters expressed general support for the reissuance of the
NWPs and many commenters expressed opposition to the NWP program or to
the use of NWPs to authorize certain activities or activities in
certain locations. Many commenters encouraged the Corps to finalize the
rule to reissue the NWPs before the existing NWPs expire on March 14,
2026. Several commenters stated that the NWPs should be revoked. Many
commenters stated that the NWPs streamline the permit process. One
commenter stated that the NWPs strike a balance between environmental
protection of the aquatic environment and reasonable economic
development. One commenter stated that the Corps should ensure that the
issuance of this final action does not add unnecessary costs to, or
unnecessarily delay, the permitting process.
One commenter stated that the NWP program allows the Corps to focus
its limited resources on reviewing permit applications that would
result in more than minimal environmental impacts. Many commenters
requested that the Corps increase permitting efficiencies in the NWP
program, through this rulemaking, future rulemakings, and other
administrative actions. Many commenters suggested that the Corps
undertake a second rulemaking before the NWPs in this final action
expire. Many commenters suggested changes to the NWPs that should be
considered in future rulemakings. One commenter stated that the NWPs do
not cover routine activities, which causes Corps Districts to use
resources to develop Regional General Permits.
The NWP program provides a mechanism to efficiently authorize
activities that have no more than minimal adverse environmental effects
on the environment. The NWP program is an important part of the
Regulatory program because it allows the Corps to focus its finite
resources on evaluating applications for Department of the Army (DA)
authorization which cause more than minimal adverse environmental
effects. The NWP program furthers the regulatory approach of the Corps
Regulatory program that is articulated in 33 CFR 320.1(a)(3), to avoid
unnecessary regulatory controls, and in 33 CFR 320.1(a)(1), to balance
favorable impacts against detrimental impacts, reflecting the national
concerns for both the protection and utilization of important
resources. In accordance with 33 CFR 330.5(b)(1) anyone may, at any
time, suggest changes to the NWPs to the Chief of Engineers. From time
to time, but at least every 5 years, the Chief of Engineers will
evaluate new NWPs and revocations or modifications to existing NWPs.
Many commenters stated that the proposed NWPs do not comply with
the CWA, the National Environmental Policy Act (NEPA), the Endangered
Species Act, and the National Historic Preservation Act. Many
commenters stated that the NWPs achieve the goals in various Executive
Orders, including Executive Order 14154 ``Unleashing Energy
Dominance'', issued on January 20, 2025. Many commenters stated that
the NWPs do not comply with the Administrative Procedure Act, stating
that the Corps did not allow adequate time to comment or adequately
explain its decision. One commenter stated that all technical
documents, internal documents, regional manuals, document templates,
and other interpretive materials used by the Corps must comply with the
Administrative Procedures Act.
The decision to reissue, modify, or issue the NWPs is made in
compliance with the CWA, NEPA, the Endangered Species Act, the National
Historic Preservation Act, and other federal laws. Comments and
responses to comments on compliance with the CWA, NEPA, ESA, and NHPA
are discussed in more detail in Section III of this final action. The
Administrative Procedure Act governs the process by which federal
agencies issue regulations and publish notices in the Federal Register.
This rulemaking has been conducted in accordance with the
Administrative Procedure Act and Executive Order 12866. The manner in
which unidentified technical documents and other unidentified documents
used by the Corps are developed and approved is beyond the scope of
this rulemaking.
Many commenters stated that the NWPs provide clear guidance. One
commenter requested that the NWPs include precise procedures for how to
apply the NWP program in each circumstance. This final action
incorporates modifications to the NWPs to provide additional clarity to
potential permittees. The application of the terms of each NWP, in
combination with the general conditions and other information in this
final action, as well as any regional conditions, address how an NWP
will be applied to a proposed specific activity.
Many commenters and several tribes stated that the proposed rule
did not allow for adequate time to meaningfully participate in the
rulemaking process and requested extensions to the deadline to comment
on the proposed rule. Some commenters stated that this rulemaking is
procedurally deficient. One commenter objected to extending the comment
period. Several commenters recognized that the Corps had limited time
to complete the current rulemaking and recommended that the future
rulemaking for the NWPs allow for a longer comment period.
For the 2025 proposed rule, the Corps provided a 30-day comment
period. The 2025 Proposal to reissue, issue, or modify the NWPs
described modest changes to the 2021 NWPs. Of the 57 existing NWPs,
changes were proposed to 13 NWPs and one new NWP was proposed. There
were no changes proposed to 43 NWPs. The Corps believes that a 30-day
review period allowed for adequate time to provide substantive comments
on the proposed rule. The Corps sent response letters to entities that
made timely requests for extensions of the comment period for the 2025
Proposal. The process and timing of any future rulemaking for the NWPs
are beyond the scope of this rulemaking.
One commenter requested a public hearing on the 2025 Proposal and
stated that the Corps should offer to hold meetings with the public and
tribes to receive input on the 2025 Proposal. The Corps declined to
hold a public hearing or public meetings on the proposed NWPs because
it determined that a
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public hearing or public meeting was unlikely to provide additional
information that would inform the Corps' decision whether to reissue,
issue, or modify these NWPs. Under the Corps' regulations at 33 CFR
327.4(b), requests for public hearing under this paragraph shall be
granted, unless the Corps determines that the issues raised are
insubstantial or there is otherwise no valid interest to be served by
holding a public hearing. The Corps received around two hundred
comments on the proposed rule, and it is unlikely that any statements
provided during a public hearing would raise issues that are different
than the issues or concerns discussed in the written comments received
in response to the 2025 Proposal.
One commenter stated that the NWPs are useful for development with
minimal impacts to waterways. Many commenters stated that the NWPs
result in more than minimal adverse environmental impacts. Many
commenters stated that the Corps should achieve ``no net loss'' of
wetlands. Many commenters stated that the NWPs promote avoidance and
minimization of environmental impacts. Many commenters opposed the NWPs
because they do not require avoidance and minimization of impacts.
Section 404(e) of the CWA recognizes that activities authorized by
general permits, including NWPs, will result in adverse environmental
impacts, but limits those adverse impacts so that they can only be no
more than minimal. The Corps has adopted terms and conditions for the
NWPs to be sufficiently protective of the aquatic environment while
allowing activities that result in no more than minimal adverse
environmental effects to be conducted. There is no federal statute or
regulation that requires ``no net loss'' of aquatic resources. The ``no
overall net loss'' goal for wetlands articulated in the 1990 U.S. EPA-
Army Memorandum of Agreement for mitigation for CWA Section 404 permits
states that the Section 404 permit program will contribute to that
national goal. The 1990 Memorandum of Agreement only applies to
standard individual permits, not to general permits.
The NWPs authorize impacts with less paperwork and a shorter
processing time for project proponents than standard individual
permits. These differences in burden can incentivize project proponents
to voluntarily reduce the adverse effects of their planned activities
that would otherwise require an individual permit under Section 404 of
the CWA and/or Section 10 of the RHA, in order to qualify for NWP
authorization. This reduction in adverse effects can therefore reduce a
project's impact on the Nation's aquatic resources. General condition
23 (Mitigation) requires permittees to design and construct their
projects to avoid and minimize adverse effects, both temporary and
permanent, to waters of the United States to the maximum extent
practicable at the project site.
Many commenters suggested removing or raising the \1/2\-acre impact
limit of loss of waters for the NWPs. Many commenters recommended
raising the \1/2\-acre impact limit to three acres.
We are retaining the acreage limits for those NWPs that have
specified acreage limits. Comments suggesting changes to the acreage
limits of a specific NWP are summarized in the section of the preamble
that discusses the comments received on that NWP. The acreage limits,
along with the current PCN thresholds, other terms of the NWPs, in
combination with the general conditions satisfy the requirements of
Section 404(e) of the CWA and ensure that the NWPs authorize no more
than minimal adverse environmental impacts both individually and
cumulatively. In addition, division engineers have the authority to
modify NWPs on a regional basis to reduce acreage limits through
regional conditions and district engineers, upon review of a PCN, can
modify an NWP verification to ensure that a case-specific activity will
have no more than minimal adverse environmental effects.
In areas of the United States where higher acreage limits (e.g.,
one or two acres) would be appropriate for general permit
authorizations, district engineers have the authority to issue regional
general permits. A number of NWPs are self-limiting, in that the
category of activities authorized by that NWP acts as a limit (e.g.,
NWP 10, which authorizes a single, non-commercial mooring buoy). For
those self-limiting NWPs, acreage and linear foot limits are not
necessary to control the adverse environmental effects of those
activities. In NWPs which have impact limits or PCN thresholds, the
acre impact limits, in conjunction with the PCN thresholds, and the \1/
10\-acre loss of wetlands and \3/100\-acre loss of stream bed
compensatory mitigation thresholds are sufficient to protect waters of
the United States to ensure the NWPs cause no more than minimal adverse
environmental effects.
Many commenters stated that the Corps should reinstate the 300
linear foot impact limit for losses of stream bed in NWPs 21 (Surface
Coal Mining Activities), 29 (Residential Developments), 39 (Commercial
and Institutional Facilities), 40 (Agricultural Activities), 42
(Recreational Facilities), 43 (Stormwater Management Facilities), 44
(Mining Activities), 50 (Underground Coal Mining Activities), 51 (Land-
Based Renewable Energy Generation), and 52 (Water-Based Renewable
Energy Generation Pilot Projects). Many commenters stated that removal
of the 300 linear foot limit from NWPs 21, 29, 39, 40, 42, 43, 44, 50,
51 and 52 allows unlimited impacts to streams. One commenter
recommended adding a linear foot impact limit of 500 feet.
The 300 linear foot impact limit was removed from 10 NWPs and the
\3/100\-acre threshold for stream compensatory mitigation for NWP
activities was established in the 2021 NWPs as explained in the final
rule to issue the 2021 NWPs (86 FR 2761-2768) and remains the Corps'
position. The Corps will rely on other, existing protective mechanisms
within the NWPs to ensure that the activities authorized by these NWPs
will result in no more than minimal individual and cumulative adverse
environmental effects. Those mechanisms include the \1/2\-acre impact
limit, the PCN requirements for these NWPs, and the ability of division
and district engineers to further condition or restrict the
applicability of an NWP in situations where they have concerns for the
aquatic environment under the CWA Section 404(b)(1) Guidelines or for
any factor of the public interest (see 33 CFR 330.1(d)).
Many commenters requested that all NWPs require PCNs for all
activities. Many commenters stated that no PCN requirement should be
changed. A few commenters stated that thresholds for PCN requirements
should be lowered. Many commenters stated that the PCN requirements
should be reduced. One commenter stated that the acreage threshold for
triggering PCNs for certain NWPs is arbitrarily determined. One
commenter stated that PCNs create unnecessary work and delay. Many
commenters stated that the Corps should not exempt federal agencies
from requirements to submit PCNs. Many commenters stated that by not
requiring PCNs for every NWP activity, the Corps is failing to meet its
statutory and regulatory obligations.
In this final action, we have retained the PCN thresholds that were
in the 2025 Proposal. PCNs are an important mechanism to ensure that
the NWPs only authorize those activities that have no more than minimal
individual and cumulative adverse environmental effects. Pre-
construction notifications allow district engineers to evaluate the
[[Page 776]]
activity- and site-specific circumstances of proposed NWP activities to
decide whether those activities are eligible for NWP authorization or
require individual permits. In addition, PCNs provide district
engineers with the opportunity to impose activity-specific conditions
on the NWPs, including mitigation requirements, to ensure that the
regulated activity will cause no more than minimal adverse
environmental effects.
We agree that federal agencies that use the NWPs to authorize their
activities must submit a PCN when required by the terms of the NWP and
certain general conditions. General conditions 18 (Endangered Species)
and 20 (Historic Properties) require federal agencies to follow their
own implementing procedures for complying with the ESA and NHPA.
Federal agencies do not have to submit a PCN to satisfy general
conditions 18 or 20 if no PCN is required by the terms of the NWP which
authorizes the proposed regulated activity or by any other general
condition. Section 404(e) of the CWA does not mandate that the Corps
track all NWP activities. Since the inception of the NWP program in
1977, many of the NWPs have not required PCNs, thus the changes that
are being finalized are not a departure from the Corps' practice or
procedures. The Corps will continue to use reliable data and resources
to analyze the effects of the NWP Program.
One commenter stated that the PCN thresholds should be set to \1/
10\-acre or 300 linear feet. One commenter stated there is no
ecological support for differing thresholds between \1/10\th and \1/2\
acres for cumulative impacts.
For NWPs that have an acreage PCN threshold, the Corps has set that
threshold at \1/10\-acre. The \1/10\-acre threshold is a sufficiently
protective limit to allow district engineers review PCNs and provide
opportunity to impose activity-specific conditions on the NWPs,
including mitigation requirements, to ensure that the regulated
activity will cause no more than minimal adverse environmental effects.
The areal limit is also a more consistently understood measurement of
impact compared to the length limit. The \1/2\-acre limit to loss of
waters of the United States, where NWPs have such a limit, in
combination to the PCN requirements and other terms and condition of
the NWP are sufficient to ensure that the NWPs will cause no more than
minimal adverse environmental effects, individually and cumulatively.
Many commenters requested clarification on how to submit a PCN for
a linear project that spans more than one Corps district. Prospective
permittees of linear projects that cross the boundaries of a Corps
district or division may submit a PCN to one of the districts where
regulated activities in waters of the United States are proposed. When
the Corps receives an NWP PCN for activities that cross the boundary of
a Corps district or division, a lead Corps district will be designated
and serve as a single point of contact for each permit applicant.
Several commenters stated that all NWPs should require PCNs so the
Corps can coordinate or consult with tribes on proposed NWP activities.
Many commenters stated that activities should not be authorized by an
NWP when they interfere with tribal rights. Several commenters stated
that regional conditions should be modified to ensure that the NWPs do
not authorize impacts to any lands or waters ceded in treaties, impacts
to treaty rights, or any sacred/cultural site/landscape.
Consistent with general condition 17 (Tribal Rights), no activities
are authorized by NWP where they impair reserved tribal rights. Corps
districts consulted with tribes during the process for reissuing the
NWPs and those consultation efforts may have resulted in regional
conditions or coordination procedures with tribes to help ensure
compliance with general condition 17. District engineers can develop
regional conditions and develop protocols regarding tribal notification
that build upon the existing Department of Defense, Army, and Corps'
tribal consultation policies. In geographic areas where there are
regional concerns about impacts to a particular waterbody or a
sensitive aquatic resource, division engineers have the discretionary
authority to suspend, modify, or revoke this NWP in a region or
location. During review of a PCN, the district engineer will assess the
proposal for compliance with general condition 17.
