Reissuance and Modification of Nationwide Permits, 73522-73583 [2021-27441]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Army, Corps of Engineers

[Federal Register Volume 86, Number 245 (Monday, December 27, 2021)]
[Rules and Regulations]
[Pages 73522-73583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27441]



[[Page 73521]]

Vol. 86

Monday,

No. 245

December 27, 2021

Part III





Department of Defense





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Department of the Army, Corps of Engineers





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33 CFR Chapter II





Reissuance and Modification of Nationwide Permits; Final Rule

Federal Register / Vol. 86 , No. 245 / Monday, December 27, 2021 / 
Rules and Regulations

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Chapter II

[Docket Number: COE-2020-0002]
RIN 0710-AB29


Reissuance and Modification of Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: Nationwide Permits (NWPs) authorize certain activities under 
Section 404 of the Clean Water Act and Section 10 of the Rivers and 
Harbors Act of 1899 that have no more than minimal individual and 
cumulative adverse environmental effects. In a proposed rule published 
in the September 15, 2020, issue of the Federal Register, the Corps 
proposed to reissue 52 existing NWPs and issue five new NWPs, plus the 
NWP general conditions and definitions. In a final rule published in 
the January 13, 2021, issue of the Federal Register, the Corps reissued 
12 of the 52 existing NWPs and four of the five new NWPs, as well as 
the NWP general conditions and definitions. In this final rule, the 
Corps is reissuing the remaining 40 existing NWPs and issuing the 
remaining one new NWP. The NWP general conditions and definitions 
published in the January 13, 2021, issue of the Federal Register apply 
to the 41 NWPs reissued or issued in this final rule.

DATES: The 41 NWPs in this final rule go into effect on February 25, 
2022. The 41 NWPs in this final rule expire on March 14, 2026.

ADDRESSES: U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street 
NW, Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or 
access the U.S. Army Corps of Engineers Regulatory Home Page at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. General
    B. Overview of Proposed Rule
    C. Overview of This Final Rule
    E. Nationwide Permit Verifications
II. Discussion of Public Comments
    A. Overview
    B. Responses to General Comments
    C. Comments on Regional Conditioning of Nationwide Permits
    D. Response to Comments on Specific Nationwide Permits in This 
Final Rule
    E. Responses to Comments on the Nationwide Permit General 
Conditions
    F. Responses to Comments on the District Engineer's Decision
    G. Discussion of Proposed Modifications to Section F, 
Definitions
III. Compliance With Relevant Statutes
    A. National Environmental Policy Act Compliance
    B. Compliance With Section 404(e) of the Clean Water Act
    C. 2020 Revisions to the Definition of ``Waters of the United 
States'' (i.e., the Navigable Waters Protection Rule)
    D. Compliance With the Endangered Species Act
    E. Compliance With the Essential Fish Habitat Provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act
    F. Compliance With Section 106 of the National Historic 
Preservation Act
    G. Section 401 of the Clean Water Act
    H. Section 307 of the Coastal Zone Management Act (CZMA)
IV. Economic Impact
V. Administrative Requirements
VI. References

List of Acronyms

BMP Best Management Practice
CEQ Council on Environmental Quality
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NPDES National Pollutant Discharge Elimination System
NWP Nationwide Permit
PCN Pre-construction Notification
RGL Regulatory Guidance Letter

List of Nationwide Permits Issued in This Final Rule

1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities
28. Modifications of Existing Marinas
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
41. Reshaping Existing Drainage Ditches
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
49. Coal Remining Activities
53. Removal of Low-Head Dams
54. Living Shorelines
59. Water Reclamation and Reuse Facilities

I. Background

A. General

    The U.S. Army Corps of Engineers (Corps) issues nationwide permits 
(NWPs) to authorize activities under Section 404 of the Clean Water Act 
(33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 
(33 U.S.C. 403), where those activities will result in no more than 
minimal individual and cumulative adverse environmental effects. NWPs 
were first issued by the Corps in 1977 (42 FR 37122) to authorize 
categories of activities that have minimal adverse effects on the 
aquatic environment with conditions to minimize those adverse effects, 
without requiring individual permits for those activities. After 1977, 
NWPs have been issued or reissued in 1982 (47 FR 31794), 1984 (49 FR 
39478), 1986 (51 FR 41206), 1991 (56 FR 59110), 1995 (60 FR 38650), 
1996 (61 FR 65874), 2000 (65 FR 12818), 2002 (67 FR 2020), 2007 (72 FR 
11092), 2012 (77 FR 10184), 2017 (82 FR 1860), and 2021 (86 FR 2744).
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States that will cause only minimal 
individual and cumulative adverse environmental effects for a period of 
no more than five years after the date of issuance (33 U.S.C. 1344(e)). 
The Secretary's authority to issue permits has been

[[Page 73523]]

delegated to the Chief of Engineers and designated representatives of 
the Chief of Engineers. Nationwide permits are a type of general permit 
issued by the Chief of Engineers and are designed to regulate with 
little, if any, delay or paperwork certain activities in federally 
jurisdictional waters and wetlands, where those activities would have 
no more than minimal adverse environmental impacts (see 33 CFR 
330.1(b)). The categories of activities authorized by NWPs must be 
similar in nature, cause only minimal adverse environmental effects 
when performed separately, and have only minimal cumulative adverse 
effect on the environment (see 33 U.S.C. 1344(e)(1)). NWPs can be 
issued for a period of no more than 5 years (33 U.S.C. 1344(e)(2)), and 
the Corps has the authority to modify, reissue, revoke, or suspend the 
NWPs before they expire. NWPs can also be issued to authorize 
activities pursuant to Section 10 of the Rivers and Harbors Act of 1899 
(see 33 CFR 322.2(f)). The NWP program is designed to provide timely 
authorizations for the regulated public while protecting the Nation's 
aquatic resources.
    On September 15, 2020, the Corps published a proposed rule in the 
Federal Register (85 FR 57298) to reissue 52 existing NWPs with 
modifications, to issue five new NWPs, and to reissue the NWP general 
conditions and definitions with modifications. On January 13, 2021, the 
Corps published a final rule in the Federal Register (86 FR 2744). In 
that final rule, the Corps reissued the following NWPs: NWP 12 (oil or 
natural gas pipeline activities); NWP 21 (surface coal mining 
activities); NWP 29 (residential developments); NWP 39 (commercial and 
institutional developments); NWP 40 (agricultural activities); NWP 42 
(recreational facilities); NWP 43 (stormwater management facilities); 
NWP 44 (mining activities); NWP 48 (commercial shellfish mariculture 
activities); NWP 50 (underground coal mining activities); NWP 51 (land-
based renewable energy generation facilities); and NWP 52 (water-based 
renewable energy generation pilot projects). The Corps issued four new 
NWPs: NWP 55 (seaweed mariculture activities); NWP 56 (finfish 
mariculture activities); NWP 57 (electric utility line and 
telecommunications activities); and NWP 58 (utility line activities for 
water and other substances). In the final rule published on January 13, 
2021, the Corps stated that it would issue a separate final rule for 
its decisions on the proposed reissuance of the other 40 proposed NWPs 
and the issuance of proposed new NWP E for water reclamation and reuse 
facilities.
    The 16 NWPs issued or reissued in the final rule that was published 
in the January 13, 2021, issue of the Federal Register expire on March 
14, 2026. The 41 NWPs published in today's final rule will also expire 
on March 14, 2026, so that all of the NWPs issued or reissued in 2021 
expire on the same date. Under Section 404(e) of the Clean Water Act 
(33 U.S.C. 1344(e)), an NWP cannot be issued for a period of more than 
five years, and the Corps has discretion to establish an expiration 
date for an NWP that is less than five years after the date the NWP 
goes into effect. Establishing the same expiration date for 16 NWPs 
issued in January 2021 and the 41 NWPs issued in today's final rule 
will help provide consistency and clarity to the regulated public and 
the Corps, and align all of the NWPs in terms of scheduling the next 
rulemaking to issue or reissue the NWPs. At its discretion, the Corps 
may rescind, revise, or suspend one or more NWPs prior to that time.
    Consistent with E.O. 13990, Protecting Public Health and the 
Environment and Restoring Science to Tackle the Climate Crisis, the 
Army is also considering whether additional steps should be taken to 
ensure the Nationwide Permits program aligns with this Administration's 
policies and priorities moving forward.
    Nationwide permits authorize categories of activities that are 
similar in nature and will cause only minimal adverse environmental 
effects when performed separately, and will have only minimal 
cumulative adverse effect on the environment. See 33 U.S.C. 1344(e)(1). 
The phrase ``minimal adverse environmental effects when performed 
separately'' refers to the direct and indirect adverse environmental 
effects caused by a specific activity authorized by an NWP. The phrase 
``minimal cumulative adverse effect on the environment'' refers to the 
collective direct and indirect adverse environmental effects caused by 
all the activities authorized by a particular NWP during the time 
period when the NWP is in effect (a period of no more than 5 years) in 
a specific geographic region (e.g., 40 CFR 230.7(b)(3)). These concepts 
are defined in paragraph 2 of section D, ``District Engineer's 
Decision.'' The appropriate geographic area for assessing cumulative 
effects is determined by the decision-making authority for the general 
permit (generally, the district engineer).
    Some NWPs include pre-construction notification (PCN) requirements. 
PCNs give the Corps the opportunity to evaluate certain proposed NWP 
activities on a case-by-case basis to ensure that they will cause no 
more than minimal adverse environmental effects, individually and 
cumulatively. Except for activities conducted by non-federal permittees 
that require PCNs under paragraph (c) of the ``Endangered Species'' and 
``Historic Properties'' general conditions (general conditions 18 and 
20, respectively), if the Corps district does not respond to the PCN 
within 45 days of a receipt of a complete PCN, the activity is deemed 
authorized by the NWP (see 33 CFR 330.1(e)(1)).
    In fiscal year 2018, the average processing time for an NWP PCN was 
45 days and the average processing time for a standard individual 
permit was 264 days. This difference in processing time can incentivize 
project proponents to reduce the adverse effects of their planned 
activities that would otherwise require an individual permit under 
Section 404 of the Clean Water Act and/or Section 10 of the Rivers and 
Harbors Act of 1899, in order to qualify for NWP authorization. This 
reduction in adverse effects can therefore reduce a project's impact on 
the Nation's aquatic resources.
    There are 38 Corps district offices and 8 Corps division offices. 
The district offices administer the NWP program on a day-to-day basis 
by reviewing PCNs for proposed NWP activities. The division offices 
oversee district offices and are managed by division engineers. 
Division engineers have the authority, after public notice and comment, 
to modify, suspend, or revoke NWP authorizations on a regional basis to 
take into account regional differences among aquatic resources and to 
ensure that the NWPs authorize only those activities that result in no 
more than minimal individual and cumulative adverse environmental 
effects in a region (see 33 CFR 330.5(c)). When a Corps district 
receives a PCN, the district engineer reviews the PCN and determines 
whether the proposed activity will result in no more than minimal 
individual and cumulative adverse environmental effects, consistent 
with the criteria in paragraph 2 of section D, ``District Engineer's 
Decision.'' At this point, the district engineer may add conditions to 
the NWP authorization to ensure that the verified NWP activity results 
in no more than minimal individual and cumulative adverse environmental 
effects and that it is not contrary to the public interest, consistent 
with processes and requirements set out in 33 CFR 330.5(d). See section 
II.G for more

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information on regional conditions for the NWPs.
    For some NWPs, when submitting a PCN, an applicant may request a 
waiver for a particular limit specified in the NWP's terms and 
conditions. If the applicant requests a waiver of an NWP limit and the 
district engineer determines, after coordinating with the resource 
agencies under paragraph (d) of NWP general condition 32, that the 
proposed NWP activity will result in no more than minimal adverse 
environmental effects, the district engineer may grant such a waiver. 
Following the conclusion of the district engineer's review of a PCN, 
the district engineer prepares an official, publicly available decision 
document. This document discusses the district engineer's findings as 
to whether a proposed NWP activity qualifies for NWP authorization, 
including compliance with all applicable terms and conditions, and the 
rationale for any waivers granted, and activity-specific conditions 
needed to ensure that the activity being authorized by the NWP will 
have no more than minimal individual and cumulative adverse 
environmental effects and will not be contrary to the public interest 
(see Sec.  330.6(a)(3)(i)).
    The case-by-case review of PCNs often results in district engineers 
adding activity-specific conditions to NWP authorizations to ensure 
that the adverse environmental effects are no more than minimal. These 
can include permit conditions such as time-of-year restrictions and/or 
use of best management practices and/or compensatory mitigation 
requirements to offset authorized losses of jurisdictional waters and 
wetlands so that the net adverse environmental effects caused by the 
authorized activity are no more than minimal. Any compensatory 
mitigation required for NWP activities must comply with the Corps' 
compensatory mitigation regulations at 33 CFR part 332. Review of a PCN 
may also result in the district engineer asserting discretionary 
authority to require an individual permit from the Corps for the 
proposed activity, if the district engineer determines, based on the 
information provided in the PCN and other available information, that 
the adverse environmental effects will be more than minimal, or 
otherwise determines that ``sufficient concerns for the environment or 
any other factor of the public interest so requires'' consistent with 
33 CFR 330.4(e)(2)).
    During the review of PCNs, district engineers assess cumulative 
adverse environmental effects caused by NWP activities at an 
appropriate regional scale. Cumulative effects are the result of the 
accumulation of direct and indirect effects caused by multiple 
activities that persist over time in a particular geographic area 
(MacDonald 2000), such as a watershed or ecoregion (Gosselink and Lee 
1989). Therefore, the geographic and temporal scales for cumulative 
effects analysis are larger than the analysis of the direct and 
indirect adverse environmental effects caused by specific NWP 
activities. For purposes of the NWP program, cumulative effects are the 
result of the combined effects of activities authorized by NWPs during 
the period the NWPs are in effect. The cumulative effects are assessed 
against the current environmental setting (environmental baseline) to 
determine whether the cumulative adverse environmental effects are more 
than minimal. The district engineer uses his or her discretion to 
determine the appropriate regional scale for evaluating cumulative 
effects.
    For the NWPs, the appropriate regional scale for evaluating 
cumulative effects may be a waterbody, watershed, county, state, or a 
Corps district, as appropriate. The appropriate regional scale is 
dependent, in part, on where the NWP activities are occurring. For 
example, for NWPs that authorize structures and/or work in navigable 
waters of the United States under Section 10 of the Rivers and Harbors 
Act of 1899, the appropriate geographic region for assessing cumulative 
effects may be a specific navigable waterbody or a seascape. For NWPs 
that authorize discharges of dredged or fill material into non-tidal 
jurisdictional wetlands and streams, the appropriate geographic region 
for assessing cumulative effects may be a watershed, county, state, or 
Corps district. The direct individual adverse environmental effects 
caused by activities authorized by NWPs are evaluated within the 
project footprint, and the indirect individual adverse environmental 
effects caused by activities authorized by NWPs are evaluated within 
the geographic area to which those indirect effects extend.
    When the district engineer reviews a PCN and determines that the 
proposed activity qualifies for NWP authorization, the district 
engineer will issue a written NWP verification to the permittee (see 33 
CFR 330.6(a)(3)). If an NWP verification includes multiple 
authorizations using a single NWP (e.g., linear projects with crossings 
of separate and distant waters of the United States authorized by NWPs 
12, 14, 57, or 58) or non-linear projects authorized with two or more 
different NWPs (e.g., an NWP 28 for reconfiguring an existing marina 
basin plus an NWP 19 for minor dredging within that marina basin), the 
district engineer will evaluate the cumulative effects of the 
applicable NWP authorizations within the geographic area that the 
district engineer determines is appropriate for assessing cumulative 
effects caused by activities authorized by that NWP. As discussed 
above, the geographic area may be a waterbody, watershed, county, 
state, Corps district, or other geographic area such as a seascape.
    The Corps' regulations for its ``public interest review'' at 33 CFR 
320.4(a)(1) require consideration of cumulative impacts for the 
issuance of DA permits. Since the required public interest review and 
404(b)(1) Guidelines cumulative effects analyses are conducted by Corps 
Headquarters in its decision documents for the issuance of the NWPs, 
district engineers do not need to do comprehensive cumulative effects 
analyses for NWP verifications. For an NWP verification, the district 
engineer needs only to include a statement in the administrative record 
stating whether the proposed activity to be authorized by an NWP, plus 
any required mitigation, will result in no more than minimal individual 
and cumulative adverse environmental effects. If the district engineer 
determines, after considering mitigation, that a proposed NWP activity 
will result in more than minimal cumulative adverse environmental 
effects, the district engineer will exercise discretionary authority 
and require an application for an individual permit for the proposed 
activity that requires Department of the Army (DA) authorization.
    There may be activities authorized by NWPs that cross more than one 
Corps district or more than a single state. On May 15, 2018, the 
Director of Civil Works at Corps Headquarters issued a Director's 
Policy Memorandum titled: ``Designation of a Lead USACE District for 
Permitting of Non-USACE Projects Crossing Multiple Districts or 
States.'' \1\ This Director's Policy Memorandum identified lead 
districts for states that have more than one Corps district and 
established a policy for designating a lead district for activities 
that require DA permits that cross district or state boundaries. Under 
this policy, when the Corps receives an NWP PCN or individual permit 
application for such activities, a lead Corps district will be 
designated by the applicable Corps

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division office(s) using the criteria in the 2018 Director's Policy 
Memorandum, and that district will be responsible for serving as a 
single point of contact for each permit applicant, forming a Project 
Delivery Team comprising representatives of each of the affected 
districts, ensuring consistent reviews by the affected districts, and 
taking responsibility for identifying and resolving inconsistencies 
that may arise during the review. The list of lead districts for states 
is also used during the regional conditioning process for the NWPs. For 
that process the lead district is responsible for coordinating the 
development of the regional conditions and preparing the supplemental 
documents required by 33 CFR 330.5(c)(1)(iii).
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    \1\ This document is available at: https://usace.contentdm.oclc.org/digital/collection/p16021coll11/id/2757/ 
(accessed 3/12/2020).
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B. Overview of Proposed Rule

    On September 15, 2020, the Corps published in the Federal Register 
(85 FR 57298) a proposed regulation to reissue with modification the 
existing NWPs and associated general conditions and definitions and to 
create five new NWPs (2020 Proposal). The Corps provided a 60-day 
public comment period which closed on November 16, 2020. Among other 
things, the Corps proposed the following: (1) To reissue all existing 
permits (some with proposed modifications); (2) to issue two new NWPs 
to authorize certain categories of mariculture activities (i.e., 
seaweed and finfish mariculture) that are not currently authorized by 
NWP 48; (3) to issue three NWPs that authorize separate categories of 
utility line based on the substances they convey; (4) to issue a new 
NWP which would authorize discharges of dredged or fill material into 
jurisdictional waters for the construction, expansion, and maintenance 
of water reuse and reclamation facilities; and (5) to remove the 300 
linear foot limit for losses of stream bed from 10 NWPs (NWPs 21, 29, 
39, 40, 42, 43, 44, 50, 51, and 52). The Corps requested comment on 
these and all other aspects of the proposal. The final rule published 
in the January 13, 2021, issue of the Federal Register (86 FR 2744) 
finalized 12 of the existing permits and addressed items (2), (3), and 
(5), as well as the NWP general conditions and definitions.

C. Overview of This Final Rule

    This final rule reissues the 40 existing NWPs that were previously 
issued in the January 6, 2017, final rule (82 FR 1860) but not 
finalized on January 13, 2021 and issues one new NWP (NWP 59 for water 
reclamation and reuse facilities). This final rule does not address the 
16 NWPs, general conditions, and definitions that were finalized on 
January 13, 2021. In response to the 2020 Proposal, the Corps received 
approximately 22,700 comments. Those comments relating to the January 
13, 2021 final rule were addressed as part of that action; those 
comments relating to the NWPs in this final rule are discussed below 
together with the modifications made in response to those comments.
    The January 13, 2021, final rule addressed the comments received in 
response to the 2020 Proposal on the NWP general conditions and 
definitions. The NWP general conditions and definitions from the final 
rule published in the January 13, 2021, issue of the Federal Register 
apply to the NWPs published in today's final rule. The text of the NWP 
general conditions and definitions are provided in the January 13, 
2021, final rule on pages at 86 FR 2867-2877. The 41 NWPs in today's 
final rule expire on March 14, 2026, the same date as the 16 NWPs 
published in the January 13, 2021, issue of the Federal Register 
expire.

D. Status of Existing Permits

    When the Corps modifies existing NWPs, the modified NWPs replace 
the prior versions of those NWPs so that there are not two sets of NWPs 
in effect at the same time. Having two sets of NWPs in effect at the 
same time would create regulatory uncertainty if each set of those NWPs 
has different limits, requirements, and conditions because permittees 
may be unclear as to which limits, requirements, and conditions apply 
to their authorized activities. In addition, differences in NWP limits, 
requirements, and conditions between two sets of NWPs can create 
challenges for district engineers in terms of enforcement and 
compliance efforts.
    The Corps is modifying the expiration date for 40 existing NWPs 
(i.e., NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 
19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 
45, 46, 49, 53, and 54) that are issued in this final rule to the day 
before February 25, 2022. The expiration date for the 40 existing NWPs 
and the new NWP issued in this final rule is March 14, 2026.
    Under 33 CFR 330.6(a)(3)(ii), if the NWP is reissued without 
modification or the activity complies with any subsequent modification 
of the NWP authorization, the NWP verification letter (i.e., the 
written confirmation from the district engineer that the proposed 
activity is authorized by an NWP) should include a statement that the 
verification will remain valid for a period of time specified in the 
verification letter. The specified period of time is usually the 
expiration date of the NWP. In other words, if the previously verified 
activity continues to qualify for NWP authorization under any of the 40 
existing NWPs reissued in this final rule, that verification letter 
continues to be in effect until March 18, 2022, unless the district 
engineer specified a different expiration date in the NWP verification 
letter. For most activities authorized by the 2017 NWPs, where the 
district engineer issued an NWP verification letter, the verification 
letter identified March 18, 2022, as the expiration date. As long as 
the verified NWP activities continue to comply with the terms and 
conditions of the 40 existing NWPs reissued in this final rule, those 
activities continue to be authorized by the applicable NWP(s) until 
March 18, 2022, unless a district engineer modifies, suspends, or 
revokes a specific NWP authorization.
    Under 33 CFR 330.6(b), Corps Headquarters may modify, reissue, 
suspend, or revoke the NWPs at any time. Activities that were 
authorized by the 2017 NWPs, but no longer qualify for authorization 
under any of the 40 existing NWPs that are reissued in this final rule, 
continue to be authorized by the 2017 NWP(s) for 12 months as long as 
those activities have commenced (i.e., are under construction) or are 
under contract to commence in reliance upon an NWP prior to the date on 
which the NWP expires. That authorization is contingent on the activity 
being completed within twelve months of the date of an NWP's 
expiration, modification, or revocation, unless discretionary authority 
has been exercised by a division or district engineer on a case-by-case 
basis to modify, suspend, or revoke the authorization in accordance 
with 33 CFR 330.4(e) and 33 CFR 330.5(c) or (d). This provision applies 
to activities that were previously verified by the district engineer as 
qualifying for NWP authorization, but no longer qualify for NWP 
authorization under the modified or reissued NWP.
    The 41 NWPs issued in this final rule go into effect on February 
25, 2022. The 2017 versions of the 40 existing NWPs reissued in this 
final rule expire on the day before February 25, 2022. The 40 existing 
NWPs reissued in this final rule and the new NWP issued in this final 
rule (i.e., NWP 59) expire on March 14, 2026.

E. Nationwide Permit Verifications

    Certain NWPs require the permittee to submit a PCN, and thus 
request confirmation from the district engineer

[[Page 73526]]

prior to commencing the proposed NWP activity, to ensure that the NWP 
activity complies with the terms and conditions of the NWP, including 
any conditions the district engineer adds to the NWP authorization in 
accordance with 33 CFR 330.6(a)(3)(i). The requirement to submit a PCN 
is identified in the NWP text, as well as certain general conditions. 
General condition 18 requires non-federal permittees to submit PCNs for 
any proposed activity that might affect Endangered Species Act (ESA)-
listed species (or species proposed for listing) or designated critical 
habitat (or critical habitat proposed for such designation), if listed 
species (or species proposed for listing) or designated critical 
habitat (or critical habitat proposed for such designation) are in the 
vicinity of the proposed activity, or if the proposed activity is 
located in critical habitat or critical habitat proposed for such 
designation. General condition 20 requires non-federal permittees to 
submit PCNs for any proposed activity that might have the potential to 
cause effects to any historic properties listed in, determined to be 
eligible for listing in, or potentially eligible for listing in, the 
National Register of Historic Places.
    In the PCN, the project proponent must specify which NWP or NWPs 
the project proponent wants to use to provide the required DA 
authorization under Section 404 of the Clean Water Act and/or Section 
10 of the Rivers and Harbors Act of 1899. For voluntary NWP 
verification requests (where a PCN is not required), the request should 
also identify the NWP(s) the project proponent wants to use. The 
district engineer should verify the activity under the NWP(s) requested 
by the project proponent, as long as the proposed activity complies 
with all applicable terms and conditions, including any applicable 
regional conditions imposed by the division engineer. All NWPs have the 
same general requirements: That the authorized activities may only 
cause no more than minimal individual and cumulative adverse 
environmental effects. Therefore, if the proposed activity complies 
with the terms and all applicable conditions of the NWP the applicant 
wants to use, then the district engineer should issue the NWP 
verification unless the district engineer exercises discretionary 
authority and requires an individual permit. If the proposed activity 
does not meet the terms and conditions of the NWP identified in the 
applicant's PCN, and that activity meets the terms and conditions of 
another NWP identified by the district engineer, the district engineer 
will process the PCN under the NWP identified by the district engineer. 
If the district engineer exercises discretionary authority, the 
district engineer should explain the reasons for determining that the 
proposed activity raises sufficient concern for the environment or 
otherwise may be contrary to the public interest.
    PCN requirements may be added to NWPs by division engineers through 
regional conditions to require PCNs for additional activities. For an 
activity where a PCN is not required, a project proponent may submit a 
PCN voluntarily, if the project proponent wants written confirmation 
that the activity is authorized by an NWP. Some project proponents 
submit permit applications without specifying the type of authorization 
they are seeking. In such cases, the district engineer will review 
those applications and determine if the proposed activity qualifies for 
NWP authorization or another form of DA authorization, such as a 
regional general permit (see 33 CFR 330.1(f)).
    In response to a PCN or a voluntary NWP verification request, the 
district engineer reviews the information submitted by the prospective 
permittee. If the district engineer determines that the activity 
complies with the terms and conditions of the NWP, the district 
engineer will notify the permittee. Activity-specific conditions, such 
as compensatory mitigation requirements, may be added to an NWP 
authorization to ensure that the activity to be authorized under the 
NWP will result in no more than minimal individual and cumulative 
adverse environmental effects and will not be contrary to the public 
interest. The activity-specific conditions are incorporated into the 
NWP verification, along with the NWP text and the NWP general 
conditions. In general, NWP verification letters will expire on the 
date the NWP expires (see 33 CFR 330.6(a)(3)(ii)), although district 
engineers have the authority to issue NWP verification letters that 
will expire before the NWP expires, if it is in the public interest to 
do so.
    If the district engineer reviews the PCN or voluntary NWP 
verification request and determines that the proposed activity does not 
comply with the terms and conditions of an NWP, the district engineer 
will notify the project proponent and provide instructions for applying 
for authorization under a regional general permit or an individual 
permit. District engineers will respond to NWP verification requests, 
submitted voluntarily or as required through PCNs, within 45 days of 
receiving a complete PCN. Except for NWP 49, and for proposed NWP 
activities that require ESA Section 7 consultation and/or NHPA Section 
106 consultation, if the project proponent has not received a reply 
from the Corps within 45 days, the project proponent may assume that 
the project is authorized, consistent with the information provided in 
the PCN. For NWP 49, and for proposed NWP activities that require ESA 
Section 7 consultation and/or NHPA Section 106 consultation, the 
project proponent cannot begin work before receiving a written NWP 
verification. If the project proponent requested a waiver of a limit in 
an NWP, the waiver is not granted unless the district engineer makes a 
written determination that the proposed activity will result in no more 
than minimal individual and cumulative adverse environmental effects 
and issues an NWP verification.

II. Discussion of Public Comments

A. Overview

    In response to the 2020 Proposal, the Corps received approximately 
22,700 comment letters, of which approximately 22,330 were form 
letters. In addition to the various form letters, the Corps received a 
few hundred individual comment letters. Those individual comment 
letters, as well as examples of the various form letters, are posted in 
the www.regulations.gov docket (COE-2020-0002) for this rulemaking 
action. The Corps reviewed and fully considered all comments received 
in response to the 2020 Proposal. The Corps' responses to the comments 
received on the proposed removal of the 300 linear foot limit for 
losses of stream bed from 10 existing NWPs, the proposed changes to 
NWPs 21 and 50, the proposed reissuance of NWP 48, the proposed 
reissuance of NWP 12, and the proposed issuance of four new NWPs (NWPs 
55, 56, 57, and 58) are summarized and addressed in the final rule 
published in the January 13, 2021, issue of the Federal Register (86 FR 
2744). The sections below discuss the comments received and the Corps 
responses on the 40 existing NWPs and one new NWP being finalized in 
this rule.

B. Responses to General Comments

    A summary of general comments submitted to the Corps in response to 
the 2020 Proposal, and responses to those general comments, are 
provided in the final rule published in the January 13, 2021, issue of 
the Federal Register at 86 FR 2750-2753.

[[Page 73527]]

(1) Status of Existing Permits
    In response to the 2020 Proposal, the Corps received comments 
concerning the status of existing NWP authorizations and how the 
issuance of the final rule may affect those existing authorizations. 
The Corps also invited public comment on changing the expiration date 
for the 2017 NWPs to avoid having two sets of NWPs in effect at the 
same time. These comments were summarized and addressed in the final 
rule published in the January 13, 2021, issue of the Federal Register 
at 86 FR 2753-2754.
(2) Pre-Construction Notification Requirements
    Comments on PCN requirements for the NWPs in the 2020 Proposal were 
addressed in the final rule published in the January 13, 2021, issue of 
the Federal Register at 86 FR 2754-2755.
(3) Climate Change
    Comments on climate change and the NWPs in the 2020 Proposal were 
addressed in the final rule published in the January 13, 2021, issue of 
the Federal Register at 86 FR 2755. The Corps recognizes the importance 
of climate change resiliency and both mitigation and adaptation efforts 
to address climate change. The Corps discusses climate change in the 
context of the NWP reissuance in each of the national decision 
documents for the 41 NWPs. Some activities authorized by various NWPs 
may be associated with energy production (including the energy 
production through solar, wind, and other renewable resources), 
distribution, and use, while other activities authorized by the NWPs 
may contribute to adaptation to climate change and help increase the 
resilience of communities to the adverse effects of climate change.
(4) Environmental Justice
    In response to the 2020 Proposal, the Corps received comments 
concerning environmental justice and how it was considered during 
development of the final rule. The Corps recognizes the importance of 
environmental justice to the Administration and incorporated 
consideration of impacts to communities with environmental justice 
interests to the extent practicable within its regulatory authorities 
in the issuance of this rule. The NWPs issuance are not expected to 
have any discriminatory effect or disproportionate negative impact on 
any community or group, and therefore are not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities. The NWPs issued in this final rule can be used by 
communities with environmental justice interests that want to conduct 
activities that require DA authorization that will help improve 
environmental quality within their communities (e.g., NWP 13 for bank 
stabilization activities; NWP 27 for aquatic habitat restoration, 
establishment, and enhancement activities; NWP 31 for the maintenance 
of existing flood control facilities; and NWP 38 for hazardous and 
toxic waste clean-up activities).

C. Comments on Regional Conditioning of Nationwide Permits

    Under Section 404(e) of the Clean Water Act, NWPs can only be 
issued for those activities that result in no more than minimal 
individual and cumulative adverse environmental effects. For activities 
that require authorization under Section 10 of the Rivers and Harbors 
Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f) 
have a similar requirement. Since it can be difficult for the Corps to 
draft national NWPs in such a way that they account for regional 
differences, an important mechanism for ensuring compliance with these 
requirements is regional conditions imposed by division engineers to 
address local environmental concerns. Effective regional conditions 
help protect local aquatic ecosystems and other resources and help 
ensure that the NWPs authorize only those activities that result in no 
more than minimal individual and cumulative adverse effects on the 
environment and are not contrary to the public interest.
    Prior to the effective date of the 41 NWPs published in this final 
rule, division engineers will complete supplemental documents for these 
NWPs, which will include the final regional conditions for these NWPs. 
Concurrent with the publication of the 2020 Proposal in the Federal 
Register, Corps districts issued public notices seeking comment on 
proposed regional conditions for the proposed NWPs. The division 
engineers' supplemental documents for the 41 NWPs will summarize the 
comments Corps districts received on the proposed regional conditions 
for those NWPs, provide responses to those comments, and provide the 
division engineers' decisions on whether to approve some or all of the 
regional conditions that were proposed by district engineers in their 
public notices. After the division engineers approve the regional 
conditions and sign the supplemental documents for these 41 NWPs, Corps 
districts will issue public notices on their websites announcing the 
final Corps regional conditions and when those regional conditions go 
into effect (see 33 CFR 330.5(c)(1)(v)). Copies of the district public 
notices are also sent to interested parties that are on each district's 
public notice mailing list via email or the U.S. mail. The public 
notice will also describe, if appropriate, a time period to complete an 
authorized activity as specified by 33 CFR 330.6(b) for those who have 
commenced work under the NWP or are under contract to commence work 
under the NWP (see 33 CFR 330.5(c)(1)(iv)). A copy of all Corps 
regional conditions approved by the division engineers for the NWPs are 
forwarded to Corps Headquarters (see 33 CFR 330.5(c)(3)). Copies of 
district public notices announcing final regional conditions for these 
41 NWPs will be posted in the www.regulations.gov docket for the 2021 
NWPs (docket number COE-2020-0002), under Supporting and Related 
Information so that copies of all district public notices and regional 
conditions are available at a central location. If, during 
implementation of the 41 NWPs in this final rule, division or district 
engineers identify the need for additional regional conditions, or 
changes to existing regional conditions, the procedures at 33 CFR 
330.5(c)(1) must be followed, including the issuance of district public 
notices to provide the public with the opportunity to submit comments 
on the proposed new regional conditions or proposed modifications to 
existing regional conditions.
    Comments on regional conditioning for the NWPs in the 2020 Proposal 
were addressed in the final rule published in the January 13, 2021, 
issue of the Federal Register at 86 FR 2758-2760.

D. Response to Comments on Specific Nationwide Permits in This Final 
Rule

    NWP 1. Aids to Navigation. The Corps did not propose any changes to 
this NWP. No comments were received on the proposed NWP. This NWP is 
reissued as proposed.
    NWP 2. Structures in Artificial Canals. The Corps did not propose 
any changes to this NWP. No comments were received on the proposed NWP. 
This NWP is reissued as proposed.
    NWP 3. Maintenance. The Corps proposed to modify paragraph (a) of 
this NWP to authorize the repair, rehabilitation, or replacement of any 
currently serviceable structure or fill that did not require DA 
authorization at the time it was constructed. The Corps also proposed 
to modify paragraph (a) of this NWP to authorize the placement of new 
or additional riprap to protect the structure, provided the placement 
of riprap is the minimum necessary to

[[Page 73528]]

protect the structure or to ensure the safety of the structure, to 
reinstate a provision was in the 2007 version of NWP 3 (see 72 FR 
11181).
    Several commenters stated that they support modifying paragraph (a) 
of this NWP to authorize the repair, rehabilitation, or replacement of 
any currently serviceable structure that did not require DA 
authorization of the time it was constructed. A few commenters 
expressed opposition to the proposed modification of this NWP and said 
that the text of the 2017 version of this NWP that limits maintenance 
to previously authorized and currently serviceable structures should be 
retained. Several commenters expressed opposition to the authorization 
of any currently serviceable fills that were installed prior to the 
Clean Water Act without requiring a PCN because those fills have not 
been evaluated under current environmental regulations. One commenter 
said that the maintenance of any structures or fills that existed prior 
to the Clean Water Act should not require any authorization from the 
Corps. One commenter stated that a timeframe should be added to NWP 3 
to specify a maximum length of time the structure has been in disrepair 
in order to use this NWP to authorize maintenance of the structure.
    After considering the comments received in response to the 2020 
Proposal, the Corps is reissuing this NWP without modifying paragraph 
(a) of this NWP to authorize the repair, rehabilitation, or replacement 
of any currently serviceable structure that did not require DA 
authorization at the time it was constructed. The repair, 
rehabilitation, or replacement of any currently serviceable structure 
that did not require DA authorization of the time it was constructed 
may be authorized by other forms of DA authorization, such as regional 
general permits and individual permits.
    The NWP is limited to the repair, rehabilitation, or replacement of 
currently serviceable structures or fills, so it is not necessary to 
impose a timeframe for NWP 3 eligibility during which the need for 
repair, rehabilitation, or replacement activity must be completed in 
order to be eligible for NWP 3 authorization. The term ``currently 
serviceable'' is defined in section F of the NWPs. This NWP does not 
authorize the reconstruction of structures or fills that are no longer 
currently serviceable. In addition, changes to a structure or fill that 
prompt the need for repair, rehabilitation, or replacement may occur 
gradually or abruptly, or at some intermediate rate. The timeframe in 
which the structure or fill requires some degree of repair, 
rehabilitation, or replacement is not as relevant to ensuring no more 
than minimal adverse environmental effects than the constraints imposed 
by the ``currently serviceable'' and ``minor deviations'' provisions of 
this NWP.
    The Corps does not agree that PCNs should be required for 
maintenance activities authorized by paragraph (a) of this NWP because 
of the limitations in that paragraph.
    One commenter stated that the text of this NWP should be modified 
to allow for maintenance of any existing infrastructure provided it 
does not change the intended use of the structure or fill. A few 
commenters requested clarification as to what the term ``currently 
serviceable structure'' means, including whether or not the structure 
or fill has to be operational. One commenter requested clarification on 
the differences between ``replacement'' and ``reconstruction.'' A few 
commenters asked for changes in the text of NWP 3 to clarify that any 
structures or fill that were previously permitted by the Corps may 
utilize NWP 3 for maintenance and repair activities.
    This NWP authorizes the repair, rehabilitation, or replacement of 
existing infrastructure while allowing minor deviations due to due to 
changes in materials, construction techniques, requirements of other 
regulatory agencies, or current construction codes or safety standards. 
In addition, the NWP requires the structure or fill to not be put to 
uses that differ from the uses originally contemplated for it when the 
structure or fill was originally constructed. Repair, rehabilitation, 
or replacement activities that exceed the ``minor deviations'' 
provision of this NWP may be authorized by individual permits, regional 
general permits, or another NWP.
    The term ``currently serviceable'' is currently defined in section 
F of the NWPs as: ``useable as is or with some maintenance, but not so 
degraded as to essentially require reconstruction.'' Therefore, there 
must be some degree of operability associated with the structure or 
fill in order for repair, rehabilitation, and replacement activities to 
be authorized by this NWP. The difference between ``replacement'' and 
``reconstruction'' is based on the concept of ``currently 
serviceable.'' A currently serviceable structure or fill retains some 
degree of operability but can be replaced before it degrades to the 
extent where it is no longer operable (i.e., incapable of performing 
its intended function). In contrast, a structure or fill that is no 
longer capable of providing any degree of operability would have to be 
reconstructed to perform its intended function. This NWP can be used to 
repair, rehabilitate, or replace existing, currently serviceable 
structures or fills as long as the proposed activities satisfy the 
requirements in the text of the NWP, including any applicable NWP 
general conditions, regional conditions imposed by division engineers, 
and activity-specific conditions imposed by district engineers. The 
Corps declines to modify the text of this NWP to state that it can be 
used for maintenance and repair activities for previously permitted 
structures or fills because some of those maintenance and repair 
activities might not qualify for NWP 3 authorization and may require 
individual permits or other forms of DA authorization.
    One commenter expressed opposition to authorizing the 
rehabilitation or replacement of structures that are derelict or not 
operational without a PCN and analyses of individual cumulative 
effects. One commenter recommended modifying this NWP to authorize 
regular maintenance of drainages to reduce exposed pipelines and 
pipeline spans. One commenter stated that without individual permit 
review, the Corps has no way of knowing if the structures are being 
replaced in kind, and whether those structures would have adverse 
environmental effects. This commenter also said that there need to be 
practicable alternatives if adverse effects are anticipated by these 
activities.
    This NWP does not authorize the repair, rehabilitation, or 
replacement of structures and fills that are no longer currently 
serviceable. If a derelict or non-operational structure requires 
repair, rehabilitation, or replacement, and those activities require DA 
authorization, they may be authorized by individual permits or regional 
general permits. Discharges of dredged or fill material into waters of 
the United States that are necessary to rebury pipelines exposed in 
drainages or repair pipeline spans that extend over drainages may be 
authorized by this NWP or other NWPs, such as NWP 18, which authorizes 
minor discharges into waters of the United States. Corps district staff 
may conduct compliance actions for activities authorized by NWP 3, to 
ensure that authorized activities comply with the conditions of the 
NWP, including in-kind replacement. Because this NWP is limited to the 
repair, rehabilitation, and replacement of existing, currently 
serviceable structures or fills, there are usually no practicable 
alternatives for repairing, rehabilitating, or replacing these 
structures or fills. Relocating or reconstructing the

[[Page 73529]]

structure or fill in a different location has the potential to result 
in more adverse environmental effects than the incremental impact 
caused by the repair, rehabilitation, or replacement of the structure 
or fill, and might not serve the intended purpose as the original 
structure or fill.
    Many commenters stated that they support the proposed modification 
that authorizes the placement of new or additional riprap to protect 
the structure. Several commenters said that authorization of the 
placement of riprap under NWP 3 should require a PCN. Some commenters 
objected to this proposed modification. One commenter objected to this 
proposed modification, stating that it could be used to authorize 
substantial amounts of riprap to protect an existing structure or fill, 
such as a beach house. One commenter stated that the phrase ``minimum 
necessary'' is ambiguous and unquantifiable and NWP 3 activities should 
be limited to ensure that no significant adverse effects occur as a 
result of the placement of the riprap. One commenter said that riprap 
placed to protect the structure or fill should be limited to 25 cubic 
yards. One commenter said that riprap placed above the ordinary high 
water mark should be covered with topsoil and revegetated, and that 
stream-side areas at the ordinary high water mark should be revegetated 
with acceptable bioengineering techniques. A few commenters stated that 
using the term ``riprap'' in the proposed modification will result in 
preferential use of this technique when other forms of protection, such 
as bioengineering, may be feasible and less environmentally damaging.
    After considering the comments received in response to the 2020 
Proposal, the Corps is not reissuing NWP 3 with the proposed 
modification that would authorize the placement of new or additional 
riprap to protect the structure or fill, as long as the placement of 
riprap is the minimum necessary to protect the structure or fill and to 
ensure the safety of the structure or fill. The placement of new or 
additional riprap to protect the structure or fill may be authorized by 
other forms of DA authorization, such as regional general permits and 
individual permits. If a project proponent wants to place riprap to 
protect a building, such as a beach house constructed in uplands, then 
the project proponent can use NWP 13, which may require submittal of a 
PCN to the district engineer, or seek DA authorization through the 
individual permit process.
    Riprap placed in uplands landward of the ordinary high water mark 
does not require DA authorization, so the Corps does not have the 
authority to require the permittee place topsoil in those upland areas 
and install plants in the topsoil. Bioengineering might not be a 
practicable alternative to riprap for the purposes of protecting a 
repaired, rehabilitated, or replaced structure or fill, or ensuring its 
safe operation. A permittee can choose to use bioengineering to protect 
a structure or fill from erosion, if appropriate, and bioengineering 
activities that require DA authorization may be authorized by NWP 3 if 
it is considered a minor deviation due to changes in materials, 
construction techniques, requirements of other regulatory agencies, or 
current construction codes or safety standards. Bioengineering for bank 
stabilization may also be authorized by NWP 13, which authorizes a 
variety of bank stabilization techniques.
    A few commenters requested clarification on what constitutes a 
minor deviation, and what constitutes a small amount of riprap. One 
commenter suggested replacing the term ``small'' with ``minor'' when 
referring the amount of riprap that can be used to protect the 
structure or fill, to be consistent with the 1996 NWP. One of these 
commenters said that NWP 3 should have quantitative limits. One 
commenter requested that the Corps further restrict the NWP by adding 
text that states that the placement of riprap may be used to ensure the 
safety of the design, but not for other safety purposes.
    As discussed above, the Corps is not reissuing this NWP with 
modifications that would authorize the placement of new or additional 
riprap to protect the existing structure or fill. What constitutes a 
``minor deviation'' is dependent on the degree to which changes in the 
structure's configuration or filled area would occur as a result of the 
repair, rehabilitation, or replacement activity relative to the size 
and shape of the existing structure or fill, as well as any deviations 
that are necessary because of changes in materials, construction 
techniques, the requirements of other regulatory agencies, or current 
construction codes or safety standards. Because this NWP authorizes 
structures and work in navigable waters of the United States and 
discharges of dredged or fill material into waters of the United States 
for the repair, rehabilitation, or replacement of existing, currently 
serviceable structures or fills, and only allows minor deviations, it 
would not be appropriate to add quantitative limits to the text of the 
NWP other than the quantitative limits currently in paragraph (b) 
(i.e., the 200 foot limit for the removal of accumulated sediments and 
debris). The safety of the structure or fill may be dependent on more 
than the design of the structure or fill. For example, the safety of 
the structure or fill may be dependent on the types of materials used 
for the structure or fill, to help provide greater stability and help 
ensure that the structure or fill withstands expected erosive forces or 
other forces.
    Many commenters stated that they support the removal of 
``previously authorized'' from the Note and replacing it with 
``currently serviceable.'' Several commenters suggested retaining in 
the ``Note'' the text that refers to ``previously authorized'' 
structures or fills to allow for maintenance of previously authorized 
structures or fills. One commenter said that in the Note the phrase 
``previously authorized'' should be replaced with the term 
``existing.''
    In the Note for this NWP, the Corps has retained ``previously 
authorized'' because the Corps is not reissuing this NWP with the 
proposed changes to paragraph (a), which would have authorized the 
repair, rehabilitation, or replacement of any currently serviceable 
structure or fill that did not require a permit at the time it was 
constructed. If the structure or fill is ``currently serviceable'' it 
is an existing structure or fill. Therefore, it is not necessary to 
replace the phrase ``previously authorized'' with ``existing.''
    One commenter said that the removal of accumulated sediments within 
200 feet of a structure is excessive and should be evaluated on a case-
by-case basis. One commenter stated that the provisions allowing 
removal of sediment could result in more than minimal impacts on 
aquatic organisms. One commenter stated that the PCN requirement for 
activities authorized under (b) of this NWP for sediment and debris 
removal is unnecessary unless the dredged material is proposed to be 
redeposited or retained within waters of the United States.
    Paragraph (b) authorizes the removal of accumulated sediments and 
debris outside the immediate vicinity of existing structures (e.g., 
bridges, culverted road crossings, water intake structures, etc.) for a 
distance of no more than 200 feet from the structure. All activities 
authorized by paragraph (b) of this NWP require a PCN to district 
engineers. Therefore, district engineers will review these proposed 
activities to determine whether removal of accumulated sediments up to 
200 feet from the structure will result in no more than minimal 
individual and cumulative adverse environmental

[[Page 73530]]

effects. The removal of accumulated sediment and debris is likely to 
have temporary impacts on aquatic organisms because those activities 
occur on a periodic basis in response to the accumulation of sediment 
and debris in these dynamic waterbodies. Communities of aquatic 
organisms are likely to recover in the waterbody between sediment and 
debris removal activities. Division engineers may add regional 
conditions to this NWP to reduce the 200-foot limit in regions where 
shorter limits are necessary to ensure that the adverse environmental 
effects caused by these activities are no more than minimal. The Corps 
is retaining the PCN requirement for activities authorized by paragraph 
(b) of this NWP because of the potential for some of these activities 
to result in more than minimal adverse environmental effects. 
Therefore, district engineers should have the opportunity to review 
these proposed activities so that they can exercise discretionary 
authority when necessary to require individual permits for certain 
activities.
    One commenter said that rebuilding existing electric utility lines 
should continue to be covered under NWP 3 even though NWP 57 would also 
authorize these activities. Numerous commenters stated that PCNs should 
be required for all activities authorized by this NWP. Many commenters 
stated this permit causes significant adverse impacts which are a 
violation of the Clean Water Act, and that this NWP should be withdrawn 
or stricter impact limitations should be imposed. One commenter said 
that NWP 3 authorizes activities that are not similar in nature, which 
violates Section 404(e) of the Clean Water Act. One commenter stated 
the draft decision document does not provide enough information to 
determine the full extent of impacts associated with this NWP.
    This NWP can be used to repair, rehabilitate, or replace electric 
utility lines, as well as other structures or fills, as long as those 
electric utility lines are currently serviceable. If the electric 
utility line must be rebuilt because of destruction or damage by a 
storm, flood, fire, or other discrete event, this NWP can be used to 
authorize discharges of dredged or fill material into waters of the 
United States or structures as well as work in navigable waters of the 
United States for those rebuilding activities. Those electric utility 
line rebuilding activities may also be authorized by NWP 57. Because 
this NWP authorizes structures and work in navigable waters of the 
United States and discharges of dredged or fill material into waters of 
the United States for the repair, rehabilitation, or replacement of 
existing, currently serviceable structures or fills, and only 
authorizes minor deviations, the Corps does not believe that PCNs 
should be required for activities authorized by paragraph (a). The 
activities authorized by NWP 3 are similar in nature, because they are 
limited to the repair, rehabilitation, and replacement of currently 
serviceable structures or fills, or structures or fills damaged or 
destroyed by storms, floods (including tidal floods), fires, or other 
discrete events. The current qualitative and quantitative limits in the 
text of this NWP are sufficient to ensure that the NWP authorizes only 
those activities that result in no more than minimal individual and 
cumulative adverse effects, and no additional limits are necessary. The 
final decision document for this NWP provides an assessment of 
activities that may be authorized by this NWP during the 5-year period 
it is anticipated to be in effect, as well as an evaluation of 
potential environmental impacts that is commensurate with the 
anticipated degree and severity of those environmental impacts. The 
decision document has been prepared in compliance with the requirements 
of the National Environmental Policy Act (NEPA), the Corps' public 
interest review regulations, and the Clean Water Act Section 404(b)(1) 
Guidelines.
    This NWP is reissued without the proposed modifications.
    NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. The Corps did not propose any changes to this 
NWP. No comments were received on the proposed reissuance of this NWP. 
This NWP is reissued as proposed.
    NWP 5. Scientific Measurement Devices. The Corps did not propose 
any changes to this NWP. No comments were received on the proposed 
reissuance of this NWP. This NWP is reissued as proposed.
    NWP 6. Survey Activities. The Corps did not propose any changes to 
this NWP. One commenter expressed support for the reissuance of this 
NWP with no changes. One commenter stated that the Corps should clarify 
the nature and extent of seismic exploratory operations that qualify 
for authorization under this NWP and modify this NWP to require PCNs 
for all seismic exploratory operations. This commenter said that 
seismic exploration operations may use vehicles that can compact 
wetland soils, create tire ruts in wetlands, and cause regulated 
discharges of dredged or fill material. A few commenters said seismic 
exploratory operations cause adverse effects to waters of the United 
States, endangered species, and marine mammals, and should require 
authorization through individual permits. One commenter stated that if 
seismic testing activities continue to be authorized by this NWP, then 
limits should be placed on the amount of exploratory trenching. One 
commenter said that this NWP should be modified to impose a 25 cubic 
yard limit for discharges of fill material for shot holes, and that 
survey activities involving numerous small pads in excess of 25 cubic 
yards should require individual permits.
    This NWP authorizes survey activities, including seismic 
exploratory activities, that involve structures or work in navigable 
waters of the United States that require DA authorization under Section 
10 of the Rivers and Harbors Act of 1899 and discharges of dredged or 
fill material into waters of the United States that require DA 
authorization under Section 404 of the Clean Water Act. Seismic 
exploratory operations may be conducted in a manner that does not 
require DA authorization under any of the Corps' permitting 
authorities. Seismic exploratory operations may be conducted using 
equipment on or attached to vessels in navigable waters and vehicles 
used on land that involve no structures or work in navigable waters or 
discharges of dredged or fill material into waters of the United 
States. For example, seismic surveying activities in marine waters may 
be conducted from vessels carrying or towing seismic surveying 
equipment, with no structures or work requiring DA authorization under 
Section 10 of the Rivers and Harbors Act of 1899. Those types of 
seismic surveying activities in marine waters do not require DA 
authorization.
    Land-based seismic surveying activities are often conducted from 
vehicles that generate the seismic waves and vehicles or other devices 
that carry the sensors that receive the seismic waves for analysis. 
Driving vehicles in wetlands may cause the formation of ruts as the 
wheels move through wet or moist soils. However, driving vehicles such 
as trucks, cars, off-road vehicles, or farm tractors through a wetland 
in a manner in which such vehicles is designed to be used generally is 
not subject to regulation under Section 404 of the Clean Water Act (see 
66 FR 4568). Land-based seismic surveying activities may also be 
conducted by drilling shot holes and detonating explosive charges in 
those shot holes to produce sound that is received by sensors. If those 
shot holes are drilled in jurisdictional

[[Page 73531]]

wetlands, backfilling the shot holes in jurisdictional wetlands with 
fill material may require DA authorization under Section 404 of the 
Clean Water Act.
    If survey activities proposed to be conducted by non-federal 
permittees involve structures or work in navigable waters of the United 
States and/or discharges of dredged or fill material into waters of the 
United States, pre-construction notification is required for the 
proposed NWP activity if any listed species (or species proposed for 
listing) or designated critical habitat (or critical habitat proposed 
such designation) might be affected or is in the vicinity of the 
activity, or if the proposed activity is located in designated critical 
habitat or critical habitat proposed for such designation (see 
paragraph (c) of general condition 18, endangered species). District 
engineers will review PCNs submitted under paragraph (c) of general 
condition 18 and determine whether ESA Section 7 consultation is 
required for proposed NWP 6 activities. Project proponents who 
undertake survey activities that may result in a take of marine mammals 
may be required to obtain an incidental take authorization from the 
National Marine Fisheries Service pursuant to the Marine Mammal 
Protection Act.
    The Corps does not agree that quantitative limits should be placed 
on exploratory trenching because the NWP requires restoration of the 
area of waters of the United States in which the exploratory trench is 
dug to preconstruction elevations upon completion of the survey work. 
In addition, the NWP does not authorize exploratory trenching 
activities that drain waters of the United States. The Corps also 
declines to impose a 25-cubic-yard limit on discharges of dredged or 
fill material into waters of the United States for plugging shot holes, 
because plugging shot holes helps restore affected areas to pre-
construction elevations. Plugging shot holes also provides safety 
benefits by filling holes in the soil that can cause injury to people 
and wildlife. This NWP has a 1/10-acre limit for losses of waters of 
the United States for temporary pads used for survey activities, so the 
Corps does not believe that an additional 25-cubic-yard limit is 
necessary to help ensure that this NWP authorizes only those survey 
activities that result in no more than minimal adverse environmental 
effects.
    This NWP is reissued as proposed.
    NWP 7. Outfall Structures and Associated Intake Structures. The 
Corps did not propose any changes to this NWP. One commenter stated 
this NWP should be reissued with no changes. This NWP is reissued as 
proposed.
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. The 
Corps did not propose any changes to this NWP. One commenter stated 
that this NWP should be reissued with no changes. One commenter said 
that the Corps must analyze impacts to marine mammals through an 
environmental impact statement and consult with NMFS through the ESA 
Section 7 consultation process before verifying activities under this 
NWP. A commenter stated that the Corps should categorically exclude the 
state of Oregon from this NWP because oil and gas drilling activities 
in federal waters near Oregon are prohibited, and all activities 
authorized by this NWP should require PCNs to provide the necessary 
coordination between the district engineer and the state.
    Project proponents that use NWP 8 to authorize oil or natural gas 
structures on the outer continental shelf under Section 10 of the 
Rivers and Harbors Act of 1899 are responsible for complying with the 
Marine Mammal Protection Act, including any requirement to obtain 
incidental take authorizations from the NMFS. When a district engineer 
receives a PCN for a proposed NWP 8 activity, a district engineer will 
evaluate potential effects of the proposed structures on marine mammals 
that are listed as endangered or threatened under the ESA, as well as 
marine mammals species proposed for listing under the ESA. The district 
engineer will also evaluate potential effects of the proposed 
structures on designated critical habitat, and if applicable, critical 
habitat proposed for such designation. If the district engineer 
determines the proposed NWP 8 activity may affect listed species or 
designated critical habitat, including listed marine mammals and 
designated critical habitat for marine mammals, he or she will initiate 
ESA Section 7 consultation with the NMFS and, if appropriate, the U.S. 
FWS, unless ESA Section 7 consultation has already been conducted by 
another federal agency for the proposed oil and gas structures. This 
NWP authorizes structures in federal waters overlying the outer 
continental shelf; it does not authorize structures in the territorial 
seas. Therefore, if a project proponent wants to conduct oil or natural 
gas drilling activities in the territorial seas, he or she would need 
to obtain DA authorization through the individual permit process, or 
through a regional general permit if the Corps district has issued a 
regional general permit that authorizes oil or gas structures in the 
territorial seas. All activities authorized by this NWP require PCNs, 
and the district engineer can elect to coordinate the review of the PCN 
with the state.
    This NWP is reissued as proposed.
    NWP 9. Structures in Fleeting and Anchorage Areas. The Corps did 
not propose any changes to this NWP. No comments were received on the 
proposed reissuance of this NWP. This NWP is reissued as proposed.
    NWP 10. Mooring Buoys. The Corps did not propose any changes to 
this NWP. Several commenters said that PCNs should be required for all 
activities authorized by this NWP. Several commenters stated they 
oppose the installation of mooring buoys within tribal lands without 
coordinating with the tribes. One commenter requested clarification as 
to how this NWP will interface with regional conditions.
    The Corps does not agree that PCNs should be required for all non-
commercial, single-boat mooring buoys authorized by this NWP because 
the installation of these structures in navigable waters of the United 
States is unlikely to result in more than minimal individual and 
cumulative adverse environmental effects. Certain NWP general 
conditions, such as general condition 18 for endangered species and 
general condition 20 for historic properties, may trigger PCN 
requirements for some mooring buoys proposed to be installed by non-
federal permittees. For example, under paragraph (c) of general 
condition 18 non-federal permittees are required to submit PCNs to the 
district engineer if any listed species (or species proposed for 
listing) or designated critical habitat (or critical habitat proposed 
such designation) might be affected or is in the vicinity of the 
proposed mooring buoy, or if the proposed mooring buoy is located in 
designated critical habitat or critical habitat proposed for such 
designation. Activities authorized by this NWP must comply with general 
condition 17, tribal rights. During the process for reissuing this NWP, 
Corps districts consulted with tribes and those consultation efforts 
may have resulted in regional conditions or coordination procedures 
with tribes to help ensure compliance with general condition 17. This 
NWP interfaces with regional conditions in the same manner as any other 
NWP interfaces with regional conditions. If a division engineer imposed 
a regional condition on this NWP, in order to qualify for NWP 
authorization, the proposed activity must comply with that regional 
condition as well as any requirements in the text of the NWP and 
applicable NWP general conditions.
    This NWP is reissued as proposed.

[[Page 73532]]

    NWP 11. Temporary Recreational Structures. The Corps did not 
propose any changes to this NWP. No comments were received on the 
proposed reissuance of this NWP. This NWP is reissued as proposed.
    NWP 13. Bank Stabilization. The Corps proposed to modify this NWP 
by adding a ``Note'' that states that in coastal waters and the Great 
Lakes, living shorelines may be an appropriate option for bank 
stabilization, and may be authorized by NWP 54.
    Many commenters objected to the proposed reissuance of NWP 13, 
stating that that bank stabilization using bulkheads, revetments, and 
other hard structures has deleterious effects on shoreline ecosystems. 
Several commenters stated that this NWP should not be reissued so that 
bank stabilization activities can be limited to bioengineering or the 
construction of living shorelines. Many commenters said that the 
proposed NWP would result in significant adverse impacts, and violate 
Section 404(e) of the Clean Water Act, the Clean Water Act Section 
404(b)(1) Guidelines, the NEPA, and the ESA. One commenter stated that 
the reissuance of this NWP should require an environmental impact 
statement.
    This NWP authorizes a wide variety of bank stabilization activities 
because bioengineering and living shorelines are effective bank 
stabilization approaches in limited circumstances. This NWP authorizes 
both hard bank stabilization activities (e.g., revetments, riprap, 
bulkheads) and soft bank stabilization activities (e.g., 
bioengineering, other forms of vegetative stabilization). Living 
shorelines may be authorized by NWP 54, as indicated by the Note 
proposed to be added to this NWP. Hard bank stabilization activities 
may be necessary in riverine, lacustrine, estuarine, and marine 
environments subject to strong erosive forces. Soft bank stabilization 
activities may be effective at reducing erosion in aquatic habitats 
subject to moderate to low erosive forces. This NWP has been issued in 
compliance with Section 404(e) of the Clean Water Act (including the 
Section 404(b)(1) Guidelines), NEPA, and the ESA. In the national 
decision document for the reissuance of this NWP, the Corps prepared an 
environmental assessment with a finding of no significant impact to 
comply with NEPA requirements. Therefore, the reissuance of this NWP 
does not require the preparation of an environmental impact statement. 
In the national decision document, the Corps prepared a Clean Water Act 
Section 404(b)(1) Guidelines compliance analysis, which also addresses 
the requirements of Section 404(e) of the Clean Water Act. In section 
8.0 of the national decision document for this NWP, the Corps discusses 
compliance with the ESA, including the requirements of general 
condition 18 and 33 CFR 330.4(f).
    Many commenters said that the secondary, indirect, and cumulative 
effects associated with bank stabilization activities authorized by 
this NWP are adverse. A few commenters stated that the activities 
authorized by this NWP have negative adverse effects on ESA-listed fish 
and their critical habitat. One commenter said that bulkheads have more 
than minimal cumulative adverse impacts and that the Corps should not 
reissue this NWP because it does not know how many NWP 13 activities 
occur each year. One commenter said that the activities authorized by 
this NWP have substantial sediment-related impacts. One commenter 
stated that the Corps should develop a means to measure, monitor, and 
enforce sediment limits.
    While bank stabilization activities may have adverse effects on the 
aquatic environment, to be authorized by this NWP those adverse effects 
must be no more than minimal on an individual and cumulative basis. 
Activities authorized by this NWP must comply with general condition 18 
and 33 CFR 330.4(f), which address compliance with the ESA. Under 
paragraph (c) of general condition 18, non-federal permittees are 
required to submit a PCN to the district engineer if any listed species 
(or species proposed for listing) or designated critical habitat (or 
critical habitat proposed such designation) might be affected by the 
proposed activity or is in the vicinity of the proposed activity, or if 
the proposed activity is located in designated critical habitat or 
critical habitat proposed for such designation. District engineers will 
review all PCNs for proposed NWP 13 activities for potential effects to 
species and critical habitats covered under the ESA and will initiate 
ESA Section 7 consultation for any proposed activity that may affect 
listed species or designated critical habitat, including ESA-listed 
fish species and their designated critical habitat.
    This NWP requires a PCN for any proposed activity that: (1) 
Involves discharges into special aquatic sites; (2) is in excess of 500 
feet in length; or (3) will involve the discharge of greater than an 
average of one cubic yard per running foot as measured along the length 
of the treated bank, below the plane of the ordinary high water mark or 
the high tide line. District engineers will review proposed bulkheads 
constructed in wetlands and other special aquatic sites, as well as 
proposed bulkheads that are longer than 500 feet in length or involve 
the discharge of greater than one cubic yard per running foot as 
measured along the bank. The Corps tracks the use of this NWP through 
the required and voluntary PCNs for proposed NWP 13 activities that are 
submitted to district offices. While not all proposed NWP 13 activities 
involving the construction or replacement of bulkheads require PCNs, 
consistent with other NWPs that do not require PCNs for all authorized 
activities the Corps estimates the number of PCN and non-PCN activities 
anticipated to occur during the 5-year period the NWP is expected to be 
in effect.
    Bank stabilization activities can have adverse effects on sediment 
processes in aquatic ecosystems, and this NWP authorizes only those 
bank stabilization activities that have no more than minimal individual 
and cumulative adverse environmental effects. Bank stabilization 
activities may be necessary to reduce erosion to protect buildings and 
other structures, as well as infrastructure (e.g., utility lines). Bank 
stabilization activities may also help reduce sediment loads to 
waterbodies, by reducing erosion caused by flowing water and other 
sediment inputs to waterbodies. Under its procedures at 33 CFR part 
326, the Corps can take actions to address situations where permittees 
do not comply with the terms and conditions of this NWP, including the 
cubic yard limit for discharges of dredged or fill material into waters 
of the United States.
    One commenter said that the Corps needs to consider secondary 
effects of structures such as bulkheads in its minimal effects 
determination. One commenter suggested limiting use of this NWP to 
emergency situations when other bank stabilization techniques, such as 
living shorelines and bioengineering, are not available. One commenter 
recommended adding emergency provisions to NWP 13. One commenter 
expressed opposition to the complete removal of non-native plant 
species.
    In its national decision document for the reissuance of this NWP, 
including the environmental assessment, public interest review, and 
Clean Water Act Section 404(b)(1) Guidelines analysis, the Corps 
evaluates potential indirect or secondary effects caused by activities 
authorized by this NWP. When reviewing required PCNs, as well as 
voluntary PCNs, for proposed NWP 13 activities, district engineers 
consider the site-specific direct and indirect effects that may be 
caused by those activities,