One commenter stated that the Corps should audit a sample of NWPs
each year and publish the result of the audit in a report. One
commenter recommended treating commercial and non-commercial project
proponents differently, such as conditioning permits to protect certain
landowners from harsh enforcement actions. Several commenters stated
that the Corps should refuse to authorize activities after-the-fact if
a PCN was not submitted.
If a permittee receives a verification letter, they must certify
their compliance with the NWP, including any conditions to the NWP in
accordance with general condition 30 (Compliance Certification). Corps
districts conduct compliance inspections on a proportion of permit
actions authorized each year, including activities authorized by NWPs.
If a project proponent fails to comply with the terms and conditions of
an NWP, then the activity is not authorized by that NWP and the
district engineer may pursue compliance of an unauthorized action
pursuant to 33 CFR 326. The district engineer has discretion how to
resolve unauthorized actions, including whether to require restoration,
accept an application for an after-the-fact authorization, or other
remedies.
One commenter requested definition of the term ``verification.'' As
described in Section I.E. of this action, when a project proponent
submits a PCN and the district engineer agrees that the proposed
activity is authorized by an NWP, the district engineer sends a
verification letter to the project proponent verifying that the
proposed activity is authorized by an NWP. The district engineer is not
issuing a permit, rather they are verifying that the proposed activity
complies with the terms and conditions of an issued NWP. The NWP PCN
and verification are a streamlined process, intended to be completed by
the project proponent and district engineer with a minimal amount of
paperwork.
Some commenters recommended that the Corps revise the CWA, various
Corps regulations in 33 CFR parts 320 through 332, regional general
permits, and the regulations for implementing Section 401 of the Water
Act.
The Corps does not have authority to amend the statutory provisions
of the CWA. The implementing regulations for Section 401 of the CWA are
under the authority of the EPA and are beyond the scope of the Corps'
authority to modify. Rulemaking for sections of Corps regulations
beyond the reissuance of these NWPs are outside the scope of this
rulemaking. Several commenters provided comments on concerns over
specific impacts or permit actions in various regions or objections to
regional general permits, which are beyond the scope of this review and
will be addressed by the districts that issued them.
Many commenters stated these NWPs support the national priorities
for energy infrastructure development. One commenter stated that
Executive Order 14156 (Declaring a National Energy Emergency) has
reduced statutory protections of natural resources. Many commenters
support the timely reissuance of the NWPs to avoid disruption to energy
infrastructure projects.
[[Page 777]]
Use of emergency procedures does not obviate legal requirements to
comply with all applicable laws and regulations. Consequently,
compliance with other laws such as the NEPA, Endangered Species Act,
the National Historic Preservation Act, and others are still required.
The NWPs can provide a streamline process to more quickly issue DA
authorization for activities which meet the terms and NWP conditions.
Many commenters stated that the NWPs do not consider climate change
or environmental justice concerns. During the process to reissue or
modify the NWPs, the Corps considers the adverse environmental effects
of the reissuance of these NWPs in accordance Section 404(e) of the
CWA, Section 10 of the RHA, and in compliance with applicable
environmental laws, regulation, guidance and policy, as limited by the
scope of our authority. Executive Order 14148--Initial Rescissions of
Harmful Executive Orders and Actions (January 20, 2025) revoked several
prior executive orders which addressed climate change and environmental
justice concerns. Revoked orders included Executive Order 13990--
Protecting Public Health and the Environment and Restoring Science To
Tackle the Climate Crisis (January 20, 2021); Executive Order 14008--
Tackling the Climate Crisis at Home and Abroad (January 27, 2021);
Executive Order 13985--Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government (January 20,
2021); and Executive Order 14096--Revitalizing Our Nation's Commitment
to Environmental Justice for All (April 21, 2023).
Executive Order 14154--Unleashing American Energy (January 20,
2025) provided further policy guidance on the consideration of climate
change in agency regulatory analyses. On May 5, 2025, the Office of
Management and Budget distributed further guidance to agencies (as
required by E.O. 14154) which restricted consideration of greenhouse
gas emissions in agency regulatory and permitting decision-making. In
Executive Order 14151--Ending Radical and Wasteful Government DEI
Programs and Preferencing (20 January 2025), the President of the
United States directed the termination of environmental justice
initiatives. On May 8, 2025, the Acting Assistant Secretary of the Army
(Civil Works) rescinded the Corps' Environmental Justice strategic
plan. The level of analysis and consideration of climate change and
environmental justice concerns in the national decision documents and
this final action comply with these Executive Orders and directives.
C. Responses to Comments on Regional Conditions of Nationwide Permits
Under Section 404(e) of the CWA, NWPs can only be issued for those
activities that result in no more than minimal individual and
cumulative adverse environmental effects. Corps regulations impose the
same standard for general permits that authorize activities under
Section 10 of the RHA (33 U.S.C. 403) (33 CFR 330.1(b), (g)). The NWP
terms and general conditions to the NWPs may not account for regional
differences; therefore, regional conditions imposed by division
engineers are an important mechanism for addressing those regional
differences and ensuring compliance with statutory requirements.
Effective regional conditions help protect local aquatic ecosystems and
other resources and the functions and services they provide. They also
help ensure that the NWPs authorize only those activities that result
in no more than minimal individual and cumulative adverse effects on
the aquatic environment and are not contrary to the public interest.
There are two types of regional conditions: (1) Corps regional
conditions and (2) water quality certification/CZMA consistency
concurrence regional conditions. Corps regional conditions are added to
the NWPs by division engineers in accordance with the procedures at 33
CFR 330.5(c). Water quality certification and Coastal Zone Management
Act consistency concurrence regional conditions are also added to the
NWPs if an appropriate authority grants a water quality certification
or CZMA consistency concurrence with conditions for the issuance,
reissuance, or modification of the NWPs prior to the effective date of
the issued, reissued, or modified NWPs.
Examples of Corps regional conditions include:
<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 cumulative adverse
effects on Essential Fish Habitat.
Regional conditions are modifications of the NWPs that are made by
division engineers. Regional conditions can only add conditions to, or
further restrict the applicability of, an NWP (see 33 CFR 330.1(d)).
Corps regional conditions approved by division engineers cannot remove
any of the terms and conditions of the NWPs, including general
conditions. Corps regional conditions cannot increase PCN thresholds or
remove notification requirements, but they can lower PCN thresholds to
require PCNs for more activities authorized by a specific NWP. In
summary, Corps regional conditions can only be more restrictive than
the NWP terms and conditions established by Corps Headquarters when it
issues or reissues an NWP.
Corps regional conditions may be added to NWPs by division
engineers after a public notice and comment process and coordination
with appropriate federal, state, and local agencies, as well as tribes.
After Corps
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Headquarters published, in the Federal Register, the proposed rule to
issue, reissue, or modify NWPs, district engineers issued local public
notices to announce the availability of the proposed rule for review
and comment and to solicit public comment on proposed regional
conditions and/or proposed suspensions or revocations of NWP
authorizations for specific geographic areas, classes of activities, or
classes of waters (see 33 CFR 330.5(b)(2)(ii)). These local public
notices usually have a 45-day comment period. The local public notices
also solicited suggestions from the public and interested agencies on
additional regional conditions that they believe are necessary to
ensure that the NWPs authorize only those activities that have no more
than minimal adverse environmental effects.
Comments on proposed regional conditions were evaluated by the
Corps district that issued the public notice. Corps districts also
consulted or coordinated with tribes to identify and propose regional
conditions to ensure compliance with general condition 17 (Tribal
Rights) and fulfill the Corps' tribal trust responsibilities. The
process for adding Corps regional conditions to the NWPs is described
at 33 CFR 330.5(c). The regulations for the regional conditioning
process were promulgated in 1991, with the proposed rule published in
the Federal Register on April 10, 1991 (56 FR 14598) and the final rule
published in the Federal Register on November 22, 1991 (56 FR 59110).
In response to the districts' local public notice, interested
parties suggested additional Corps regional conditions or changes to
Corps regional conditions. Interested parties also suggested suspension
or revocation of NWPs in certain geographic areas, such as specific
watersheds or waterbodies. Such comments should include data to support
the need for the suggested modifications, suspensions, or revocations
of NWPs.
After the public comment period ended for the districts' local
public notices, each Corps district evaluated the comments received in
response to their local public notice and began preparing, as required
by 33 CFR 330.5(c)(1)(iii), supplemental documents for each NWP. Each
supplemental document evaluates the NWP on a regional basis (e.g., by
Corps district geographic area of responsibility or by state) and
discusses whether regional conditions are needed for that NWP to ensure
that authorized activities result in no more than minimal individual
and cumulative adverse environmental effects. Each supplemental
document will also include a statement by the division engineer that
will certify that the NWP, with approved regional conditions, will
authorize only those activities that will have no more than minimal
individual and cumulative adverse environmental effects.
The supplemental documents may cover a Corps district, especially
in cases where the geographic area of responsibility for the Corps
district covers an entire state. The supplemental documents may also
cover portions of multiple Corps districts in cases where more than one
Corps district has a geographic area of responsibility in a single
state. The supplemental documents include an evaluation of public and
agency comments on proposed and suggested regional conditions, with
responses to those comments, to show that the views of potentially
affected parties were fully considered (33 CFR 330.5(c)(1)(ii)). Each
supplemental document also explains how substantive comments submitted
in response to the local public notice were considered. After the
supplemental documents for the NWPs are drafted by the district, they
are sent to the division engineer for review along with the district's
recommendations for regional conditions. The division engineer may
approve the supplemental documents and the district's recommended
regional conditions. Alternatively, the division engineer may also
request changes to one or more supplemental documents, including
changes to the regional conditions recommended by the district in those
supplemental documents.
After the division engineer approves regional conditions for the
NWPs by signing the supplemental documents, the district issues a
public notice announcing the final Corps regional conditions and when
those regional conditions go into effect (see 33 CFR 330.5(c)(1)(v)).
The district's public notice will be posted on its website. Copies of
the district's public notice are also sent to interested parties that
are on the district's public notice mailing list via email or the U.S.
mail. The public notice will also describe, if appropriate, a
grandfathering period as specified by 33 CFR 330.6(b) for those project
proponents who have already commenced work under the NWP or are under
contract to commence work under the NWP (see 33 CFR 330.5(c)(1)(iv)).
Copies of all Corps regional conditions approved by the division
engineers for the NWPs are forwarded to Corps Headquarters (see 33 CFR
330.5(c)(3)).
The purpose of regional conditions is to tailor the NWPs to account
for regional differences in aquatic resource types, the functions they
provide, and their value to the region so that the NWPs in a particular
geographic area authorize only those activities that result in no more
than minimal individual and cumulative adverse environmental effects.
Requiring consistency among regional conditions at a national level
would be contrary to the purpose of regional conditions and would
reduce the utility of the NWPs. In other words, the ability to add
restrictions to one or more NWPs at a regional level to ensure that
those activities result in no more than minimal individual and
cumulative adverse environmental effects, allows the national terms and
conditions to be less restrictive in other areas of the country where
additional restrictions may not be necessary or relevant to the aquatic
ecosystem.
The ability to tailor the NWP program in specific areas of the
country allows the NWPs to authorize more activities than would be
possible if the need for greater restrictions in one part of the
country had to be applied to the nation as a whole. Corps regional
conditions should be written clearly and provide only the additional
restrictions that are necessary to ensure that NWP activities in the
applicable geographic region result only in minimal individual and
cumulative adverse environmental effects, consistent with the
requirements of Section 404(e) of the CWA.
Under 33 CFR 330.5(c), the authority to approve Corps regional
conditions is assigned to division engineers. A division engineer can
take steps to provide consistency in Corps regional conditions for the
districts within her or his division. However, it should also be noted
that the eight Corps divisions encompass large geographic regions and
there can be substantial differences in aquatic resource types,
functions, services, and values within a Corps division. For example,
the Corps' Northwestern Division extends from the northwest coast to
the Midwest, with oceanic and estuarine waters along the coasts of
Oregon and Washington, to inland wetlands and rivers in Missouri and
Nebraska. As another example, the Mississippi Valley Division extends
from Louisiana, with its extensive coastal wetlands and bottomland
hardwood forests to Minnesota, which has many lakes, bogs, marshes, and
swamps.
In addition, there are usually also substantial differences in
other resources that are subject to regional conditions that may be
developed to
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assist in the Corps' compliance with other applicable federal laws,
such as Section 7 of the Endangered Species Act, the Essential Fish
Habitat provisions of the Magnuson-Stevens Fishery Conservation and
Management Act, Section 106 of the National Historic Preservation Act,
and the Wild and Scenic Rivers Act. The presence and ranges of
endangered and threatened species, and the locations of designated
critical habitat often vary substantially within a Corps division. Most
coastal Corps districts have essential fish habitat in their geographic
areas of responsibility, whereas inland districts do not.
Regional conditions may also be developed to address tribal treaty
rights and trust resources, which likely vary from tribe to tribe.
Therefore, because of these factors, consistency in regional conditions
necessary to ensure that NWPs only authorize activities that have no
more than minimal adverse environmental effects cannot be practicably
achieved at a national or division level without reducing the
availability of NWPs in other areas of the country.
Consistent with the Corps' approach to providing more transparency
in the process for proposing and adding regional conditions to the NWPs
that was adopted for the 2021 NWPs, the Corps posted copies of the
district public notices soliciting input for proposed and suggested
regional conditions in the <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 publication of this final action
to reissue the NWPs, the Corps will post copies of all district public
notices announcing the final regional conditions in the
<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.
If, after the NWPs go into effect, division or district engineers
receive new information that calls for new or modified Corps regional
conditions to ensure that authorized activities cause no more than
minimal individual and cumulative adverse environmental effects, Corps
division and district engineers may work together to propose and
approve new or modified regional conditions after following the
procedures in 33 CFR 330.5(c). Adding new Corps regional conditions, or
modifying existing Corps regional conditions, after the final action
issuing or reissuing the NWPs go into effect includes a public notice
and comment process and amending supplemental documents for those Corps
regional conditions. Information on regional conditions for the NWPs,
and on the suspension or revocation of one or more NWPs in a particular
area, can be obtained from the appropriate district engineer.
A few commenters recommended eliminating regional conditions or
objected to applying regional conditions the NWPs. Many commenters
stated the Corps should make PCN requirements and interpretations among
the Corps districts standardized. A few commenters expressed support
for applying regional conditions to ensure the NWPs result in no more
than minimal adverse environmental effects in a region. One commenter
stated that regional conditions are the most effective way to ensure
compliance with an NWP. One commenter stated that the Corps should
publish the justifications for each regional condition. One commenter
stated that the Corps Headquarters should review and approve regional
conditions.