[[Page 73533]]

as required by paragraph 2 of section D, District Engineer's Decision. 
As discussed above, living shorelines and bioengineering are effective 
bank stabilization techniques under certain circumstances, and 
therefore this NWP should not limit the use of hard bank stabilization 
measures to emergency situations.
    The Corps does not believe it is necessary to add provisions to 
this NWP to address emergency situations. Not all activities authorized 
by NWP 13 require PCNs, and some emergency bank stabilization measures 
may be undertaken without the need to submit a PCN to the Corps. If an 
emergency situation arises where bank stabilization activities require 
review by the Corps, those bank stabilization activities may be 
authorized through the Corps' emergency authorization procedures at 33 
CFR 325.2(e)(4). The Corps did not propose any changes to this NWP 
regarding the removal of non-native plant species. While paragraph (g) 
of this NWP requires the use of native plants appropriate for current 
site conditions, including salinity, for bioengineering or vegetative 
bank stabilization, it does not require the permittee to remove 
individuals of non-native plant species that may become established in 
the project area through natural processes.
    Many commenters suggested reducing the linear foot limits of this 
NWP. One commenter recommended removing the 500 linear foot limit from 
this NWP. One commenter suggested removing the 1,000-foot limit for 
waivers for bulkheads, to allow district engineers to issue waivers 
that authorize bulkheads greater than 1,000 feet in length. One 
commenter stated that the waiver provision should be removed from this 
NWP because it includes no performance standards and it can be abused. 
One commenter said that the Corps should not require permits for longer 
reaches of stream banks that would be temporarily impacted.
    The Corps is retaining the 500 and 1,000 linear foot limits in this 
NWP. The 500 linear foot limit can be waived by the district engineer, 
if he or she determines after reviewing a PCN that the proposed 
activity will result in no more than minimal individual and cumulative 
adverse environmental effects and issues a written verification for the 
proposed NWP activity. For proposed bulkheads, the 500 linear foot 
limit can be waived up to the 1,000 linear foot limit. If a project 
proponent wants to construct more than 1,000 linear feet of bulkhead, 
then he or she will need to submit an application for an individual 
permit, unless the Corps district has issued a regional general permit 
that authorizes bulkheads longer than 1,000 feet in length. Division 
engineers can add regional conditions to this NWP to impose lower 
linear foot limits on bank stabilization activities, including the 
maximum length for bulkheads. The only performance standard that 
applies to waivers of the 500 linear foot limit is requirement that the 
district engineer issue a written determination that concludes that the 
proposed activity will result in no more than minimal individual and 
cumulative adverse environmental effects. DA authorization is required 
for permanent and temporary impacts to stream banks within the Corps' 
jurisdiction if those impacts involve discharges of dredged or fill 
material into waters of the United States or structures and work in 
navigable waters of the United States.
    A few commenters said that this NWP should not authorize discharges 
of dredged or fill material below the ordinary high water mark or mean 
high water line. One commenter suggested prohibiting building out to 
pre-existing bank lines. A few commenters stated that impacts to 
special aquatic sites should not be authorized by this NWP.
    The purpose of this NWP is to authorize discharges of dredged or 
fill material into waters of the United States and structures and work 
in navigable waters of the United States for bank stabilization 
activities that have no more than minimal individual and cumulative 
adverse environmental effects. Prohibiting discharges of dredged or 
fill material into waters of the United States below the ordinary high 
water mark in jurisdictional non-tidal rivers and streams, or below the 
high tide line in tidal streams and other tidal waters would preclude 
NWP authorization for many bank stabilization activities that result in 
minimal individual and cumulative adverse environmental effects. In 
addition, such a prohibition would result in ineffective protection 
against erosion since flowing waters and tidal waters would be likely 
to undercut the bank stabilization activity. Bank stabilization 
activities constructed under that prohibition would likely collapse 
after the stream or river bank, lake shore, estuary shore, or ocean 
shore is undermined through erosional processes. If there are no 
jurisdictional wetlands landward of the bank or shore, then the Corps 
has no authority to prevent landowners from discharging fill material 
to construct buildings near the banks of streams or rivers, or the 
shores of lakes, estuaries, and oceans. All discharges of dredged or 
fill material into special aquatic sites require PCNs to the Corps, and 
district engineers will review those PCNs to determine whether the 
proposed activities will result in no more than minimal individual and 
cumulative adverse environmental effects. If the district engineer 
reviews a PCN for a proposed discharge of dredged or fill material into 
a special aquatic site, and after considering mitigation proposed by 
the applicant, determines that the proposed activity will result in 
more than minimal individual and cumulative adverse environmental 
effects, he or she will exercise discretionary authority and require an 
individual permit for that activity.
    Many commenters said that PCNs should be required for all 
activities authorized by this NWP. Many commenters stated that PCNs 
should be required for activities less than 500 feet in length. One 
commenter requested clarification regarding when pre-construction 
notification is required for activities authorized by this NWP, because 
there is a perception that bank stabilization activities in excess of 
500 linear feet require authorization by individual permits. One 
commenter said that the PCN requirement for discharges into special 
aquatic sites should be removed. One commenter stated that PCNs should 
be required for all activities authorized by this NWP to ensure that 
those activities will not jeopardize ESA-listed species. One commenter 
said that all NWP 13 activities should require agency coordination.
    The Corps believes that it has established appropriate PCN 
thresholds for this NWP, so that PCNs are required for proposed bank 
stabilization activities that have the potential to result in more than 
minimal individual and cumulative adverse environmental effects. The 
PCN review process allows for case-specific review of proposed 
activities so that district engineers can determine whether those 
proposed activities can be authorized by this NWP. Division engineers 
can impose regional conditions on this NWP to require PCNs for proposed 
activities that are less than 500 linear feet in length or would 
involve the discharge of less than one cubic yard per running foot as 
measured along the length of the bank. The district engineer can waive 
the 500 linear foot limit if she or he determines in writing, after 
evaluating the PCN and any comments received during the agency 
coordination conducted under paragraph (d) of general condition 32, 
that the proposed activity will result in no more than minimal 
individual and

[[Page 73534]]

cumulative adverse environmental effects.
    This NWP requires PCNs for all discharges of dredged or fill 
material into special aquatic sites so that district engineers can 
review all of these proposed activities to determine whether they will 
result in no more than minimal adverse environmental effects. Under 
paragraph (c) of general condition 18, non-federal permittees are 
required to submit a pre-construction notification to the district 
engineer if any listed species (or species proposed for listing) or 
designated critical habitat (or critical habitat proposed such 
designation) might be affected or is in the vicinity of the proposed 
activity, or if the proposed activity is located in designated critical 
habitat or critical habitat proposed for such designation. The district 
engineer will review the PCN and determine whether ESA Section 7 
consultation or conference with the U.S. FWS and/or NMFS is required 
for the proposed activity. If ESA Section 7 consultation or conference 
is required, the activity is not authorized by NWP until the district 
engineer notifies the project proponent that those processes are 
completed. Certain activities authorized by NWP 13 require agency 
coordination, specifically activities for which permittees are 
requesting waivers of the quantitative limits of this NWP or for 
discharges into special aquatic sites. The Corps does not agree that 
agency coordination should be required for all NWP 13 activities that 
require pre-construction notification.
    Several commenters expressed support for adding the Note to this 
NWP to make permittees aware of the availability of NWP 54 (Living 
Shorelines) for bank stabilization activities in coastal waters. Many 
commenters suggested modifying this NWP to require a preferential 
hierarchy for bioengineering and living shorelines over bank hardening 
activities to satisfy requirements to authorize the least 
environmentally damaging practicable alternative.
    The Corps has added the proposed Note to this NWP. The Corps 
encourages waterfront property owners and other project proponents to 
use living shorelines, bioengineering, vegetative stabilization, and 
other soft bank stabilization approaches in coastal areas and other 
waterbodies where those methods are likely to be successful in managing 
erosion along coastal waters, along river and stream banks, and 
shorelines in lakes and other waterbodies. The use of living 
shorelines, bioengineering, vegetative stabilization, and other soft 
bank stabilization approaches can help increase the resilience of 
waterfront properties, as well as the structures and infrastructure 
located on those properties, to the adverse effects of climate change. 
The increased use of nature-based approaches such as living shorelines 
and bioengineering to bank stabilization is a priority in the 
Administration's climate resiliency efforts. Noting this, the Corps 
provides that such soft bank stabilization techniques should generally 
be considered first when project proponents consider the use of NWP 13. 
There are many factors, however, that should be taken into account in 
both the proposed and verified bank stabilization project.
    The appropriate approach to managing shoreline or bank erosion in 
coastal areas and other waterbodies must be determined on a site-
specific basis after considering a variety of factors. Examples of 
factors relevant to the planning and design of bank stabilization 
activities include, but are not limited to: Bank height; bank 
condition; the energy of the tides, waves, currents, or other water 
flows that the bank is exposed to; fetch; nearshore water depths; the 
potential for storm surges; sediment or substrate type; tidal range in 
areas subject to the ebb and flow of the tide; shoreline configuration 
and orientation; whether there is infrastructure in the vicinity of the 
proposed bank stabilization activity that needs to be protected; the 
width of the waterway; the presence of trees in the vicinity of the 
bank and whether those trees need to be maintained or protected; and 
the distance from a navigation channel or navigable fairway in the 
waterbody. With respect to living shorelines, factors to consider 
regarding the appropriateness of living shorelines to manage bank 
erosion in coastal areas include the fetch of the waterbody, shore 
morphology, depth gradients of nearshore waters, the stability of the 
existing substrate, tidal range, and marsh elevations (Saleh and 
Weinstein 2016).
    Project proponents may hire coastal engineers and other consultants 
to help determine which bank stabilization techniques might be feasible 
and successful at a specific site. District engineers are available to 
discuss potential bank stabilization options with waterfront property 
owners and their consultants, including the use of living shorelines, 
bioengineering, and other soft bank stabilization approaches that may 
be effective at controlling erosion at a particular site, as well as 
more environmentally beneficial. The Corps cannot mandate the use of a 
particular bank stabilization technique at a specific site. District 
engineers can require minor project modifications to proposed 
activities to reduce adverse environmental impacts (see 33 CFR 
320.4(r)(1)(i)). However, district engineers cannot require completely 
different designs of proposed activities that require DA authorization 
without agreement from the applicant. In addition to the factors 
identified in the previous paragraph, there are other factors to 
consider when selecting a bank stabilization method, including costs 
and maintenance requirements, which can vary substantially among 
different bank stabilization approaches. In addition, requiring 
specific approaches to bank stabilization may also negatively affect 
disadvantaged communities. District engineers will review PCNs for 
proposed bank stabilization activities, and if the district engineer 
determines that a proposed bank stabilization activity will result in 
more than minimal adverse environmental effects, the district engineer 
will exercise discretionary authority and require an individual permit. 
During the individual permit review process, an alternatives analysis 
is required and the alternatives evaluated during the individual permit 
review process may include soft bank stabilization approaches.
    Waterfront property owners and other project proponents are 
responsible for proposing bank stabilization activities for their 
properties, and under the NWP program, district engineers review PCNs 
for those proposed activities. If a district engineer reviews a PCN for 
a proposed bank stabilization activity and determines that the proposed 
activity will result in more than minimal adverse environmental 
effects, the district engineer will exercise discretionary authority 
and require an individual permit for that proposed activity.
    The Corps encourages waterfront property owners to first consider 
the use of living shorelines, vegetative stabilization, bioengineering, 
and other soft bank stabilization approaches before considering hard 
bank stabilization techniques such as bulkheads and revetments; 
however, the Corps acknowledges that living shorelines and 
bioengineering are not effective or appropriate approaches to bank 
stabilization in all conditions. For certain types of aquatic 
ecosystems and site conditions, such as environments subjected to high 
energy erosive forces, hard structural bank stabilization measures such 
as revetments and bulkheads may be necessary to reduce erosion and 
protect people, buildings,

[[Page 73535]]

and infrastructure. The requirement in the Clean Water Act Section 
404(b)(1) Guidelines to permit the least environmentally damaging 
practicable alternative applies to activities authorized by individual 
permits, not to activities authorized by general permits. The Corps 
will include in their NWP 13 verification decision document a summary 
of the rationale for the verified bank stabilization measures 
reflecting the engineering, cost, technology and other considerations 
above, to include discussion of soft bank stabilization techniques and 
why it was or was not appropriate for the subject site.
    One commenter said that the Corps' draft decision document for this 
NWP did not provide an adequate analysis of the direct, indirect, and 
cumulative impacts caused by these activities and did not use adequate 
scientific information to describe the affected environment and the 
impacts of bank stabilization activities. One commenter asserted that 
this NWP does not comply with the 404(b)(1) Guidelines. One commenter 
said that the Corps should prepare an environmental impact statement 
for the proposed reissuance of this NWP. One commenter stated that 
activities authorized by this NWP cause significant degradation of 
aquatic ecosystems. One commenter suggested that the Corps include sea 
level rise in its analysis of this NWP, including its assessment of 
cumulative impacts.
    The final decision document prepared by Corps Headquarters for the 
reissuance of this NWP provides a general analysis of the impacts 
expected to be caused by activities authorized by this NWP during the 
5-year period it is anticipated to be in effect. In the environmental 
assessment, the Corps evaluated the effects or impacts on the human 
environment that are reasonably foreseeable and have a reasonably close 
causal relationship to the activities authorized by this NWP, 
consistent with the Council on Environmental Quality's definition of 
``effects or impacts'' at 40 CFR 1508.1(g). In the national decision 
document, the Corps also addressed the elements required for a Clean 
Water Act Section 404(b)(1) Guidelines analysis for the issuance of a 
general permit, including a cumulative effects analysis conducted in 
accordance with 40 CFR 230.7(b)(3) and a conclusion that the reissuance 
of this NWP would not cause or contribute to significant degradation of 
the aquatic environment.
    The affected environment of the United States is described in 
section 4.0 of the national decision document, using available 
information at a national scale to describe the current environmental 
baseline. The Corps complied with the requirements of NEPA by preparing 
an environmental assessment with a finding of no significant impact. 
Therefore, an environmental impact statement is not required for the 
reissuance of this NWP. The national decision document for this NWP has 
been revised to provide more discussion of sea level rise, including 
the need for bank stabilization activities to protect buildings and 
infrastructure from increased risks of erosion that may be caused by 
rising sea levels. Bank stabilization activities authorized by this NWP 
can help protect existing buildings and infrastructure and reduce risks 
associated with rising sea levels, as a means of adapting to climate 
change. Rising sea levels are an effect of climate change.
    One commenter suggested adding a definition of ``bioengineering'' 
to this NWP. One commenter requested that the Corps enforce current 
guidelines to remove non-biodegradable fabric used in previous 
projects. One commenter said that the Corps needs to develop functional 
assessment tools to better assess individual and cumulative impacts of 
bank stabilization on channel and floodplain processes.
    The Corps declines to add a definition of ``bioengineering'' to 
this NWP to because adding such a definition might impose unnecessary 
constraints on potential bioengineering approaches to bank 
stabilization that may be authorized by this NWP. Bioengineering 
approaches can vary by region, may involve a variety of techniques and 
materials, and may vary by resource type. Non-biodegradable fabric may 
be used as a component for a variety of bank stabilization techniques 
and that fabric needs to permanently remain in place to control erosion 
at the site. Requiring the removal of fabric that is used for bank 
stabilization activities would likely undermine the efficacy of bank 
stabilization projects and their structural integrity because fabric is 
often necessary to ensure that soil under revetments and other bank 
stabilization structures is not washed away by tidal waters or by water 
moving through the soil to the bank or shoreline. If the soil under 
revetments and other bank stabilization structures is moved away from 
the project site, then those structures may collapse and erosion may be 
exacerbated. Adjacent uplands may also collapse or subside, posing a 
potential danger to people who live at or use the project site.
    While functional assessment tools may be useful in assessing the 
individual and cumulative environmental impacts of bank stabilization 
activities within a project site, a waterbody, or within a geographic 
region, those environmental impacts can be assessed through other 
means. When reviewing PCNs for proposed NWP 13 activities, district 
engineers will apply the 10 criteria in paragraph 2 of section D, 
District Engineer's Decision to determine whether a proposed NWP 13 
activity qualifies for NWP authorization. If an appropriate functional 
assessment is available, that tool may be used by district engineers 
when evaluating PCNs and determining whether a proposed bank 
stabilization activity qualifies for NWP 13 authorization.
    This NWP is reissued as proposed.
    NWP 14. Linear Transportation Projects. The Corps proposed to 
modify this NWP by adding ``driveways'' to the list of examples of 
activities authorized by this NWP.
    Several commenters expressed support for the addition of 
``driveways'' to the list of examples of the types of projects 
authorized by this NWP. One commenter said that adding ``driveways'' to 
the list of examples for the types of projects authorized by this NWP 
could confuse applicants and result in an increase of PCNs submitted to 
the Corps, and requested that the Corps provide a more detailed 
explanation of the type of driveway authorized by this NWP. A commenter 
said the text of this NWP should be revised to clarify if NWP 14 would 
be used to authorize driveways when a project proponent is using other 
NWPs such as NWP 29 (Residential Development) or NWP 39 (Commercial and 
Institutional Developments) to authorize a development project that may 
include one or more driveways. One commenter stated that driveways 
should be limited to vehicle access to a facility and not to large-
scale transportation projects, with an acreage limit that applies to 
the driveway.
    The Corps has adopted the proposed modification of this NWP to 
include ``driveways'' in the list of examples of the types of projects 
authorized by this NWP. The term ``driveways'' applies broadly to 
include features that are used by vehicles to move to and from 
buildings and other facilities, and is not limited to driveways 
associated with single unit or multiple unit residences, or driveways 
used to go to and from commercial buildings, institutional buildings, 
or other types of buildings. Discharges of dredged or fill material 
into waters of the United States for the construction or expansion of 
driveways may also be authorized by NWPs 29 and 39 as attendant 
features to residential developments and commercial and institutional 
developments. Adding ``driveways'' to the list of examples of

[[Page 73536]]

the types of projects that may be authorized by NWP 14 can provide some 
clarity to the regulated public because the construction of a driveway 
may be the only activity that requires DA authorization if a 
residential development or commercial or institutional development is 
constructed in uplands, and the driveway is needed to cross waters of 
the United States to provide vehicular access to the upland 
development.
    There is usually no need to combine NWP 14 with NWP 29 or NWP 39 to 
authorize the construction or expansion of driveways within residential 
or commercial or institutional developments, unless the construction of 
the driveway involves discharges of dredged or fill material into 
waters of the United States that are not authorized by NWPs 29 or 39. 
For example, the construction or expansion of a driveway that crosses 
tidal waters or non-tidal wetlands adjacent to tidal waters, may be 
authorized by NWP 14 because NWPs 29 and 39 do not authorize discharges 
of dredged or fill material into tidal waters. A driveway serves a 
specific purpose that may be different than other types of linear 
transportation projects. Driveways are subject to the same acreage 
limits as other linear transportation projects authorized by this NWP, 
including larger scale linear transportation projects: 1/2-acre for 
losses of non-tidal waters of the United States and 1/3-acre for losses 
of tidal waters.
    One commenter stated that the cumulative impacts of authorizing 
large residential driveways in waters of the United States threatens 
nearshore benthic habitat that is important to salmonids. One commenter 
recommended modifying this NWP to include a definition for ``stand-
alone project.'' One commenter suggested modifying NWP 14 to authorize 
any structure or fill that would facilitate the movement of people and/
or goods, including moving sidewalks, stationary sidewalks, streetcars, 
trams, and trollies. One commenter stated that this NWP should 
authorize the construction, expansion, or modification of ferry 
terminals.
    When reviewing PCNs for proposed driveways authorized by this NWP, 
the district engineer will determine whether a proposed activity may 
affect ESA-listed species or designated critical habitat, including 
listed salmon species and their designated critical habitat. If the 
district engineer determines a proposed NWP activity may affect listed 
species or designated critical habitat, he or she will initiate ESA 
Section 7 consultation with the NMFS and/or U.S. FWS as appropriate. 
The proposed activity cannot be authorized by NWP until the ESA Section 
7 consultation process has been concluded. A non-federal permittee must 
submit a pre-construction notification to the district engineer if any 
listed species (or species proposed for listing) or designated critical 
habitat (or critical habitat proposed such designation) might be 
affected or is in the vicinity of the activity, or if the activity is 
located in designated critical habitat or critical habitat proposed for 
such designation (see paragraph (c) of general condition 18).
    The Corps declines to add a definition of ``stand-alone project'' 
to this NWP because that phrase is not used in this NWP. The first 
sentence of this NWP provides examples of linear transportation 
projects that may be authorized by this NWP, and those examples include 
railways and trails. The list of examples is not an exhaustive list, so 
other types of linear transportation projects that require DA 
authorization may be authorized by this NWP, including streetcars, 
trams, and trollies. Sidewalks may be authorized other NWPs, such as 
NWPs 29 and 39 if those sidewalks are attendant features of the types 
of developments authorized by those NWPs. This NWP does not authorize 
discharges of dredged or fill material into waters of the United States 
or structures or work in navigable waters of the United States for the 
construction, modification, expansion, or improvement of ferry 
terminals because ferry terminals are not linear transportation 
projects. A ferry terminal is a single point within a ferry 
transportation system, and is a non-linear feature.
    One commenter said that the term ``crossing'' should be defined or 
changed to ``placement of dredge or fill and structures'' or ``impacts 
to waters of the United States.'' This commenter stated that the term 
``crossing'' has been viewed strictly as a crossing or bisecting of 
waters of the United States rather than allowing roadway fill in a 
wetland along the linear transportation project since the road only 
filled a portion of the wetland rather than crossing it.
    The NWP uses the term ``crossing'' because linear transportation 
projects have a point of origin and a terminal point and may involve 
multiple crossings of waterbodies at separate and distant locations to 
move people, goods, or services between the point of origin and the 
terminal point. A crossing does not have to bisect a water of the 
United States. For example, a crossing can consist of dredged or fill 
material placed in waters of the United States along the edge of the 
linear transportation project without bisecting the waterbody. A 
crossing constructed in such a manner can be considered to minimize 
impacts to waters of the United States in compliance with paragraph (a) 
of general condition 23, mitigation, without a loss of connectivity 
within the remaining extent of the waterbody. Paragraph (a) of general 
condition 23 requires project proponents to design and construct their 
NWP activities to avoid and minimize adverse effects, both temporary 
and permanent, to waters of the United States to the maximum extent 
practicable at the project site (i.e., on site).
    One commenter said that linear transportation projects authorized 
by this NWP have devastating impacts on animal populations resulting 
from habitat loss, habitat fragmentation, creation of migration 
barriers, and increased impervious surface runoff. This commenter said 
these impacts must be assessed through the preparation of an 
environmental impact statement and through ESA Section 7 consultation.
    General condition 2 (aquatic life movements) states that no NWP 
activity may substantially disrupt the necessary life cycle movements 
of those species of aquatic life indigenous to the waterbody, including 
those species that normally migrate through the area, unless the 
activity's primary purpose is to impound water. General condition 2 
also requires all permanent and temporary crossings of waterbodies to 
be suitably culverted, bridged, or otherwise designed and constructed 
to maintain low flows to sustain the movement of those aquatic species. 
For terrestrial animals, linear transportation projects can be designed 
and constructed to provide corridors for animal movement (e.g., 
tunnels, bridges) so that target species can safely move from one side 
of the linear transportation project to the other side.
    The construction of linear transportation projects may trigger a 
requirement by state or local governments to provide stormwater 
management facilities to reduce adverse effects to changes in watershed 
hydrology that may be caused by the construction of roads and other 
impervious surfaces in the watershed. Stormwater management facilities 
can reduce surface runoff that may adversely affect rivers, streams, 
and other waterbodies. District engineers will conduct ESA Section 7 
consultation for proposed NWP 14 activities when they determine that 
those activities may affect listed species or designated critical 
habitat. This NWP authorizes

[[Page 73537]]

only activities that have no more than minimal individual and 
cumulative adverse environmental effects, and NEPA compliance was 
completed through the preparation of an environmental assessment by 
Corps Headquarters in the national decision document for the reissuance 
of this NWP. The Corps concluded the environmental assessment with a 
finding of no significant impact. Therefore, the reissuance of this NWP 
does not require the preparation of an environmental impact statement.
    One commenter said the 1/2-acre limit for losses of non-tidal 
waters of the United States and the 1/3-acre limit for losses of tidal 
waters is not consistent with other NWPs. One commenter stated that 
both acreage limits for this NWP should be reduced to 1/10-acre. One 
commenter said the phrase ``minimum necessary'' is ambiguous in the 
context of limiting stream channel modifications and recommended 
limiting stream channel modifications to 300 linear feet or 1/10-acre. 
One commenter said that this NWP should not authorize linear projects 
that are more than a few hundred feet in length. One commenter 
expressed agreement that an individual permit is required for an entire 
linear project if one crossing of waters of the United States does not 
satisfy the terms and conditions of the NWP.
    The 1/2-acre limit for losses of non-tidal waters of the United 
States in this NWP is consistent with the 1/2-acre limit in other NWPs 
that authorize discharges of dredged or fill material into non-tidal 
waters of the United States, such as NWP 21 (surface coal mining 
activities), NWP 29 (residential developments), NWP 39 (commercial and 
institutional developments), NWP 40 (agricultural activities), NWP 42 
(recreational facilities), NWP 43 (stormwater management facilities), 
NWP 44 (mining activities), NWP 50 (underground coal mining 
activities), NWP 51 (land-based renewable energy generation 
facilities), and NWP 52 (water-based renewable energy generation pilot 
projects). The 1/3-acre limit for losses of tidal waters for NWP 14 was 
adopted in 1991 (see 56 FR 59142), and the 1/3-acre limit applied to 
losses of tidal waters and non-tidal waters. When the Corps issued 5 
new NWPs and modified 6 existing NWPs to replace NWP 26 in 2000 (see 65 
FR 12818), it modified NWP 14 by increasing the acreage limit for 
losses of non-tidal waters for public linear transportation projects to 
1/2-acre. The 1/2-acre and 1/3-acre limits, plus the PCN requirements 
for this NWP, are sufficient to ensure that activities authorized by 
this NWP result in no more than minimal individual and cumulative 
adverse environmental effects. In addition, division engineers can add 
regional conditions to this NWP to lower the acreage limits in a 
particular geographic area to ensure compliance with the ``no more than 
minimal adverse environmental effects'' requirement for the NWPs.
    The use of the phrase ``to the minimum necessary'' for stream 
channel modifications for linear transportation projects requires 
project proponents to minimize their stream channel modifications while 
providing flexibility to allow district engineers and project 
proponents to take into account for project-specific circumstances as 
well as design and construction constraints that may be imposed by 
site-specific conditions, including stream channel geomorphology, the 
topography of the surrounding area, and the purpose of the linear 
transportation project. Any loss of stream bed due to filling or 
excavation is also subject to the 1/2-acre and 1/3-acre limits of this 
NWP, so the Corps does not believe it is necessary to add a 300 linear 
foot limit for stream channel modifications. The Corps also declines to 
impose an overall linear foot limit to linear transportation projects 
since there can be substantial distances between crossings of waters of 
the United States, and those crossings may involve different 
waterbodies and watersheds. The Corps has retained Note 1 in this NWP, 
which references 33 CFR 330.6(d). Section 330.6(d) addresses how NWPs 
may or may not be combined with individual permits for activities that 
require DA authorization.
    One commenter said that for a linear transportation project with 
multiple crossings of waters of the United States, the overall linear 
transportation project should be considered as the single and complete 
project, not the individual crossings of jurisdictional waters and 
wetlands. One commenter stated that allowing up to 1/2-acre of losses 
of waters of the United States for each single and complete project 
could result in extensive cumulative impacts and recommended that the 
Corps impose a single, overall limit to the entire linear 
transportation project. One commenter stated that linear transportation 
projects may cause cumulative impacts not captured in the NWP 
cumulative impact analysis because some activities are authorized by 
NWP 14 without a requirement to submit PCNs. One commenter said that 
allowing the expansion, modification, or improvement of previously 
authorized projects for linear transportation projects could result in 
cumulative impacts above the acreage limits and therefore these 
activities should only be authorized when losses of waters of the 
United States for the previously authorized projects plus the losses of 
waters of the United States for the proposed expansion, modification, 
or improvement project do not exceed the 1/2-acre or 1/3-acre limits. 
One commenter said that all crossings of waters of the United States in 
a major watershed should be evaluated together as a single and complete 
project because the cumulative impacts are to one system, or 
alternatively that all activities authorized by this NWP should require 
PCNs to allow for the evaluation of cumulative impacts.
    The practice for providing NWP authorization for single and 
complete linear project, where each separate and distant crossing of 
waters of the United States may qualify for its own NWP authorization, 
is consistent with the Corps' NWP regulations at 33 CFR 330.2(i), which 
were published in the November 22, 1991, issue of the Federal Register 
(56 FR 59110)). District engineers will evaluate the separate and 
distant crossings of waters of the United States that require PCNs for 
linear transportation projects, as well as the additional information 
provided in the PCNs for crossings of waters of the United States 
authorized by NWP that do not require PCNs. Paragraph (b)(4)(i) of 
general condition 32 requires the prospective permittee to identify in 
the PCN any other NWP(s), regional general permit(s), or individual 
permit(s) used or intended to be used to authorize any part of the 
proposed project or any related activity, including other separate and 
distant crossings for linear projects that require DA authorization but 
do not require pre-construction notification. In addition, paragraph 
(b)(4)(ii) requires the prospective permittee to include in the PCN the 
quantity of anticipated losses of wetlands, other special aquatic 
sites, and other waters for each single and complete crossing of those 
wetlands, other special aquatic sites, and other waters (including 
those single and complete crossings authorized by an NWP but do not 
require PCNs). Because of the requirements of paragraph (b)(4) of 
general condition 32, it is not necessary to require PCNs for all 
activities authorized by NWP for linear transportation projects.
    The district engineer will use the information in the PCN to 
evaluate the individual and cumulative adverse environmental effects of 
the proposed linear transportation project that are authorized by NWP. 
The district engineer determines the appropriate

[[Page 73538]]

geographic scale for evaluating cumulative impacts. The cumulative 
effects may be evaluated on a watershed-basis, or by using other types 
of geographic regions, such as a Corps district, state, county, or 
other geographic area deemed appropriate by the district engineer. 
Cumulative effects accrue from multiple uses of an NWP in a geographic 
area. Separate and distant crossings of waters of the United States for 
a linear transportation project may occur in different waterbodies 
within a single watershed, or various waterbodies in more than one 
watershed, depending on the length of the linear transportation 
project, the distribution of waterbodies in a watershed, and the size 
of the watershed(s). Separate and distant crossings authorized by NWP 
may also occur in a single waterbody (e.g., a meandering stream), as 
long as there is sufficient distance between crossings of waters of the 
United States.
    When evaluating PCNs for proposed NWP 14 activities, district 
engineers may also consider previously authorized losses of the United 
States for linear transportation projects when a project proponent 
wants to expand, modify, or improve a previously authorized linear 
transportation project. Since the NWPs can be issued for a period of no 
more than five years, the cumulative effects caused by an NWP are 
limited to the number of times that NWP is used during the five year 
period it is in effect (see 40 CFR 230.7(b)(3)). Therefore, if the 
proposed expansion, modification, or improvement is for a linear 
transportation project that was authorized in the current five-year 
cycle for the NWP, the district engineer should take the previously 
authorized losses of waters of the United States into account when 
determining if the proposed changes to the linear transportation 
project will result in no more than minimal individual and cumulative 
adverse environmental effects and qualify for NWP 14 authorization. On 
the other hand, if the proposed expansion, modification, or improvement 
is for a linear transportation project that was authorized by a 
previous version of NWP 14 that has expired, the district engineer does 
not need to take the previously authorized losses of waters of the 
United States into account, because the previously authorized 
activities have become part of the current environmental baseline for 
evaluating the individual and cumulative adverse environmental effects 
of the NWP currently in effect.
    One commenter requested clarification regarding whether the PCN 
requirement for losses of greater than 1/10-acre of waters of the 
United States applies to the overall linear project or each single and 
complete project. One commenter stated that agency coordination should 
be required for proposed activities in special aquatic sites or that 
would result in the loss of greater than 1/10-acre of waters of the 
United States. One commenter said that agency coordination should be 
required for stream losses of stream bed greater than 300 linear feet.
    The PCN thresholds for this NWP apply to each single and complete 
project authorized by NWP. However, if the linear transportation 
project involves multiple separate and distant crossings of waters of 
the United States, and some of those crossings do not require pre-
construction notification, paragraph (b)(4) of general condition 32 
requires the project proponent to identify the crossings authorized by 
NWP that do not require PCNs, as well as quantity of anticipated losses 
of waters of the United States expected to be caused by those non-PCN 
NWP activities. The Corps does not agree that agency coordination is 
necessary to provide the district engineer with information to assist 
in his or her determination whether the proposed activity qualifies for 
NWP authorization. District engineers will determine whether proposed 
NWP 14 activities qualify for NWP authorization after reviewing the 
information in PCNs.
    One commenter stated that all linear transportation projects 
previously authorized by NWP 14 should require PCNs if the project 
proponent wants to use NWP 3 to authorize maintenance activities for 
the previously authorized NWP activities. One commenter said there 
should be more consistency between NWPs 12 and 14 in terms of acreage 
limits, PCN thresholds, and allowing the use of temporary mats, because 
both NWPs authorize single and complete linear projects with separate 
and distant crossings of waters of the United States that do not have 
independent utility.
    This NWP can be used to authorize the maintenance of linear 
transportation projects, including the replacement of structures and 
fills for linear transportation projects that may not qualify NWP 3 
authorization. Those replacement activities may not qualify for NWP 3 
authorization because the current linear transportation project is not 
currently serviceable, or because the project proponent wants to change 
the design and/or size of the linear transportation project to 
accommodate changes in water flow, improve connectivity for the 
movement of aquatic organisms upstream and downstream of the road 
crossing, or for other reasons. Changing the size and/or configuration 
of the structures and fills for a linear transportation project may be 
comprised of more than a minor deviation, which may preclude the use of 
NWP 3 for the replacement activity. For example, replacing an 
undersized or perched culvert with a larger culvert structure that 
improves the passage of aquatic organisms and connectivity may be 
considered an improvement of a linear transportation project. NWP 3 may 
be more appropriate for certain repair, rehabilitation, or replacement 
activities for linear transportation projects, as well as the removal 
of accumulated sediment within and near water crossings. The NWP 
program provides flexibility to permittees to determine which 
applicable NWP to use to provide the required DA authorization under 
Section 404 of the Clean Water Act and/or Section 10 of the Rivers and 
Harbors Act of 1899.
    The acreage limits for NWPs 12 and 14 have some similarities, with 
a 1/2-acre limit for losses of non-tidal waters of the United States. 
The 1/2-acre limit for NWP 12 also applies to tidal waters, while NWP 
14 has a 1/3-acre limit for losses of tidal waters. Nationwide permits 
12 and 14 have somewhat different PCN thresholds because of differences 
between oil or natural gas pipeline activities and linear 
transportation projects. Both NWPs have a PCN threshold for losses of 
greater than 1/10-acre of waters of the United States. Both NWP 12 and 
14 have provisions authorizing the use of temporary mats, when the use 
of those mats requires DA authorization.
    This NWP is reissued as proposed.
    NWP 15. U.S. Coast Guard Approved Bridges. The Corps did not 
propose any changes to this NWP. No comments were received in response 
to the proposed reissuance of this NWP. This NWP is reissued as 
proposed.
    NWP 16. Return Water From Upland Contained Disposal Areas. The 
Corps did not propose any changes to this NWP. One commenter stated 
that the NWP should require the applicant to ensure toxic substances 
are not released back into the water column through re-exposure from 
dredging activities. One commenter said that the applicant should 
properly characterize the quality and quantity of return water to 
ensure state water quality standards are not violated.
    This NWP authorizes only the return water from upland contained 
disposal areas for dredged material, which is defined as a ``discharge 
of dredged material'' under 33 CFR 323.2(d)(1)(ii).

[[Page 73539]]

This NWP does not authorize the dredging activity itself. Discharges 
into waters of the United States require water quality certification 
from the appropriate certifying authority unless a waiver of the water 
quality certification requirement occurs. The certifying authority will 
determine whether a discharge into waters of the United States will 
comply with applicable water quality requirements.
    This NWP is reissued as proposed.
    NWP 17. Hydropower Projects. The Corps proposed to modify this NWP 
to authorize discharges of dredged or fill material into waters of the 
United States associated with hydropower projects with a generating 
capacity of less than 10,000 kilowatts (kW), to be consistent with the 
current definition of ``small hydroelectric power project.''
    Several commenters stated they support the changing the threshold 
for ``small hydroelectric projects'' to 10,000 kW or less. Many 
commenters objected to the proposed reissuance of this NWP, stating 
that hydropower projects typically result in significant adverse 
effects and should not be authorized by an NWP. Several commenters 
stated that they do not support increasing the threshold for 
hydroelectric projects under criterion (a) of this NWP to 10,000 kW. 
One commenter said the Corps is not obligated to modify the NWP to be 
consistent with the Federal Energy Regulatory Commission's (FERC) 
definition of ``small hydroelectric project'' and stated that the Corps 
should not increase the threshold for total generating capacity to 
10,000 kW.
    This NWP is limited to the authorization of discharges of dredged 
or fill material into waters of the United States associated with the 
construction of hydropower facilities that satisfy criteria (a) or (b) 
in the first paragraph of the NWP. The FERC licenses the construction 
and operation of hydropower facilities, and is the lead for conducting 
the environmental review for these hydropower projects. Permit 
requirements for structures and work in navigable waters of the United 
States for non-federal hydropower development are met through the 
FERC's licensing process under the Federal Power Act of 1920, as 
amended. Therefore, separate authorization from the Corps under Section 
10 of the Rivers and Harbors Act of 1899 is not required for structures 
and work in navigable waters of the United States.
    Because criterion (a) of this NWP applies only to existing 
reservoirs, the NWP is limited to authorizing discharges of dredged or 
fill material into waters of the United States to install the 
hydropower generation unit with a total generating capacity of up to 
10,000 kW in the existing reservoir. The modification of this NWP is 
intended to provide consistency with FERC's definition of ``small 
hydroelectric project'' and reduce duplication of agency reviews for 
these projects. In addition, hydropower is a renewable energy source 
and increasing the threshold for small hydroelectric projects from 
5,000 kW to 10,000 kW will provide NWP authorization for activities 
that can help provide more electricity to a community or region, and 
may help decrease reliance on energy generation facilities that rely on 
the combustion of fossil fuels to produce electricity. Therefore, 
increasing the energy generation capacity of hydroelectric facilities 
can help reduce emissions of greenhouse gases that contribute to global 
climate change.
    One commenter stated that activities authorized under criterion (b) 
of this NWP would exceed the development at existing dams and related 
infrastructure and would result in adverse effects. One commenter said 
that in certain circumstances, hydropower projects are exempt from FERC 
licensing and subsequently do not require authorization under Section 
404 of the Clean Water Act or water quality certification from the 
applicable certifying authority. One commenter said that the Corps 
failed to provide sufficient explanation as to how the proposed change 
would continue to authorize activities that have no more than minimal 
individual and cumulative adverse environmental effects. A few 
commenters said that the text of the NWP should be revised to protect 
tribal and village fisheries. One commenter stated that the NWP should 
be revised to clarify that the NWP does not authorize the construction 
of new dams.
    This NWP was issued in 1982 to reduce duplication between the 
reviews conducted by FERC and the Corps for small hydropower projects 
(see 47 FR 31798). For hydropower projects, the Corps' regulatory 
authority is limited to discharges of dredged or fill material into 
waters of the United States under Section 404 of the Clean Water Act. 
The FERC conducts a review when it grants a licensing exemption under 
the statutes identified in criterion (b) of this NWP (i.e., Section 406 
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and 
Section 30 of the Federal Power Act, as amended (16 U.S.C. 823)). The 
NWP authorization covers the discharges of dredged or fill material 
into waters of the United States may be necessary to construct the 
hydropower project. This NWP requires pre-construction notification for 
all authorized activities, and district engineers will review each 
proposed NWP 17 activity to determine if the proposed discharge of 
dredged or fill material into waters of the United States will result 
in no more than minimal individual and cumulative adverse environmental 
effects. If the district engineer determines a proposed discharge of 
dredged or fill material into waters of the United States will result 
in more than minimal adverse environmental effects after considering 
mitigation proposed by the applicant, he or she will exercise 
discretionary authority and require an individual permit for the 
proposed activity. During the review of the PCN, the district engineer 
will also assess compliance with general condition 17, tribal rights. 
This NWP does not authorize the construction of new dams for hydropower 
projects. The FERC may issue an exemption at an existing dam or 
project, or within an existing conduit that was constructed for 
purposes other than power production.
    This NWP is reissued as proposed.
    NWP 18. Minor Discharges. The Corps did not propose any changes to 
this NWP. One commenter expressed support for the reissuance of this 
NWP with no changes. One commenter said that the limits of this NWP 
should be increased to 50 cubic yards to match the proposed increase in 
the cubic yard limit for minor dredging activities authorized by NWP 
19. One commenter stated that this NWP should require PCNs for all 
proposed activities, so that the district engineer can evaluate 
potential impacts from sediment and other pollutants.
    The Corps is retaining the 25-cubic-yard limit for this NWP. 
Activities authorized by NWP 18 may convert wetlands and other waters 
to uplands. The Corps is also retaining the 25-cubic-yard limit for NWP 
19 as discussed below so NWPs 18 and 19 will remain consistent.
    The Corps disagrees that PCNs should be required for all activities 
authorized by this NWP. This NWP requires PCNs for discharges of 
dredged or fill material into special aquatic sites and discharges of 
dredged or fill material into waters of the United States greater than 
10 cubic yards below the plane of the ordinary high water mark or the 
high tide line, and those PCN thresholds are sufficient to help ensure 
that activities authorized by this NWP result in no more than minimal 
adverse environmental effects. Division engineers can add regional 
conditions to this NWP to require PCNs for additional activities 
authorized by

[[Page 73540]]

this NWP, if such regional conditions are necessary to provide district 
engineer review for proposed activities that may result in more than 
minimal individual and cumulative adverse environmental effects. The 
Corps does not have the authority to regulate pollutants other than 
discharges of dredged or fill material. Discharges of dredged or fill 
material into waters of the United States authorized by this NWP 
require water quality certification or waivers to comply with Section 
401 of the Clean Water Act. Certifying authorities may issue, deny, or 
waive water quality certification for discharges authorized by this 
NWP. When certifying pursuant to section 401, certifying authorities 
may include conditions to ensure that authorized discharges comply with 
applicable water quality requirements.
    This NWP is reissued as proposed.
    NWP 19. Minor Dredging. The Corps proposed to modify this NWP by 
changing the cubic yard limit from 25 cubic yards to 50 cubic yards. 
Several commenters expressed opposition to increasing the cubic yard 
limit for this NWP from 25 cubic yards to 50 cubic yards. Several 
commenters voiced their support for the proposed change. One commenter 
recommended increasing the cubic yard limit to 100 cubic yards. A 
couple of commenters said that the Corps did not provide sufficient 
explanation as to why increasing the cubic yard limit to 50 cubic yards 
would ensure that the activities authorized by this NWP will result in 
no more than minimal adverse environmental effects.
    After considering the comments received in response to the 2020 
Proposal, the Corps is retaining the 25 cubic yard limit for this NWP. 
Where the 25-cubic-yard limit would be exceeded, those activities may 
be authorized under regional general permits or individual permits, 
including under letters of permission where those tools are available. 
In geographic areas where minor dredging activities removing up to 25 
cubic yards have the potential to result in more than minimal 
individual and cumulative adverse environmental effects, division 
engineers can impose regional conditions to reduce the cubic yard limit 
from 25 yards to a smaller number of cubic yards. Division engineers 
can also add regional conditions to this NWP to require PCNs for some 
or all NWP 19 activities to provide district engineers the opportunity 
to review these minor dredging activities on a case-by-case basis and 
determine whether they qualify for NWP authorization.
    One commenter said that applicants should be required to ensure 
that toxic substances are not released back into the water column 
through re-exposure from the dredging activity. One commenter objected 
to the proposed reissuance of this NWP, stating that the authorized 
dredging activities will have adverse effects on shellfish beds, 
infaunal invertebrates, and macroalgal beds, as well as biogenic 
structures such as shell rubble and large woody debris that provide 
ecologically valuable habitat, forage areas, or refuge areas for fish, 
shellfish, or shorebirds.
    Minor dredging activities authorized by this NWP may require water 
quality certification under Section 401 of the Clean Water Act. For a 
proposed minor dredging activity that may result in a discharge into 
waters of the United States, the certifying authority may issue, waive, 
or deny water quality certification. The certifying authority may add 
conditions to the water quality certification to ensure that the 
discharge complies with applicable water quality requirements. This NWP 
does not authorize the dredging or degradation through siltation of 
coral reefs, sites that support submerged aquatic vegetation, 
anadromous fish spawning areas, or wetlands. Bivalve molluscs 
inhabiting shellfish beds may be harvested through dredging activities 
authorized by other NWPs, such as NWP 4 for fish and wildlife 
harvesting, enhancement, and attraction devices and activities, or NWP 
48 for commercial shellfish mariculture activities. Infaunal 
invertebrates, beds of macroalgae, and shell rubble areas may be 
impacted by activities authorized by this NWP, but those impacts are 
likely to be no more than minimal in the highly dynamic marine and 
estuarine environments in which those organisms and features are 
located, where they are subjected to a variety of natural and 
anthropogenic disturbances, such as disturbances caused by storms, 
vessels, anchors, and fishing activities. The removal of large woody 
debris from waterbodies is usually accomplished through snagging rather 
than dredging.
    One commenter said that federal and state natural resource agency 
coordination should be required for proposed activities that occur in 
non-tidal waters inhabited by state and/or federally listed threatened 
and endangered freshwater mussels. A commenter stated that project 
proponents could piecemeal a number of smaller dredging projects under 
this NWP to dredge a larger overall area and such activities may 
negatively affect fish spawning habitat and water quality. One 
commenter said that this NWP should require the use of silt fences, 
booms, and bubblers to protect fish, and other natural resources.
    Paragraph (c) of general condition 18 requires non-federal 
permittees to submit a pre-construction notification to the district 
engineer if any listed species (or species proposed for listing) or 
designated critical habitat (or critical habitat proposed such 
designation) might be affected or is in the vicinity of the proposed 
activity, or if the proposed activity is located in designated critical 
habitat or critical habitat proposed for such designation. The district 
engineer will review the proposed activity and if he or she determines 
that it may affect federally-listed mussel species or other federally-
listed endangered or threatened species, the district engineer will 
initiate ESA Section 7 consultation with the U.S. FWS and/or NMFS as 
appropriate. Potential impacts to state-listed mussel species are more 
appropriately addressed through the permittee's compliance with 
applicable state natural resource or wildlife laws and regulations.
    General condition 15 states that the same NWP cannot be used more 
than once to authorize the same single and complete project. Therefore, 
this NWP cannot be used multiple times to dredge larger volumes of 
material from a specific waterbody as part of a larger overall dredging 
project. The applicant should apply for an individual permit to obtain 
DA authorization for the larger dredging project unless a different 
general permit is available to authorize that project. Activities 
authorized by this NWP can occur in a wide variety of waters, including 
ocean waters, estuaries, and rivers, and the use of silt fences, booms, 
and bubblers may be appropriate for some minor dredging activities but 
not for other minor dredging activities. Therefore, the Corps declines 
to modify this NWP at a national level to require these mitigation 
measures for all activities authorized by this NWP.
    This NWP is reissued without proposed modification.
    NWP 20. Response Operations for Oil or Hazardous Substances. The 
Corps did not propose any changes to this NWP. One commenter expressed 
support for the reissuance of this NWP with no changes.
    This NWP is reissued as proposed.
    NWP 22. Removal of Vessels. The Corps did not propose any changes 
to this NWP. One commenter recommended changing the text of this NWP to 
state that land-based alternatives should be considered first for 
vessel disposal. This commenter also said that intentional ocean 
disposal of

[[Page 73541]]

vessels at sea requires a permit from EPA issued under the Marine, 
Protection, Research and Sanctuaries Act, and should only be pursued 
when land-based alternatives are not available.
    This NWP authorizes temporary structures in navigable waters of the 
United States or minor discharges of dredged or fill material into 
waters of the United States required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-made obstructions 
to navigation. The consideration of off-site alternatives is not 
required for activities authorized by NWPs (see 40 CFR 230.7(b)(1)). If 
a project proponent intends to dispose of the vessel in ocean waters 
then a separate authorization from EPA may be required under the 
Marine, Protection, Research and Sanctuaries Act. Note 1 has been 
revised to clarify EPA requirements for intentional ocean disposal of 
vessels under the Marine, Protection, Research and Sanctuaries Act. The 
project proponent has an independent responsibility to apply to EPA for 
that authorization.
    This NWP is reissued as proposed.
    NWP 23. Approved Categorical Exclusions. The Corps did not propose 
any changes to this NWP. Several commenters requested that the Corps 
update Regulatory Guidance Letter 05-07 to include all current Federal 
Transit Administration, Federal Rail Administration, and Federal 
Highway Administration categorical exclusions so that NWP 23 can be 
used to authorize regulated activities covered by those categorical 
exclusions. One commenter stated that this NWP violates the public 
participation requirements of Section 404(e) of the Clean Water Act 
because it does not explain how the Chief of Engineers will solicit 
public comment on categorical exclusions proposed to be added for 
authorization by this NWP. This commenter also objected to the proposed 
reissuance of this NWP, stating that it does not authorize categories 
of activities that are similar in nature, and does not identify which 
categories of activities are authorized by the NWP. In addition, this 
commenter said that this NWP authorizes activities that result in more 
than minimal adverse environmental effects.
    As stated in the Note in this NWP, federal agencies may submit 
requests to Corps Headquarters to seek approval for their categorical 
exclusions to be authorized by this NWP. The Note also states that, 
upon receipt of a request from a federal agency to add, modify, or 
remove categorical exclusions for authorization under this NWP, Corps 
Headquarters will solicit public comment on the request, and determine 
which categorical exclusions involving discharges of dredged or fill 
material into waters of the United States and/or structures or work in 
navigable waters of the United States will be authorized by the NWP. 
This NWP provides two opportunities for public participation in the 
identification of categories of activities authorized by this NWP: (1) 
The public notice and comment process associated with the proposal to 
reissue this NWP, and (2) the public notice and comment process 
associated with the review and approval for specific categorical 
exclusions to be authorized by this NWP through the issuance of a 
Regulatory Guidance Letter issued by Corps Headquarters.
    This NWP authorizes categories of activities that are similar in 
nature-- that is activities regulated by the Corps that are undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another federal agency or department--where those activities 
are determined by the federal agency or department to be categorically 
excluded from the requirement to prepare an environmental impact 
statement or environmental assessment. The categorical exclusions 
approved for use with this NWP are identified in a Regulatory Guidance 
Letter issued by the Corps after a public notice and comment process. 
Some of these approved categorical exclusions require submittal of PCNs 
to Corps districts before commencing the authorized activities, so that 
district engineers can review those activities on a case-by-case basis 
to ensure that the authorized activities result in no more than minimal 
individual and cumulative adverse environmental effects. The activities 
associated with approved categorical exclusions that do not require 
PCNs were determined by the Corps to result in no more than minimal 
individual and cumulative adverse environmental effects when the Corps 
approved those categorical exclusions for use with NWP 23. For those 
approved categorical exclusions that do not require PCNs, district 
engineers retain the ability to exercise discretionary authority on a 
case-by-case basis to modify, suspend, or revoke the NWP authorization 
if they determine those activities will result in more than minimal 
adverse environmental effects.
    This NWP is reissued as proposed.
    NWP 24. Indian Tribe or State Administered Section 404 Programs. 
The Corps did not propose any changes to this NWP. No comments were 
received on the proposed reissuance of this NWP. After the comment 
period for the 2020 Proposal ended on November 16, 2020, the State of 
Florida was granted approval by the U.S. Environmental Protection 
Agency to assume the Clean Water Act Section 404 permit program in 
Florida. Therefore, the Corps has modified Note 1 of this NWP to 
include Florida in the list of states with approved Clean Water Act 
Section 404 permit programs. This NWP is reissued with the modification 
discussed above.
    NWP 25. Structural Discharges. The Corps did not propose any 
changes to this NWP. One commenter objected to the proposed reissuance 
of this NWP, stating that it contains no limits or other constraints to 
ensure that it authorizes only activities that have no more than 
minimal individual and cumulative adverse environmental effects.
    This NWP does not have any quantitative limits because it 
authorizes discharges of dredged or fill material into tightly sealed 
forms that are used to construct structural components for pile 
supported structures such as bridges or for mooring cells for general 
navigation. The losses of waters of the United States authorized by 
this NWP are limited by the dimensions of the piles, mooring cells, or 
other structures for general navigation. The dimensions of these 
tightly sealed forms for supported structures or structures for general 
navigation will be determined by engineering standards for safe and 
functional structures, as well as the purpose of the proposed supported 
structure or navigational structure. These limited size of these 
structures help ensure that the authorized discharges of dredged or 
fill material into waters of the United States result in no more than 
minimal individual and cumulative adverse environmental effects.
    In addition, as stated in the text of the NWP, structures in 
navigable waters of the United States subject to Section 10 of the 
Rivers and Harbors Act of 1899 require separate authorization because 
this NWP authorizes only discharges of dredged or fill material into 
waters of the United States. The section 10 permit process would 
address the potential impacts of the structure, including the size of 
the proposed structure, on navigation, the aquatic environment, and the 
Corps' other public interest review factors.
    This NWP is reissued as proposed.
    NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. The Corps proposed to modify this NWP by changing the 
second sentence of the second paragraph of this NWP to state that an

[[Page 73542]]

ecological reference may be based on the characteristics of one or more 
intact aquatic habitats or riparian areas. The Corps also proposed to 
modify this NWP by adding coral restoration or relocation activities to 
the list of examples of activities authorized by this NWP and stating 
that PCNs are not required for permittees that propose to conduct coral 
restoration or relocation activities in accordance with a binding 
agreement with the NMFS or any of its designated state cooperating 
agencies. In addition, the Corps proposed to add ``releasing sediment 
from reservoirs to restore downstream habitat'' to the list of examples 
of aquatic restoration or enhancement activities that may be authorized 
by this NWP.
    One commenter expressed support for the reissuance of this NWP 
because it allows for expedited permitting for much needed aquatic 
habitat restoration and enhancement projects, especially in coastal 
areas. One commenter stated that broad application of this NWP supports 
proactive state planning efforts on resiliency and flooding master 
plans. One commenter recommended revising the text of this NWP to make 
it clear that it provides approval for restoration projects, 
particularly those activities that will provide documented net 
ecological uplifts and have already undergone federal and/or state 
review through integrated and advance planning activities. One 
commenter also suggested modifying this NWP to authorize the removal of 
low-head dams and culverts for stream mitigation credits.
    The Corps acknowledges that this NWP provides an expedited 
authorization process for aquatic habitat restoration, enhancement, and 
establishment activities that result in net increases in aquatic 
resource functions and services and have no more than minimal 
individual and cumulative adverse environmental effects. The aquatic 
resource restoration, enhancement, and establishment activities 
authorized by this NWP can be located in coastal areas. The aquatic 
habitat restoration, enhancement, and establishment activities 
authorized by this NWP can also provide water retention and storage 
functions that contribute to ecological services such as natural hazard 
mitigation, including water storage to reduce flood hazards. The 
activities authorized by this NWP may have also been reviewed by state 
agencies and other federal agencies, but review by these agencies is 
not required before the Corps authorizes these activities under Section 
404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act 
of 1899. The removal of low-head dams to produce stream mitigation 
credits may be authorized by NWP 53. In the third paragraph of NWP 27, 
the removal of stream barriers (such as undersized culverts, fords, and 
grade control structures) is included in the list of examples of 
activities authorized by this NWP. The removal of undersized or perched 
culverts may be authorized by this NWP and successful completion of 
those activities may generate stream compensatory mitigation credits.
    A few commenters expressed support for allowing the use of more 
than one ecological reference site. One commenter said that this NWP 
should be modified to address inconsistences in triggering mitigation 
requirements. One commenter said that the word ``delineation'' be 
replaced with ``description'' in the text of this NWP. Commenter stated 
preparing an aquatic resources delineation per the Corps' delineation 
standards and guidelines is a costly and time-consuming component of 
project planning and does not seem to provide any additional protection 
to waters and wetlands.
    The Corps has adopted the proposed change regarding the use of one 
or more intact aquatic habitats or riparian areas as an ecological 
reference site. The sixth paragraph of this NWP states that 
compensatory mitigation is not required for activities authorized by 
this NWP because the authorized activities must result in net increases 
in aquatic resource functions and services. Therefore, there should be 
no compensatory mitigation requirements for aquatic habitat 
restoration, enhancement, or establishment activities authorized by 
this NWP.
    The reports required for NWP 27 activities that do not require PCNs 
must include a delineation of wetlands, streams, and/or other aquatic 
habitats on the project site. Delineation is necessary to provide 
district engineers with a sufficient description of the baseline 
ecological conditions for that site to assist the Corps in determining 
whether the reported activity is likely to result in net increases in 
aquatic resource functions and services. A description of aquatic 
resources on the project site is not sufficient to help district 
engineers determine whether a proposed activity will satisfy the 
requirements of this NWP. The project plans for the proposed aquatic 
habitat restoration, enhancement, or establishment activity, plus the 
delineation of aquatic resources on the project site, are necessary for 
making certain determinations. Those determinations are whether net 
gains in aquatic resource functions and services are likely to occur as 
a result of the discharges of dredged or fill material into waters of 
the United States and/or structures or work in navigable waters of the 
United States, and whether any potential changes to existing aquatic 
resources on the project site will help ensure that such net gains will 
occur.
    One commenter said that this NWP should be changed to clarify that 
it authorizes actions by a third-party ecological restoration provider 
in connection with a compensatory mitigation project, a restoration 
project, or a resiliency-focused project that generates net ecological 
uplift. One commenter stated that this NWP should be modified to allow 
waters and wetland conversions to natural conditions for a different 
aquatic habitat type if the proposed activity as a whole will result in 
a net increase in aquatic resource functions and services.
    As stated in the ``Note'' in this NWP, this NWP authorizes aquatic 
habitat restoration, enhancement, and establishment activities that are 
conducted by third-party ecological restoration providers for the 
purposes of compensatory mitigation for NWPs and other forms of DA 
authorization, such as individual permits and regional general permits. 
This NWP can also be used to authorize aquatic habitat restoration 
projects that are conducted for the purpose of increasing the functions 
and services provided by degraded aquatic habitat, but are not being 
conducted for providing compensatory mitigation for NWPs or other types 
of DA permits. Resiliency projects may be authorized by this NWP as 
long as they are aquatic habitat restoration, enhancement, or 
establishment projects, result in net gains in aquatic resource 
functions and services and resemble ecological references. Some 
resiliency projects, such as nature-based solutions that are modified 
ecosystems designed and constructed to provide ecosystem functions and 
services (National Academy of Sciences 2019), might not resemble 
ecological references because they consist of combinations of natural 
and engineered components. Living shorelines are an example of 
resiliency projects in coastal areas that do not resemble ecological 
references because they may include engineered structures such as sills 
or breakwaters. Living shorelines can be authorized by NWP 54. Green 
infrastructure projects constructed to manage stormwater, such as rain 
gardens or constructed wetlands, might not resemble ecological 
references and may be authorized by NWP 43 or other NWPs, or by 
individual permits.
    The Corps is retaining the current prohibitions on conversions of 
streams or natural wetlands to other aquatic

[[Page 73543]]

habitat types because those conversions typically focus on increasing a 
specific aquatic resource function or service while resulting in net 
losses in most of the other ecological functions and services performed 
by the impacted aquatic habitat type. These converted aquatic habitats 
may also result in hybrid aquatic habitats that do not resemble 
ecological references. This NWP also retains the prohibitions on the 
conversion of tidal waters and tidal wetlands to other aquatic uses, to 
ensure that activities authorized by NWP 27 result in no more than 
minimal individual and cumulative adverse environmental effects. 
Conversions of natural wetlands, streams, and other types of waters to 
different aquatic habitat types result in artificial conditions, not 
natural conditions, and project proponents can seek DA authorization 
for these activities through other means, such as the individual permit 
process, other NWPs, or if available, regional general permits.
    One commenter said that the Corps should issue a separate NWP for 
voluntary wetland restoration projects to distinguish those projects 
from development projects. One commenter stated that the text of this 
NWP should include a definition for voluntary wetland restoration 
projects that includes restoration projects that occur in altered, 
degraded, and former wetlands. A commenter said that a new federal 
process should be established for permitting voluntary wetland 
restoration projects. One commenter said that to ensure that voluntary 
wetland restoration projects result in net increases of wetland 
functions and services, those projects should be prohibited as serving 
to fulfilling mitigation requirements. One commenter stated that this 
NWP should clarify that it authorizes permittee-responsible mitigation 
activities.
    This NWP authorizes both voluntary wetland restoration projects and 
wetland restoration projects that are required by regulatory agencies 
or other agencies. This NWP does not authorize development activities. 
Other NWPs, such as NWP 29 (residential developments) and NWP 39 
(commercial and institutional developments), may be used to authorize 
development activities. The Corps declines to add a definition of 
``voluntary wetland restoration project,'' because this NWP does not 
distinguish between voluntary wetland restoration projects and wetland 
restoration projects that may be conducted for other reasons, such as 
wetland restoration requirements imposed by other federal, tribal, 
state, or local government agencies. There is no need to establish a 
new federal permitting process for voluntary wetland restoration 
projects because the Corps currently authorizes wetland restoration 
projects through its permitting authorities under Section 404 of the 
Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. 
While this NWP can be used to authorize discharges of dredged or fill 
material into waters of the United States and/or structures or work in 
navigable waters of the United States for wetland restoration projects, 
those activities can also be authorized by individual permits and 
regional general permits.
    Voluntary wetland restoration projects are conducted by people or 
organizations for the purpose of increasing wetland acreage and the 
associated wetland functions and services, or the level of wetland 
functions and services performed by areas of existing, degraded 
wetlands. Wetland restoration for compensatory mitigation serves a 
different purpose, which is to offset losses of wetland functions and 
services caused by permitted activities. Third-party mitigation 
providers (e.g., mitigation bank sponsors and in-lieu fee program 
sponsors) may conduct wetland restoration projects to provide 
compensatory mitigation for NWPs and other DA permits, or to fulfill 
other federal, state, or local government mitigation requirements 
without being driven to do so by regulatory requirements. Both 
voluntary wetland restoration projects and wetland compensatory 
mitigation projects are expected to result in net increases in wetland 
functions and services, which is a basic requirement of this NWP. This 
NWP can be used to authorize permittee-responsible mitigation projects, 
including advance permittee-responsible mitigation projects where there 
is no DA permit to authorize discharges of dredged or fill material 
into waters of the United States or structures or work in navigable 
waters of the United States for the advance permittee-responsible 
mitigation project.
    One commenter said that this NWP should be modified to explicitly 
add the restoration of vegetated and unvegetated intertidal and 
subtidal areas--including mudflats, sandflats, and submerged aquatic 
vegetation--to the list of examples of activities authorized by this 
NWP. Commenter said that the activities authorized by this NWP will 
alter and destroy open water habitats in tidal estuaries and convert 
them to types of habitat that were never historically present in those 
waters. This commenter also stated that the activities authorized by 
this NWP would make open water sites unusable by fishermen and species 
that currently rely on those open water habitats. One commenter said 
that the authorization of structures and fills by this NWP creates 
overlap between NWP 27 and NWP 54 (living shorelines) and should be 
revised. One commenter stated that the text of this NWP should be 
clarified regarding the degradation of downstream waters.
    As stated in the first paragraph of this NWP, it authorizes the 
rehabilitation and enhancement of tidal streams, tidal wetlands, and 
tidal open waters as long as those activities result in net increases 
in aquatic resource functions and services. This includes vegetated and 
unvegetated intertidal areas (e.g., mud flats and sand flats) and 
vegetated and unvegetated subtidal areas (e.g., submerged aquatic 
vegetation). Tidal open waters include mud flats and sand flats. Tidal 
wetlands include submerged aquatic vegetation. The fifth paragraph of 
this NWP states that it does not authorize activities that convert 
tidal waters, including tidal wetlands, to other aquatic uses. 
Therefore, this NWP cannot be used to authorize discharges of dredged 
or fill material that convert tidal waters into uplands or non-tidal 
aquatic habitats. In addition, because the text of this NWP states that 
it authorizes the rehabilitation and enhancement of tidal open waters, 
it limits the authorized activities to those that improve either the 
suite of functions or a smaller number of functions performed by tidal 
waters. It does not authorize activities that degrade or destroy tidal 
waters, or render them unusable by fishermen. Aquatic habitat 
restoration and enhancement activities may alter which species use the 
restored or enhanced site, and which habitat functions support or deter 
certain species.
    Activities authorized by NWP 27 must result in an aquatic habitat 
that resembles an ``ecological reference,'' consistent with the 
definition of that term in section F of the NWPs. A living shoreline 
usually consists of living components (e.g., marsh grasses, oysters) 
and engineered components (e.g., sills or breakwaters constructed from 
stone), and may not resemble an ecological reference. There is no 
overlap between NWP 27 and NWP 54, although tidal wetlands restored or 
enhanced as a result of the activities authorized by this NWP may help 
reduce erosion as an ecological service.
    Several commenters stated that NWP 27 has PCN thresholds that are 
inconsistent with, and more stringent than, the PCN thresholds for 
other NWPs, such as NWP 12 and the two