The NWPs establish terms and conditions for authorization of
regulated activities for the nation. Regional conditions provide
flexibility to consider the variety of waters of the United States,
quality of the aquatic resources, or regional concerns for specific
types of impacts to waters of the United States while continuing to
ensure that the NWPs will cause no more than minimal adverse
environmental effects. Supplemental documentation is publicly
available, and division engineers may make supplemental documents
available on their websites, at their discretion. After this action is
finalized, district engineers will issue public notices to notify the
public of the final regional conditions to the NWPs.
Water Quality Certification and Coastal Zone Management Authorization
Regional Reviews
The processes for states, approved tribes, and EPA to issue water
quality certifications (WQCs) for the issuance of the NWPs, and for
states to issue general CZMA consistency concurrences for the NWPs are
separate from the Corps' process in 33 CFR 330.5(c) for division
engineers adding Corps regional conditions to the NWPs. The WQC process
is governed by EPA's regulations at 40 CFR part 121, and by the
regulations and policies of certifying authorities, such as states,
tribes approved by EPA to administer their own water quality
certification programs, or EPA regions. EPA regions act as the
certifying authorities where no state or tribe has authority to issue
certification (33 U.S.C. 1341(a)(1)). Currently, EPA acts as the
certifying authority in two scenarios: (1) on behalf of tribes without
``treatment in a similar manner as a state'' (TAS) for CWA Section 401
and (2) on lands of exclusive federal jurisdiction in relevant
respects.
The CZMA consistency process is governed by regulations issued by
the Department of Commerce at 15 CFR part 930. Individuals who are
interested in providing comments specific to WQCs and CZMA consistency
determinations for the issuance or reissuance of the NWPs should submit
their comments directly to the appropriate state, authorized tribe, or
EPA regional office. Because these processes are separate from the
Corps' regional conditioning process, the public notices issued by
states, authorized tribes, and EPA regions during the WQC and CZMA
consistency determination processes will not be included in the docket
for this rulemaking action.
The Corps' regulations for establishing WQC regional conditions for
the NWPs are provided at 33 CFR 330.4(c)(2). If, prior to the issuance
or reissuance of NWPs, a state, authorized tribe, or EPA region issues
a CWA Section 401 water quality certification with conditions, the
division engineer will make those water quality certification
conditions regional conditions for the applicable NWPs, unless she or
he determines those conditions do not comply with 33 CFR 325.4 (see 33
CFR 330.4(c)(2)).
If the division engineer determines those water quality
certification conditions do not comply with 33 CFR 325.4, then the
conditioned water quality certification will be considered denied, and
the project proponent will need to request an activity-specific water
quality certification for the proposed activity which may result in any
discharge from a point source into waters of the United States from the
certifying authority. That certification request must satisfy the
requirements of 40 CFR 121.5. The certifying authority may grant, grant
with conditions, or deny water quality certification for an individual
license or permit, for any activity which may result in any discharge
into waters of the United
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States (see 40 CFR 121.7), including an activity-specific discharge
into waters of the United States that may be authorized by an NWP.
A similar process applies to a CZMA consistency concurrence issued
by a state for the issuance of an NWP (see 33 CFR 330.4(d)(2)). If the
division engineer determines those CZMA concurrence conditions do not
comply with 33 CFR 325.4, then the conditioned CZMA consistency
certification will be considered an objection (see 15 CFR 930.4(b)),
and the project proponent will need to request an activity-specific
CZMA consistency concurrence from the state under subpart D of 15 CFR
part 930.
After division engineers finalize Corps regional conditions and
determined whether conditions in WQCs and CZMA consistency concurrences
for the issuance or reissuance of the NWPs are WQC/CZMA regional
conditions for the NWPs, Corps districts will issue public notices
announcing the final Corps and WQC/CZMA regional conditions, and the
status of WQCs and CZMA consistency concurrences for the final NWPs.
Corps Headquarters will post copies of these district public notices in
the <a href="http://regulations.gov">regulations.gov</a> docket (docket number COE-2025-0002), under
``Supporting and Related Material.''
D. Responses to Comments on Nature-Based Solutions and the NWP Program
In the 2025 Proposal, the Corps proposed to add a definition for
``nature-based solutions'' to the NWPs, in Section F, Definitions.
Nature-based solutions can be incorporated into regulated activities
authorized by NWP 13 (bank stabilization activities), NWP 27 (aquatic
ecosystem restoration, enhancement, and establishment activities), NWP
31 (maintenance of existing flood control facilities), NWP 41
(reshaping existing drainage and irrigation ditches), NWP 43
(stormwater management facilities), NWP 54 (living shorelines), NWP 55
(seaweed mariculture activities), NWP 59 (water reclamation and reuse
facilities), and NWP A (Activities to Improve Passage of Fish and Other
Aquatic Organisms). The Corps also proposed modifications to some NWPs
(e.g., NWPs 13 and 43) to enhance the ability of those NWPs to
authorize regulated activities associated with nature-based solutions.
Many commenters expressed support for the addition of this
definition. One commenter recommended that the Corps consider including
the phrases ``best management practices'' and ``stormwater control
measures'' in the definition of ``nature-based solutions'' or instead
of ``nature-based solutions.'' One commenter objected to the inclusion
of ``regenerative stormwater conveyances'' and ``natural channel
design'' as acceptable practices of ``nature-based solutions.'' One
commenter recommended using more commonly known terms such as ``green
infrastructure'' or ``low-impact development'' instead of ``nature-
based solutions.''
``Best management practices,'' ``stormwater management,'' ``green
infrastructure,'' and ``low-impact development'' are subcategories of
nature-based solutions. The terms ``best management practices,''
``stormwater management,'' and ``stormwater management facilities'' are
already defined in Section F (Definitions) of this action. Nature-based
solutions can include ``regenerative stormwater conveyances,'' which
can result in benefits to an ecosystem, however these types of
activities may not result in a project that meets an ecological
reference and therefore may not be authorized by NWP 27 (Aquatic
Ecosystem Restoration, Enhancement, and Establishment). Nature-based
solutions include a wider range of actions, protection, management,
restoration of ecosystems resulting in a broader range of benefits.
Nature-based solutions can vary in the degree to which they involve
natural or restored ecosystems and engineered components. We have not
included ``natural channel design'' as an example of a nature-based
solution.
One commenter recommended revising this definition to be consistent
with the definition of ``nature-based solutions'' used by other Corps
and federal agency programs. Many commenters recommended deleting
overly broad language from the definition relating to societal
challenges, suggesting that they could lead to challenges in
interpretation and are aspirational. One commenter suggested adding
``that ensure no net loss of ecological function'' to the end of the
definition.
The Corps declines to adopt a different definition of nature-based
solutions than was proposed, and will include the language in the new
definition referring to societal challenges. Societal challenges can be
environmental and include water security and disaster-risk reduction.
District engineers have the discretion to determine whether a proposed
activity may be authorized by an NWP. Definitions for nature-based
solutions generally have the elements of conservation, restoration, or
management of natural systems for the benefit of people and
environments. We have adopted the definition of nature-based solutions
from Cohen-Shacham and others (2016). The Corps declines to require
that nature-based solutions ensure no net loss of ecological function
as inclusion of that requirement would discourage the use of nature-
based solutions. Nature-based solutions provide benefits to the
ecosystem but may not result in no net loss of ecological function.
One commenter suggested incorporating a list of examples of nature-
based solutions in the definition. One commenter stated that the term
``nature-based solutions'' is used differently in NWPs 13 and 43. One
commenter suggested expanding the list of nature-based solutions
examples to include vegetative stabilization and bioengineering. One
commenter recommended removing thin-layer placement of sediment as an
example of nature-based solutions out of concern that use of such an
example would create a perceived narrowing of the types of sediment
placement activities that may be authorized by NWP 27.
In this action, the Corps has proposed a new definition of
``nature-based solutions.'' Nature-based solutions can vary in the
degree to which they involve natural or restored ecosystems and
engineered components. Nature-based solutions may result in avoidance
or minimization of adverse effects of authorized activities. They may
also cause adverse effects to waters of the United States while
providing other benefits to the aquatic ecosystem.
Some nature-based solutions will not qualify for authorization
under certain NWPs which authorize nature-based solutions because the
proposed activity does not meet the terms and conditions of that NWP.
For instance, a proposed activity that is a nature-based solution may
not be authorized by NWP 27 (aquatic ecosystem restoration,
enhancement, and establishment activities) because it involves
engineered features that do not resemble ecological references.
Examples of nature-based solutions are listed in the terms of NWP 13
(bank stabilization activities) and NWP 43 (stormwater management
facilities). The list of examples in each of these NWPs will be
necessarily different because of the difference in the purpose of the
regulated activities authorized by each of those NWPs.
Nature-based solutions associated with bank stabilization
activities can include use of seawalls and bulkheads that are
constructed with materials that have textured surfaces (e.g., crevices,
depressions, pits, grooves, gaps) that
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provide structural complexity and microhabitats that habitat-forming
sessile organisms such as barnacles, branching coralline algae,
bivalves, algae, and corals can attach to, grow on, and further enhance
habitat structure (Strain et al. 2017) for other aquatic organisms.
Fish may feed on the aquatic organisms attached to these seawalls and
bulkheads, and aquatic organisms can be attracted to the structural
habitat on these seawalls and bulkheads. Seawalls and bulkheads
constructed with textured surfaces and other features to increase
habitat complexity and are colonized by benthic organisms, such as
seaweeds and sessile animals, and may attract and support populations
of juvenile fish, including salmon species (Morris et al. 2018).
Habitat complexity at seawalls and bulkheads that supports more diverse
aquatic organism assemblages can also be enhanced at seawalls by
incorporating water retaining features such as rock or tidal pools
(O'Shaughnessy et al. 2020), ``flower pots'' (Morris et al. 2018), and
benches (Toft et al. 2013), or large or small ledges (Strain et al.
2017).
Nature based solutions associated with bank stabilization may also
include rocks placed in subtidal and intertidal areas next to seawalls
and bulkheads, or in clusters next to seawalls and bulkheads, to
provide habitat for aquatic organisms (Suedel et al. 2022). Rock piles
next to seawalls and bulkheads can be constructed from rocks of
different sizes or rocks of similar size, and gaps between these rocks
can provide habitat and refuge areas for aquatic organisms. Another
nature-based solution that may increase habitat and biodiversity next
to seawalls, bulkheads, and revetments involves the placement of bags
of molluscs or the placement of small reef structures to provide
habitat for molluscs and other sessile aquatic organisms next to a
seawall, bulkhead, or revetment (Suedel et al. 2022).
Other nature-based solutions associated with bank stabilization
include revetments designed and constructed to increase structural
complexity that can provide habitat for benthic and motile aquatic
organisms. Rocks of different sizes can be used to construct revetments
and provide cracks and holes of different sizes that can be used as
habitat by aquatic organisms and plants (Suedel et al. 2022). Another
nature-based solution that can add structural complexity in marine
waters, is the placement of pieces of large wood in front seawalls,
bulkheads, and revetments.
In waterbodies with soft substrates such as sand, the large wood
pieces can attract benthic and pelagic organisms and enhance local
biodiversity (Dickson et al. 2023). Installing large pieces of wood
into marine and estuarine waters seaward of seawalls, bulkheads, and
revetments can provide habitat for a variety of aquatic organisms,
increase the number of trophic connections among aquatic species, and
contribute to local nutrient cycling, and may help lessen changes in of
biodiversity that may occur as a result of the construction of a
seawall, bulkhead, or revetment (Witte et al. 2024, Dickson et al.
2023). Nature-based solutions which may be authorized by NWP 13 and may
also be authorized by NWP 54 (living shorelines), include vegetative
stabilization, bioengineering, or other types of soft bank
stabilization.
Examples of nature-based solutions can be incorporated into
regulated activities that may be authorized by NWP 27 (aquatic
ecosystem restoration, enhancement, and establishment activities)
include thin-layer placement of dredged material to sustain wetlands
and other aquatic habitats; placement of spoil material to elevate a
degraded riverbed and restore geomorphic processes; alignments of river
channels within the existing floodway to enhance riverine function and
connectivity; and reservoir sediment management activities to maintain
continuity of sediment transport through the river network to sustain
downstream aquatic habitats (e.g., downstream geomorphology) and
terrestrial habitats (non-wetland riparian areas and floodplains) (see
86 FR 73544-73548). Thin layer placement of dredged material is one of
a number of nature-based solutions that may involve the discharge of
sediments into waters of the United States for the purpose of restoring
wetlands, streams and other waters. Placement of sediments for the
purpose of restoration, enhancement, or establishment, may occur in a
variety of depths or configurations and may be authorized by NWP 27
provided the activity results in in net increases in aquatic ecosystem
functions and services and resembles an ecological reference.
Other examples of nature-based solutions that might be associated
with activities authorized by NWP 27 include restoration of fringe
wetlands in estuaries and lakes to reduce bank erosion; restoration of
oyster reefs, coral reefs, and other types of subtidal or intertidal
habitats to provide habitat, support biodiversity, and provide a
variety of co-benefits (e.g., reduced shoreline or bank erosion); the
re-establishment, rehabilitation, establishment, or enhancement of
riparian areas and wetlands to trap or transform sediments and
pollutants carried by surface run-off or shallow subsurface flows
before that water reaches rivers, streams, lakes, estuaries, ocean
waters; and the use of dredged material to reestablish, rehabilitate,
enhance, or establish wetlands or other aquatic habitats. Another
nature-based solution includes process-based restoration of river
corridors (i.e., river and stream channels and their associated
floodplains, riparian areas, and wetlands) to increase the functions
and services provided by river corridors and provide increased
resilience to drought and wildfires.
NWP 43 (Stormwater Management Facilities) may authorize regulated
activities which incorporate nature-based solutions for the
construction and maintenance of stormwater management and pollution
abatement facilities if they involve discharges of dredged or fill
material into non-tidal waters of the United States, such as stream
biofilters, bioretention ponds or swales, rain gardens, vegetated
filter strips, vegetated swales (bioswales), constructed wetlands,
infiltration trenches, and regenerative stormwater conveyances. Other
regulated activities that incorporate nature-based solutions that are
conducted to meet pollutant discharge targets established under the CWA
may also be authorized by NWP 43 as long as they comply with the
applicable terms and conditions of this NWP.