[[Page 73544]]

new NWPs 57 and 58 that were issued in the final rule published in the 
January 13, 2021, issue of the Federal Register (86 FR 2744). Some of 
these commenters suggested that this NWP should be modified to require 
PCNs for proposed discharges of dredged or fill material into non-
wetland special aquatic sites or if the proposed activity results in 
loss of greater than 1/10-acre of wetland. One commenter stated support 
of the PCN notification exemption to continue to allow statewide 
aquatic habitat restoration and enhancement activities to be conducted 
in an efficient and timely manner. One commenter said that in order to 
reduce unnecessary delays and expenses from the PCN process, this NWP 
should be modified by removing the exception from the requirement to 
submit PCNs for activities on non-federal public lands and private 
lands conducted under agreements between the landowner and federal 
agencies or their designated state cooperating agencies.
    The PCN thresholds for this NWP are no more stringent that the PCN 
thresholds for many other NWPs. All activities authorized by this NWP 
require some form of advance notification to district engineers before 
commencing authorized activities, to provide district engineers with 
the opportunity to take action on those proposed activities that do not 
comply with the requirements of the NWP, such as activities that are 
not expected to result in net gains in aquatic resource functions and 
services or activities that are not likely to resemble ecological 
references. The advance notification takes the form of either: (1) Pre-
construction, or (2) reporting. The activities identified in the 
``Notification'' paragraph require PCNs and reports are required for 
the activities identified in the ``Reporting'' paragraph. Most of the 
NWPs require PCNs for all authorized activities, or for a subset of 
authorized activities.
    The suggested PCN thresholds for discharges of dredged or fill 
material into non-wetland special aquatic sites or for losses of 
greater than 1/10-acre of wetland are not appropriate for an NWP that 
authorizes discharges of dredged or fill material or structures or work 
into all types of waters of the United States. Wetlands are a subset of 
jurisdictional waters in which this NWP can be used to authorize 
regulated activities associated with aquatic habitat restoration, 
enhancement, and establishment. This NWP authorizes activities in tidal 
and non-tidal wetlands, rivers and streams, lakes, estuaries, and ocean 
waters. Some form of case-by-case review is needed for all authorized 
activities to ensure their compliance with the NWP and that they will 
result in no more than minimal individual and cumulative adverse 
environmental effects.
    This NWP does not have an acreage or other quantitative limits. 
Instead of a quantitative limit, this NWP requires that aquatic habitat 
restoration, enhancement, and establishment activities result in net 
increases in aquatic resource functions and services and resemble 
ecological references. Aquatic habitat restoration, enhancement, and 
establishment activities can occur over large or small areas, and the 
PCN and reporting requirements facilitate the expedited review process 
for activities that provide benefits for the aquatic environment, as 
well as ecological services for people. The reporting requirement was 
established for certain NWP 27 activities on non-federal public lands 
and private lands to reduce costs associated with preparing PCNs, while 
providing district engineers with the opportunity to review proposed 
activities that do not require PCNs. The reporting requirement provides 
district engineers with the opportunity to take action if they 
determine that a proposed activity does not qualify for NWP 27 
authorization because it is not an aquatic habitat restoration, 
enhancement, or establishment activity; it is not likely to result in 
net gains in aquatic resource functions and services; or it does not 
resemble an ecological reference.
    Several commenters expressed support for adding coral restoration 
activities to the list of examples of activities that may be authorized 
by NWP 27. One commenter stated that authorizing coral restoration 
activities under this NWP would streamline and simplify restoration 
activities and reduce burdens on the local agencies.
    The Corps has added coral restoration activities and coral 
relocation activities to the list of examples of activities authorized 
by this NWP when those activities require DA authorization under 
Section 10 of the Rivers and Harbors Act of 1899 and/or Section 404 of 
the Clean Water Act.
    Many commenters stated opposition to the proposed inclusion of 
reservoir sediment releases as an example of an activity authorized by 
NWP 27 while many commenters expressed support for the proposed 
inclusion of that activity as an example of activities authorized by 
this NWP. A few commenters stated that controlled sediment releases can 
benefit downstream river and stream beds and embankments. One commenter 
asserted that these activities should require individual permits. One 
commenter suggested rewording the proposed modification to the 
following: ``reservoir sediment management to provide continuity in 
sediment transport through reservoirs.''
    The Corps is adding ``releases of sediment from reservoirs to 
maintain sediment transport continuity to restore downstream habitats'' 
to the list of examples of activities authorized by this NWP instead of 
the proposed text of ``releasing sediment from reservoirs to restore 
downstream habitat.'' These activities can be conducted in a manner 
that improves the functions and services performed by downstream river 
and stream habitats and results in no more than minimal individual and 
cumulative adverse environmental effects. The revised text is intended 
to emphasize the notion of rehabilitating downstream habitats and 
improving the functions and services performed by those habitats by 
maintaining continuity of sediment transport through reservoirs rather 
than emphasizing reservoir management activities. Sediment releases 
from reservoirs must have the purpose of maintaining sediment transport 
through rivers that sustains or improves downstream habitat that is 
adversely affected by the reservoir because that reservoir disrupts 
normal sediment transport processes in the river. The Corps declines to 
revise the text to refer to reservoir sediment management activities 
because the modification of this NWP addresses only one approach to 
reservoir sediment management.
    The movement of sediment via flowing water through watersheds and 
river and stream networks is a natural watershed process (Black 1997). 
Reservoirs trap sediment and disrupt the continuity of sediment 
transport though the river network in a watershed, which reduces the 
amount of sediment transported downstream that helps maintain river 
channel form as well as adjacent riparian areas and floodplains 
(Kondolf et al. 2014). Periodic releases of sediment stored in 
reservoirs can help maintain the continuity of sediment transport in 
riverine systems and help sustain or enhance downstream riverine and 
riparian habitats, including floodplains. In coastal areas, periodic 
releases of sediment from reservoirs can provide sediment that helps 
sustain coastal wetlands and unvegetated coastal habitats (Kondolf et 
al. 2014). Those sediments can accrete in coastal wetlands and help 
those wetlands adjust to sea level rise. The activities authorized by 
this NWP require either PCNs or reports to district engineers, so

[[Page 73545]]

it is not necessary to add a PCN requirement specific to releases of 
sediment from reservoirs to maintain sediment transport continuity in 
riverine systems to restore or enhance downstream habitats. District 
engineers will review these proposed activities through either PCNs or 
reporting documentation submitted by project proponents to Corps 
district offices.
    Releases of sediment from reservoirs may or may not require DA 
authorization, depending on how those sediment releases are conducted. 
Guidance is provided in Regulatory Guidance Letter (RGL) 05-04: 
``Guidance on the Discharge of Sediments From or Through a Dam and the 
Breaching of Dams, for Purposes of Section 404 of the Clean Water Act 
and Section 10 of the Rivers and Harbors Act of 1899.'' The RGL 
explains the circumstances in which sediment releases from reservoir do 
not require DA authorization, and how reservoir sediment releases can 
be conducted without the need to obtain Clean Water Act Section 404 
authorization from the Corps. In general, releases of sediments that 
are incidental to normal reservoir operations--such as releases of 
water through the dam to restore reservoir capacity during events like 
spring run-off, flooding, or storms--are considered de minimis 
discharges of dredged material. They do not require DA authorization 
under section 404 so long as the sediment loads of waters released from 
reservoirs are consistent with the sediment loads entering the 
reservoir from the upstream waters. The modification of this NWP 
clarifies that this NWP can be used to provide DA authorization under 
Section 404 of the Clean Water Act and Section 10 of the Rivers and 
Harbors Act for sediment releases from reservoirs that require such 
authorization, as long as those sediment releases rehabilitate 
downstream habitats and result in net gains in aquatic resource 
functions and services.
    Several commenters stated that sediment releases from reservoirs 
authorized by this NWP should have quantitative limits to ensure that 
no more than minimal adverse impacts occur as a result of these 
activities. One commenter said that the text of this NWP should clarify 
that sediment releases from reservoirs must be linked to a clear 
restoration action or plan and should not be authorized by this NWP 
solely for the purpose of reservoir management or dam maintenance. Many 
commenters stated that PCNs should be required for all sediment 
releases authorized by this NWP. Several commenters objected to the 
proposed modification, stating that sediment release activities under 
NWP 27 should require PCNs when dam removal projects would result in 
large amounts of sediments being released. One commenter said that a 
PCN threshold should be added to this NWP to address discharges 
associated with sediment releases and the frequency of those sediment 
releases, to ensure that those activities result in no more than 
minimal adverse environmental effects.
    The Corps does not agree that there should be quantitative limits 
for reservoir sediment releases authorized by this NWP because of the 
variability in hydrology and sediment transport in rivers and streams 
across the country and the variability in reservoir characteristics, 
such as their dimensions, how they are operated, and the hydrologic and 
sediment regimes of the watershed in which a reservoir is located. In 
addition, the appropriate amount of sediment that may be released from 
a reservoir to maintain continuity of sediment transport to restore 
downstream habitats is affected by a number of factors, which makes it 
infeasible to establish a national quantitative limit for these 
activities. Such factors include water and sediment inputs to the 
river, including upstream, lateral, and downstream inputs; valley 
geometry, substrate, and vegetation; river geometry, including the 
cross sectional geometry, planform, and gradient; and the disturbance 
regime of the river (Wohl et al. 2015). These factors vary considerably 
among rivers across the United States. Therefore, the appropriate 
amount of sediment to be released from reservoirs, as well as the 
timing of those releases, to provide sediment transport continuity and 
rehabilitate downstream habitats needs to be determined on a case-by-
case basis.
    Activities authorized by NWP 27, including wetland and stream 
restoration and enhancement activities, do not require formal 
restoration plans, although a project proponent may provide restoration 
plans with the PCN or report if she or he believes that information 
would help the district engineer determine whether the proposed 
activity is authorized by this NWP. The Corps does not believe it is 
necessary to require more information for proposed releases of sediment 
from reservoirs than it requires for other aquatic habitat restoration, 
enhancement, or establishment activities authorized by this NWP. 
Wetland and stream restoration activities can involve substantial 
amounts of earth moving and sediment releases, and the Corps believes 
that proposed releases of sediment from reservoirs do not require a 
higher information standard than wetland and stream restoration 
activities. The sediment releases from reservoirs to rehabilitate 
downstream habitats do not require a formal restoration plan, but the 
reservoir operator may develop an operations plan that establishes 
protocols for sediment releases that are intended to maintain sediment 
transport continuity to restore downstream habitats. The project 
proponent can provide a copy of that plan with the PCN or report.
    To be authorized by this NWP, the sediment releases from reservoirs 
must result in net gains in aquatic habitat functions and services. 
This NWP does not authorize sediment releases that are conducted 
primarily for the purpose of reservoir management or maintenance. The 
primary purpose of the authorized activity must be to restore 
downstream habitats. However, controlled releases of sediment from 
reservoirs to maintain sediment transport continuity to restore or 
enhance downstream habitats may have a secondary benefit of prolonging 
the operational life of reservoirs and reducing the need to construct 
additional reservoirs in a region (Kondolf et al. 2014). This NWP does 
not authorize releases of large amounts of sediment from reservoirs 
that would adversely affect downstream habitats and result in net 
losses, rather than net gains, in aquatic resource functions and 
services.
    Several commenters said that the text of this NWP should clarify 
whether the sediment releases from reservoirs are one-time activities 
or they can be conducted on a recurring, routine basis. One commenter 
said that PCNs for proposed sediment releases from reservoirs should 
indicate whether the proposed release is part of a single event or 
proposed as a routine management technique and should include a plan 
describing the amount, frequency, timing, and duration of sediment to 
be released. A few commenters support adding releases of sediment from 
reservoirs into downstream habitats to the examples in NWP 27, but said 
that sediment releases should have established criteria as determined 
by state resource managers to maintain balanced sediment levels within 
individual watersheds.
    The timing and frequency of sediment releases from reservoirs to 
restore downstream habitats are likely to differ because of the 
variability in climate, watersheds, and rivers across the country, and 
the variability in water and sediment regimes in rivers. Sediment 
releases from reservoirs that trigger a

[[Page 73546]]

requirement for DA authorization under Section 404 of the Clean Water 
Act and/or Section 10 of the Rivers and Harbors Act of 1899 may occur 
during multiple times during the 5-year period this NWP is in effect. 
This NWP includes a number of examples of authorized activities that 
may occur more than once during the 5-year period the NWP is in effect, 
such as the removal of accumulated sediments from waterbodies, 
shellfish seeding activities, plowing or discing activities for seeding 
and planting wetland species, and mechanized land clearing to remove 
non-native invasive, exotic, or nuisance vegetation. If the project 
proponent anticipates conducting multiple sediment releases during the 
period this NWP authorization is in effect, in the PCN or report for 
the proposed activity he or she should provide information on the 
anticipated number of releases during that time. If the proposed 
activity requires a PCN, the description of the proposed activity 
required by paragraph (b)(4)(i) of general condition 32 should 
including the number of anticipated sediment releases from the 
reservoir and their timing. Sediment transport in rivers typically 
occurs in a non-linear, episodic manner (Wohl et al. 2015), and 
releasing sediments in smaller pulses may more closely mimic non-
linear, episodic natural sediment transport processes. This NWP does 
not authorize large sediment releases that will cause losses of aquatic 
resource functions and services.
    The Corps does not agree that there should be coordination of 
proposed activities between district engineers and state resource 
managers. None of the other aquatic habitat restoration, enhancement, 
and establishment activities authorized by this NWP require 
coordination between district engineers and state resource managers. 
Therefore, releases of sediment to restore or enhance downstream 
habitat should not be subject to a coordination requirement between 
district engineers and state resource managers. However, district 
engineers have the discretion to coordinate proposed NWP 27 activities 
requiring DA authorization with other federal, tribal, state, or local 
resource agencies on a case-by-case basis, within the timeframes for 
reviewing PCNs (generally 45 days) and reports (30 days), if they want 
assistance with their evaluations of those PCNs and reports.
    A few commenters stated that sediment releases authorized by this 
NWP should be clearly linked to a restoration plan and not be solely 
for the purpose of reservoir or dam maintenance. Several commenters 
stated that PCNs for proposed sediment releases from reservoirs should 
include study results that evaluated and addressed the volume of 
sediment to be released, sediment size and distribution, reach 
conditions, downstream habitat and aquatic species impacts, and the 
time of year for releases. Another commenter stated that PCNs for 
sediment release activities authorized by this NWP should include the 
plan used for sediment releases and the benefits of each activity must 
be clarified regarding the resulting changes on hydrology, 
geomorphology, and habitat, as well as watershed stability.
    Aquatic habitat restoration, enhancement, and establishment 
activities authorized by NWP 27 do not require comprehensive 
restoration plans. Releases of sediment from reservoirs to maintain 
sediment transport continuity to restore downstream habitats that 
require DA authorization will require either PCNs or reporting to 
district engineers. The Corps does not agree that it is necessary to 
establish information requirements for releases of sediment from 
reservoirs that differ from the information requirements for the wide 
variety of other aquatic habitat restoration, enhancement, or 
establishment activities authorized by this NWP. The Corps is applying 
the same PCN information requirements for proposed sediment releases 
from reservoirs that it requires for all other aquatic habitat 
restoration, enhancement, and establishment activities authorized by 
this NWP. Those other aquatic habitat restoration, enhancement, and 
establishment activities, including wetland and stream restoration 
activities, can involve substantial amounts of discharges of dredged or 
fill material into waters of the United States and other regulated 
activities to restore, enhance, or establish aquatic habitats so that 
they provide net increases in aquatic resource functions and services 
after completion of the authorized activities.
    For those activities that require PCNs, paragraph (b)(4)(i) of 
general condition 32 requires the following: A description of the 
proposed activity; the activity's purpose; direct and indirect adverse 
environmental effects the activity would cause, including the 
anticipated amount of loss of wetlands, other special aquatic sites, 
and other waters expected to result from the NWP activity; and a 
description of any proposed mitigation measures intended to reduce the 
adverse environmental effects caused by the proposed activity. The 
amount and type of information to be provided in the description of the 
proposed activity in the PCN should be appropriate to the type of 
aquatic habitat restoration, enhancement, or establishment activity the 
project proponent wants to conduct under the NWP 27 authorization. For 
example, for proposed sediment releases to restore downstream aquatic 
habitats, in the description of the proposed activity the project 
proponent should describe the amount, frequency, timing, and duration 
of sediment to be released from the reservoir. A formal study is not 
required for a complete PCN. The project description should be in 
sufficient detail to provide the district engineer with enough 
information to determine whether the proposed activity will result in a 
net increase in aquatic resource functions and services.
    For releases of sediment from reservoirs that may be authorized by 
this NWP, the PCN should also describe any mitigation measures the 
project proponent intends to implement to reduce adverse environmental 
effects and ensure that the authorized activity results in net gains in 
aquatic resource functions and services. Mitigation measures may 
include releasing sediment in pulses during periods of sufficient water 
flow so that the released sediments restore or enhance, rather than 
degrade, downstream habitats. Releases of sediment from reservoirs to 
maintain continuity of sediment transport and restore downstream 
habitats can have a secondary benefit of helping maintain the water 
storage capacity of reservoirs. However, if the PCN or report states 
that primary purpose of the sediment releases are for reservoir 
maintenance, then the district engineer should notify the project 
proponent that the proposed activity is not authorized by NWP 27, and 
that another type of DA authorization will be needed for the proposed 
reservoir or dam maintenance activities.
    The sediment releases from reservoirs authorized by this NWP are 
not likely to result in substantial changes in hydrology, 
geomorphology, aquatic habitat, or watershed stability because they are 
intended to maintain continuity in sediment transport to restore or 
enhance downstream habitats that have been adversely affected by the 
disruption in sediment transport processes caused by the construction 
of a reservoir. The activities authorized by this NWP must result in 
net gains in aquatic resource functions and services. These activities 
are likely to improve watershed functioning and the sustainability of 
aquatic habitats within the watershed to some degree by maintaining the 
continuity of sediment transport in rivers within the watershed.
    One commenter stated additional clarification on the definition for 
the

[[Page 73547]]

term ``release'' is needed to encourage natural sediment transport 
downstream if that is the intent of the proposed change to this NWP. 
One commenter expressed concern with authorizing sediment releases from 
reservoirs under this NWP because of uncertainty of the objectives and 
nature of potential sediment releases. One commenter said that 
releasing sediment from reservoirs to restore downstream habitat is not 
suitable for NWP authorization because while it can improve habitat, it 
can also result in adverse effects on wetlands and riparian areas.
    The term ``release'' applies to discharges of dredged or fill 
material regulated under Section 404 of the Clean Water Act and 
``work'' regulated under Section 10 of the Rivers and Harbors Act of 
1899 because those are the types of activities authorized by this NWP 
under the permitting authorities for NWP 27. There are circumstances 
where releases of sediment from reservoirs do not require DA 
authorization (see Regulatory Guidance Letter 05-04). The intent of 
adding ``releases of sediment from reservoirs to maintain sediment 
transport continuity to restore downstream habitats'' to the list of 
examples of activities authorized by this NWP is to clarify that this 
NWP can be used to authorize sediment releases from reservoirs that 
require DA authorization as long as those activities result in net 
gains in aquatic resource functions and services and have no more than 
minimal adverse environmental effects. The third paragraph of this NWP 
is a list of examples of aquatic habitat restoration, enhancement, and 
establishment activities that may be authorized by this NWP when those 
activities require DA authorization. This addition to the list of 
examples of activities authorized by this NWP is highly specific; it is 
limited to sediment releases from reservoirs that maintain sediment 
transport continuity to restore downstream habitat. It does not cover 
sediment releases from reservoirs for other purposes, such as 
maintaining the designed water storage capacity of the reservoir. The 
objective of this addition to the list of examples of activities 
authorized by this NWP is to provide sediment for downstream habitats 
that have been adversely affected by the disruption of sediment 
transport caused by the dam that created the reservoir, so that 
continuity of sediment transport is maintained to a degree that helps 
sustain or improve the structure, functions, and dynamics of downstream 
riverine and riparian habitats, and in coastal areas, downstream 
coastal habitats.
    Sediment releases from reservoirs can be conducted in a manner that 
does not require DA authorization. Sediment releases from reservoirs 
can also be conducted in a manner so that they result in no more than 
minimal individual and cumulative adverse environmental effects. This 
NWP requires that releases of sediment from reservoirs that require DA 
authorization result in net gains in aquatic resource functions and 
services. Sediment releases from reservoirs that require DA 
authorization but do not result in net gains in aquatic resource 
functions and services are not authorized by this NWP. The construction 
of reservoirs disrupts sediment transport to downstream habitats, 
including wetlands and riparian areas. When sediment transport 
processes are disrupted by the construction of a dam across a river, 
downstream riverine wetlands and riparian areas may erode when sediment 
supplies from upstream waters diminish as sediment is trapped by the 
reservoir. Coastal wetlands also require periodic inputs of sediment to 
sustain their structure and function, and sediment releases from 
reservoirs in coastal areas can help sustain these wetlands (Kondolf et 
al. 2014). While this NWP may authorize the removal of small water 
control structures, it does not authorize the removal of large dams. 
Low-head dam removals may be authorized by NWP 53.
    Several commenters stated that the timing, location, and magnitude 
of sediment releases are crucial factors, as they could be beneficial 
for some species that require turbidity for spawning, or harmful for 
species that require clean substrate for nest building. One commenter 
said that the Corps' decision document for this NWP should provide 
further clarification of the positive and negative impacts on the 
aquatic environment downstream from sediment releases and that the NWP 
should provide a mechanism that will carefully consider these potential 
impacts and offer practices aimed to reduce negative impacts. One 
commenter stated that the NWPs are designed for minor discharges with 
no more than minimal adverse environmental impacts and that individual 
permits should be required for discharges of sediment for habitat 
improvement. One commenter said that large amounts of sediments being 
released downstream should require full evaluation of best management 
options.
    The Corps agrees that the timing, location, and magnitude of 
sediment releases are crucial factors, and that these activities need 
to be carefully planned and implemented to ensure that the sediment 
releases from reservoirs result in net increases in aquatic resource 
functions and services. The degrees to which some species may benefit 
from the sediment released from reservoirs and other species may be 
adversely affected weighs into the determination as to whether the 
sediment releases result in net gains in aquatic resource functions and 
services. As with many aquatic habitat restoration, enhancement, and 
establishment activities, there may be short-term, temporary adverse 
effects while authorized activities such as discharges of dredged or 
fill material into waters of the United States are conducted. But over 
the long-term, as the aquatic habitat responds to the restoration, 
enhancement, or establishment activities through ecosystem development 
processes, there should be more permanent, sustainable gains in aquatic 
habitat functions and services. The Corps has revised its national 
decision document for this NWP to provide additional discussion of the 
positive and negative impacts of releases of sediment from reservoirs 
to maintain sediment transport continuity to rehabilitate downstream 
aquatic habitats.
    If the district engineer reviews the PCN or report and determines 
the proposed activity may affect listed species or designated critical 
habitats, the district engineer will conduct ESA Section 7 consultation 
with the U.S. FWS and/or NMFS as appropriate, unless another federal 
agency has conducted ESA Section 7 consultation for the proposed 
activity. The information requirements for these activities are similar 
to the information requirements for other aquatic habitat restoration, 
enhancement, and establishment activities authorized by this NWP, and 
project proponents can provide additional information voluntarily if 
they think that additional information will help with receiving an NWP 
verification letter from the district engineer.
    When evaluating PCNs for proposed NWP 27 activities, district 
engineers will consider the 10 criteria in paragraph 2 of section D, 
District Engineer's Decision to determine whether a proposed activity 
will result in no more than minimal individual and cumulative adverse 
environmental effects. Aquatic habitat restoration, enhancement, and 
establishment activities can vary substantially in size, and in the 
amount of dredged or fill material that is discharged into waters of 
the United States to conduct those activities. For aquatic habitat 
restoration, enhancement, and

[[Page 73548]]

establishment projects, the quantity of discharges of dredged or fill 
material into waters of the United States is not indicative of whether 
the completed activity will result in net gains in aquatic habitat 
functions and services. It is the longer-term outcomes of the aquatic 
habitat restoration, enhancement, or establishment activities that 
determine whether net gains in aquatic resource functions and services 
occur after the temporary impacts associated with the permitted 
activities are supplanted by the ecosystem development processes that 
occur over time to produce gains in aquatic resource functions and 
services. These concepts apply to releases of sediment from reservoirs 
to maintain sediment transport continuity to restore downstream 
habitats.
    Many commenters expressed concern with possible levels of 
pollutants and water quality impairments from sediment releases. One 
commenter stated that dam removal projects require sediment contaminant 
testing to ensure sediment contaminants to be released downstream would 
not negatively impact the environment, and that this NWP should have a 
similar requirement for sediment releases from reservoirs. One 
commenter stated that release of sediments from reservoirs as part of a 
restoration activity should not contain actionable levels of pollutants 
such as nitrates, phosphorus, metals, or pesticides. Many commenters 
said that PCNs for proposed releases of sediment from reservoirs should 
require sediment analysis to determine contaminant levels. One 
commenter said that sediment load and the concentrations of any 
contaminants relative to background levels are key parameters for 
determining downstream environmental impacts of these activities. Many 
commenters said that there is potential for contaminants and pollutants 
that have accumulated in reservoir sediments to be released which may 
cause significant ecosystem impacts downstream. A few commenters stated 
that sediment releases from reservoirs would result in water quality 
violations and disperse contaminated sediments.
    Dam removal projects do not always require sediment testing. The 
need for sediment testing for sediments to be released via dam removal 
project is determined on a case-by-case basis by applying the criteria 
at 40 CFR 230.60. The same approach applies to releases of sediment 
from reservoirs to maintain sediment transport continuity to restore 
downstream habitats. In addition, sediment releases from reservoirs 
authorized by this NWP may require water quality certification under 
Section 401 of the Clean Water Act. The applicable certifying authority 
determines whether a discharge may occur, and if the certifying 
authority determines that a discharge into waters of the United States 
may occur it notifies the project proponent that water quality 
certification or waiver is required before conducting the proposed 
discharge.
    Decisions to require testing of sediments released from reservoirs 
are more appropriately made by the agencies responsible for making 
water quality certification decisions under Section 401 of the Clean 
Water Act. If the proposed release of sediment from a reservoir 
requires DA authorization, the district engineer should defer to the 
applicable certifying authority regarding whether sediment testing is 
necessary to ensure compliance with applicable water quality 
requirements. If a release of sediments from a reservoir will result in 
a regulated discharge of dredged or fill material, the district 
engineer has the discretion to determine that there is a need to test 
sediment that might be stored in the reservoir for contaminants, based 
on a ``reason to believe'' approach similar to the EPA's inland testing 
manual for dredged material.
    One commenter expressed concern for authorizing sediment releases 
under an NWP because there is little opportunity for coordination with 
natural resource agencies. A few commenters said that the Corps should 
develop appropriate general and/or regional conditions for reservoir 
sediment releases through coordination with natural resource agencies 
and reservoir operators. One commenter stated that the Corps should 
require project proponents proposing sediment releases from reservoirs 
to notify downstream drinking water utilities of potential sediment 
releases when necessary to benefit downstream habitat. One commenter 
said that PCNs for proposed sediment releases from reservoirs should 
require consultation with state resource agencies to ensure potential 
sediment contamination and changes in dissolved oxygen levels are 
considered because suspended and embedded sediment has been shown to 
affect aquatic species, such as fish, through direct physiological 
effects, decreased water clarity, or sediment deposition.
    The Corps does not believe it is necessary to require agency 
coordination for PCNs or reports submitted to district engineers for 
releases of sediment from reservoirs to maintain the continuity of 
sediment transport in riverine systems, when those activities are 
authorized by this NWP. District engineers have the discretion to 
coordinate PCNs and reports with their counterparts at federal, tribal, 
state, or local resource agencies. Sediment transport in rivers and 
streams is a natural process, with a suspended load conveying finer 
sediment in the water column and a bed load conveying coarser sediment 
along the river or stream bed. Therefore, the Corps does not believe 
that it is necessary to notify downstream drinking water utilities of 
proposed releases of sediment from reservoirs. Potential concerns about 
sediment contamination and changes in dissolved oxygen levels are more 
appropriately addressed by certifying authorities through the Clean 
Water Act Section 401 water quality certification process. Sediment 
transport is a natural river function, and fish that live in rivers are 
adapted to cope with suspended sediments and sediments on the river 
bed. The activities authorized by this NWP must result in net gains in 
aquatic resource functions and services and result in no more than 
minimal individual and cumulative adverse environmental effects. 
District engineers will review PCNs and reports for these proposed 
activities, and if they determine that adverse effects to fish and 
other aquatic organisms will be more than minimal after considering 
mitigation proposed by project proponents, they will exercise 
discretionary authority and require individual permits for these 
activities.
    One commenter recommended modifying this NWP to allow longer 
reaches of stream be allowed to be temporarily impacted without need 
for a permit to help to facilitate more streambank stabilization and 
restoration activities, because of the high costs for designing, 
engineering, and permitting these activities. This commenter said that 
these administrative costs often exceed the actual cost of implementing 
the beneficial improvement work. One commenter said that the Corps must 
assess the potential for NWP 27 activities to affect ESA-listed 
species, and that potential impacts from those activities must be 
analyzed through programmatic ESA Section 7 consultations.
    This NWP has no quantitative limits, so there are no limits on the 
amount of stream bed that can be restored or enhanced by activities 
authorized by this NWP. There are no exemptions from Clean Water Act 
Section 404 permitting requirements for stream restoration activities. 
Paragraph (c) of general condition 18, endangered species, requires 
non-federal permittees to submit a pre-construction notification

[[Page 73549]]

to the district engineer if any listed species (or species proposed for 
listing) or designated critical habitat (or critical habitat proposed 
such designation) might be affected or is in the vicinity of the 
activity, or if the activity is located in designated critical habitat 
or critical habitat proposed for such designation. District engineers 
will review those PCNs and determine whether the proposed activity may 
affect listed species or designated critical habitat. If the district 
engineer determines a proposed activity may affect ESA-listed species 
or designated critical habitat, then she or he will conduct ESA Section 
7 consultation with the U.S. FWS and/or NMFS as appropriate. Compliance 
with ESA Section 7 may be achieved through activity-specific formal or 
informal ESA Section 7 consultations or formal or informal regional 
programmatic ESA Section 7 consultations.
    One commenter stated that the scope of projects authorized by NWP 
27 should be broadened to expedite the review and permitting process to 
help support the growing ecological restoration industry. One commenter 
requested that Corps be required to issue an NWP 27 verification 
concurrent with the execution of a mitigation banking instrument in 
states where a state has assumed the responsibilities for permitting 
discharges of dredged or fill material into waters of the United 
States.
    This NWP authorizes a wide variety of aquatic habitat restoration, 
enhancement, and establishment activities. Those activities can be 
conducted by the ecological restoration industry, government agencies, 
non-governmental organizations, private individuals, and other 
entities. If a state has assumed the responsibilities for implementing 
the Clean Water Act Section 404 permit program, this NWP likely cannot 
be used to authorize discharges of dredged or fill material into waters 
of the United States in waters that have been assumed by that state. A 
state permit would be required to authorize those discharges of dredged 
or fill material into waters of the United States.
    This NWP is reissued, with the modifications discussed above.
    NWP 28. Modifications of Existing Marinas. The Corps did not 
propose any changes to this NWP. No comments were received on the 
proposed reissuance of this NWP. This NWP is reissued as proposed.
    NWP 30. Moist Soil Management for Wildlife. The Corps did not 
propose any changes to this NWP. One commenter objected to the proposed 
reissuance of this NWP because it does not require PCNs for proposed 
activities. This commenter said that not requiring PCNs for the 
authorized activities prevents the Corps from tracking the use of this 
NWP and adding conditions to the authorization.
    The purpose of this NWP is to authorize discharges of dredged or 
fill material into non-tidal waters of the United States to manage 
wildlife habitat and to provide feeding areas for wildlife. The 
activities authorized by this NWP cannot cause net losses of aquatic 
resource functions and services, and it does not authorize the 
conversion of wetlands or streams to other types of habitat. Since this 
activities authorized by this NWP help sustain wildlife and cannot 
result in net losses of aquatic resource functions and services, the 
Corps does not believe it is necessary to require PCNs for authorized 
activities. In geographic areas where division engineers have concerns 
about the potential uses of this NWP, they can add regional conditions 
to require PCNs for some or all activities authorized by this NWP.
    This NWP is reissued as proposed.
    NWP 31. Maintenance of Existing Flood Control Facilities. The Corps 
did not propose any changes to this NWP. A few commenters requested 
that the Corps not reissue this NWP because they said it authorizes 
activities that cause more than minimal individual and cumulative 
adverse environmental effects. A few commenters said that the Corps 
should impose quantitative limits on this NWP. One commenter stated 
that relatively small acreage losses authorized by this NWP can cause 
significant impacts. A few commenters said that the Corps should 
restrict this NWP so that it authorizes activities that are similar in 
nature.
    This NWP authorizes the maintenance of existing flood control 
facilities, as long as those activities are conducted within the 
maintenance baseline established for each flood control facilities. 
While this NWP does not have a quantitative limit, maintenance 
activities that require DA authorization are limited to the maintenance 
baseline that is approved by the district engineer for each existing 
flood control facility. This NWP does not authorize any expansion or 
new construction for existing flood control facilities. The existing 
flood control facilities covered by this NWP were either previously 
authorized by a Corps permit after the Corps conducted an environmental 
review (if a Corps permit was required for the original construction of 
the flood control facility), or constructed by the Corps after 
completing an environmental review process similar to the Corps' permit 
review process.
    Flood control facilities are located in dynamic environments and 
require periodic maintenance to sustain their intended flood risk 
management functions. Aquatic resources located in the existing flood 
control facilities covered by this NWP provide ecological functions and 
services, and while periodic maintenance activities can disrupt those 
functions and services to some degree for a period of time, those 
aquatic resources usually recover their ability to perform those 
ecological functions and services. Since this NWP authorizes only 
maintenance activities, and the aquatic resources in these existing 
facilities usually recover after disturbances caused by periodic 
maintenance activities, the Corps believes the activities authorized by 
this NWP result in no more than minimal adverse environmental effects. 
Significant impacts are unlikely to occur as a result of these 
recurring maintenance activities because of the ecological recovery 
that occurs between each maintenance activity. That ecological recovery 
likely is the reason why recurring maintenance is needed, because the 
recovery of biotic and abiotic components within an existing flood 
control facility, such as vegetation and sediment, may be diminishing 
the capacity of the flood control facility to perform its intended 
flood control functions. The activities authorized by this NWP are 
similar in nature because the NWP is limited to maintenance of existing 
flood control facilities, within the constraints of a maintenance 
baseline approved by the district engineer.
    Several commenters said that the activities authorized by this NWP 
can cause adverse impacts to natural and beneficial floodplain 
functions, including adjacent and downstream impacts of floodwaters on 
communities and properties. One commenter stated that this NWP inhibits 
comprehensive basin-wide flood risk management planning and restoration 
approaches that will help to safeguard communities and protect the 
nation's natural defenses.
    The activities authorized by this NWP are limited to maintenance of 
existing flood control facilities within a maintenance baseline 
established by the district engineer. Therefore, the activities 
authorized by this NWP are unlikely to adversely affect natural 
floodplain functions because those natural floodplain functions were 
previously altered by the original construction of the flood control 
facility. Adverse effects to natural and beneficial

[[Page 73550]]

floodplain functions were initially addressed through the authorization 
process when the flood control facility was originally constructed if 
the construction of the flood control facility required authorization 
under Section 404 of the Clean Water Act and/or Section 10 of the 
Rivers and Harbors Act of 1899 or through the process for approving 
federal water resource development projects. Maintenance of these 
existing flood control facilities is necessary to ensure that these 
facilities continue to provide their intended flood risk management 
objectives and continue to protect local residences, business, and 
others from floods. Since this NWP authorizes only maintenance 
activities, it does not affect efforts to undertake comprehensive, 
watershed-based flood risk management planning and restoration 
activities. Watershed-based flood risk management planning and 
restoration activities can be conducted through other mechanisms, such 
as cooperative efforts between federal, tribal, state, and local 
government agencies and interested stakeholders, regardless of whether 
the Corps reissues this NWP.
    Several commenters stated that mitigation should not be limited to 
one-time-only because maintenance activities could be carried out on 
multiple occasions and each maintenance activity can cause adverse 
impacts. One commenter said that the one-time mitigation limit could 
lead to significant harm to the environment.
    This NWP authorizes only maintenance activities for existing flood 
control facilities that were previously authorized, or did not require 
DA authorization at the time they were originally constructed. 
Mitigation, including compensatory mitigation, may have been required 
for the original construction of the flood control facility. Mitigation 
may also be required for the original approval of the maintenance 
baseline by the district engineer. Subsequent recurring maintenance 
activities to return the existing flood control facility to the 
maintenance baseline should not require mitigation because those 
maintenance activities generally have temporary impacts.
    The aquatic resources within these existing flood control 
facilities are likely to recover their ability to perform ecological 
functions and services after each maintenance activity is conducted to 
return the flood control to the maintenance baseline established by the 
district engineer. The one-time maintenance limit recognizes the 
temporary nature of the impacts to waters of the United States that 
typically occur as a result of these recurring maintenance activities, 
including the recovery of aquatic resources that usually occurs between 
those recurring maintenance activities. The recovery of those aquatic 
resources generally occurs through natural processes, such as sediment 
transport and deposition in a waterbody within the existing flood 
control facility and the re-establishment and growth of plants after 
vegetation is removed from waterbody or lands next to the waterbody.
    A few commenters said that vegetation removal should be addressed 
by a regional approach based on science and authorized through the 
individual permit process, with state and federal interagency 
consultation. One commenter stated that the research points to multiple 
benefits of vegetation on levees. One commenter said that the Corps' 
one-size-fits all approach to removal of levee vegetation is opposed by 
a broad array of states, scientists, members of Congress, and members 
of the public.
    This NWP authorizes discharges of dredge or fill material into 
waters of the United States and/or work in navigable waters of the 
United States to return an existing flood control facility to its 
maintenance baseline so that it can continue to perform its intended 
flood control functions. A maintenance baseline is established for each 
existing flood control facility regardless of whether this NWP might be 
used, and restoring the flood control facility to its maintenance 
baseline may require the removal of vegetation. Interagency 
consultation is not required for the activities authorized by this NWP 
because it is a maintenance activity, and in most cases these 
maintenance activities must take place on a recurring basis to ensure 
that the existing flood control facility continues to perform its 
intended flood control functions and protect the people and property 
served by that flood control facility. The presence or absence of 
vegetation within the existing flood control facilities may be 
addressed through the maintenance baseline. This NWP does not impose 
any specific requirements regarding vegetation on levees, and it does 
not prescribe any approach to managing (or not managing) levee 
vegetation. Whether or not vegetation is allowed to continue to exist 
on levees or needs to be removed to ensure the structural integrity and 
continuing functioning of the levee is dependent on the maintenance 
baseline approved for the flood control facility, as well as any 
discretion the entity responsible for maintaining the existing flood 
control facility may have regarding vegetation in that facility.
    One commenter stated that it is not possible to determine the full 
extent of the significance of the impacts caused by activities 
authorized by this NWP because the draft decision document provides no 
information on the types of waters affected, the location of those 
waters, or other activities that have or are likely to affect those 
waters. One commenter stated that the draft decision document for this 
NWP demonstrates that the activities authorized by this result in more 
than minimal impacts, because approximately 225 activities impacted 500 
acres of jurisdictional waters and wetlands. One commenter said that 
the decision document for this NWP should include impacts quantified in 
linear feet.
    This NWP can be used to authorize discharges of dredged or fill 
material into all waters of the United States and structures and work 
in all navigable waters of the United States to return the existing 
flood control to its maintenance baseline. Flood control facilities 
could be located in any type of waters of the United States, such 
riverine, lacustrine, palustrine, estuarine, and marine waters. The 
decision document for this NWP discusses, in general terms, the 
potential impacts of the authorized activities on all waters of the 
United States, including navigable waters of the United States. The 
national decision document also considers the potential benefits of 
maintaining these existing flood control management facilities so that 
they continue to perform their intended functions.
    The estimated impact acreages in the national decision document for 
this NWP include both permanent and temporary impacts to waters of the 
United States, including navigable waters of the United States. Because 
this NWP authorizes only maintenance activities within the maintenance 
baselines established by district engineers, and the aquatic resources 
within the existing flood control facility generally recover after each 
maintenance activity is completed in accordance with the maintenance 
baseline that was previously approved by the district engineer, the 
activities authorized by this NWP generally result in temporary losses 
of waters of the United States. Permanent losses of waters of the 
United States caused by the original construction of these flood 
control facilities would have been addressed in the DA permit or other 
the authorization for the federal water resources development project, 
if such authorization was required for that construction. Therefore, 
most impacts to

[[Page 73551]]

waters of the United States authorized by this NWP will be temporary 
impacts to return these existing flood control facilities to their 
maintenance baselines.
    The impacts of activities authorized by this NWP are more 
appropriately and accurately quantified in acres rather than linear 
feet, because these maintenance activities occur over areas of waters 
of the United States. Accurate quantification of impacts to waters of 
the United States is important aspect of tracking the individual and 
cumulative impacts of activities authorized by this NWP, to make more 
defensible determinations as to whether the individual and cumulative 
adverse environmental effects are no more than minimal.
    This NWP is reissued as proposed.
    NWP 32. Completed Enforcement Actions. 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 33. Temporary Construction, Access, and Dewatering. The Corps 
did not propose any changes to this NWP.
    One commenter stated that this NWP should be reissued with no 
changes. One commenter said that this NWP should have a 1/10-acre limit 
for losses of waters of the United States and a 300 linear foot limit 
for losses of stream bed. One commenter said that this NWP contains 
vague language that gives the permittee discretion to determine how 
stringently various provisions will be followed, which may result in 
activities that cause more than minimal environmental effects. One 
commenter said that this NWP should be modified to include matting as a 
temporary fill for access, consistent with NWP 12 and the proposed new 
NWP C. One commenter stated that for activities in areas where state 
and/or federal threatened or endangered freshwater mussels are known to 
occur, this NWP should require pre-construction notification, as well 
as coordination with federal and state natural resource agencies.
    This NWP authorizes only temporary construction, access, and 
dewatering activities, and does not authorize discharges of dredged or 
fill material into waters of the United States or structures or work in 
navigable waters of the United States that may result in permanent 
losses of waters of the United States. Permanent structures in 
navigable waters of the United States require separate DA 
authorization, either through individual permits, other NWPs, or 
regional general permits. The text of the NWP requires, after 
completion of construction, the removal of temporary fill material to 
an area that has no waters of the United States. If the authorized 
activity involves dredged material, the NWP requires the dredged 
material to be returned to its original location, and the affected area 
restored to pre-constructed elevations. Because of these specific 
requirements, the Corps believes that adding quantitative limits to 
this NWP is unnecessary. These specific requirements also help ensure 
that authorized activities result in no more than minimal individual 
and cumulative adverse environmental effects. Because this authorizes 
temporary fills for construction access for utility lines, as well as 
the use of mats for temporary access for utility lines when such mats 
require DA authorization, it is unnecessary to impose quantitative 
limits on this NWP.
    Paragraph (c) of general condition 18 requires non-federal 
permittees to submit a pre-construction notification to the district 
engineer if any listed species (or species proposed for listing) or 
designated critical habitat (or critical habitat proposed such 
designation) might be affected or is in the vicinity of the activity, 
or if the activity is located in designated critical habitat or 
critical habitat proposed for such designation. Furthermore, paragraph 
(c) states that the permittee cannot begin work on the activity until 
notified by the district engineer that the requirements of the ESA have 
been satisfied and that the activity is authorized. Paragraph (c) of 
general condition 18 applies to mussel species that are listed, or 
proposed for listing, as endangered or threatened under the federal 
ESA. Potential effects to state-listed mussel species should be 
addressed through the permittee's compliance with state laws and 
regulations for state-listed species.
    This NWP is reissued as proposed.
    NWP 34. Cranberry Production Activities. The Corps did not propose 
any changes to this NWP. One commenter objected to the proposed 
reissuance of this NWP, stating it authorizes activities that will 
result in more than minimal adverse environmental effects and it does 
not require wetland functions to be maintained.
    Cranberry production activities require maintenance of wetland 
conditions because cranberry plants are wetland-dependent species. This 
NWP authorizes discharges of dredged or fill material into waters of 
the United States that may temporarily disturb wetlands used for 
cranberry production, but this NWP does not authorize activities that 
may result in losses of wetlands. The wetlands used for cranberry 
production will continue to perform wetland functions, especially 
hydrologic and biogeochemical cycling functions. The habitat functions 
of the affected wetlands may be altered by the management of these 
wetlands to produce cranberries, with some species utilizing the 
habitat functions performed by cranberry wetlands, and other species 
not being able to use the habitat functions in cranberry wetlands. The 
species that cannot inhabit the cranberry production wetlands may use 
other wetlands in the vicinity of the cranberry farm for habitat.
    This NWP is reissued as proposed.
    NWP 35. Maintenance Dredging of Existing Basins. The Corps did not 
propose any changes to this NWP. One commenter said that permittees 
should be required to ensure that toxic substances are not released 
back into the water column through re-exposure during dredging 
activities. A few commenters stated that maintenance dredging at 
existing basins does not result in a discharge into waters of the 
United States, and should not require water quality certification from 
states. One commenter said that requiring dredged material to be 
discharged into areas that do not contain waters of the United States 
precludes using the dredged material from enhancing aquatic habitat, 
such as coastal marshes and freshwater marshes, through natural 
processes or through beneficial use projects. This commenter said that 
this NWP should be modified to allow dredged materials to be discharged 
into waters of the United States for beneficial uses, after federal and 
state natural resource agency coordination.
    During dredging activities, chemical substances that were buried by 
sediments or attached to dredged sediments may be resuspended in the 
water column or may become solutes within the water column. Those 
chemical substances may have adverse effects to water quality. Those 
adverse effects are likely to be temporary because the suspended 
sediments are likely to settle back onto the benthos and chemicals 
present as solutes in the water column are likely to be dispersed by 
currents, tides, and other causes of water movement. Under Section 401 
of the Clean Water Act, certifying authorities may determine that a 
dredging activity may result in a discharge into waters of the United 
States and require the project proponent to obtain an individual water 
quality certification or waiver unless the certifying authority has 
issued water quality certification for the issuance of a general permit 
that authorizes the dredging activity. Water quality certifications for 
activities authorized by this NWP will help ensure that any

[[Page 73552]]

discharges that may be caused by those dredging activities comply with 
applicable water quality requirements.
    Since it was first issued in 1991 (56 FR 59144), this NWP has been 
issued only under the authority of Section 10 of the Rivers and Harbors 
Act of 1899. This NWP has never been issued or reissued under the 
authority of Section 404 of the Clean Water Act. Therefore, this NWP 
does not authorize discharges of dredged or fill material into waters 
of the United States, including activities involving redepositing the 
dredged material into waters of the United States for beneficial uses 
or other purposes. Beneficial use of material dredged under the section 
10 authorization provided by NWP 35 may be authorized by other NWPs 
issued under the authority of section 404, such as NWP 27, or other 
forms of DA authorization under section 404, including individual 
permits and regional general permits. If an individual permit is 
required for the beneficial use of dredged material, then there will be 
coordination with federal and state agencies under the individual 
permit review process.
    This NWP is reissued as proposed.
    NWP 36. Boat Ramps. The Corps did not propose any changes to this 
NWP. One commenter recommended reinstating the restriction for one boat 
ramp for contiguous properties under the same ownership to reduce the 
potential for fragmentation of nearshore habitats. One commenter said 
that for previously permitted structures, the Corps should also specify 
that repair and replacement activities are limited to the minimum 
necessary to accomplish the function of the original boat ramp. This 
commenter also stated that for new boat ramps, or for expansions of 
existing boat ramps, the Corps should impose conditions to ensure that 
new or modified boat ramps result in no more than minimal individual 
and cumulative adverse environmental effects.
    This NWP was first issued in 1991 (see 56 FR 59144), and it never 
had a provision limiting the number of boat ramps to one boat ramp per 
set of contiguous properties under the same ownership. Therefore, the 
change suggested by the commenter would be a new provision for this 
NWP. The Corps does not believe that such a provision is necessary to 
ensure that the construction of boat ramps authorized by this NWP will 
result in no more than minimal individual and cumulative adverse 
environmental effects. During the review of PCNs for proposed NWP 36 
activities, district engineers will evaluate potential adverse 
environmental effects, including the possible fragmentation of 
shoreline habitats and potential disruptions on the movements of 
aquatic organisms along the shore.
    This NWP has two quantitative limits for authorized activities: A 
50 cubic yard limit for discharges of dredged or fill material into 
waters of the United States, and a 20-foot limit for the width of the 
boat ramp. Both of these quantitative limits can be waived by district 
engineers after they review PCNs for proposed boat ramps under this 
NWP. Waivers of these quantitative limits may only occur when district 
engineers make written determinations, after conducting agency 
coordination under paragraph (d) of general condition 32, that the 
proposed activities will result in no more than minimal individual and 
cumulative adverse environmental effects. The Corps has modified the 
first paragraph of this NWP to clarify that in addition to the 
construction of new boat ramps, it also authorizes the repair or 
replacement of existing boat ramps. As with the construction of new 
boat ramps, to be authorized by NWP the repair or replacement of boat 
ramps must comply with the requirements of this NWP, including the 
quantitative limits, and result in no more than minimal individual and 
cumulative adverse environmental effects.
    This NWP is reissued with the modification discussed above.
    NWP 37. Emergency Watershed Protection and Rehabilitation. 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 38. Cleanup of Hazardous and Toxic Waste. The Corps did not 
propose any changes to this NWP. No comments were received on the 
proposed reissuance of this NWP. This NWP is reissued as proposed.
    NWP 41. Reshaping Existing Drainage and Irrigation Ditches. The 
Corps proposed to modify this NWP by adding irrigation ditches. Several 
commenters expressed support for the proposed changes to this NWP. 
Several commenters stated that the Corps should make additional changes 
to this NWP to ensure that it is consistent with the current regulatory 
definition of ``waters of the United States'' for the purposes of the 
Clean Water Act at 33 CFR part 328. Several commenters said that the 
Corps should clarify in the final rule that the addition of irrigation 
ditches to this NWP does not affect the Clean Water Act Section 404(f) 
exemption for irrigation ditches. These commenters requested that the 
Corps explain how reshaping ditches for the purpose of improving water 
quality aligns with the current interpretation of the Clean Water Act 
Section 404(f) exemption for ditch maintenance, which allows for minor 
changes to cross sections of ditches to conform to current engineering 
standards, as long as the ditch modifications do not result in the 
drainage, degradation, or destruction of additional jurisdictional 
waters.
    The purpose of this NWP is to authorize discharges of dredged or 
fill material into waters of the United States to reshape existing 
drainage and irrigation ditches to improve water quality by regrading 
the drainage or irrigation ditch with gentler side slopes that can 
reduce erosion, increase growth of vegetation within the ditch, and 
increase uptake of nutrients and other substances by vegetation. This 
NWP applies to drainage ditches and irrigation ditches that are waters 
of the United States. If a drainage ditch or irrigation ditch is not 
subject to Clean Water Act jurisdiction under the current regulations 
defining ``waters of the United States'' at 33 CFR part 328, then DA 
authorization (including the DA authorization provided by this NWP) is 
not required for discharges of dredged or fill material that reshape 
the drainage or irrigation ditch to improve water quality.
    This NWP does not authorize ditch maintenance activities 
specifically, because it authorizes discharges of dredged or fill 
material into waters of the United States to change the shape of 
existing drainage or irrigation ditches to facilitate the removal of 
nutrients, other chemicals, and sediments from the water column to 
improve water quality. This NWP authorizes discharges of dredged or 
fill material into waters of the United States to change the shape of 
jurisdictional ditches to improve water quality, which is a different 
purpose than the purpose identified in the current memorandum 
interpreting the Clean Water Act Section 404(f) exemption for ditch 
maintenance (i.e., conforming with current engineering standards to 
improve ditch stability). Therefore, the activities authorized by this 
NWP are distinct from the activities identified in the current guidance 
interpreting the Clean Water Act Section 404(f)(1)(C) exemption for 
ditch maintenance.
    One commenter said that there may be no projects that might utilize 
the proposed changes to this NWP and requested that the Corps provide 
specific examples of projects involving the reshaping of irrigation 
ditches to improve water quality. One commenter stated that the Corps 
should add a provision to this NWP that prohibits the

[[Page 73553]]

reshaping of irrigation ditches that increases diversions of water that 
are not allowed under existing water rights or do not conform with 
state water law.
    As discussed in the Regulatory Impact Analysis for this final rule, 
the Corps anticipates that there may be a small number of irrigation 
ditches (estimated to be five per year) that may be reshaped to improve 
water quality through the authorization provided by this NWP. The Corps 
declines to add restrictions to this NWP regarding quantities of 
diverted water, potential impacts to existing water rights, or 
situations where irrigation ditch reshaping activities might not 
conform with state water law. State government authorities are the 
appropriate entities for enforcing water rights and other provisions of 
state water laws.
    One commenter objected to the proposed reissuance of this NWP, as 
well as the proposed modification, stating that the activities 
authorized by this NWP may adversely affect salmon and trout that 
inhabit ditches. This commenter said that PCNs should be required for 
all activities authorized by this NWP so that the Corps can evaluate 
potential effects on salmon and trout, and if necessary add conditions 
to the NWP authorization to protect those species. This commenter also 
stated that the Corps should add quantitative limits to this NWP to 
limit the length of ditch reshaped and the frequency of ditch reshaping 
activities.
    Activities authorized by this NWP are subject to the requirements 
of general condition 18, which addresses compliance with the federal 
ESA. Paragraph (c) of general condition 18 requires a non-federal 
permittee to submit a pre-construction notification to the district 
engineer if any listed species (or species proposed for listing) or 
designated critical habitat (or critical habitat proposed such 
designation) might be affected or is in the vicinity of the activity, 
or if the activity is located in designated critical habitat or 
critical habitat proposed for such designation. This includes salmon 
and trout species listed as endangered or threatened under the ESA, as 
well as salmon and trout species that may be proposed for listing under 
the ESA. The Corps does not believe it is necessary to impose 
quantitative limits on this NWP, because this NWP is limited to 
reshaping existing drainage and irrigation ditches to improve water 
quality, and these activities do not result in permanent losses of 
waters of the United States.
    One commenter stated that the Corps should modify the NWP to cite 
the statutory exemptions that could apply under Clean Water Act Section 
404(f). Several commenters recommended adding a Note to this NWP 
similar to the Notes in NWPs 3, 12, 14, 30, and 40, stating that 
certain discharges may qualify for an exemption under Section 404(f) of 
the Clean Water Act and therefore do not require DA authorization under 
section 404.
    The purpose of this NWP is to authorize discharges of dredged or 
fill material into waters of the United States for reshaping existing 
drainage and irrigation ditches when those activities are not eligible 
for any of the exemptions in Section 404(f) of the Clean Water Act. The 
Corps declines to add the suggested Note to this NWP because it would 
be contrary to the reason the NWP was first issued in 2000 (see 65 FR 
12891). This NWP was issued to provide an incentive for landowners to 
reshape their ditches to improve water quality, rather than maintaining 
those ditches in a manner that qualifies for the Clean Water Act 
Section 404(f)(1)(C) exemption. Adding the suggested Note may 
discourage landowners from reshaping existing ditches to improve water 
quality by highlighting the availability of the ditch maintenance 
exemption.
    This NWP is reissued as proposed.
    NWP 45. Repair of Uplands Damaged by Discrete Events. The Corps did 
not propose any changes to this NWP. One commenter said that the 
restoration of upland areas should be accomplished with fill material 
taken from uplands, and limit minor dredging to no more than 25 cubic 
yards to be consistent with the limit in NWP 19. One commenter stated 
that for shoreline erosion, the establishment of living shorelines 
should be encouraged over the reclamation of eroded lands through the 
use of fill material and hard structures.
    The Corps does not agree that the restoration of uplands damaged by 
storms and other discrete events should be required to utilize only 
fill material taken from upland sites. Sediment that moved from 
adjacent uplands into the waterbody because of erosion or mass wasting 
caused by storms or other discrete events should be available for 
repairing the damaged uplands. Using that sediment to repair the 
affected uplands can help restore the waterbody by removing sediment 
that may be blocking the waterbody or covering aquatic habitat within 
that waterbody. It can also help reduce downstream sediment loads, by 
putting that sediment back onto the damaged upland areas where it can 
be stabilized before it is transported downstream and potentially 
impair downstream water quality.
    The NWP limits dredging to the amount necessary to restore the 
damaged upland area, restricting the amount of material dredged so that 
it is proportional to the amount of upland damaged by the discrete 
event. That dredging limit provides flexibility to address the amount 
of damaged uplands, and prevents situations where the amount of 
authorized dredging needed to effectively repair the damaged uplands 
and the waterbody would require individual permits. In other words, 
limiting dredging to 25 cubic yards may discourage effective means of 
repairing the damaged uplands and restoring adjacent portions of the 
waterbody.
    This NWP limits bank stabilization activities to the contours or 
ordinary high water mark that existed before the damage to the uplands 
occurred. In many circumstances, this limit precludes the use of living 
shorelines as a bank stabilization measure in coastal areas. If a 
landowner wants to install a living shoreline next to uplands repaired 
through activities authorized by NWP 45, then he or she may submit a 
PCN under NWP 54, which authorizes living shorelines. Bank 
stabilization within the limits of NWP 45 can be accomplished through 
other approaches, such as bioengineering or other forms of vegetative 
stabilization.
    This NWP is reissued as proposed.
    NWP 46. Discharges in Ditches. The Corps did not propose any 
changes to this NWP. Several commenters stated that the text of this 
NWP should clarify when this NWP can be used for discharges of dredged 
or fill material into upland ditches because it seems to be 
inconsistent with the current definition of ``waters of the United 
States'' in the Corps' regulations at 33 CFR part 328. A few commenters 
said that the provisions of this NWP should be consistent with the 
current regulations defining ``waters of the United States'' and the 
current guidance on ditches and the exemptions under Section 404(f) of 
the Clean Water Act. Several commenters stated that the Corps should 
modify this NWP to acknowledge that certain discharges related to 
activities in ditches may qualify for exemptions from permitting under 
Section 404(f) of the Clean Water Act. These commenters suggested 
adding a Note to this NWP similar to the notes regarding the Clean 
Water Act Section 404(f) exemptions in NWPs 3, 12, 14, 30 and 40.
    This NWP authorizes discharges of dredged or fill material into 
non-tidal ditches that meet the four criteria in the

[[Page 73554]]

first paragraph of the NWP, including the fourth criterion (i.e., the 
ditch must be a water of the United States). If the ditch constructed 
in uplands is not a water of the United States, in accordance with the 
Corps' current regulations at 33 CFR part 328 that define ``waters of 
the United States,'' then DA authorization (including the DA 
authorization provided by NWP 46) is not necessary to discharge dredged 
or fill material into that ditch. This NWP authorizes activities that 
are not eligible for any of the exemptions under Section 404(f) of the 
Clean Water Act. Therefore, it is not necessary to add a Note to this 
NWP that address the section 404(f) exemptions. This NWP was issued in 
2007 (see 72 FR 11190) to provide DA authorization to fill a category 
of ditches constructed in uplands that meet the four criteria listed in 
the first paragraph of the NWP. Filling these ditches to convert them 
back to uplands would likely trigger the recapture provision of Section 
404(f)(2) of the Clean Water Act and therefore not be exempt from 
section 404 permitting requirements. If the project proponent wants to 
discharge dredged or fill material to maintain the ditch, and not 
convert it into uplands, the proposed discharge might be eligible for 
an exemption under section 404(f) depending on case-specific 
circumstances. Therefore, the Corps does not believe that there would 
be any benefit to adding a Note to this NWP that discusses the section 
404(f) exemptions.
    One commenter said that the acreage limit of this NWP should be 
reduced to 1/2-acre to ensure that the activities authorized by this 
NWP result in no more than minimal individual and cumulative adverse 
environmental effects. One commenter stated that compensatory 
mitigation should be required for losses of waters of the United States 
greater than 1/10-acre.
    The Corps is retaining the 1-acre limit that was established for 
this NWP when it was first issued in 2007. During the years this NWP 
has been in effect, the one acre limit has been effective in ensuring 
that discharges of dredged or fill material into the non-tidal ditches 
that satisfy four criteria in the first paragraph of this NWP result in 
losses of waters of the United States that have no more than minimal 
individual and cumulative adverse environmental impacts. Division 
engineers can add regional conditions to this NWP to impose an acreage 
limit that is less than one acre, to ensure that activities authorized 
in the region will have no more than minimal individual and cumulative 
adverse environmental effects. During the review of PCNs for proposed 
NWP 46 activities, district engineers can require compensatory 
mitigation to offset the permitted losses of waters of the United 
States, in accordance with 33 CFR 330.1(e)(3) and general condition 23.
    This NWP is reissued as proposed.
    NWP 49. Coal Remining Activities. The Corps proposed to modify this 
NWP by removing the provision that requires the permittee to obtain 
written verification from the district engineer before proceeding with 
the authorized activity to make this NWP consistent with the other NWPs 
that have a default authorizations when a district engineer does not 
respond to a complete PCN within 45 days of receiving that PCN from the 
project proponent. The Corps also proposed to remove the text referring 
to integrated permit processing procedures.
    One commenter stated support for reissuing this NWP. Many 
commenters expressed opposition to the proposal to remove the provision 
that requires the permittee to obtain written verification from the 
district engineer before commencing the authorized activity. Several 
commenters said they support removing the requirement for the permittee 
to obtain written verification from the district engineer before 
proceeding with the authorized activity, so that a default 
authorization occurs if the district engineer does not respond to a 
complete PCN within 45 days.
    The Corps has retained the provision that requires the permittee to 
obtain written authorization from the district engineer prior to 
commencing the authorized activity because coal remining activities can 
vary substantially in size and can cover large areas. Additional time 
may be needed for the project proponent to demonstrate to the district 
engineer that the authorized activity will result in a net increase in 
aquatic resource functions. This NWP has no acreage limit for losses of 
waters of the United States. In contrast, NWP 21 (surface coal mining 
activities) and NWP 50 (underground coal mining activities) have a 1/2-
acre limit for losses of waters of the United States. The requirement 
for permittees to obtain written authorization before proceeding with 
the NWP 21 or 50 activity was removed in the final rule published in 
the January 13, 2021, issue of the Federal Register (86 FR 2744) 
because these NWPs have the additional safeguard of the 1/2-acre limit 
if a default authorization occurs through a district engineer not 
responding to a complete PCN within 45 days.
    One commenter opposed to the removal of stream mitigation 
requirements from this NWP. One commenter said that PCNs should not be 
required for the activities authorized by this NWP. One commenter 
supported removing the text referring to integrated permit processing 
procedures.
    The Corps did not propose to remove any stream mitigation 
requirements from this NWP. The activities authorized by this NWP must 
result in net increases in aquatic resource functions. Stream or 
wetland rehabilitation or enhancement may be a component of the coal 
remining activity that helps achieve the required net increase in 
aquatic resource functions. Mitigation requirements for NWP activities 
is determined by district engineers on a case-by-case basis through the 
provisions of 33 CFR 330.1(e)(3) and general condition 23. The Corps 
believes that PCNs are necessary for all activities authorized by this 
NWP to provide district engineers the opportunity to review proposed 
activities and ensure that the activities that comprise the overall 
mining plan result in net increases in aquatic resource functions. The 
Corps has removed the text that refers to integrated permit processing 
procedures because those procedures were not developed for past 
versions of NWP 49.
    One commenter recommended modifying the text of this NWP to state 
that new mining must not exceed 40 percent of the remined area and the 
additional area necessary to carry out the reclamation of a previously 
mined area. One commenter noted that no work can begin under this NWP 
unless the coal remining activity is approved by the Department of the 
Interior Office of Surface Mining Reclamation or Enforcement, or by 
states with approved programs under Title IV or V of the Surface Mining 
Control and Reclamation Act of 1977, and that final approval by these 
agencies is not necessary before submitting a PCN to the district 
engineer.
    The Corps is retaining the text in the NWP that states that the 
total area disturbed by new mining must not exceed 40 percent of the 
total acreage covered by both the remined area and the additional area 
necessary to carry out the reclamation of the previously mined area. 
The Corps acknowledges that permittees should not begin the authorized 
work if the activities authorized by this NWP also require 
authorization by other federal, state, or local government agencies 
(see paragraph 2 of Section E, Further Information) and those other 
required authorizations have not been issued. The project proponent can 
submit a PCN for a proposed NWP 49 activity to the district engineer 
prior to obtaining

[[Page 73555]]

required authorizations from either the Office of Surface Mining 
Reclamation or Enforcement, or a state with an approved program under 
Title IV or V of the Surface Mining Control and Reclamation Act of 
1977.
    This NWP is reissued with the modification discussed above.
    NWP 53. Removal of Low-Head Dams. The Corps did not propose any 
changes to this NWP. Several commenters expressed support for the 
reissuance of this NWP. One commenter said that the Corps should revise 
this NWP so that it clearly states that it may be used to authorize 
compensatory mitigation projects that generate stream mitigation 
credits, because dam removal and stream restoration projects help spur 
economic activity in rural regions, improve water quality, and deliver 
resiliency benefits to communities. One commenter said that the removal 
of low-head dams could affect water rights determined by the state. One 
commenter stated that this NWP should be modified to include 
requirements for management of accumulated sediment prior to and during 
removal of low-head dams to ensure that downstream water quality is 
minimally adversely impacted by the removal of low-head dams.
    The Corps does not believe it is necessary to modify this NWP to 
state that it can be used to authorize discharges of dredged or fill 
material into waters of the United States and/or structures and work in 
navigable waters of the United States for low-head dam removals 
conducted to rehabilitate rivers and streams to provide compensatory 
mitigation for DA permits. Low-head dam removals can be conducted for 
permittee-responsible mitigation, mitigation banks, or in-lieu fee 
projects to generate compensatory mitigation credits that offset losses 
of aquatic resource functions and services caused by activities 
authorized by DA permits. The Corps recognizes that stream restoration 
projects, including removals of low-head dams, provide a variety of 
ecological and economic benefits to communities. However, it is not 
necessary to explicitly identify those benefits in the text of the 
NWPs. Concerns about potential impacts of low-head dam removals on 
state issued water rights are more appropriately addressed through the 
state laws and regulations that govern those water rights, and the 
effects that specific activities may have on water rights. Permittees 
are responsible for complying with applicable federal, tribal, state, 
and local government laws, regulations, and other requirements.
    The text of this NWP does not include requirements for the 
management of sediments that may be released after the removal of a 
low-head dam. Requirements for the management of sediments that may be 
released downstream after the low-head dam is removed is more 
appropriately determined on a case-by-case basis when the district 
engineer reviews the PCN for the proposed NWP 53 activity. In general, 
low-head dams have low storage capacities and large amounts of sediment 
are unlikely to be released to downstream waters when the low-head dam 
is partially or completely removed. In addition, sediment releases 
caused by the removal of low-head dams generally have temporary impacts 
because the sediment is transported downstream by flowing water and 
over time those sediments will be distributed throughout downstream 
tributaries as the stream network recovers from the removal of the low-
head dam.
    Water quality concerns, including water quality concerns regarding 
sediment releases that may occur during the removal of the low-head dam 
and after the low-head dam is removed, are more appropriately addressed 
through the water quality certification process under Section 401 of 
the Clean Water Act. For those activities where the certifying 
authority denied water quality certification for the reissuance of NWP 
53, the project proponent must obtain a water quality certification or 
waiver for any discharges into waters of the United States that may 
occur as a result of the removal of the low-head dam (see general 
condition 25). The water quality certification may include conditions, 
such as sediment management requirements, to ensure that those 
discharges comply with applicable water quality requirements.
    A few commenters stated that the Corps should clarify the 
definition of low-head dam to be more expansive in the types of 
structures that can be removed under this NWP. One of these commenters 
suggested broadening the definition of ``low-head dam'' to include 
different low-head dam configurations or to add a specific height to 
the definition of ``low-head dam.'' Two of these commenters suggested 
modifying the definition of ``low-head dam'' as follows:
    For the purposes of this NWP, the term ``low-head dam'' is 
generally defined as a dam or weir built across a stream to pass flows 
from upstream over all, or nearly all, of the width of the dam crest 
and does not have a separate spillway or spillway gates, but it may 
have an uncontrolled spillway. The dam crest is the top of the dam from 
left abutment to right abutment and will most often be less than 15 
feet in height for small streams and 25 feet in height for medium-sized 
tributaries. A low-head dam may have been built for a range of purposes 
(e.g., check dam, mill dam, irrigation, water supply, recreation, 
hydroelectric, or cooling pond), but in all cases, it provides little 
to no storage function.
    In response to these comments, the Corps has modified the 
definition of ``low-head dam'' that is in the text of this NWP. The 
Corps has adopted much of the definition suggested above, except for 
the recommended maximum height requirements for dams in small streams 
and medium-sized tributaries. The Corps declines to include maximum 
height requirements because the heights suggested by commenters might 
apply to dams that are not low-head dams. In addition, the terms 
``small stream'' and ``medium-sized tributary'' are difficult to 
define. ``Small'' versus ``medium'' are relative terms and are likely 
to pose additional challenges in implementing a clear, consistent 
definition of ``low-head dam.'' The definition of ``low-head dam'' with 
the modifications made in response to public comments focuses on 
structural features characteristic of most low-head dams, instead of 
dimensions that represent types of dams other than low-head dams. 
District engineers have discretion in determining whether proposed dam 
removal involves a low-head dam and thus qualifies for NWP 53 
authorization. Even with the exclusion of the suggested maximum height 
requirements, the revised definition of ``low-head dam'' may broaden 
the utility of this NWP to facilitate the removal of low-head dams that 
may not have been covered by the 2017 version of this NWP.
    One commenter stated that other federal and state natural resource 
agencies should be provided opportunities for review and comment on all 
PCNs for this NWP that are submitted to district engineers. One 
commenter requested clarification on whether any specific removals of 
low-head dams have resulted in increases in ecological functions. One 
commenter asked that the Corps explain the basis for establishing the 
1/2-acre limit for this NWP. This commenter asked whether there is a 
limit to either the area of the impoundment that is dewatered as a 
result of the removal of a low-head dam, or the area where significant 
hydrological changes would occur as a result of the removal of a low-
head dam. This commenter also requested clarification on how the Corps 
calculates the impact acreage for activities authorized by this NWP, 
including impacts that may occur upstream and downstream of the low-