Proposed new NWP A (Activities to Improve Passage of Fish and Other
Organisms) may authorize regulated activities that incorporate nature-
based solutions such as nature-like fishways, which use ecological
engineering principles to provide nature-based solutions to improve the
ability of fish and other aquatic organisms to pass around obstacles to
access other aquatic habitats.
Other NWPs, such as NWP 31 (maintenance of existing flood control
facilities), NWP 41 (reshaping existing drainage and irrigation
ditches), NWP 55 (seaweed mariculture activities), and NWP 59 (water
reclamation and reuse facilities) may also authorize regulated
activities that incorporate nature-based solutions, including some of
the examples listed in this section. Examples of regulated activities
associated with nature-based solutions that may be authorized by these
NWPs include bioretention ponds, biofilters, placement of bags of
molluscs, and constructed wetlands.
[[Page 782]]
One commenter suggested including a clear definition of soft bank
stabilization. One commenter recommended adding a definition of
bioengineering. Many commenters recommended that the Corps add language
to each NWP to require prioritization of the use of nature-based
solutions wherever possible.
Soft bank stabilization includes bioengineering and vegetative
stabilization. Bioengineering is a longstanding concept in the
discipline of soil and bank stabilization. We decline to add a
definition of ``soft bank stabilization'' or ``bioengineering'' to the
NWPs to maintain the flexibility to apply those definitions as the
science around each concept evolves. We will rely on the new definition
of nature-based solutions as an overarching term that encompasses both
soft-bank stabilization and bioengineering activities. Prospective
permittees are encouraged to incorporate nature-based solutions into
regulated activities. The incorporation of nature-based solutions into
an NWP-specific activity may not be possible or appropriate in all
situations, depending on the purpose of the activity, site specific
characteristics and other factors.
In this action, the Corps has modified the NWPs which may provide
the most opportunity to incorporate nature-based solutions into the
activity which requires DA authorization to provide examples of nature-
based solutions. The Corps has also added the definition of ``nature-
based solutions'' to Section F (Definitions) as a guide to prospective
permittees and districts in the incorporation of nature-based solutions
into NWP-specific activities.
E. Response to Comments on Notes in the NWPs for Utilities and
Mariculture Activities
In the 2025 Proposal, the Corps proposed to modify the NWPs that
authorize activities associated with utilities and the activities
associated with mariculture. The Corps proposed to add or modify two
Notes in each NWP to add language to clarify the intent of each Note,
to identify information that should be provided to National Oceanic and
Atmospheric Administration (NOAA), National Ocean Service (NOS) or U.S.
Coast Guard (USCG), and to provide contact information for both NOS and
USCG.
The Corps proposed to modify an existing note in NWP 12 (Oil or
Natural Gas Pipeline Activities), NWP 52 (Water-Based Renewable Energy
Generation Pilot Projects), NWP 57 (Electric Utility Line and
Telecommunications Activities), and NWP 58 (Utility Line Activities for
Water and Other Substances) to encourage project proponents to contact
NOS and to add a note to advise the permittee to contact USCG. The
Corps proposed to modify an existing Note in NWP 48 (Commercial
Shellfish Mariculture Activities) and NWP 55 (Seaweed Mariculture
Activities) to advise the permittee to contact the USCG and to add a
note that encourages project proponents to contact NOS. The Corps also
requested comments on adding both Notes to NWP 4 (Fish and Wildlife
Harvesting, Enhancement, and Attraction Devices and Activities) and NWP
27 (Aquatic Habitat Restoration, Enhancement, and Establishment
Activities).
Many commenters supported or stated they did not object to the
modified or added Notes. One commenter noted that the responsibility to
provide information to the USCG and NOS was being moved from the Corps
to the permittee. One commenter recommended that the Corps research a
technology-based solution to provide the requested information to the
NOS and USCG. A few commenters recommended that the Notes include a
more detailed list of information that should be provided or should not
be provided to USCG or NOS. One commenter requested clarification if
district engineers must wait for a response from USCG before reviewing
a PCN. One commenter stated that notification to NOS should only be
required if a structure would obstruct navigation. Several commenters
recommended adding language to the Notes to state that the information
should be submitted to NOS within 1-year of completion. Several
commenters recommended that the Notes be clarified to state that
proponents of activities which do not require a PCN should also contact
USCG. One commenter stated that the information provided to NOS for
activities authorized under NWPs 12, 48, 52, 55, 57, and 58 should be
provided to affected tribes upon request.
The purpose of these Notes is to encourage the permittee to contact
USCG and NOS regarding the location and marking of proposed structures
in navigable waters of the United States to avoid conflicts with
navigation. Prospective permittees are encouraged to contact the USCG
and NOS for activities in navigable waters of the United States subject
to authorization by NWPs 12, 48, 52, 55, 57, and 58 regardless of
whether the NWP requires submittal of a PCN to the district engineer.
Prospective permittees are not required to wait for a response from
USCG before submitting a PCN. District engineers should not delay
review of a PCN if the prospective permittee has not engaged with or
received a response from USCG.
The Notes cannot detail all of the information that the USCG or NOS
might prefer or request to receive from a permittee. Prospective
permittees should coordinate with USCG and NOS regarding information
necessary to inform the reviews or actions that are the responsibility
of USCG or NOS. Tribes may, at any time, request such information from
the district engineer that the district engineer has in his or her
possession.
One commenter expressed objections to adding the Notes to NWP 4 and
NWP 27. One commenter stated that it is impractical to notify NOS of
structures or devices that are temporary in nature.
NWP 4 authorizes temporary structures and small fish attraction
devices, but does not authorize artificial reefs or other large
permanent structures in navigable water of the U.S. NWP 27 authorizes
activities to restore aquatic ecosystems, and does not authorize the
installation of engineered structures in waters of the United States
NWP 27 can be used to authorize the removal of culverts and other
obstructions from waters, but it cannot be used to add or replace
existing structures with new structures. After consideration of these
comments, the Corps has determined that it is not necessary to add
either Note to NWP 4 or NWP 27.
After reviewing the comments received in response to the proposed
rule, the Corps has decided to adopt the Notes as proposed.
F. Responses to Comments on Specific Nationwide Permits
NWP 1. Aids to Navigation. The Corps did not propose any changes to
this NWP. No comments were received on the proposed reissuance of this
NWP. This NWP is reissued as proposed.
NWP 2. Structures in Artificial Canals. The Corps did not propose
any changes to this NWP. Several commenters stated that all NWP 2
should require a PCN because the activities authorized by this NWP have
the potential to cause harmful sedimentation by impacting the flow of
water.
This NWP only authorizes the construction of structures in
navigable waters of the United States. Discharges of dredge or fill
material requiring authorization under Section 404 of the CWA are not
authorized by this NWP. Permittees are required to comply with the
general conditions to the NWP and regional conditions, including
conditions included in any issued water
[[Page 783]]
quality certifications. If an activity constructed in an artificial
canal affects navigation, movement of aquatic species, or creates an
impoundment (where the purpose of the activity is not to impound
waters) or has improperly installed and maintained erosion and
sedimentation controls, contrary to general conditions, the activity is
not compliant with the NWP and is not authorized by this NWP. If a
structure is not authorized, the district engineer will address the
potential unauthorized activity in accordance with 33 CFR 326. This NWP
is reissued as proposed.
NWP 3. Maintenance. The Corps did not propose any changes to this
NWP. Many commenters supported the reissuance of this NWP. Many
commenters stated that this NWP authorizes activities that are not
similar in nature. Many commenters stated that this NWP should not be
modified to add any additional PCN requirements or acreage limits. Many
commenters stated that this NWP should have an acreage limit for ``loss
of waters of the United States.'' One commenter stated that NWP 3
should always require a PCN because currently serviceable structures
may be historic properties. One commenter suggested that the
Notification paragraph for NWP 3 be modified to require documentation
on how alternatives were considered. One commenter suggested that NWP 3
prohibit the emergency use of NWP 3 when the permittee has no
documentation of monitoring, maintenance, or inspection activities.
The activities authorized by NWP 3 are similar in nature because
they authorize the discharge of dredged or fill material in waters of
the United States and work or structures, in navigable waters of the
United States that are limited to the repair, rehabilitation, and
replacement of currently serviceable structures or fills, or structures
or fills damaged or destroyed by storms, floods (including tidal
floods), fires, or other discrete events. This NWP authorizes regulated
activities for the repair, rehabilitation, or replacement of existing,
currently serviceable structures or fills, and only authorizes minor
deviations to the structure's configuration or filled area. The Corps
declines to require PCNs for activities authorized by paragraph (a)
because the current qualitative and quantitative limits in the text of
this NWP are sufficient to ensure that the NWP authorizes only those
activities that result in no more than minimal individual and
cumulative adverse effects. Paragraph (a) of this NWP authorizes only
minor deviations to previously authorized structures or fills.
If a non-federal permittee proposes an activity that might have the
potential to effect a historic property or a property eligible for
listing on the National Register of Historic Places, general condition
20 requires the prospective permittee to submit a PCN and the non-
federal permittee is not authorized to begin construction until they
receive written authorization from the district engineer. If the non-
federal project proponent does not comply with 33 CFR 330.4(g)(2) and
general condition 20, and does not submit the required PCN, then the
activity is not authorized by an NWP. In such situations, it is an
unauthorized activity, and the district engineer will determine an
appropriate course of action under the regulations at 33 CFR part 326
if and when the Corps learns about that unauthorized activity. Because
this NWP is limited to regulated activities associated with the repair,
rehabilitation, and replacement of existing, currently serviceable
structures or fills, there are usually no practicable off-site
alternatives for repairing, rehabilitating, or replacing these
structures or fills.
Paragraph (a) of general condition 23 (Mitigation) requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable at the project site.
Permittees are required to maintain structures or fills authorized by
an NWP in accordance with general condition 14 (Proper Maintenance).
The prompt need for repair could result from changes to a fill or
structure that happen gradually, or as a result of an abrupt change, as
from a natural disaster. Corps' regulations at 33 CFR 325.2(e)(4)
govern the use of emergency procedures to authorize activities in
emergency situations. The Corps does not require documentation from the
permittee to justify the need for an emergency repair, or any other
project purpose; therefore, the Corps declines to require documentation
from the permittee justifying the need for the emergency repair.
Several commenters requested that the Corps define the term ``minor
deviations.'' One commenter stated that this NWP should indicate what
should be considered maintenance and what should be considered a new
project. One commenter stated that NWP 3 should prohibit any increases
in the size of the structure. Many commenters stated that this NWP
authorizes large infrastructure repairs without Corps review.
This NWP authorizes regulated activities associated with the
repair, rehabilitation, or replacement of existing infrastructure while
allowing minor deviations to the structure or fill due to changes in
materials, construction techniques, requirements of other regulatory
agencies, or current construction codes or safety standards. What
constitutes a ``minor deviation'' varies and is dependent on the degree
to which changes in the structure's configuration or filled area would
occur as a result of the repair, rehabilitation, or replacement
activity relative to the size and shape of the existing structure or
fill. Minor deviations may also be necessary because of changes in
materials, construction techniques, the requirements of other
regulatory agencies, or current construction codes or safety standards.
The NWP requires the structure or fill not be put to uses that
differ from the uses originally contemplated when the structure or fill
was originally constructed. Repair, rehabilitation, or replacement
activities that exceed the ``minor deviations'' provision of this NWP
may be authorized by individual permits, regional general permits, or
another NWP. Discharges of dredged or fill material associated with
maintenance activities which do not modify the character, scope, or
size of the original fill design may be exempted from regulation under
Section 404(f) of the CWA.
Many commenters stated that this NWP should be modified to
authorize maintenance activities on currently serviceable structures or
fill that did not require a permit at the time it was constructed. Many
commenters requested that the NWP be modified to authorize new or
additional riprap to protect the repaired structure or fill, provided
that riprap is the minimum necessary to achieve protection. One
commenter objected to the use of NWP to authorize new or additional rip
rap.
For the reasons explained in the 2021 final rule (86 FR 73528), the
Corps declines to modify the NWP to authorize maintenance activities
for structures that did not require a permit at the time it was
constructed and also declines to reissue this NWP with modifications
that would authorize the placement of new or additional riprap to
protect the existing structure or fill.
One commenter stated that the term ``previously authorized
structure'' is applied inconsistently across the Districts and
requested that the phrase be defined. Many commenters stated that work
to repair structures or fill that are damaged by storms, floods, fire
or other discrete events is inconsistent with the definition of
``currently serviceable.''
The term ``previously authorized'' means the structure or fill was
[[Page 784]]
authorized by an individual permit or a general permit, or the
structure or fill was authorized under the provisions of 33 CFR 330.3.
To qualify for NWP 3 authorization, it is not necessary for the project
proponent to produce a copy of the prior authorization. In many cases
it might not be possible to produce a copy of a written authorization
because the discharge, structure, or work may have been authorized by a
general permit that does not require a PCN, or it was authorized by
regulation without a reporting requirement. Once a structure or fill is
authorized, it remains authorized unless the district engineer suspends
or revokes the authorization (see 33 CFR 325.6).
The term ``currently serviceable'' is defined in Section F of the
NWPs (Definitions). This NWP authorizes the repair, rehabilitation, or
replacement of those structures or fills destroyed or damaged by
storms, floods, fire or other discrete events, provided the repair,
rehabilitation, or replacement is commenced, or is under contract to
commence, within two years of the date of their destruction or damage.
The term currently serviceable is not included in the list of actions
authorized after destruction or damage by storms, floods, fire or other
discrete events. If a district engineer determines that an activity,
including an activity conducted to respond to an emergency, did not
comply with the terms and conditions of NWP 3, he or she can take
action to address the alleged non-compliance.
One commenter recommended that paragraph (b) be modified to limit
the removal of sediments to 25 cubic yards or within 25 feet of the
structure. One commenter stated that activities authorized under
paragraph (c) should require a PCN to ensure the activities are truly
temporary. One commenter requested that a new Note be added to require
that vegetation that is removed must be replaced.
Paragraph (b) authorizes the removal of accumulated sediments and
debris outside the immediate vicinity of existing structures (e.g.,
bridges, culverted road crossings, water intake structures, etc.) for a
distance of no more than 200 feet in any direction from the structure.
All activities authorized by paragraph (b) of this NWP require
submittal of a PCN to the district engineer. District engineers will
review these proposed activities to determine whether removal of
accumulated sediments up to 200 feet from the structure will result in
no more than minimal individual and cumulative adverse environmental
effects.