[[Page 73556]]

head dam and its impoundment after the low-head dam is removed.
    The Corps declines to modify this NWP to require district engineers 
to coordinate PCNs for this NWP with federal and state natural resource 
agencies. Corps district staff have the capability to review these 
proposed activities and determine whether they qualify for NWP 
authorization. District engineers have the discretion to coordinate 
with federal and state resource agencies on a case-by-case basis, if 
they believe such coordination would be beneficial in reaching a 
decision on a particular PCN. Coordination with federal and state 
agencies may also occur in other circumstances, such as the water 
quality certification process for discharges into waters of the United 
States authorized by this NWP. District engineers will review PCNs for 
proposed activities, and if a district engineer determines that the 
proposed removal of a low-head dam may affect endangered or threatened 
species or designated critical habitat, he or she will conduct ESA 
Section 7 consultation with the U.S. Fish and Wildlife Service and/or 
the National Marine Fisheries Service, as appropriate.
    The potential increases in ecological functions that may result 
from the removal of low-head dams are discussed in the national 
decision document for the reissuance of this NWP. The national decision 
document cites a number of reviews and studies that have evaluated the 
ecological benefits that can result from the removal of low-head dams. 
This NWP has no acreage limit because the removal of low-head dams 
helps restore the structure, functions, and dynamics of rivers and 
streams. The removal of low-head dams also benefits public safety by 
reducing potential drowning risks for swimmers and users of small 
watercraft, such as kayaks. The 1/2-acre limit that is in other NWPs, 
such as NWP 29 for residential developments and NWP 39 for commercial 
and institutional developments, does not apply to this NWP. The impact 
acreages for activities authorized by this NWP are generally calculated 
by determining the acreage of the footprint of the low-head dam, the 
acreage of the former impoundment that will be restored to a free-
flowing river or stream channel, and any additional acreage of the 
impoundment that will dewatered after the low-head dam is removed. The 
dewatered areas of the former impoundment may develop riparian areas 
and floodplains, including adjacent riverine wetlands. There may be 
other indirect effects upstream and downstream of the low-head dam and 
its impoundment, but the acreage of waters subject to those indirect 
effects would not normally be calculated because of the difficulties in 
quantifying those indirect effects.
    This NWP is reissued with the modification discussed above.
    NWP 54. Living Shorelines. The Corps did not propose any changes to 
this NWP. One commenter stated support for the reissuance of this NWP 
because living shorelines provide environmental, societal, and economic 
benefits that are not provided by hard bank stabilization structures. 
One commenter stated that paragraph (d) of this NWP should be modified 
to add elevation as a factor for determining which native plants are 
appropriate for current site conditions if the permittee is planting 
the living shoreline. One commenter said that the requirement for 
living shorelines to include a substantial biological component 
provides no meaningful guidance and would result in the authorization 
of any project that includes a minor amount of vegetation planting.
    The Corps is reissuing this NWP with minor changes made in response 
to comments received on the 2020 Proposal. The Corps has added 
``elevation'' to paragraph (d) of this NWP because elevation is another 
factor to consider when deciding which native species to plant in a 
living shoreline if the biological component of the living shoreline 
consists of plants. The NWP takes a qualitative approach to 
characterizing living shorelines (i.e., having a substantial biological 
component) rather than specifying a minimum quantitative requirement 
because there can be considerable variability in the designs for living 
shorelines. The types of biological components used for living 
shorelines can also vary, from various types of plants (e.g., marsh 
grasses, mangroves) and different types of animals (e.g., oysters). 
There is no one-size-fits-all approach to living shorelines that would 
support a stringent quantitative approach for the determining the 
minimum amount of biological components in a bank stabilization 
activity to be considered for a living shoreline.
    A few commenters objected to the proposed reissuance of this NWP, 
stating that it has the potential to cause extensive destruction and 
alteration of irreplaceable nearshore habitats. These commenters said 
that these activities should require individual permits. One commenter 
said that this NWP violates Section 404(e) of the Clean Water Act 
because it authorizes activities that are not similar in nature.
    This NWP provides DA authorization for an approach to managing 
shoreline erosion that can provide more aquatic resource functions and 
services than other approaches to managing shoreline erosion control, 
such as bulkheads and revetments. While the construction of living 
shorelines can involve placing considerable amounts of dredged or fill 
material into jurisdictional waters and wetlands, completed living 
shorelines can provide habitat functions, as well as other ecological 
functions such as biogeochemical cycling functions. There may be trade-
offs when the construction of living shorelines changes subtidal 
habitats (e.g., unvegetated shallow waters) into intertidal habitats 
(e.g., intertidal marshes). Riparian landowners have an inherent right 
to protect their properties from erosion (see 33 CFR 320.4(g)(2), and 
living shorelines provide an alternative means of managing shore 
erosion that can provide greater environmental benefits such as 
intertidal wetland habitat and shellfish reef habitat compared to 
bulkheads and revetments.
    This NWP authorizes a specific category of activities: discharges 
of dredged or fill material into waters of the United States and 
structures or work in navigable waters of the United States for the 
construction and maintenance of living shorelines. Those activities are 
similar in nature because they serve a common purpose (i.e., managing 
shoreline erosion) and involve a common set of activities (e.g., fills 
to construct wetlands, fills to protect constructed and existing 
wetlands, and fills and structures to construct reefs) that dissipate 
wave energy and reduce erosion. In addition, these fills and structures 
are generally limited to nearshore areas, where they help manage 
shoreline erosion.
    One commenter said that this NWP should be modified to include the 
authorization of temporary structures, fill, and work, similar to the 
text provided in NWP 13. One commenter stated that the text of the NWP 
allows concrete and other artificial structures, which are not native 
materials. One commenter said that the NWP should require the permittee 
to ensure that the activity maintain the natural continuity of the 
land-water interface, retain, or enhance shoreline ecological 
processes, and not result in undue harm to recognized aquatic resources 
located within or adjacent to the proposed project sites.
    Nationwide permit 33 can be used to authorize temporary structures, 
fill, and work to assist in the construction of living shorelines 
authorized by NWP 54. All NWP 54 activities involving the

[[Page 73557]]

construction of new living shorelines require PCNs, whereas the 
construction of bank stabilization measures under NWP 13 require PCNs 
only in certain circumstances, such as discharges of dredged or fill 
material into special aquatic sites or bank stabilization activities 
greater than 500 linear feet in length. The text authorizing temporary 
structures, fills, and work was added to NWP 13 because not all NWP 13 
activities require PCNs, and that text provides efficiency because 
permittees no longer need to use NWP 33 (which may require PCNs) with 
the NWP 13 authorization to construct the bank stabilization activity. 
Retaining the ability to use NWP 33 to authorize temporary structures, 
fills, and work for new living shorelines authorized by NWP 54 does not 
impose additional burdens on the regulated public.
    The text of this NWP requires that the living shoreline consist 
mostly of native material. It does not completely prohibit the use of 
artificial materials. While the text of the NWP does not explicitly 
identify concrete as an acceptable material for use in living 
shorelines, it does not prohibit the use of concrete because concrete 
may be a component of artificial reef structures that are used for some 
types of living shorelines. Living shorelines may include artificial 
structures (e.g., sills, reefs, coir logs or mats) that do not 
completely resemble structural features found in nature, but those 
artificial structures can consist of native materials (e.g., stone, 
oyster shells, natural fibers) to a large degree.
    Living shorelines are an example of nature-based solutions, which 
are actions to address societal problems such as erosion in coastal 
communities using natural or modified ecosystems. Living shorelines are 
modified ecosystems that are comprised of a combination of living and 
engineered components. Living shorelines provide varying degrees of 
ecological functions and services and help maintain to some extent the 
natural continuity of the interface between coastal lands and coastal 
waters. With the exception of maintenance activities, all activities 
authorized by this NWP requires PCNs to district engineers. District 
engineers will review those PCNs to determine whether the proposed 
activities will result in no more than minimal individual and 
cumulative adverse environmental effects, including adverse effects to 
coastal aquatic resources.
    One commenter stated that the 30 foot limit for structures and 
filled areas extending into the waterway from the mean low water line 
in tidal waters or the ordinary high water mark in non-tidal waters is 
arbitrary, and that the Corps should establish the limit for structures 
and fills extending into the waterway to a depth contour appropriate 
for attenuating wave energy consistent with the slope of the shoreline. 
One commenter said that the Corps should replace the 30-foot and 500 
linear foot limits with a 1/2-acre limit.
    The Corps is retaining the 30 foot limit for structures and fills 
extending into the waterway and the 500 linear foot limit for the 
length of shoreline along which a living shoreline can be constructed. 
The Corps is also retaining the ability for district engineers to waive 
these 30-foot and 500 linear foot limits when a district engineer 
reviews the PCN for a proposed NWP 54 activity and determines that the 
proposed activity will result in no more than minimal individual and 
cumulative adverse environmental effects. These quantitative limits and 
the ability of district engineers to waive these limits are intended to 
provide flexibility for the design and construction of living 
shorelines that are expected to be effective in reducing erosion at a 
specific site, taking into numerous variables. For living shorelines, 
those variables include, but are not limited to: Fetch, water depths 
near the shore, substrate characteristics, site topography, and the 
extent of coastal development in the project area (Saleh and Weinstein 
2016). Activities authorized by this NWP must comply with paragraph (a) 
of general condition 23, which requires permittees to design and 
construct authorized activities to avoid and minimize adverse effects, 
both temporary and permanent, to waters of the United States to the 
maximum extent practicable at the project site (i.e., on site).
    The Corps believes the 30 foot and 500 linear foot limits are more 
appropriate for living shorelines than a 1/2-acre limit because living 
shorelines are constructed along the shore. In addition, paragraph (e) 
of the NWP requires discharges of dredged or fill material into waters 
of the United States and the construction of structures in navigable 
waters of the United States to be the minimum necessary for the 
establishment and maintenance of the living shoreline, to reduce the 
amount of encroachment into the waterway.
    One commenter said that while the NWP might be beneficial for 
coastal resources found along the Gulf of Mexico or the Atlantic Coast, 
it is not appropriate for the Puget Sound or the Washington coast 
because it allows for construction of structures and fill that would 
adversely affect significant nearshore resources and habitats and does 
not have minimal direct, indirect, or cumulative impacts. This 
commenter expressed support for streamlining a process to install 
shoreline stabilization that protects nearshore habitat for salmon and 
shellfish.
    Landowners that want to reduce erosion at their shorelines are not 
required to construct living shorelines. They can choose to use other 
techniques to manage erosion at their waterfront properties. Potential 
adverse effects to nearshore resources and habitats caused by 
discharges of dredged or fill material into waters of the United States 
or structures or work in navigable waters of the United States are 
similar along the various coasts of the United States in terms of 
functional impacts (e.g., filling or altering nearshore habitats or 
installing reef structures that alter subtidal habitat), although the 
species that may be affected by these activities may differ by region. 
If a landowner on the west coast wants to construct a living shoreline 
to manage erosion at his or her property, a PCN must be submitted to 
the district engineer. The district engineer will review the PCN and 
determine whether the proposed activity will result in no more than 
minimal individual and cumulative adverse environmental effects.
    Living shorelines have been used in the west coast of the United 
States, including Washington State. NOAA has established a living 
shorelines project map to provide information on more than 150 living 
shoreline projects around the country.\2\ Three living shoreline 
projects in Washington State were shown on that map when it was viewed 
by the Corps on July 14, 2021. In other areas of the west coast, living 
shorelines consisting of eelgrass and Olympia oysters have been 
implemented in San Francisco Bay (Boyer et al. 2017). Green shores 
(Emmett et al. 2017) is another approach to shore erosion management 
has been implemented in Washington State, and green shore projects may 
qualify for authorization under NWP 54 if they include a substantial 
biological component, such as plantings in tidal waters subject to the 
Corps' jurisdiction. Green shores use materials such as coarse sand, 
gravel, cobbles, logs, and plantings, as well as slope modifications to 
dissipate wave energy, to control shoreline erosion while providing 
habitat and other ecological functions along the shoreline while 
reducing erosion and potential risks to buildings and infrastructure. 
Proposed green

[[Page 73558]]

shores activities that do not have the substantial biological component 
required for authorization under NWP 54 may be authorized by NWP 13, 
which authorizes a variety of techniques for bank stabilization.
---------------------------------------------------------------------------

    \2\ https://www.habitatblueprint.noaa.gov/living-shorelines/project-map/ (accessed July 14, 2021).
---------------------------------------------------------------------------

    Living shorelines can provide habitat that is utilized by salmon 
and shellfish. Bank stabilization activities can be designed to provide 
intertidal habitat (e.g., pocket beaches) and subtidal habitat that is 
utilized by salmon and other fish species for foraging and nursery 
activities (e.g., Toft et al. 2013). Living shorelines can include 
pocket beaches and may have unvegetated beaches protected by reef 
structures inhabited by oysters or other aquatic organisms. Living 
shorelines can be another means of managing shore erosion while 
providing intertidal habitat and shallow subtidal habitat for fish and 
other aquatic species for refuge, feeding, and nursery functions 
(Gittman et al. 2016). Reef structures used as part of a living 
shoreline, as well as other habitats such as wetlands that may be 
components of living shorelines, can provide habitat for colonization 
by bivalve molluscs (Bilkovic and Mitchell 2013).
    One commenter said that PCNs should be required for the repair and 
maintenance of existing living shorelines. One commenter stated that 
waivers should not be issued by district engineers without coordination 
with federal and state natural resource agencies. One commenter 
expressed concern about waivers because they would remove any limits on 
how far living shorelines can extend into the waterway, how long those 
living shorelines are, and how much dredged or fill material is placed 
into special aquatic sites.
    The Corps maintains its position that PCNs should not be required 
for maintenance of existing living shorelines because the adverse 
environmental effects caused by these maintenance activities are likely 
to be no more than minimal, individually and cumulatively. In addition, 
periodic maintenance is an important component of sustaining the 
effectiveness of living shorelines in managing erosion and sustaining 
the living components of a living shoreline. An exception occurs for 
maintenance activities that require DA authorization that trigger the 
PCN requirements in paragraph (c) of general condition 18, which 
addresses compliance with the ESA. Paragraph (c) of general condition 
18 requires non-federal permittees to submit a pre-construction 
notification to the district engineer if any listed species (or species 
proposed for listing) or designated critical habitat (or critical 
habitat proposed such designation) might be affected or is in the 
vicinity of the activity, or if the activity is located in designated 
critical habitat or critical habitat proposed for such designation.
    For proposed NWP 54 activities in which the project proponent is 
requesting a waiver of the 30 foot or 500 linear foot limits, district 
engineers will coordinate the PCNs with federal and state agencies in 
accordance with the procedures in paragraph (d) of general condition 
32. The federal and state agencies will provide their views on whether 
the proposed activity will result in no more than minimal individual 
and cumulative adverse environmental effects. For NWP 54 activities 
where agency coordination is not required, district engineers will 
apply the 10 criteria in paragraph 2 of section D, District Engineer's 
Decision, to determine whether the proposed activities will result in 
no more than minimal individual and cumulative adverse environmental 
effects.
    This NWP is reissued with the modification discussed above.
    NWP E. Water Reclamation and Reuse Facilities. The Corps proposed 
to issue this new NWP to authorize discharges of dredged or fill 
material into waters of the United States for the construction, 
expansion, and maintenance of water reclamation and reuse facilities.
    Several commenters stated that although discharges of dredged or 
fill material into waters of the United States for the construction, 
expansion, and maintenance of water reclamation and reuse facilities 
may be authorized by other existing NWPs, they support the issuance of 
proposed new NWP E because it provides additional clarity and 
streamlines the authorization process for these facilities. A few 
commenters said that there is no need to issue proposed new NWP E 
because water reclamation and reuse facilities may be constructed, 
expanded, or maintained through existing NWPs. One commenter stated 
that water reuse facilities are typically attendant features of larger 
developments and should be permitted as part of the overall 
development. Several commenters expressed their support for the 
issuance of proposed NWP E as long as it applies to groundwater 
recharge and replenishment projects without restrictions on the origin 
or mix of sources of water being recharged, including water from 
outside of the watershed.
    The Corps is issuing this new NWP to authorize discharges of 
dredged or fill material into waters of the United States for water 
reclamation and reuse facilities, to help streamline the authorization 
process for the construction, expansion, and maintenance of these 
facilities. The water reclamation and reuse facilities constructed, 
expanded, or maintained through the discharges of dredged or fill 
material into waters of the United States authorized this NWP may be 
for non-potable water reuse and potable water reuse. Water reclamation 
and reuse facilities can be an important tool for adapting to the 
effects of climate change, such as changes in precipitation patterns 
that may affect water availability in areas of the country. Water 
reclamation and reuse facilities help conserve water, which may be 
beneficial as water availability changes or increases in water demand 
occur. The Corps recognizes that water reclamation and reuse facilities 
can be authorized as attendant features of other activities authorized 
by NWP, such as residential developments (NWP 29), commercial and 
institutional developments (NWP 39), agricultural activities (NWP 40), 
and recreational facilities (NWP 42). Despite the potential for water 
reclamation and reuse facilities to be authorized along with buildings 
and other features authorized by other NWPs, the Corps believes that 
issuing a new NWP to authorize discharges of dredged or fill material 
into waters of the United States for water reclamation and reuse 
facilities would be beneficial to the regulated public, especially when 
these facilities are stand-alone facilities and not attendant features 
of resident developments, commercial developments, or other activities.
    For water reclamation and reuse facilities, the Corps regulates 
discharges of dredged or fill material into waters of the United States 
for the construction, expansion, or maintenance of those facilities. In 
general, the Corps does not have the authority to regulate the 
operation of these facilities after they are constructed, expanded, or 
maintained through discharges of dredged or fill material into waters 
of the United States authorized by this NWP. The Corps does not have 
the authority to regulate releases of water to recharge or replenish 
groundwater, to regulate the mixing of water from various sources, or 
to regulate the movement of water between watersheds. The Corps reminds 
project proponents that any project including underground injection may 
be subject to permit requirements of the Underground Injection Control 
Program, administered under the Safe Drinking Water Act by the U.S. 
Environmental Protection

[[Page 73559]]

Agency or states, territories, or tribes to which it has delegated 
primacy.
    One commenter objected to the proposed 1/2-acre limit for proposed 
new NWP E. A commenter recommended adding a 300 linear foot limit for 
losses of stream bed. One commenter said that this NWP should not be 
limited to non-tidal waters, and it should not prohibit discharges of 
dredged or fill material into non-tidal wetlands adjacent to tidal 
waters. This commenter stated that proposed new NWP E should also 
authorize discharges of dredged or fill material into non-tidal 
wetlands adjacent to tidal waters as well as tidal waters. One 
commenter said that mitigation should not be required for activities 
authorized by this NWP because the NWP authorizes beneficial 
activities.
    The Corps is issuing this new NWP with a 1/2-acre limit to be 
consistent with other NWPs that may be used to authorizes discharges of 
dredged or fill material into waters of the United States to construct, 
expand, or maintain water reclamation and reuse facilities as attendant 
features of other activities authorized by NWP, such as NWP 29 
(residential developments), NWP 39 (commercial and institutional 
developments), NWP 40 (agricultural activities), and NWP 42 
(recreational facilities). Losses of stream bed caused by discharges of 
dredged or fill material into waters of the United States are also 
subject to the 1/2-acre limit.
    Pre-construction notification is required for all activities 
authorized by this NWP, and district engineers will evaluate proposed 
losses of stream bed to determine whether those losses, plus any other 
losses of waters of the United States caused by discharges of dredged 
or fill material, will result in no more than minimal individual and 
cumulative adverse environmental effects, and thus eligible for 
authorization under this NWP. Because of the PCN requirement and the 
ability of district and division engineers to modify, suspend, or 
revoke this NWP when appropriate, the Corps does not believe that it is 
necessary to impose an additional quantitative limit on this NWP that 
is specific to losses of stream bed. In geographic areas where there 
are regional concerns about cumulative losses of stream bed, division 
engineers can add regional conditions to this NWP to impose smaller 
acreage limits on losses of stream bed. If, during the review of a PCN 
for a proposed activity, the district engineer determines the proposed 
activity will result in more than minimal individual and cumulative 
adverse environmental effects after considering mitigation proposed by 
the applicant, he or she will exercise discretionary authority and 
require an individual permit for the proposed losses of stream bed and 
any other losses of non-tidal waters and wetlands caused by discharges 
of dredged or fill material.
    The Corps is issuing this NWP with the same scope of applicable 
waters (i.e., non-tidal waters of the United States, excluding non-
tidal wetlands adjacent to tidal waters) as some other NWPs that can be 
used to authorize discharges of dredged or fill material into waters of 
the United States for water reclamation and reuse facilities. The scope 
of applicable waters is consistent with NWPs 29, 39, 40, and 42. This 
NWP does not authorize discharges of dredged or fill material into 
tidal waters of the United States and non-tidal wetlands adjacent to 
tidal waters because discharges into those waters have greater 
potential to result in adverse environmental effects that are more than 
minimal, individually and cumulatively. Project proponents that want to 
discharge dredged or fill material into tidal waters of the United 
States and non-tidal wetlands adjacent to tidal waters to construct, 
expand, or maintain water reclamation and reuse facilities can seek DA 
authorization through the individual permit process, unless a Corps 
district has issued a regional general permit to authorize those 
activities. General condition 23 addresses the mitigation requirements 
for this NWP and other NWPs. District engineers have discretion to 
require mitigation, including compensatory mitigation, for activities 
authorized by this NWP when they determine that such mitigation is 
necessary to ensure that the authorized activities result in no more 
than minimal individual and cumulative adverse environmental effects.
    Proposed new NWP E is issued as NWP 59.

E. Responses to Comments on the Nationwide Permit General Conditions

    The NWPs issued in this final rule are subject to the NWP general 
conditions in the final rule that was published in the January 13, 
2021, issue of the Federal Register (86 FR 2867-2874). The final rule 
published in the January 13, 2021, issue of the Federal Register 
includes summaries of comments received on the NWP general conditions 
for the 2020 Proposal, as well as responses to those comments. See 86 
FR 2820-2838 for the comment summaries and responses to comments on the 
general conditions for the 2021 NWPs.

F. Responses to Comments on the District Engineer's Decision

    The NWPs issued in this final rule are subject to the District 
Engineer's Decision section (section D) in the final rule that was 
published in the January 13, 2021, issue of the Federal Register (86 FR 
2874-2875). The final rule published in the January 13, 2021, issue of 
the Federal Register includes summaries of comments received on the NWP 
general conditions for the 2020 Proposal, as well as responses to those 
comments. See 86 FR 2838 for the comment summaries and responses to 
comments on the ``District Engineer's Decision'' section for the 2021 
NWPs.

G. Discussion of Proposed Modifications to Section F, Definitions

    The NWPs issued in this final rule are subject to the NWP 
definitions in the final rule that was published in the January 13, 
2021, issue of the Federal Register (86 FR 2875-2877). The final rule 
published in the January 13, 2021, issue of the Federal Register 
includes summaries of comments received on the NWP general conditions 
for the 2020 Proposal, as well as responses to those comments. See 86 
FR 2838-2841 for the comment summaries and responses to comments on the 
definitions for the 2021 NWPs.

III. Compliance With Relevant Statutes

A. National Environmental Policy Act Compliance

    The Corps has prepared a decision document for each NWP issued in 
this final rule. Each decision document contains an environmental 
assessment (EA) to fulfill the requirements of NEPA. The EA includes 
the public interest review described in 33 CFR part 320.4. The EA 
generally discusses the anticipated impacts the NWP will have on the 
human environment and the Corps' public interest review factors. If a 
proposed NWP authorizes discharges of dredged or fill material into 
waters of the United States, the decision document also includes an 
analysis conducted pursuant to the Clean Water Act Section 404(b)(1), 
in particular 40 CFR part 230.7. These decision documents evaluate, 
from a national perspective, the environmental effects of each NWP.
    The final decision document for each NWP is available on the 
internet at: www.regulations.gov (docket ID number COE-2020-0002) as 
Supporting and Related Materials for this final rule. The final 
decision documents prepared for each NWP fulfill the environmental 
documentation requirements of NEPA.

[[Page 73560]]

    Before the 41 NWPs in this final rule go into effect, division 
engineers will issue supplemental documents to evaluate environmental 
effects on a regional basis (e.g., a state or Corps district) and to 
determine whether regional conditions are necessary to ensure that the 
NWPs will result in no more than minimal individual and cumulative 
adverse environmental effects on a regional basis. The supplemental 
documents are prepared by Corps districts, but must be approved and 
issued by the appropriate division engineer, since the NWP regulations 
at 33 CFR 330.5(c) state that the division engineer has the authority 
to modify, suspend, or revoke NWP authorizations in a specific 
geographic area within his or her division. For some Corps districts, 
their geographic area of responsibility covers an entire state. For 
other Corps districts, their geographic area of responsibility may be 
based on watershed boundaries. For some states, there may be more than 
one Corps district responsible for implementing the Corps regulatory 
program, including the NWP program. In states with more than one Corps 
district, there is a lead Corps district responsible for preparing the 
supplemental documents for all of the NWPs. The supplemental documents 
will also discuss regional conditions imposed by division engineers to 
protect the aquatic environment and other public interest review 
factors and ensure that any adverse environmental effects resulting 
from NWP activities in that region will be no more than minimal, 
individually and cumulatively.
    The Corps solicited comments on the draft national decision 
documents for each proposed NWP, and any comments received were 
considered when preparing the final decision documents for the NWPs.
    Before the final NWPs go into effect, division engineers will issue 
supplemental documents to evaluate environmental effects on a regional 
basis (e.g., state or Corps district). The supplemental documents are 
prepared by Corps districts but must be approved and formally issued by 
the appropriate division engineer, since the NWP regulations at 33 CFR 
330.5(c) state that the division engineer has the authority to modify, 
suspend, or revoke NWP authorizations for any specific geographic area 
within his or her 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. The supplemental documents will discuss 
regional conditions imposed by division engineers to protect the 
aquatic environment and ensure that any adverse environmental effects 
resulting from NWP activities in that region will be no more than 
minimal, individually and cumulatively.
    For the NWPs, the assessment of cumulative effects under the Corps' 
public interest review occurs at three levels: National, regional, and 
the verification stage. Each national NWP decision document includes a 
national-scale cumulative effects analysis under the Corps' public 
interest review. Each supplemental document has a cumulative effects 
analysis under the Corps' public interest review conducted for a 
region, which is usually a state or Corps district. When a district 
engineer issues a verification letter in response to a PCN or a 
voluntary request for a 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 NWP is not suspended or revoked in a state or a Corps 
district, the supplemental document includes a certification that the 
use of the NWP in that district, with any applicable regional 
conditions, will result in no more than minimal cumulative adverse 
environmental effects.
    After the NWPs are issued or reissued and go into effect, district 
engineers will monitor the use of these NWPs on a regional basis (e.g., 
within a watershed, county, state, Corps district or other appropriate 
geographic area), to ensure that the use of a particular NWP is not 
resulting in more than minimal cumulative adverse environmental 
effects. The Corps staff that evaluate NWP PCNs 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 the Corps district 
staff believe that the use of an NWP in that geographic region may be 
approaching a threshold above which the cumulative adverse 
environmental effects for that category of activities may be more than 
minimal, the district engineer may make a recommendation to the 
division engineer to modify, suspend, or revoke the NWP authorization 
in that geographic region in accordance with the procedures in 33 CFR 
330.5(c). Alternatively, under the procedures at 33 CFR 330.5(d), the 
district engineer may also modify, suspend, or revoke NWP 
authorizations on a case-by-case basis to ensure that the NWP does not 
authorize activities that result in more than minimal cumulative 
adverse environmental effects.
    Comments on compliance with NEPA for the 2020 Proposal are 
addressed in the final rule published in the January 13, 2021, issue of 
the Federal Register at 86 FR 2842-2843.

B. Compliance With Section 404(e) of the Clean Water Act

    The NWPs are issued in accordance with Section 404(e) of the Clean 
Water Act and 33 CFR part 330. These NWPs authorize categories of 
activities that are similar in nature. The ``similar in nature'' 
requirement does not mean that activities authorized by an NWP must be 
identical to each other. The Corps believes that the ``categories of 
activities that are similar in nature'' requirement in Clean Water Act 
Section 404(e) is to be interpreted broadly, for practical 
implementation of this general permit program. The Corps has applied 
this interpretation for many years (see the NWPs issued in 2000 (64 FR 
39263-39264 and 65 FR 12821), 2007 (72 FR 11095), 2012 (77 FR 10186), 
and 2017 (82 FR 1868)).
    Nationwide permits, as well as other general permits, are intended 
to reduce administrative burdens on the Corps and the regulated public 
while maintaining environmental protection, by efficiently authorizing 
activities that have no more than minimal adverse environmental 
effects, consistent with Congressional intent expressed in the 1977 
amendments to the Federal Water Pollution Control Act, specifically 33 
U.S.C. 1344(e). The NWPs provide incentives for project proponents to 
minimize impacts to jurisdictional waters and wetlands to qualify for 
NWP authorization instead of having to apply for individual permits. 
Keeping the number of NWPs manageable is a key component for making the 
NWPs

[[Page 73561]]

protective of the environment and streamlining the authorization 
process for those general categories of activities that have no more 
than minimal individual and cumulative adverse environmental effects.
    The various terms and conditions of these NWPs, including the NWP 
regulations at 33 CFR 330.1(d) and 330.4(e), allow district engineers 
to exercise discretionary authority to modify, suspend, or revoke NWP 
authorizations or to require individual permits, and ensure compliance 
with Section 404(e) of the Clean Water Act. For each NWP that may 
authorize discharges of dredged or fill material into waters of the 
United States, the national decision document prepared by Corps 
Headquarters includes a 404(b)(1) Guidelines analysis. A 404(b)(1) 
Guidelines analysis is not required when a specific activity is 
authorized by an NWP (see 40 CFR 230.6(d)).