Paragraph (c) of NWP 3 does not authorize permanent discharges of
dredged or fill material into waters of the United States. Permittees
must comply with the requirements of paragraph (c) as well as general
conditions 11 (Equipment) and 13 (Removal of Temporary Structures of
Fills) and remove temporary fills in order for an activity to be
authorized by NWP 3. The Corps believes that the limitation in
paragraph (c) and the general conditions are adequate to ensure that
impacts from temporary fills will cause no more than minimal adverse
environmental effects. Paragraph (c) as well as general conditions 11
and 13 require areas to be restored to pre-construction elevations and
revegetated, as appropriate. The Corps declines to add a new Note to
this NWP.
Many commenters stated that this NWP authorizes activities that
cause significant adverse environmental impacts. One commenter stated
that the decision document for this NWP fails to consider impacts as a
results of emergency reconstruction activities as a result of natural
disasters.
The final decision document for this NWP provides an assessment of
activities that may be authorized by this NWP during the five-year
period it is anticipated to be in effect, as well as an evaluation of
potential environmental impacts that is commensurate with the
anticipated degree and severity of those environmental impacts. The
decision document has been prepared in compliance with the requirements
of the NEPA, the Corps' public interest review regulations, and the CWA
Section 404(b)(1) Guidelines. As discussed in this final action and the
final decision document, the Corps has determined that the NWP 3 will
cause no more than minimal adverse environmental effects, both
individually and cumulatively. The activities that are authorized by
this NWP are considered in this final action and in the decision
document, including all activities that may be authorized by paragraph
(a) of the NWP.
This NWP is reissued as proposed.
NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction
Devices and Activities. The Corps sought comment on adding two notes to
this NWP to protect navigation. These Notes identify information that
should be provided to NOS or USCG and provide contact information for
both NOS and USCG. Comments received on the proposed addition of the
two Notes are summarized in Section II.E of this final action, and in
that section the Corps provided responses to those comments. As
discussed in Section II.E. the Corps declines to add the Notes to this
NWP. This NWP is reissued as proposed.
NWP 5. Scientific Measurement Devices. The Corps did not propose
any changes to this NWP. One commenter supported reissuance of NWP 5.
One commenter stated that a PCN should be required for weirs and
flumes. One commenter suggested modifying the NWP 5 to prohibit the
placement of any device which cannot be removed in its entirety. Many
commenters stated that weirs or flumes authorized by NWP 5 should be
designed to maintain unimpeded fish passage. One commenter recommended
modifying NWP 5 to protect treaty-reserved resources.
No PCN is required for activities authorized by this NWP. Adverse
effects from the structures or fills authorized by this NWP should
generally be temporary. NWP 5 requires devices and structures or fills
associated with that device be removed to the maximum extent
practicable. There may be situations where the removal of the device or
some part of a device or structures or fills associated with that
device would cause more adverse environmental effects to aquatic
resources than leaving it in place. For instance, it may be preferable
to cut off an anchor piling at the mud line rather than disturb the
substrate in order to retrieve the entirety of the structure.
The language in NWP 5 is consistent with the language in general
condition 5 (Removal of Temporary Structures and Fills). General
condition 2 (Aquatic Life Movement) prohibits substantial disruption of
necessary life cycle movements of aquatic life indigenous to the
waterbody. Weirs and flumes may have some adverse impact to the
movement of aquatic species while they are in place. If the regulated
activity might affect, or is in the vicinity of a species listed (or
proposed for listing) or designated critical habitat (or habitat
proposed for such designation) under the ESA, general condition 18
(Endangered Species) requires non-federal permittees to submit a PCN
and states the permittee cannot begin work until the district engineer
has provided notification that the proposed activity will have ``no
effect'' on listed species (or species proposed for listing) or
designated critical habitat (or critical habitat proposed for such
designation), or until ESA Section 7 consultation or conference has
been completed.
If a PCN is required for the proposed NWP activity, the Federal
permittee must provide the district engineer with the appropriate
documentation to demonstrate compliance with the ESA. District
engineers can develop regional conditions and develop protocols
regarding tribal notification that build
[[Page 785]]
upon the existing Department of Defense, Army, and Corps' tribal
consultation policies. The terms of this NWP, as well as the NWP
general conditions will ensure that the authorized activities will
cause no more than minimal adverse environmental effects. The Corps
declines to require PCNs for weirs and flumes.
This NWP is reissued as proposed.
NWP 6. Survey Activities. The Corps did not propose any changes to
this NWP. Many commenters recommended that the 1/10-acre limit be
raised to 1/2-acre. One commenter recommended modifying this NWP to
require a PCN for exploratory trenching because trenching has the
potential to affect historic properties.
NWP 6 authorizes discharges of dredged or fill material that do not
exceed 1/10-acre into waters of the United States for the purpose of
constructing temporary pads. Temporary pads must be removed in
accordance with general condition 5 (Removal of Temporary Structures
and Fills). The Corps believes that the limits in this NWP are
appropriate to ensure impacts from these activities cause no more than
minimal adverse environmental effects. If a non-federal permittee
proposes an activity that might have the potential to effect a historic
property or a property eligible for listing on the National Register of
Historic Places, general condition 20 (historic properties) requires
the prospective permittee to submit a PCN and the permittee may not
begin the activity until they receive written authorization from the
district engineer. If the non-federal project proponent does not comply
with 33 CFR 330.4(g)(2) and general condition 20, and does not submit
the required PCN, then the activity is not authorized by an NWP.
This NWP is reissued as proposed.
NWP 7. Outfall Structures and Associated Intake Structures. The
Corps did not propose any changes to this NWP. Many commenters stated
that NWP authorization should not be available to project proponents
who have violated National Pollutant Discharge Elimination System
(NPDES) regulations or who are seeking to modify a structure due to
improper design or installation of the outfall or intake structures.
This NWP authorizes work and structures, and discharges of dredged
or fill material for the purpose of constructing or modifying outfall
structures and associated intake structures where the effluent from the
outfall is authorized or otherwise in compliance with the NPDES Program
(Section 402 of the CWA). It is the responsibility of EPA, or
authorized states or tribes, pursuant to Section 402 of the CWA to
enforce NPDES regulations that are applicable to the effluent of
outfall structures. Discharges of dredged or fill material, or work or
structures, which are not in compliance with the terms and conditions
of an NWP are not authorized by that NWP. District engineers may
address an unauthorized action that requires authorization by Section
404 of the CWA or Section 10 of the RHA pursuant to 33 CFR 326.
This NWP is reissued as proposed.
NWP 8. Oil and Gas Structures on the Outer Continental Shelf. The
Corps did not propose any changes to this NWP. No comments were
received on the proposed reissuance of this NWP. This NWP is reissued
as proposed.
NWP 9. Structures in Fleeting and Anchorage Areas. The Corps did
not propose any changes to this NWP. Many commenters stated that NWP 9
should require a mooring buoy and anchoring structure maintenance
agreement and that midline floats on mooring/anchor lines should be
mandatory.
We do not agree that a maintenance agreement and a midline float is
required for every mooring buoy and anchoring structure. The design of
these structures, as well as the characteristics of the fleeting and
anchorage areas, will vary across the nation. Regional concerns about
the mooring buoys authorized by this NWP are more appropriately
addressed by division and district engineers, who have the authority to
modify, suspend, or revoke NWP authorizations on a regional or
activity-specific basis. If a division engineer imposed a regional
condition on this NWP, in order to qualify for NWP authorization, the
permittee must comply with that regional condition as well as any
requirements in the text of the NWP and applicable NWP general
conditions.
This NWP is reissued as proposed.
NWP 10. Mooring Buoys. The Corps did not propose any changes to
this NWP. Many commenters stated that activities should not be
authorized by NWP 10 when they interfere with tribal rights. Many
commenters stated that NWP 10 should require a mooring buoy and
anchoring structure maintenance agreement and that midline floats on
mooring/anchor lines should be mandatory. One commenter stated that NWP
10 should be revised to limit mooring buoys where the applicant already
has an existing mooring structure, or on the basis of whether the
applicant has access to adjoining property.
We do not agree that a maintenance agreement and a midline float is
required for every mooring buoy and anchoring structure. The design of
these structures, as well as the characteristics of the fleeting and
anchorage areas, will vary across the nation. Regional concerns about
the mooring buoys authorized by this NWP are more appropriately
addressed by division and district engineers, who have the authority to
modify, suspend, or revoke NWP authorizations on a regional or
activity-specific basis.
In order to qualify for NWP authorization, the permittee must
comply with regional conditions, activity-specific conditions, as well
as any requirements in the text of the NWP and applicable NWP general
conditions. We also decline to limit the use of this NWP on the basis
of the applicant's access to other mooring structures or on the basis
of property ownership. As stated in Section E. (Further Information),
NWPs do not grant any property rights or exclusive privileges. The
Corps has no authority over zoning or land use rights.
This NWP is reissued as proposed.
NWP 11. Temporary Recreational Structures. The Corps did not
propose any changes to this NWP. One commenter stated that temporary
structures should be removed in less than 30 days if requested by an
affected tribe.
Activities authorized by this NWP must comply with general
condition 17 (tribal rights). Corps districts consulted with tribes
during the process for reissuing this NWP and those consultation
efforts may have resulted in regional conditions or coordination
procedures with tribes to help ensure compliance with general condition
17. Shorter time periods for removal may be imposed through regional
conditions, or if the district engineer receives a PCN, he or she may
add activity-specific conditions.
This NWP is reissued as proposed.
NWP 12. Oil or Natural Gas Pipeline Activities. The Corps proposed
to modify Note 1 and to add a Note (designated as Note 7) in this NWP.
Language was added to each Note to clarify the intent of each Note.
Note 1 was modified to identify information that should be provided to
NOS and to provide contact information for NOS. New Note 7 identifies
information that should be provided to USCG and to provide contact
information for USCG. The Corps provides a summary of the comments
received on revised Note 1 and new Note 7 and responses to comments in
Section II.D of this final action.
[[Page 786]]
Many commenters expressed support for NWP 12. Many commenters
expressed support for the NWP as written. Many commenters objected to
the reissuance of this NWP. One commenter stated that this NWP should
be available for authorization of jurisdictional activities associated
with carbon dioxide pipelines.
Nationwide permit 12 authorizes discharges of dredged or fill
material or work or structures associated with oil or natural gas
pipeline activities. Nationwide permit 12 defines oil or natural gas
pipelines as ``any pipe or pipeline for the transportation of any form
of oil or natural gas, including products derived from oil or natural
gas, such as gasoline, jet fuel, diesel fuel, heating oil,
petrochemical feedstocks, waxes, lubricating oils, and asphalt.''
Nationwide permit 58 (Utility Line Activities for Water and Other
Substances) may be used to authorize regulated activities associated
with the construction, maintenance, repair, and removal of utility
lines for water and other substances, including but not limited to
hydrogen, methanated hydrogen, or carbon dioxide. There is some overlap
in the NWPs. The district engineer will review PCNs that he or she
receives and determine if the case-specific activity can be authorized
by the NWP requested by the prospective permittee. If the case-specific
activity does not comply with the terms and conditions of the NWP, the
district engineer will notify the project proponent within 30 days of
the date the PCN was submitted to the district engineer that the
project proponent must apply for a different NWP, a regional general
permit, or an individual permit.
A few commenters stated that natural gas pipelines are subject to
industry standards and oversight by the Federal Energy Regulatory
Commission (FERC), resulting in temporary impacts to jurisdictional
waters which are mitigated where possible. A few commenters stated that
reissuance of this NWP is important for improving pipeline safety and
reliability. One commenter supported reissuing this NWP before the
other NWPs. Some commenters expressed opposition to specific pipeline
projects. The Corps acknowledges these comments.
A few commenters stated that the NWP does not protect waters of the
United States. Many commenters stated that this NWP allows more than
minimal adverse environmental impacts, individually and cumulatively.
Many commenters stated that the Corps should ensure that this NWP
authorizes no more than minimal individual and cumulative effects.
Several commenters stated that the Corps should collect more detailed
information on NWP 12 verifications to better inform the decision
whether the reissue the NWP. Many commenters oppose additional
modifications to this NWP and further cumulative effects analysis for
this NWP. Many commenters stated that this NWP violates CWA and NEPA. A
few commenters stated that the Corps should prepare an EIS for each
pipeline project.
Section 404(e) of the CWA provides the Corps with the authority to
issue NWPs to authorize categories of activities involving discharges
of dredged or fill material into waters of the United States to
streamline the authorization process for these activities, as long as
they result in no more than minimal individual and cumulative adverse
environmental effects. The terms and conditions of the NWPs, such as
acreage limits and the mitigation measures in some of the NWP general
conditions, are imposed to ensure that the NWPs authorize only those
activities that result in no more than minimal adverse effects on the
aquatic environment and other public interest review factors.
The Corps Headquarters has prepared a national decision document to
address the environmental effects of the reissuance of this NWP in
accordance with NEPA and CWA. The national decision document evaluates
cumulative impacts in accordance with the CWA Section 404(b)(1)
Guidelines at 40 CFR 230.7 for the issuance of general permits. The
national decision document includes estimates of the number of times
the NWP is anticipated to be used during the five-year period it will
be in effect, the authorized impacts to jurisdictional waters and
wetlands, and the compensatory mitigation required to offset losses of
jurisdictional waters and wetlands. Those impacts, and the compensatory
mitigation, are evaluated against the current environmental setting
(i.e., the affected environment).
The national decision document includes an environmental assessment
(EA) with a finding of no significant impact, satisfying the
requirements of NEPA. Neither the CWA nor NEPA mandate that the Corps
prepare an environmental impact statement to analyze the impacts of the
reauthorization of this NWP. Since the Corps fulfills the requirements
of NEPA when it issues its national decision document for the
reissuance of that NWP, specific activities authorized by this NWP do
not require additional NEPA analysis. As documented in this action and
in the national decision documents, the issuance of this NWP complies
with the requirements of the CWA.
In addition to the assessment of cumulative effects at the national
level, division engineers will consider cumulative effects in the
supplemental documentation for a region, which is typically defined as
a state or Corps district. District engineers will consider cumulative
effects during their review of a PCN for a case-specific activity. In
furtherance of the district engineer's review of cumulative effects,
paragraph (b)(4)(ii) of NWP general condition 32 requires PCNs for
proposed NWP activities for linear projects to include and any other
NWP(s), regional general permit(s), or individual permit(s) used or
intended to be used to authorize any part of the proposed project or
any related activity, including other separate and distant crossings
for linear projects that require Department of the Army authorization
but do not require a PCN.
When a district engineer issues a verification letter in response
to a PCN or a voluntary request for an NWP verification, the district
engineer prepares a brief document that explains the decision on
whether to issue a verification letter for the proposed NWP activity or
exercise discretionary authority to require an individual permit for
that proposed activity. The district engineer's document explains
whether the proposed NWP activity, after considering permit conditions
such as mitigation requirements, will result in no more than minimal
individual and cumulative adverse environmental effects. If the
district engineer reviews a PCN and determines that the impacts of the
jurisdictional activity are more than minimal, the district engineer
will exercise discretionary authority to require an individual permit
for that proposed activity.
One commenter supported the determination that reissuance of the
NWP will have ``no effect'' on listed species or critical habitat. Many
commenters stated that programmatic ESA consultation should be required
for reissuance of this NWP. Many commenters stated that this NWP
violates the ESA. One commenter stated that this NWP should prohibit
jurisdictional activities that are in the vicinity of listed species or
designated critical habitat.
The Corps' compliance with ESA for the reissuance of the NWPs is
discussed in Section III.C. of this action. General condition 18
(Endangered Species) addresses compliance with Section 7 of the ESA for
each NWP-specific activity. If the regulated activity might affect, or
[[Page 787]]
is in the vicinity of a species listed (or proposed for listing) or
designated critical habitat (or habitat proposed for such designation)
under the ESA, general condition 18 (Endangered Species) requires non-
federal permittees to submit a PCN and states the permittee cannot
begin work until the district engineer has provided notification that
the proposed activity will have ``no effect'' on listed species (or
species proposed for listing) or designated critical habitat (or
critical habitat proposed for such designation), or until ESA Section 7
consultation or conference has been completed. If a PCN is required for
the proposed NWP activity, the Federal permittee must provide the
district engineer with the appropriate documentation to demonstrate
compliance with the ESA.
Several commenters stated that this NWP violates Section 106 of the
NHPA. One commenter stated that this NWP should require tribal
consultation under Section 106 of the NHPA. One commenter expressed
concern over impacts to newly discovered cultural resources.
The Corps' compliance with Section 106 of the NHPA for the
reissuance of the NWPs is discussed in Section III.D. of this action.
General condition 20 (Historic Properties) addresses compliance with
section 106 of the NHPA. Under paragraph (c) of general condition 20,
non-federal permittees must submit a PCN to the district engineer if
the NWP activity might have the potential to cause effects to any
historic properties listed on, determined to be eligible for listing
on, or potentially eligible for listing on the National Register of
Historic Places, including previously unidentified properties even if a
PCN is not otherwise required. Non-federal permittees may not proceed
with their activity unless the district engineer has reviewed the PCN
and determined that the activity has ``no potential to effect''
historic properties or the district engineer has completed consultation
under Section 106 of NHPA.
If the district engineer determines that the proposed NWP activity
will result in either ``no historic properties affected,'' ``no adverse
effects,'' or ``adverse effects,'' he or she will conduct NHPA Section
106 consultation with the appropriate consulting parties, including
tribes. If a PCN is required for the proposed NWP activity, the Federal
permittee must provide the district engineer with the appropriate
documentation to demonstrate compliance with the NHPA. Permittees must
also comply with general condition 21 (Discovery of Previously Unknown
Remains and Artifacts) and immediately notify the district engineer of
discoveries of previously unknown historic, cultural, or archeological
remains and artifacts. The permittee must avoid activities that may
affect the remains and artifacts to the extent possible until required
coordination is completed.
Some commenters stated that the Corps is not complying with
Executive Order 13175. Many commenters stated that this NWP violates
tribal sovereignty and does not provide opportunity for tribal input.
One commenter stated that this NWP should require free prior and
informed consent from tribes. One commenter stated that this NWP
violates the RESPECT Act and sovereign land rights. One commenter
stated that man camps associated with pipeline construction projects
are linked to criminal activity.
Consultation with tribes on the reissuance of the NWPs is discussed
in Section V of this final action (Administrative Requirements), in the
section for E.O. 13175 (Consultation and Coordination with Indian
Tribal Governments). Tribal treaty rights are addressed through NWP
general condition 17 (Tribal Rights) for all NWPs, including NWP 12.
General condition 17 states that no activity authorized by an NWP may
impair reserved tribal rights. During the process for issuing these
NWPs, Corps districts have been consulting or coordinating with tribes
to identify regional conditions or coordination procedures to ensure
that activities authorized by NWP 12 and other NWPs do not have
substantial adverse effects on tribal rights and, as appropriate,
treaty reserved resources.
Division engineers can modify the NWPs at a regional level to
address tribal concerns within the limits of Corps' authorities. The
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
is a nonbinding document that encourages good faith consultation with
indigenous peoples to ``obtain their free, prior, and informed
consent'' before implementing measures that could affect them. The
Corps follows Executive Order 13175 and existing Department of Defense,
Army, and Corps' tribal consultation policies to meaningfully consult
with tribes and consider the concerns of tribes, but not necessarily
receive the agreement of tribes, before making permit decisions. The
RESPECT Act (Pub. L. 117-317) does not create obligations that are
relevant to this rulemaking. Concerns regarding criminal activities are
more appropriately addressed by local, state, tribal, and federal law
enforcement officials.
One commenter stated that this NWP is contrary to Executive Orders
13990 (Protecting Public Health and the Environment and Restoring
Science To Tackle the Climate Crisis) and 12898 (Federal Actions To
Address Environmental Justice in Minority Populations and Low-Income
Populations). One commenter stated that this NWP is consistent with the
direction in Executive Order 14156 (Declaring a National Energy
Emergency).
Executive Order 13990 was rescinded by Executive Order 14148
(Initial Rescissions of Harmful Executive Orders and Actions) and
Executive Order 12898 was rescinded by Executive Order 14173 (Ending
Illegal Discrimination and Restoring Merit-Based Opportunity).
Executive Order 14156 declared a national energy emergency and directed
federal agencies to facilitate the identification, leasing, siting,
production, transportation, refining, and generation of domestic energy
resources through existing permitting vehicles. This NWP helps fulfill
the policies of Executive Order 14156 by maintaining the streamlined
process that has been in existence since 1977, to authorize categories
of activities associated with the construction and maintenance of oil
or natural gas pipelines that have no more than minimal individual and
cumulative adverse environmental effects.
Some commenters supported the retention of the \1/2\-acre impact
limit or opposed changes to this limit. One commenter said the \1/2\-
acre impact limit should be applied to the entire length of a pipeline.
One commenter stated that \1/2\-acre impact limit should include
temporary impacts. Many commenters expressed support for additional
impact limits on this NWP. Many commenters suggested raising the impact
limits on this NWP. One commenter recommended that this NWP authorize
up to 1,000 linear feet of stream impacts. One commenter suggested
capping the number of crossings that could be authorized by this NWP.
Some commenters suggested limiting the activities that may be
authorized by this NWP on the basis the dimensions of the pipeline or
amount of impacts to riparian buffers. One commenter stated that this
NWP should require authorization of activities in water of the United
States and other non-jurisdictional waters.
This NWP authorizes discharges of dredged or fill material into
waters of the United States and work and
[[Page 788]]
structures in navigable waters of the United States associated with the
construction, maintenance of repair, and removal of oil and natural gas
pipelines and associated facilities. The NWP prohibits loss of waters
that exceed \1/2\-acre of waters of the United States for each single
and complete project. The ``loss of waters of the United States''
refers to permanent adverse effects to waters of the United States as a
result of filling, flooding, excavation, or drainage because of the
activities subject to the Corps' authority, and does not include
temporary impacts.
The Corps believes that the \1/2\-acre limit authorized by this
NWP, as limited by the constraints in the text of the NWP (e.g.,
requirements to restore temporary impacts to preconstruction
elevations) and in the NWP general conditions, is appropriate to ensure
that each single and complete project will cause no more than minimal
adverse environmental effects. The Corps has no authority to regulate
impacts to non-jurisdictional aquatic resources and cannot require
permits for activities outside waters of the United States.
One commenter stated that temporary and cumulative impacts should
be considered when evaluating activities authorized by this NWP. One
commenter recommended raising the timeframe for temporary discharges
from three months to five months. One commenter recommended allowing
the district engineer to waive the requirement to restore areas to
preconstruction contours.
The national decision document for this NWP considers both
temporary impacts and cumulative effects in the analysis. Some
activities authorized by NWP 12 (e.g., the construction of substations
and permanent access roads) result in permanent fills while other
authorized activities generally result in temporary impacts. The terms
of the NWP, as well as general conditions 11 (Equipment) and 13
(Removal of Temporary Structures and Fills) require that temporary
fills be removed upon completion of the activity. The permittee must
restore the affected area to pre-construction elevations and revegetate
the area as appropriate. When the district engineer reviews a PCN, in
accordance with Section D, District Engineer's Decision, he or she will
consider the duration of the adverse effects (temporary or permanent)
as well as the cumulative effects of the specific activity.
Paragraph (b)(4) of NWP general condition 32 requires project
proponents to include in PCNs any other NWP(s), regional general
permit(s), or individual permit(s) used or intended to be used to
authorize any part of the proposed project or any related activity,
including other separate and distant crossings for linear projects that
require DA authorization but do not require a PCN. This information is
used by district engineers to determine whether the proposed activity
will result in no more than minimal individual and cumulative adverse
environmental effects. When the district engineer receives a PCN, he or
she will consider the direct and indirect effects of the regulated
activity in accordance with Section D (District Engineer's Decision)
and determine if the activity will cause no more than minimal adverse
environmental effects, both individually and cumulatively.
This NWP states that material from trench excavation can be
temporarily sidecast into waters of the United States for no more than
three months and this time period may be extended by the district
engineer to not more than 180 days (6 months) where appropriate. The
Corps retains the three-month limit and the district engineer's
discretion to allow temporary fills to remain in place for six months.
Waters of the United States which are filled, flooded, excavated, or
drained, and are not restored to preconstruction contours and
elevations after construction, are included in the measurement of loss
of waters of the United States, and are considered permanent adverse
effects.
Many commenters opposed further limits on the thresholds for
requiring a PCN. A few commenters stated that no PCN should be required
by this NWP. Many commenters stated that this NWP should require a PCN
for all activities. Many commenters supported lowering the thresholds
for requiring a PCN. A few commenters suggested adding other thresholds
for requiring the submittal of a PCN. One commenter recommended
retaining the 0.10-acre threshold for requiring the submittal of a PCN.
A few commenters opposed the 250-mile threshold for requiring a
submittal of a PCN. One commenter suggested raising the 250-mile PCN
threshold.
Nationwide permit 12 requires a PCN for any discharge of dredged or
fill material into waters of the United States that results in a loss
of greater than \1/10\-acre of waters of the United States. A PCN is
also required for any proposed work or structure which requires
authorization under Section 10 of the RHA, and for any regulated
activity associated with an overall project that is greater than 250
miles in length when the project purpose is to install new pipeline for
the majority of the distance of the overall project length. If a
proposed NWP 12 activity does not trigger any of the three PCN
thresholds in the text of the NWP, or a PCN threshold in the text of
one of the NWP general conditions (e.g., general condition 18
(Endangered species) and general condition 20 (Historic Properties)),
then a PCN is not required for the proposed activity unless a division
engineer has imposed a regional condition to require PCNs in a
particular geographic region.
Division engineers can add regional conditions to add PCN
thresholds, if he or she determines the PCN threshold is necessary to
ensure that the NWP authorizes only those activities that have no more
than minimal adverse environmental effects. The Corps has found that a
length of 250 miles is both a good indicator of potential cumulative
effects of an oil or natural gas pipeline while minimizing the
potential for inconsistent implementation of the PCN requirement across
districts. The Corps is retaining the PCN thresholds associated with
NWP 12 activities that result in losses of waters of the United States
or have potential effects on navigation. The PCN thresholds, in
combination with the other terms of the NWP and the general conditions
ensure that the NWP causes no more than minimal adverse environmental
effects.
Many commenters stated that the Corps should require a PCN for
mechanized land clearing of forested wetlands. Many commenters
supported the removal of the PCN threshold for mechanized land clearing
in the 2021 final rule to reissue the NWPs.
Mechanized land clearing in waters of the United States may result
in a discharge of dredged material which requires DA authorization
under Section 404 of the CWA. To be regulated under Section 404 of the
CWA, a discharge of dredged material involves any addition, including
redeposit other than incidental fallback, of dredged material,
including excavated material, into waters of the United States that is
incidental to any activity, including mechanized land clearing,
ditching, channelization, or other excavation (see 33 CFR
323.2(d)(1)(iii)). For the reasons stated in the 2021 final rule (86 FR
2773-2775), the Corps maintains the position that no PCN for mechanized
land clearing should be added to this NWP.
A few commenters stated that the NWP should require avoidance and
minimization to the maximum extent possible. Many commenters opposed
the addition of uniform national BMPs or standards to this NWP.
Paragraph (a) of general condition 23 (Mitigation), requires
permittees to avoid and minimize adverse effects to
[[Page 789]]
waters of the United States to the maximum extent practicable. Best
management practices are more appropriately addressed as regional
conditions added to the NWPs by division engineers or activity-specific
conditions added to NWP authorizations by district engineers. The Corps
is not adding any national BMPs to NWP 12.
Many commenters suggested that acreage impact limits and PCN
thresholds be consistent between NWPs 12 and 14. The acreage limits for
NWPs 12 and 14 have some similarities, with a \1/2\-acre limit for
losses of non-tidal waters of the United States. The \1/2\-acre limit
for NWP 12 also applies to tidal waters, while NWP 14 has a \1/3\-acre
limit for losses of tidal waters. NWP 12 and NWP 14 both require a PCN
for activities causing the loss of greater than \1/10\-acre of waters
of the United States. NWP 12 also requires a PCN for activities
requiring a Section 10 permit and when a proposed oil or natural gas
pipeline activity is associated with an overall project that is greater
than 250 miles in length and the project purpose is to install new
pipeline along the majority of the distance of the overall project
length. In addition to the \1/10\-acre PCN threshold, the NWP 14
requires a PCN for discharges of fill material into special aquatic
sites. Nationwide permits 12 and 14 have somewhat different impact
limits and PCN thresholds because of differences between oil or natural
gas pipeline activities and linear transportation projects. With the
exception of discharges of dredged or fill material associated with
substations, pipeline foundations, or access roads, many impacts
authorized by the NWP 12 are temporary and require restoration back to
preconstruction elevations (i.e., discharges of dredged or fill
material associated with the installation of the oil or natural gas
pipeline). Nationwide permit 14 for linear transportation projects
authorizes discharges of dredged or fill material associated with
linear transportation projects (e.g., roads, railroads, airport
runways, and trails), which are more likely to result in discharges of
dredged or fill material that are not temporary.
Many commenters recommended restricting the ability of the division
or district engineer to modify, suspend, and revoke NWP authorizations.
Many commenters opposed restricting the ability of the division or
district engineer to modify, suspend, and revoke NWP authorizations. In
accordance with 33 CFR 330.5, division and engineers have the
discretion to modify, suspend, or revoke NWP authorizations. The Corps
is retaining the division and district engineer's discretion to modify,
suspend, and revoke NWPs.
Several commenters stated that permittees fail to comply with the
requirement to remove temporary access roads and recommended increased
compliance and enforcement by the Corps. A few commenters stated that
this NWP should include language about the repercussions of
unauthorized activities in this NWP.
If the permittee fails to comply with the terms and conditions of
an NWP, including NWP general conditions then the activity is not
authorized by that NWP and the district engineer may pursue compliance
of an unauthorized action pursuant to 33 CFR 326. The district engineer
has discretion how to resolve unauthorized actions, including whether
to require restoration, accept an application for an after-the-fact
authorization, or other remedies. The Note in Section C (NWP General
Conditions) advises prospective permittees of their obligations
regarding compliance with NWP terms and conditions.
Several commenters stated that the Corps should require additional
information in PCNs for NWP 12. One commenter stated that prospective
permittees should not be allowed to proceed with construction 45 days
after submittal of a PCN.
The Corps has determined that the contents of a complete PCN as
stated in paragraph (b) of general condition 32 are sufficient for the
district engineer to make his or her decision. Some general conditions,
such as general condition 18 (endangered species) or general condition
20 (historic properties) require a non-federal permittee to wait for
written approval before commencing construction. Activities that
qualify for the default authorization that occurs 45-days after the
district engineer receives a complete PCN must comply with all
conditions of the NWP, including the general conditions and any
applicable regional conditions imposed by the division engineer.
One commenter supported separating this NWP into one or more
general permits. One commenter objected to separating this NWP into one
or more general permits. One commenter recommended that use of this NWP
be prohibited for activities in sensitive areas. One commenter stated
that use of this NWP should be prohibited for large pipeline projects.
Many commenters stated that this NWP should not automatically prohibit
authorization of activities associated with oil and gas pipelines.
Section 404(e) of the CWA does not specify how broad or narrow
categories of activities authorized by NWPs and other general permits
must be. The Corps has substantial discretion to identify categories of
activities that are appropriate for NWPs and other general permits. For
instance, in the 2021 final rule to reissue the NWPs (86 FR 2744), the
Corps modified NWP 12 and created two new NWPs (NWP 57. Electric
Utility Line and Telecommunications Activities and NWP 58 Utility Line
Activities for Water and Other Substances) to authorize activities
associated with types of utility projects that were formerly authorized
by NWP 12. The Corps declines to further narrow the activities
authorized by NWP 12.
Division engineers may develop regional conditions for an NWP if he
or she determines it necessary to ensure that activities in a region
will cause no more than minimal adverse environmental effects to
sensitive areas. This NWP requires project proponents to submit a PCN
for regulated activities associated with pipelines greater than 250-
miles in length, when the purpose is to install new pipeline over the
majority of the overall length. The PCN must include the locations and
proposed impacts of all crossings of waters of the United States that
require DA authorization. The district engineer will review the PCN and
determine if the proposed NWP activity will, after considering permit
conditions such as mitigation requirements, result in no more than
minimal individual and cumulative adverse environmental effects. If one
crossing of waters of the United States associated with the
installation of a new oil or natural gas pipeline requires an
individual permit, then 33 CFR 330.6(d) applies and the district
engineer will determine which activities require individual permits and
which activities can be authorized by an NWP. Section 330.6(d) of the
Corps' NWP regulations, as well as Note 2 of NWP 12, remain in effect.
Section 330.6(d) and Note 2 maintain the Corps' long-standing process
regarding the use of NWPs and individual permits to authorize linear
projects such as oil or natural gas pipelines.
Many commenters requested more consistency across districts
regarding whether this NWP authorizes regulated activities associated
with the abandonment of pipelines. District engineers have discretion
to determine on a case-by-case basis how to address pipeline
abandonment activities. If a permittee proposes to abandon a pipeline
which lies over, under, or in a navigable water of the United States,
the district engineer will review the PCN to
[[Page 790]]
determine if the proposed action will impact navigation.
Many commenters requested a clarification of the scope of
``emergency activities'' authorized by this NWP. The activities that
are authorized by NWP 12 are defined in the terms of this NWP.
Nationwide permit 12 can be used to authorize regulated activities
associated with emergency installation, replacement or repair of
utility lines. The availability of this NWP to authorize such
activities may facilitate the implementation of these emergency
activities by reducing delays in securing authorization. Which
activities constitute an ``emergency'' is determined by regulation and
policy.
Many commenters requested that ``normal maintenance'' be exempted
under Section 404(f). Discharges of dredged or fill material for
maintenance activities may be exempted from regulation under the CWA by
Section 404(f), in accordance with 33 CFR 323.4(a)(2). If not exempted
by Section 404(f) of the CWA, such discharges may be authorized by a
variety of NWPs, such as NWP 3 (Maintenance), NWP 33 (Temporary
Construction, Access, and Dewatering), or NWP 45 (Repair of Uplands
Damaged by Discrete Events). The 1989 Memorandum of Agreement Between
the Department of the Army and the U.S. EPA Concerning the
Determination of the Section 404 Program and the Application of the
Exemptions under Section 404(f) of the Clean Water Act, states that the
U.S. EPA has the authority to establish policies on which activities
are eligible for the CWA Section 404(f) exemptions. There are no work
or structures in navigable waters of the United States that are
exempted from regulation under Section 10 of the RHA.
Many commenters stated that the definition of ``single and complete
linear project'' causes cumulative effects to aquatic resources. Many
commenters objected to the determination that each waterbody crossing
is a single and complete project. One commenter requested that the
Corps define ``separate and distant.'' One commenter disagreed that the
Corps fails to consider cumulative impacts from all crossings.
The authorization of separate and distant crossings of waters of
the United States as single and complete projects for the purposes of
NWP authorization is a long-standing practice consistent with the
Corps' regulations at 33 CFR 330.2(i). Under paragraph (b)(4) of
general condition 32, PCNs for linear projects are required to include
those crossings of waters of the United States that require NWP PCNs as
well as those crossings that will utilize the NWPs and do not require
PCNs. The Corps declines to define the phrase ``separate and distant''
because what constitutes separate and distant crossings can vary across
the country because of differences in the distribution of waters and
wetlands in the landscape, local hydrologic conditions, local geologic
conditions, and other factors. What constitutes separate and distant
crossings is more appropriately determined by district engineers on a
case-by-case basis. When reviewing a PCN, the district engineer will
consider the cumulative effects of all crossings of waters of the
United States and apply the 10 criteria listed in paragraph 2 of
Section D, District Engineer's Decision.
One commenter stated that vague conditions such as ``to the maximum
extent possible'' and ``where practicable'' should be eliminated from
the NWP. One commenter recommended that the phrase ``near as possible''
be revised to ``maximum extent practicable.'' The use of the terms such
as ``to the maximum extent practicable'' and ``where practicable''
afford the district engineer the discretion to consider the benefits
and detriments of activities, temporary activities in light of
differences in the local hydrologic conditions, and other factors while
ensuring that the activity will have no more than minimal adverse
environmental effects. This NWP requires access roads to be constructed
as near as possible to pre-construction contours and elevations. The
additional avoidance and minimization required by the more restrictive
``near as possible'' is necessary and still allows flexibility to
deviate from preconstruction contours.
Many commenters oppose providing notice and an opportunity for
potentially impacted communities to comment on each NWP-specific
activity. Many commenters stated that the NWP does not provide
opportunity for public input on each activity. Many commenters stated
that this NWP does not ensure that impacts to disadvantaged and
environmental justice communities are considered.
The public was provided an opportunity to comment on the Corps'
proposal to issue, reissue, or modify NWP 12 when Corps Headquarters
published its proposed rule in the Federal Register (90 FR 26100) to
start the public comment period. However, after an NWP is issued, there
is no public comment process for specific NWP activities. If, for a
proposed oil or natural gas pipeline activity, the district engineer
exercises discretionary authority and requires an individual permit for
that activity, the public will have an opportunity to provide comments
in response to the public notice issued by the Corps district. During
the process to reissue or modify the NWPs, the Corps considers the
adverse environmental effects of the reissuance of these NWPs in
accordance Section 404(e) of the CWA, Section 10 of the RHA, and in
compliance with applicable environmental laws, regulation, guidance and
policy, as limited by the scope of our authority. The level of analysis
and consideration of environmental justice concerns in the national
decision documents and this final action comply with current Executive
Orders and agency directives, including Executive Order 14151. The NWPs
are not expected to have any discriminatory effect or disproportionate
negative impact on any community or group.
One commenter opposed this NWP, stating it undermines local
environmental requirements. One commenter stated that states and local
authorities should review projects with activities that may be
authorized by this NWP. One commenter stated that a PCN should be
required for activities proposed where residential areas are within 500
feet of the pipeline right-of-way. One commenter stated that the Corps
has no authority to make siting decisions for pipelines. One commenter
expressed concerns over risks of horizontal directional drilling.
As stated in item 2 of Section E (Further Information), the NWPs do
not obviate the need to obtain other federal, state, or local permits,
approvals, or authorizations required by law. State and local
governments are the entities that have primary responsibility for
regulating land use and pipeline siting. The Corps does not have
jurisdiction to regulate or enforce inadvertent returns, leaks, or
spills that may occur during horizontal directional drilling to install
or replace oil or natural gas pipelines. The eighth paragraph of this
NWP authorizes, to the extent that DA authorization is required,
temporary structures, fills, and work necessary for the remediation of
inadvertent returns of drilling fluids to waters of the United States
through subsoil fissures or fractures that might occur during
horizontal directional drilling activities conducted for the purpose of
installing or replacing oil or natural gas pipelines. The purpose of
this paragraph is to provide authorization for regulated activities
that are necessary to remediate inadvertent returns of drilling fluids
to reduce adverse environmental effects that might be caused by
releases of
[[Page 791]]
drilling fluids to the surrounding environment.
One commenter stated that this NWP should be available to all
parties rather than just to the oil and gas industry. One commenter
expressed concern that this NWP exposes the NWP Program to judicial
scrutiny. This NWP places no restriction on who may apply for
authorization for discharges of dredged or fill material into waters of
the United States or work and structures in navigable waters of the
United States for activities associated with oil or natural gas
pipelines. While potential litigation risk is a consideration when
contemplating changes to an NWP, the Corps also considers other factors
such as administrative efficiency, reduction of regulatory burdens, and
other approaches for maintaining environmental protections.
Many commenters expressed concern over the impacts of activities
authorized by this NWP on water supply and water quality. Many
commenters expressed opposition to oil and gas pipelines because of
concern over fossil fuels or supporting renewable energy resources.
Many commenters stated that authorizing fossil fuel projects is
contrary to the public interest. Many commenters expressed concerns
over ruptures, spills and leaks from oil and gas pipelines. Several
commenters stated that the Corps does not analyze the harms and threats
posed on the environment through operation and maintenance of
pipelines.
The national decision document for this NWP considers the effects
of regulated discharges of dredged or fill material, or work or
structures, on water supply and conservation as part of the public
interest review. Discharges of dredged or fill material into waters of
the United States require water quality certification from the
appropriate certifying authority unless a waiver of the water quality
certification requirement occurs. For those certifying authorities that
choose to require individual water quality certifications for
activities authorized by this NWP, they can place conditions on the
certification to ensure the activity complies with state water quality
standards. General condition 25 (water quality) requires permittees to
comply with any granted water quality certifications. As stated in item
2 of Section E (Further Information), the NWPs do not obviate the need
to obtain other federal, state, or local permits, approvals, or
authorizations required by law. State and local governments are the
entities that have primary responsibility for regulating water use.
Congress did not grant the Corps' statutory authority to regulate
the extraction of oil or natural gas, the operation of any oil or
natural gas pipeline, the product transported by the pipeline, or the
emissions that result from combustion of oil or natural gas or from the
industrial processes that derive other products from oil or natural
gas. The Corps' authority is limited to the discharges of dredged or
fill material into waters of the United States and work or structure in
navigable waters of the United States. The extent of the NEPA analysis
for this NWP addresses the environmental effects of reissuing NWP 12
for a period of five years. NEPA does not require that the Corps
evaluate upstream and downstream impacts, including potential impacts
on the planet's climate which are associated with the extraction or
consumption of oil or natural gas or products derived from oil or
natural gas.
In the national decision document for the issuance of this NWP, the
Corps discusses leaks or spills that may occur during the construction
and/or operation of oil or natural gas pipelines. Congress has not
granted the Corps statutory authority to take actions to prevent or
control potential leaks or spills that may occur during the
construction or operation of oil or natural gas pipelines. Since the
Corps does not regulate the release of oil, natural gas, or products
derived from oil or natural gas, the Corps is not required to perform a
detailed analysis of the effects of those possible future leaks or
spills because those leaks or spills are not an effect of the Corps'
proposed action. Although some regulated activities authorized by
various NWPs may be associated with energy production, distribution,
and use, the Corps does not have the authority to regulate or control
the which type of energy production is proposed by a project proponent.
Many commenters recommended that compensatory mitigation should be
required for all losses of stream banks and any loss of waters. One
commenter stated that states rely on the Corps to require compensatory
mitigation for impacts to streams in their state.
General condition 23 requires compensatory mitigation for all
wetland losses greater than 1/10-acre and for all stream losses greater
than 3/100-acre that require PCNs, unless the district engineer
determines that some other form of mitigation would be more
environmentally appropriate. The Corps establishes PCN thresholds to
ensure compliance with federal law and to ensure that activities
authorized by an NWP will cause no more than minimal adverse
environmental effects. States and other local authorities may enact
laws and regulations to place further protections on streams and other
natural resources. The NWPs do not obviate the need to obtain other
federal, state, or local permits, approvals, or authorizations required
by law.
This NWP is reissued as proposed.
NWP 13. Bank Stabilization. The Corps proposed to modify NWP 13 by
adding a paragraph to clarify that this NWP can be used to authorize
regulated activities that incorporate nature-based solutions associated
with bank stabilization activities, including those in conjunction with
hard bank stabilization activities such as seawalls, bulkheads, and
revetments. The Corps also proposed to modify this NWP by adding a new
Note to encourage project proponents to use soft bank stabilization
approaches and/or nature-based solutions where appropriate to reduce
the potential individual and cumulative adverse environmental effects
that may be caused by bank stabilization activities. The proposed new
Note also provides examples of the numerous factors that likely need to
be considered when planning and designing a proposed bank stabilization
activity, including hard or soft approaches to bank stabilization.
Many commenters recommended that the Corps not reissue this NWP.
Many commenters stated that this NWP causes more than minimal adverse
environmental effects. Many commenters stated that the Corps failed to
support the finding that this NWP will cause no more than minimal
individual and cumulative adverse environmental effects. Many
commenters objected to the reliance on compensatory mitigation to
reduce the cumulative impacts of NWP 13 to a minimal level. Many
commenters stated that NWP 13 authorizes activities with significant
adverse impacts and therefore violates NEPA and the CWA. Many
commenters expressed concern that the Corps failed to analyze
``secondary effects'' on aquatic ecosystems. Many commenters stated
that Corps should conduct proper endangered species consultation for
the reissuance of NWP 13.
The process to reissue this NWP complied with Section 404(e) of the
CWA (including the Section 404(b)(1) Guidelines), NEPA, and ESA. The
terms and conditions for this NWP are appropriate for limiting bank
stabilization activities so that they have no more than minimal
individual and cumulative adverse environmental effects, while allowing
landowners and other entities to protect their property
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and safety. In the national decision document for the reissuance of
this NWP, the Corps prepared an EA using reliable data and resources to
inform a finding of no significant impact to comply with NEPA
requirements. Therefore, the reissuance of this NWP does not require
the preparation of an environmental impact statement. In the national
decision document, we have completed a 404(b)(1) Guidelines analysis,
including an analysis of direct and secondary effects, and determined
that the reissuance of this NWP complies with the Guidelines. The
Corps' compliance with ESA for the reissuance of the NWPs is discussed
in Section III.C. of this action.
Many commenters stated that this NWP authorizes activities that are
not similar in nature. One commenter stated that the Corps should
require mitigation for projects that result in more than minimal losses
of riverine functions for hard bank stabilization. Many commenters
expressed concern that the Corps failed to meaningfully consider
climate change and sea level rise.
This NWP authorizes discharges of dredged or fill material into
waters of the United States or work and structures in navigable waters
of the United States associated with bank stabilization activities
necessary for erosion control or prevention. This NWP authorizes
categories of activities that are similar in nature. The similar in
nature requirement does not mean that activities authorized by an NWP
must be identical to each other. The phrase ``categories of activities
that are similar in nature'', is best read to confer broad discretion
on the Secretary to facilitate the practical implementation of this
general permit program. General condition 23 requires compensatory
mitigation for all wetland losses greater than 1/10-acre and for all
stream losses greater than 3/100-acre that require PCNs, unless the
district engineer determines that some other form of mitigation would
be more environmentally appropriate. The activities authorized by NWP
13 are a tool for landowners and communities to adapt to sea level rise
and increases in the frequency of severe storm events.
Many commenters suggested reducing the impact limits for this NWP.
Many commenters recommended adding an acreage impact to this NWP. Many
stated that all armoring projects should be evaluated through the
individual permit process. Many commenters stated that the public
should be given the opportunity to comment on all shoreline armoring
projects regardless of size.
This NWP does not have an acreage limit; regulated activities
authorized by this NWP are subject to nine criteria, including a 500-
linear foot length limit along the bank and one-cubic yard per running
foot, unless waived by the district engineer. The limits in this NWP
are sufficient to ensure that the NWP authorizes only those activities
that have minimal adverse effects on the aquatic environment. Division
engineers may regionally condition this NWP to impose lower impact
limits to account for local environmental conditions and the ecological
functions and services provided by waters of the United States in those
areas.
In response to a PCN the district engineer can add special
conditions to the NWP authorization to ensure minimal adverse effects,
or exercise discretionary authority and require another type of permit,
such as an individual permit, for the activity. If the district
engineer exercises discretionary authority and requires an individual
permit for a bank stabilization activity, the public will have an
opportunity to provide comments in response to the public notice issued
by the Corps district. The public was provided an opportunity to
comment on the Corps' proposal to issue, reissue, or modify an NWP when
Corps Headquarters published its proposed rule in the Federal Register
(90 FR 26100) to start the public comment period. However, after an NWP
is issued, there is no public comment process for specific NWP
activities.
Many commenters stated that PCNs should be required for all NWP 13
projects. Many commenters objected to any new PCN thresholds. Several
commenters recommended reducing the 500-linear foot limit. One
commenter suggested raising the 500-linear foot limit. One commenter
stated that the one cubic yard per running foot limit is too
restrictive. One commenter requested clarification if the 500 linear
foot limit is measured along the centerline or along each bank.
The Corps establishes PCN thresholds to ensure compliance with
federal laws and to ensure that activities authorized by an NWP will
cause no more than minimal adverse environmental effects. This NWP
requires the prospective permittee submit a PCN when a proposed
activity (1) involves discharges of dredged or fill material into
special aquatic sites; or (2) is in excess of 500 feet in length; or
(3) will involve the discharge of dredged or fill material of greater
than an average of one cubic yard per running foot as measured along
the length of the treated bank, below the plane of the ordinary high
water mark or the high tide line.
The linear foot limit in this NWP applies to the length of the
regulated activity as measured along each bank where the bank
stabilization would occur, not the length of the stream segment as
measured along the centerline. If the prospective permittee intends
bank stabilization along 300 linear feet of the right stream bank and
additional bank stabilization along 300 linear feet of the left stream
bank of the same stream segment, a PCN is required because the total
length of the activity will exceed 500 linear feet. If a proposed
activity does not trigger any of the three PCN thresholds in the text
of the NWP, or a PCN threshold in the text of one of the NWP general
conditions (e.g., general condition 18, endangered species and general
condition 20, historic properties), then a PCN is not required for the
proposed activity unless a division engineer has imposed a regional
condition to require PCNs in a particular geographic region. Upon
receipt of a PCN, the district engineer will determine if the regulated
activity will cause no more than minimal adverse environmental effects.
The Corps is retaining the PCN thresholds in this NWP.
Many commenters recommended removing the district engineers'
ability to waive the limits in this NWP. Many commenters stated that
the Corps is not adequately considering the benefits versus the adverse
effects when deciding whether to waive limits. Many commenters
suggested removing the 1,000 linear foot limit on waivers for bulkheads
to allow for case-by-case approvals.
Paragraph (b) limits the activity authorized by this NWP to 500
linear feet unless waived and limits any bulkhead to no more than 1,000
linear feet. Paragraph (c) limits the activity to an average of one
cubic yard per running foot along the length of the treated bank unless
waived. Paragraph (d) prohibits discharges of dredged or fill material
into special aquatic sites unless waived. The criterion in paragraphs
(b), (c), and (d) of this NWP can be waived upon written determination
by the district engineer that the discharge of dredged or fill material
will result in no more than minimal adverse environmental effects. All
requests for waivers under NWP 13 will be coordinated with the
appropriate resource agencies, in accordance with paragraph (d) of
general condition 32, to assist with the district engineer's
evaluation. The district engineer will review the PCN and determine if
the proposed NWP activity will, after
[[Page 793]]
considering any comments from resource agencies, any waived criterion,
and permit conditions such as mitigation requirements, result in no
more than minimal individual and cumulative adverse environmental
effects.
We are retaining the waiver provisions for NWP 13. Waivers are an
important tool for providing flexibility in the NWP program, and for
authorizing activities that have only minimal adverse environmental
effects. Waivers also allow the Corps to focus its limited resources on
proposed activities that require DA authorization and may have more
than minimal impacts on the aquatic environment. The national decision
documents list the estimated annual usage of this NWP, the amount of
authorized impacts and the amount of required compensatory mitigation.
This level of information is sufficient to determine that this NWP is
being reissued compliant with Section 404(e) of the CWA.
Many commenters suggested an addition to paragraph (e) to prohibit
the impediment of groundwater and hyporheic exchange, for example,
through the filling of wetlands. One commenter recommended adding ``and
that material from failed protection will be removed from stream (and
if reused, can only be used as backfill as it does not meet 100 yr
flood requirements)'' to the end of paragraph (e). Many commenters
suggested that subsection (i) should state that maintenance of any bank
stabilization must be required for the lifetime of the activity. One
commenter requested that the NWP include a condition that requires the
project be designed to ensure the bank stabilization is sustainable.
One commenter suggested clarifying that the authorized maintenance
under the NWP includes the removal of failing structures.
Discharges of dredged or fill material into wetlands and other
waters of the United States may directly or indirectly impact movement
of ground water and hyporheic exchange. The loss of functions resulting
from the regulated activity are considered in the evaluation of the
impacts, at the national level, at the regional level, and at the
district level. The district engineer will determine, through review of
the PCN, if impacts to wetlands and other special aquatic sites
resulting from the specific activity will cause no more than minimal
adverse environmental effects. Paragraph (i) and general condition 14
(Proper Maintenance) require a permittee maintain and repair any
activity authorized by this NWP. Paragraph (i) does not require a
landowner or other entity to maintain a bank stabilization activity in
perpetuity. There are also a variety of other factors that affect the
functional lifespan of a bank stabilization activity.
If failure of an authorized activity occurs, the district engineer
may pursue compliance of an unauthorized action pursuant to 33 CFR 326.
The Corps declines to modify paragraph (e) to prescribe a specific
method for resolving noncompliance with an NWP, preserving flexibility
in such situations. As described in 33 CFR 326, the district engineer
has the discretion to make decisions on resolving unauthorized actions
based on the specific site characteristics, type of resource impacted,
and whether removal of eroded material would cause greater impacts then
allowing it to remain in place. Consistent with paragraph (i) and
general condition 14 (Proper Maintenance) a permittee may remove
existing fill or structures in order to maintain and repair any
activity authorized by this NWP. Removal of authorized fills and
structures may be also authorized by NWP 3 (Maintenance), by regional
general permit, or by individual permit.
Many commenters suggested adding language that requires that fill
material must be free from contaminants. Many commenters recommended
adding language that requires the applicant to ensure the preservation
of fish when dewatering aquatic resources.
Activities authorized by this NWP must comply with general
condition 6 (Suitable Material) which prohibits the discharge of
material that contains pollutants in toxic amounts. The permittee is
also responsible for complying with all general conditions to the NWP.
General condition 2 (Aquatic Life Movements) requires that temporary
crossings be suitably culverted, bridged, or otherwise designed and
constructed to maintain low flows to sustain the movement of those
aquatic species. If the regulated activity might affect, or is in the
vicinity of a species listed (or proposed for listing) or designated
critical habitat (or habitat proposed for such designation) under the
ESA, general condition 18 (Endangered Species) requires non-federal
permittees to submit a PCN and states the permittee cannot begin work
until the district engineer has provided notification that the proposed
activity will have ``no effect'' on listed species (or species proposed
for listing) or designated critical habitat (or critical habitat
proposed for such designation), or until ESA Section 7 consultation or
conference has been completed. If a PCN is required for the proposed
NWP activity, the Federal permittee must provide the district engineer
with the appropriate documentation to demonstrate compliance with the
ESA. The permittee is required to comply with any mitigation measures
identified during Section 7 ESA consultation, or species proposed for
listed) or critical habitat (or habitat proposed for such designation).
Many commenters supported the proposed addition of language about
nature-based solutions. Many commenters opposed the addition of the
nature-based solutions definition and some expressed concern that
nature-based solutions are not always the most beneficial to the
environment or feasible. Many commenters recommended requiring the use
of nature-based solutions. Many commenters suggested requiring nature-
based solutions be considered before allowing another form of bank
stabilization. One commenter recommended that the district engineer
ensure a seamless transition occurs between soft bank transitions to
hard bank structures and transitions to unmodified bank.
This NWP encourages project proponents to incorporate nature-based
solutions into the design of the activities authorized by this NWP. The
Corps acknowledges that there are circumstances when nature-based
solutions will not be practicable for a site for a variety of reasons.
Inclusion of nature-based solutions into the design of a project is not
required by this NWP. Note 2 reinforces the Corps' acknowledgement that
the landowner has the general right to protect his or her property from
erosion. The project proponent will determine what bank stabilization
options are feasible. In addition, district engineers can only provide
general information to landowners regarding bank stabilization options.
District engineers cannot design a landowner's bank stabilization
activity.
Paragraph (a) of general condition 23 (Mitigation), requires
permittees to avoid and minimize adverse effects to waters of the
United States to the maximum extent practicable. General condition 23
requires compensatory mitigation for all wetland losses greater than 1/
10-acre and for all stream losses greater than 3/100-acre for all
activities authorized under this NWP, unless the district engineer
determines that some other form of mitigation would be more
environmentally appropriate. The district engineer will determine if a
proposed activity would cause more than minimal adverse impacts to the
environment in light of the terms of the
[[Page 794]]
NWP, all the general conditions, and the criteria in Section D.
District Engineer's Decision.
A few commenters expressed concern that proposed examples of
nature-based solutions are actually bank hardening approaches that
contradict nature-based solutions. One commenter recommended clarifying
if ``bags of molluscs'' refers to living organisms, is limited to the
use of native species, the quantity of mollusks used, or if this
relates to oyster shell bags used in living shorelines. One commenter
suggests aligning the definition of nature-based solutions with the
examples provided in NWP 43 (Stormwater Management Facilities) to
ensure consistency for transportation and stormwater management
projects that incorporate nature-based solutions. One commenter
suggested adding the word ``also'' to the first sentence of the
eleventh paragraph, so it reads ``This NWP also authorizes discharges .
. .'' to clarify that the permit doesn't only authorize discharges
incorporating nature-based solution.
Depending on the characteristics of a site, soft bank stabilization
may not be appropriate. Nature-based solutions can include natural and
engineered components. Elements of nature-based solutions can be
incorporated into hard bank stabilization, such as use of construction
materials for seawalls and bulkheads that have textured surfaces, or
the placement of rock clusters next to a seawall or bulkhead. We have
modified NWP to add ``vegetative stabilization'' and ``bioengineering''
to the list of examples of nature-based solutions for bank
stabilization activities. We have also added a sentence to the eleventh
paragraph to reinforce that nature-based solutions should be
appropriate for the physical and biological characteristics of the
site.
Nature-based solutions may also include the placement of bags of
molluscs to create habitat. Molluscs are found in both freshwater and
saltwater and include mussels and oysters. The phrase ``bags of
molluscs'' refers to living organisms, but nature-based solutions can
also include the placement of bags of mollusc shells. If the molluscs
are living, the bags of molluscs should consist of species that are
native to the waterway where they will be placed to avoid the
introduction of invasive species in a waterway. The examples of nature-
based solutions in NWP 13 a
[…truncated; see source link]Indexed from Federal Register on January 8, 2026.
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