C. 2020 Revisions to the Definition of ``Waters of the United States'' 
(i.e., the Navigable Waters Protection Rule)

    Corps general permits are not intended to make or imply a 
conclusion or determination regarding what water bodies are or are not 
subject to CWA jurisdiction. Instead, a Corps general permit merely 
states that, if a person complies with all of the terms and conditions 
of the general permit, that person's proposed discharges of dredged or 
fill material into the waterbody will be consistent with the CWA, on 
the ground that any such discharges either (1) are legally authorized 
under the CWA (to the extent that the waterbody is subject to CWA 
jurisdiction) or (2) are otherwise consistent with the CWA to the 
extent that the waterbody is not jurisdictional under the CWA. The 
Corps acknowledges that some members of the public may seek to comply 
with the conditions of a general permit even for water bodies that are 
not jurisdictional or may not be jurisdictional under the CWA. Such 
practice, though not required, is not unlawful. The Corps is not 
required to make a formal determination whether a particular wetland or 
water is subject to jurisdiction under Section 404 of the Clean Water 
Act or Section 10 of the Rivers and Harbors Act of 1899 before issuing 
an individual permit or a general permit verification. Many project 
proponents prefer the time savings that can occur when the Corps issues 
an individual permit or general permit verification without expending 
the time and resources needed to make a formal, definitive 
determination whether those wetlands and waters are in fact 
jurisdictional and thus regulated under Section 404 of the Clean Water 
Act and/or Section 10 of the Rivers and Harbors Act of 1899.
    On April 21, 2020, the U.S. Environmental Protection Agency (EPA) 
and the Department of the Army published the Navigable Waters 
Protection Rule (NWPR) which became effective on June 22, 2020,\3\ 
revising the definition of ``waters of the United States'' (85 FR 
22250). Specifically, this final rule revises the Corps' regulations at 
33 CFR part 328.3, where the definition of ``waters of the United 
States'' is located for the purposes of implementing Section 404 of the 
Clean Water Act.
---------------------------------------------------------------------------

    \3\ On June 22, 2020, the NWPR became effective except in the 
State of Colorado due to a federal district court-issued stay in 
that state. The stay in Colorado has since been lifted so the NWPR 
is now in effect in all 50 states and U.S. territories. The rule has 
also been challenged in several other federal district courts.
---------------------------------------------------------------------------

    On January 21, 2021, President Biden signed the E.O. 13990, 
``Protecting Public Health and the Environment and Restoring Science To 
Tackle the Climate Crisis,'' which directs federal agencies to 
``immediately review and, as appropriate and consistent with applicable 
law, take action to address the promulgation of Federal regulations and 
other actions during the last 4 years that conflict with these 
important national objectives, and to immediately commence work to 
confront the climate crisis.'' EPA and the Department of the Army have 
completed their review of the NWPR and announced in June 2021 their 
intention to initiate a new rulemaking process that restores the 
protections in place prior to the 2015 WOTUS implementation, and 
develops a new rule to establish a durable definition of ``waters of 
the United States.'' As authorization under Section 404 of the Clean 
Water Act is only needed when regulated activities occur in WOTUS, any 
new definition of ``Waters of the United States'' could impact when an 
NWP may or may not be needed; however, it would not alter the terms and 
conditions in either this final rule or the NWP rule issued January 13, 
2021.
    Please note that some of the NWPs could authorize activities that 
involve the discharge of dredged or fill material into water bodies 
that are not subject to CWA jurisdiction, or that may not be subject to 
CWA jurisdiction. For example, a project proponent could proceed with 
an NWP activity that does not require submission of a PCN to the Corps 
in a non-jurisdictional water without getting a definitive 
determination from the Corps that the wetland or waterbody is not a 
water of the United States and thus not subject to CWA jurisdiction. As 
another example, if a proposed NWP activity requires pre-construction 
notification, the district engineer could issue the NWP verification 
based on the delineation of wetlands, other special aquatic sites, and 
other waters provided with the PCN in accordance with paragraph (b)(5) 
of NWP general condition 32, without the Corps making any formal 
determination as to whether those wetlands, special aquatic sites, and 
other waters are ``waters of the United States.''
    During the pendency of any litigation challenging the Navigable 
Waters Protection Rule, the NWPs will continue to authorize discharges 
of dredged or fill material in all water bodies that are subject to CWA 
jurisdiction, or that may be subject to CWA jurisdiction, at the time 
those discharges occur. Where a particular waterbody into which a 
person proposes to discharge dredged or fill material is subject to CWA 
jurisdiction, compliance with the terms and conditions of one or more 
NWPs, or an individual permit, will be necessary. A person with legal 
interest in a parcel (e.g., a permit applicant, landowner, or a lease, 
easement, or option holder) has the opportunity to request an approved 
jurisdictional determination from the Corps if that person would like 
the Corps' formal determination on the jurisdictional status of a water 
or feature under the CWA.''

D. Compliance With the Endangered Species Act

    The NWP regulations at 33 CFR 330.4(f) and NWP general condition 
18, endangered species, ensure that all activities authorized by NWPs 
comply with ESA section 7. Those regulations and general condition 18 
require non-federal permittees to submit PCNs for any activity that 
might affect listed species or designated critical habitat, as well as 
species proposed for listing and critical habitat proposed for such 
designation. When the district engineer evaluates a PCN, he or she 
determines whether the proposed NWP activity may affect listed species 
or designated critical habitat. The Corps established the ``might 
affect'' threshold in 33 CFR 330.4(f)(2) and paragraph (c) of general 
condition 18 because it is more stringent than the ``may affect'' 
threshold for ESA Section 7 consultation in the U.S. Fish and Wildlife 
Service's (FWS) and National Marine Fisheries Service's (NMFS) ESA 
Section 7 consultation regulations at 50 CFR part 402. The word 
``might'' is defined as having ``less probability or possibility'' than 
the word ``may'' (Merriam-Webster's Collegiate

[[Page 73562]]

Dictionary, 10th edition). Since ``might'' has a lower probability of 
occurring, it is below the threshold (i.e., ``may affect'') that 
triggers the requirement for ESA Section 7 consultation for a proposed 
Federal action. As discussed below, each year the Corps conducts 
thousands of ESA Section 7 consultations with the FWS and NMFS for 
activities authorized by NWPs. In recent years, an average of more than 
10,800 formal, informal, and programmatic ESA Section 7 consultations 
are conducted each year between the Corps and the FWS and/or NMFS in 
response to NWP PCNs, including those activities that required PCNs 
under paragraph (c) of general condition 18 under the ``might affect'' 
threshold.
    If the project proponent is required to submit a PCN and the 
proposed activity might affect listed species or designated critical 
habitat, species proposed for listing, or critical habitat proposed for 
such designation, the activity is not authorized by an NWP until either 
the district engineer makes a ``no effect'' determination or makes a 
``may affect'' determination and completes formal or informal ESA 
Section 7 consultation. The district engineer may also use a regional 
programmatic consultation to comply with the requirements of ESA 
Section 7.
    When evaluating a PCN, where necessary and appropriate, the Corps 
district will either make a ``no effect'' determination or a ``may 
affect'' determination. If the district engineer makes a ``may affect'' 
determination, she or he will notify the non-federal project proponent 
and the activity is not authorized by the NWP until ESA Section 7 
consultation has been completed. In making these determinations, the 
district engineer will apply the definition of ``effects of the 
action'' in the FWS's and NMFS's ESA consultation regulations at 50 CFR 
402.02. If the district engineer initiates ESA Section 7 consultation 
with the FWS and/or NMFS, that consultation will also consider ESA 
Section 7 cumulative effects, in accordance with the definition of 
``cumulative effects'' at 50 CFR 402.02. If the non-federal project 
proponent does not comply with 33 CFR 330.4(f)(2) and general condition 
18, and does not submit the required PCN, then the activity is not 
authorized by an NWP. In such situations, it is an unauthorized 
activity and the Corps district will determine an appropriate course of 
action under its regulations at 33 CFR part 326 to respond to the 
unauthorized activity, if and when the Corps learns about that 
unauthorized activity.
    Federal agencies, including state agencies (e.g., certain state 
Departments of Transportation) to which the Federal Highway 
Administration has assigned its responsibilities for ESA Section 7 
consultation pursuant to 23 U.S.C. 327(a)(2)(B), are required to follow 
their own procedures for complying with ESA Section 7 (see 33 CFR 
330.4(f)(1) and paragraph (b) of general condition 18). This includes 
circumstances where an NWP activity is part of a larger overall federal 
project or action. The federal agency's ESA Section 7 compliance covers 
the NWP activity because it is undertaking the NWP activity and 
possibly other related activities that are part of a larger overall 
federal project or action. For those NWPs that require pre-construction 
notification for proposed activities, the federal permittee is required 
to provide the district engineer with the appropriate documentation to 
demonstrate compliance with ESA Section 7. The district engineer will 
verify that the appropriate documentation has been submitted. If the 
appropriate documentation has not been submitted, additional ESA 
Section 7 consultation may be necessary for the proposed activity to 
fulfill both the federal agency's and the Corps' obligations to comply 
with ESA Section 7.
    The only activities that potentially could be immediately 
authorized by NWPs, assuming they meet all other applicable NWP 
conditions, are activities that would have ``no effect'' on listed 
species or designated critical habitat within the meaning of Section 7 
of the ESA and its implementing regulations at 50 CFR part 402. 
Therefore, the issuance or reissuance of NWPs does not require ESA 
Section 7 consultation because no activities authorized by any NWPs 
``may affect'' listed species or critical habitat without first 
completing activity-specific ESA Section 7 consultations with the 
Services, as required by general condition 18 and 33 CFR 330.4(f). 
Regional programmatic ESA Section 7 consultations may also be used by 
district engineers to satisfy the requirements of the NWPs in general 
condition 18 and 33 CFR 330.4(f) if a proposed NWP activity is covered 
by that regional programmatic consultation.
    In the August 27, 2019, issue of the Federal Register (84 FR 44976) 
the FWS and NMFS published a final rule that amended their regulations 
for interagency cooperation under Section 7 of the ESA. That final rule 
went into effect on October 28, 2019. With respect to making effects 
determinations for proposed federal actions, such as activities 
authorized by NWPs, the FWS and NMFS made two important changes to 50 
CFR part 402: (a) Introducing the term ``consequences'' to help define 
what is an effect under ESA Section 7, and (b) emphasizing that to be 
considered an ``effect of the action'' under ESA Section 7 
consultation, the consequences caused by the action would not occur but 
for the proposed action and must be reasonably certain to occur (see 84 
FR 44977). Further clarification of ``activities that are reasonably 
certain to occur'' and ``consequences caused by the proposed action'' 
were provided by the FWS and NMFS in rule text added at 50 CFR 
402.17(a) and (b), respectively.
    Applying the 2019 amendments to the ESA Section 7 regulations to 
the NWP program, consequences to listed species and designated critical 
habitat caused by proposed NWP activities must be reasonably certain to 
occur. In the preamble to their final rule, the FWS and NMFS stated 
that for a ``consequence of an activity to be considered reasonably 
certain to occur, the determination must be based on clear and 
substantial information'' (see 84 FR 44977). The FWS and NMFS explained 
that ``clear and substantial'' means that there has to be a firm basis 
for supporting a conclusion that a consequence of a federal action is 
reasonably certain to occur. The determination that a consequence is 
reasonably certain to occur should not be based on speculation or 
conjecture, and the information used to make that determination should 
have a ``degree of certitude'' (see 84 FR 44977). The Corps will apply 
these considerations when evaluating pre-construction notifications for 
proposed NWP activities.
    When the district engineer receives a pre-construction notification 
for a proposed NWP activity, he or she is responsible for applying the 
current definition of ``effect of the action'' to the proposed NWP 
activity and to determine the consequences caused by the proposed 
action and which activities are reasonably certain to occur. The 
district engineer determines whether the proposed NWP activity ``may 
affect'' listed species or designated critical habitat and initiates 
formal or informal ESA Section 7 consultation, unless she or he 
determines that the proposed NWP activity will have ``no effect'' on 
listed species or designated critical habitat. As a general rule, the 
district engineer documents his or her ``no effect'' determination in 
writing for every pre-construction notification that the

[[Page 73563]]

district engineer receives and responds to.
    The NWP program has been structured, through the requirements of 
NWP general condition 18 and 33 CFR 330.4(f), to focus ESA Section 7 
compliance at the activity-specific and regional levels. Each year, an 
average of more than 10,800 formal, informal, and regional programmatic 
ESA Section 7 consultations are conducted by Corps districts with the 
FWS and/or NMFS in response to NWP PCNs for specific NWP activities 
(see below). Focusing ESA Section 7 compliance at the activity-specific 
scale and regional programmatic scale is more efficient for the 
permittees, the Corps, and the FWS and NMFS, than doing so at the 
national level because of the similarities in ecosystem characteristics 
and associated listed species and critical habitat within a particular 
region.
    For a proposed NWP activity that may affect listed species or 
designated critical habitat, a biological opinion with an incidental 
take statement is needed for the NWP activity to go forward unless the 
FWS or NMFS issued a written concurrence that the proposed NWP activity 
is not likely to adversely affect listed species or designated critical 
habitat. It is through activity-specific ESA Section 7 consultations 
and regional programmatic ESA Section 7 consultations between the Corps 
and the FWS and NMFS that effective protection of listed species and 
their designated critical habitat is achieved.
    After applying the current ESA Section 7 regulations at 50 CFR part 
402 to the NWP rulemaking process, the Corps continues to believe that 
the issuance or reissuance of the NWPs has ``no effect'' on listed 
species or designated critical habitat, and that the ESA Section 7 
compliance is most effectively achieved by applying the requirements of 
general condition 18 and 33 CFR 330.4(f) to specific proposed NWP 
activities that are identified after the NWPs are issued and go into 
effect. Compliance with the requirements of ESA Section 7 can also be 
achieved by district engineers applying appropriate formal or informal 
regional programmatic ESA Section 7 consultations that have been 
developed by Corps districts with regional offices of the FWS and NMFS.
    Section 7 of the ESA requires each federal agency to ensure, 
through consultation with the Services, that ``any action authorized, 
funded, or carried out'' by that agency ``is not likely to jeopardize 
the continued existence of any endangered species or threatened species 
or result in the destruction or adverse modification of habitat of such 
species.'' (See 16 U.S.C. 1536(a)(2).) Accordingly, the Services' ESA 
Section 7 regulations specify that an action agency must ensure that 
the action ``it authorizes,'' including authorization by permit, does 
not cause jeopardy or adverse modification. (See 50 CFR 402.01(a) and 
402.02). Thus, in assessing application of ESA Section 7 to NWPs issued 
or reissued by the Corps, the proper focus is on the nature and extent 
of the specific activities ``authorized'' by the NWPs and the timing of 
that authorization.
    The issuance or reissuance of the NWPs by the Chief of Engineers 
imposes express limitations on activities authorized by these NWPs. 
These limitations are imposed by the NWP terms and conditions, 
including the general conditions that apply to all NWPs regardless of 
whether pre-construction notification is required by a specific NWP. 
With respect to listed species and critical habitat, general condition 
18 expressly prohibits any activity ``which `may affect' a listed 
species or designated critical habitat, unless ESA Section 7 
consultation addressing the effects of the proposed activity has been 
completed.'' General condition 18 also states that if an activity 
``might affect'' a listed species or designated critical habitat (or a 
species proposed for listing or critical habitat proposed for such 
designation), a non-federal applicant must submit a PCN and ``shall not 
begin work on the activity until notified by the district engineer that 
the requirements of the ESA have been satisfied and that the activity 
is authorized.'' In addition, 33 CFR 330.4(f)(2) imposes a PCN 
requirement for proposed NWP activities by non-federal permittees where 
listed species (or species proposed for listing) or critical habitat 
might be affected or are in the vicinity of the proposed NWP activity. 
Section 330.4(f)(2) also prohibits those permittees from beginning the 
NWP activity until notified by the district engineer that the 
requirements of the ESA have been satisfied and that the activity is 
authorized. Permit applicants that are federal agencies must and will 
follow their own requirements for complying with the ESA (see 33 CFR 
330.4(f)(1)).
    Thus, because no NWP can or does authorize an activity that may 
affect a listed species or critical habitat absent an activity-specific 
ESA Section 7 consultation or applicable regional programmatic ESA 
Section 7 consultation, and because any activity that may affect a 
listed species or critical habitat must undergo an activity-specific 
consultation or be in compliance with a regional programmatic ESA 
Section 7 consultation before the district engineer can verify that the 
activity is authorized by an NWP, the issuance or reissuance of NWPs 
has ``no effect'' on listed species or critical habitat. Accordingly, 
the action being ``authorized'' by the Corps (i.e., the issuance or re-
issuance of the NWPs themselves) has no effect on listed species or 
critical habitat.
    To help ensure protection of listed species and critical habitat, 
general condition 18 and 33 CFR 330.4(f) establish a more stringent 
threshold than the threshold set forth in the Services' ESA Section 7 
regulations for initiation of ESA Section 7 consultation. Specifically, 
while ESA Section 7 consultation must be initiated for any activity 
that ``may affect'' listed species or critical habitat, for non-federal 
permittees general condition 18 require submission of a PCN to the 
Corps if ``any listed species (or species proposed for listing) or 
designated critical habitat might be affected or is in the vicinity of 
the activity, or if the activity is located in designated critical 
habitat'' or critical habitat proposed for such designation, and 
prohibits work until ``notified by the district engineer that the 
requirements of the ESA have been satisfied and that the activity is 
authorized.'' (See paragraph (c) of general condition 18.) The PCN must 
``include the name(s) of the endangered or threatened species (or 
species proposed for listing) that might be affected by the proposed 
work or that utilize the designated critical habitat (or critical 
habitat proposed for such designation) that might be affected by the 
proposed work.'' (See paragraph (b)(7) of the ``Pre-Construction 
Notification'' general condition.) Paragraph (g) of general condition 
18 notes that information on the location of listed species and their 
critical habitat can be obtained from the Services directly or from 
their websites.
    General condition 18 makes it clear to project proponents that an 
NWP does not authorize the ``take'' of an endangered or threatened 
species. Paragraph (e) of general condition 18 also states that a 
separate authorization (e.g., an ESA Section 10 permit or a biological 
opinion with an ``incidental take statement'') is required to take a 
listed species. In addition, paragraph (a) of general condition 18 
states that no activity is authorized by an NWP which is likely to 
``directly or indirectly jeopardize the continued existence of a 
threatened or endangered species or a species proposed for such 
designation'' or ``which will directly or indirectly

[[Page 73564]]

destroy or adversely modify the critical habitat of such species.'' 
Such activities would require district engineers to exercise their 
discretionary authority and subject the proposed activity to the 
individual permit review process, because an activity that would 
jeopardize the continued existence of a listed species, or a species 
proposed for listing, or that would destroy or adversely modify the 
critical habitat of such species would not result in no more than 
minimal adverse environmental effects and thus cannot be authorized by 
an NWP.
    The Corps' NWP regulations at 33 CFR 330.1(c) state that an 
``activity is authorized under an NWP only if that activity and the 
permittee satisfy all of the NWP's terms and conditions.'' Thus, if a 
project proponent moves forward with an activity that ``might affect'' 
an ESA listed species without complying with the PCN or other 
requirements of general condition 18, the activity is not authorized 
under the CWA. In this case, the project proponent could be subject to 
enforcement action and penalties under the CWA. In addition, if the 
unauthorized activity results in a ``take'' of listed species as 
defined by the ESA and its implementing regulations, then he or she 
could be subject to penalties, enforcement actions, and other actions 
by the FWS or NMFS under Section 11 of the ESA.
    For listed species (and species proposed for listing) under the 
jurisdiction of the FWS, information on listed species that may be 
present in the vicinity of a proposed activity is available through the 
Information Planning and Consultation (IPaC) system,\4\ an on-line 
project planning tool developed and maintained by the FWS.
---------------------------------------------------------------------------

    \4\ https://ecos.fws.gov/ipac/.
---------------------------------------------------------------------------

    During the process for developing regional conditions, Corps 
districts collaborate with FWS and/or NMFS regional or field offices to 
identify regional conditions that can provide additional assurance of 
compliance with general condition 18 and 33 CFR 330.4(f)(2). Such 
regional conditions can add PCN requirements to one or more NWPs in 
areas inhabited by listed species or where designated critical habitat 
occurs. Regional conditions can also be used to establish time-of-year 
restrictions when no NWP activity can take place to ensure that 
individuals of listed species are not adversely affected by such 
activities. Corps districts will continue to consider through regional 
collaborations and consultations, local initiatives, or other 
cooperative efforts additional information and measures to ensure 
protection of listed species and critical habitat, the requirements 
established by general condition 18 (which apply to all uses of all 
NWPs), and other provisions of the Corps regulations ensure full 
compliance with ESA Section 7.
    Corps district office personnel meet with local representatives of 
the FWS and NMFS to establish or modify existing procedures, where 
necessary, to ensure that the Corps has the latest information 
regarding the existence and location of any threatened or endangered 
species or their critical habitat, including species proposed for 
listing or critical habitat proposed for such designation. Corps 
districts can also establish, through local procedures or other means, 
additional safeguards that ensure compliance with the ESA. Through 
formal ESA Section 7 consultation, or through other coordination with 
the FWS and/or the NMFS, as appropriate, the Corps establishes 
procedures to ensure that NWP activities will not jeopardize any 
threatened and endangered species or result in the destruction or 
adverse modification of designated critical habitat. Such procedures 
may result in the development of regional conditions added to the NWP 
by the division engineer, or in activity-specific conditions to be 
added to an NWP authorization by the district engineer.
    The Corps has prepared a biological assessment for this rulemaking 
action. The biological assessment concludes that the issuance or 
reissuance of NWPs has ``no effect'' on listed species and designated 
critical habitat and does not require ESA Section 7 consultation. This 
conclusion was reached because no activities authorized by any NWPs 
``may affect'' listed species or critical habitat without first 
completing activity-specific ESA Section 7 consultations with the 
Services, as required by general condition 18 and 33 CFR 330.4(f).
    Based on the fact that NWP issuance or reissuance of the NWPs is 
contingent upon any proposed NWP activity that ``may affect'' listed 
species or critical habitat undergoing an activity-specific or regional 
programmatic ESA Section 7 consultation, there is no requirement that 
the Corps undertake consultation for the NWP program. The national 
programmatic consultations conducted in the past for the NWP program 
were voluntary consultations despite the inclusion of procedures to 
ensure consultation under ESA Section 7 for proposed NWP activities 
that may affect listed species or designated critical habitat. Regional 
programmatic consultations can be conducted voluntarily by Corps 
districts and regional or local offices of the FWS and/or NMFS to 
tailor regional conditions and procedures to ensure the ``might 
affect'' threshold is implemented consistently and effectively.
    Examples of regional programmatic consultations currently in 
effect, with the applicable Service the Corps consulted with, include: 
The Standard Local Operating Procedures for Endangered Species in 
Mississippi (2017--FWS); the Endangered Species Act Section 7 
Programmatic Biological Opinion and Magnuson-Stevens Fishery 
Conservation and Management Act Essential Fish Habitat Consultation for 
Tidal Area Restoration Authorized, Funded, or Implemented by the Corps 
of Engineers, Federal Emergency Management Agency, and Federal Highways 
Administration, in Oregon and the Lower Columbia River (NMFS--2018); 
the U.S. Army Corps of Engineers Jacksonville District's Programmatic 
Biological Opinion (JAXBO) (NMFS--2017); Missouri Bat Programmatic 
Informal Consultation Framework (FWS--2019); Revised Programmatic 
Biological/Conference Opinion for bridge and culvert repair and 
replacement projects affecting the Dwarf Wedgemussel, Tar River 
Spinymussel, Yellow Lance and Atlantic Pigtoe. Programmatic Conference 
Opinion (PCO) for Bridge and Culvert Replacement/Repairs/
Rehabilitations in Eastern North Carolina, NCDOT Divisions 1-8 (FWS--
2018); and the Corps and NOAA Fisheries Greater Atlantic Regional 
Fisheries Office (GARFO) Not Likely to Adversely Affect Program 
Programmatic Consultation (NMFS--2017).
    The programmatic ESA Section 7 consultations that the Corps 
conducted for the 2007 and 2012 NWPs were voluntary consultations. The 
voluntary programmatic consultation conducted with the NMFS for the 
2012 NWPs resulted in a biological opinion issued on February 15, 2012, 
which was replaced by a new biological opinion issued on November 24, 
2014. A new biological opinion was issued by NMFS after the proposed 
action was modified and triggered re-initiation of that programmatic 
consultation. The programmatic consultation on the 2012 NWPs with the 
FWS did not result in a biological opinion. For the 2017 NWPs, the 
Corps did not request a national programmatic consultation.
    In the Corps Regulatory Program's automated information system 
(ORM), the Corps collects data on all individual permit applications, 
all NWP PCNs, all voluntary requests for NWP verifications where the 
NWP or general conditions do not require PCNs, and all

[[Page 73565]]

verifications of activities authorized by regional general permits. For 
all written authorizations issued by the Corps, the collected data 
include authorized impacts and required compensatory mitigation, as 
well as information on all consultations conducted under ESA Section 7. 
Every year, the Corps evaluates approximately 35,000 NWP PCNs and 
requests for NWP verifications for activities that do not require PCNs, 
and provides written verifications for those activities when district 
engineers determine those activities result in no more than minimal 
adverse environmental effects. During the evaluation process, district 
engineers assess potential impacts to listed species and critical 
habitat and conduct ESA Section 7 consultations whenever they determine 
proposed NWP activities ``may affect'' listed species or critical 
habitat. District engineers will exercise discretionary authority and 
require individual permits when proposed NWP activities will result in 
more than minimal adverse environmental effects.
    Each year, the Corps conducts thousands of ESA Section 7 
consultations with the FWS and NMFS for activities authorized by NWPs. 
These ESA Section 7 consultations are tracked in ORM. In FY 2018 
(October 1, 2017 to September 30, 2018), Corps districts conducted 640 
formal consultations and 3,048 informal consultations under ESA Section 
7 for NWP PCNs. During that time period, the Corps also used regional 
programmatic consultations for 7,148 NWP PCNs to comply with ESA 
Section 7. Therefore, each year an average of more than 10,800 formal, 
informal, and programmatic ESA Section 7 consultations are conducted 
between the Corps and the FWS and/or NMFS in response to NWP PCNs, 
including those activities that required PCNs under paragraph (c) of 
general condition 18. For a linear project authorized by NWPs 12, 14, 
57, or 58 where the district engineer determines that one or more 
crossings of waters of the United States that require Corps 
authorization ``may affect'' listed species or designated critical 
habitat, the district engineer initiates a single ESA Section 7 
consultation with the FWS and/or NMFS for all of those crossings that 
he or she determines ``may affect'' listed species or designate 
critical habitat. The number of ESA Section 7 consultations provided 
above represents the number of NWP PCNs that required some form of ESA 
Section 7 consultation, not the number of single and complete projects 
authorized by an NWP that may be included in a single PCN. A single NWP 
PCN may include more than one single and complete project, especially 
if it is for a linear project such as a utility line or road with 
multiple separate and distant crossings of jurisdictional waters and 
wetlands from its point of origin to its terminal point.
    During the process for reissuing the NWPs, Corps districts 
coordinated with regional and field offices of the FWS and NMFS to 
discuss whether new or modified regional conditions should be imposed 
on the NWPs to improve implementation of the ``might effect'' threshold 
and improve protection of listed species and designated critical 
habitat and ensure that the NWPs only authorize activities with no more 
than minimal individual and cumulative adverse environmental effects. 
Regional conditions must comply with the Corps' regulations at 33 CFR 
325.4 for adding permit conditions to DA authorizations. The Corps 
decides whether suggested regional conditions identified during this 
coordination are appropriate for the NWPs. During this coordination, 
other tools, such as additional regional programmatic consultations or 
standard local operating procedures, might be developed by the Corps, 
FWS, and NMFS to facilitate compliance with the ESA while streamlining 
the process for authorizing activities under the NWPs. ESA Section 7 
consultation on regional conditions occurs only when a Corps districts 
makes a ``may affect'' determination and initiates formal or informal 
ESA Section 7 consultation with the FWS and/or NMFS, depending on the 
species that may be affected. Otherwise, the Corps district coordinates 
the regional conditions with the FWS and/or NMFS. Regional conditions, 
standard local operating procedures, and regional programmatic 
consultations developed by the Corps, FWS, and NMFS are important tools 
for protecting listed species and critical habitat and helping to 
tailor the NWP program to address specific species, their habitats, and 
the stressors that affect those species.
    Comments on compliance with the ESA for the 2020 Proposal are 
addressed in the final rule published in the January 13, 2021, issue of 
the Federal Register at 86 FR 2848-2849.

E. Compliance With the Essential Fish Habitat Provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act

    The NWP Program's compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act will be achieved through EFH consultations between 
Corps districts and NMFS regional offices. This approach continues the 
EFH Conservation Recommendations provided by NMFS Headquarters to Corps 
Headquarters in 1999 for the NWP program. Corps districts that have EFH 
designated within their geographic areas of responsibility will 
coordinate with NMFS regional offices, to the extent necessary, to 
develop NWP regional conditions that conserve EFH and are consistent 
with the NMFS regional EFH Conservation Recommendations. Corps 
districts will conduct consultations in accordance with the EFH 
consultation regulations at 50 CFR 600.920.
    Comments on compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act for the 2020 Proposal are addressed in the final 
rule published in the January 13, 2021, issue of the Federal Register 
at 86 FR 2849.

F. Compliance With Section 106 of the National Historic Preservation 
Act

    The NWP regulations at 33 CFR 330.4(g) and the ``Historic 
Properties'' general condition (general condition 20), ensure that all 
activities authorized by NWPs comply with Section 106 of the NHPA. The 
``Historic Properties'' general condition requires non-federal 
permittees to submit PCNs for any activity that might have the 
potential to cause effects to any historic properties listed on, 
determined to be eligible for listing on, or potentially eligible for 
listing on the National Register of Historic Places, including 
previously unidentified properties. The Corps then evaluates the PCN 
and makes an effect determination for the proposed NWP activity for the 
purposes of NHPA Section 106. The Corps established the ``might have 
the potential to cause effects'' threshold in paragraph (c) of the 
``Historic Properties'' general condition to require PCNs for those 
activities so that the district engineer can evaluate the proposed NWP 
activity and determine whether it has no potential to cause effects to 
historic properties or whether it has potential to cause effects to 
historic properties and thus require NHPA Section 106 consultation.
    If the project proponent is required to submit a PCN and the 
proposed activity might have the potential to cause effects to historic 
properties, the activity is not authorized by an NWP until either the 
Corps district makes a ``no potential to cause effects'' determination 
or completes NHPA Section 106 consultation.

[[Page 73566]]

    When evaluating a PCN, the Corps will either make a ``no potential 
to cause effects'' determination or a ``no historic properties 
affected,'' ``no adverse effect,'' or ``adverse effect'' determination. 
If the Corps makes a ``no historic properties affected,'' ``no adverse 
effect,'' or ``adverse effect'' determination, the district engineer 
will notify the non-federal applicant and the activity is not 
authorized by an NWP until NHPA Section 106 consultation has been 
completed. If the non-federal project proponent does not comply with 
the ``Historic Properties'' general condition, and does not submit the 
required PCN, then the activity is not authorized by an NWP. In such 
situations, it is an unauthorized activity and the Corps district will 
determine an appropriate course of action to respond to the 
unauthorized activity.
    The only activities that are immediately authorized by NWPs are 
``no potential to cause effect'' activities under Section 106 of the 
NHPA, its implementing regulations at 36 CFR part 800, and the Corps' 
``Revised Interim Guidance for Implementing Appendix C of 33 CFR part 
325 with the Revised Advisory Council on Historic Preservation 
Regulations at 36 CFR part 800,'' dated April 25, 2005, and amended on 
January 31, 2007. Therefore, the issuance or reissuance of NWPs does 
not require NHPA Section 106 consultation because no activities that 
might have the potential to cause effects to historic properties can be 
authorized by an NWP without first completing activity-specific NHPA 
Section 106 consultations, as required by the ``Historic Properties'' 
general condition. Programmatic agreements (see 36 CFR 800.14(b)) may 
also be used to satisfy the requirements of the NWPs in the ``Historic 
Properties'' general condition if a proposed NWP activity is covered by 
that programmatic agreement.
    NHPA Section 106 requires a federal agency that has authority to 
license or permit any undertaking, to take into account the effect of 
the undertaking on any district, site, building, structure, or object 
that is included in or eligible for inclusion in the National Register, 
prior to issuing a license or permit. The head of any such Federal 
agency shall afford the Advisory Council on Historic Preservation a 
reasonable opportunity to comment on the undertaking. Thus, in 
assessing application of NHPA Section 106 to NWPs issued or reissued by 
the Corps, the proper focus is on the nature and extent of the specific 
activities ``authorized'' by the NWPs and the timing of that 
authorization.
    The issuance or reissuance of the NWPs by the Chief of Engineers 
imposes express limitations on activities authorized by those NWPs. 
These limitations are imposed by the NWP terms and conditions, 
including the general conditions that apply to all NWPs regardless of 
whether pre-construction notification is required. With respect to 
historic properties, the ``Historic Properties'' general condition 
expressly prohibits any activity that ``may have the potential to cause 
effects to properties listed, or eligible for listing, in the National 
Register of Historic Places,'' until the requirements of NHPA Section 
106 have been satisfied. The ``Historic Properties'' general condition 
also states that if an activity ``might have the potential to cause 
effects'' to any historic properties, a non-federal applicant must 
submit a PCN and ``shall not begin the activity until notified by the 
district engineer either that the activity has no potential to cause 
effects to historic properties or that consultation under Section 106 
of the NHPA has been completed.'' Permit applicants that are Federal 
agencies should follow their own requirements for complying with 
Section 106 of the NHPA (see 33 CFR 330.4(g)(1) and paragraph (b) of 
the ``Historic Properties'' general condition).
    Thus, because no NWP can or does authorize an activity that may 
have the potential to cause effects to historic properties, and because 
any activity that may have the potential to cause effects to historic 
properties must undergo an activity-specific NHPA Section 106 
consultation (unless that activity is covered under a programmatic 
agreement) before the district engineer can verify that the activity is 
authorized by an NWP, the issuance or reissuance of NWPs has ``no 
potential to cause effects'' on historic properties. Accordingly, the 
action being ``authorized'' by the Corps, which is the issuance or re-
issuance of the NWPs by Corps Headquarters, has no potential to cause 
effects on historic properties.
    To help ensure protection of historic properties, the ``Historic 
Properties'' general condition establishes a higher threshold than the 
threshold set forth in the Advisory Council's NHPA Section 106 
regulations for initiation of section 106 consultation. Specifically, 
while NHPA Section 106 consultation must be initiated for any activity 
that ``has the potential to cause effects to'' historic properties, for 
non-federal permittees the ``Historic Properties'' general condition 
requires submission of a PCN to the Corps if ``the NWP activity might 
have the potential to cause effects to any historic properties listed 
on, determined to be eligible for listing on, or potentially eligible 
for listing on the National Register of Historic Places, including 
previously unidentified properties.'' The ``Historic Properties'' 
general condition also prohibits the proponent from conducting the NWP 
activity ``until notified by the district engineer either that the 
activity has no potential to cause effects to historic properties or 
that consultation under Section 106 of the NHPA has been completed.'' 
(See paragraph (d) of the ``Historic Properties'' general condition.) 
The PCN must ``state which historic property might have the potential 
to be affected by the proposed activity or include a vicinity map 
indicating the location of the historic property.'' (See paragraph 
(b)(8) of the ``Pre-Construction Notification'' general condition.)
    During the process for developing regional conditions, Corps 
districts can coordinate or consult with State Historic Preservation 
Officers, Tribal Historic Preservation Officers, and tribes to identify 
regional conditions that can provide additional assurance of compliance 
with the ``Historic Properties'' general condition and 33 CFR 
330.4(g)(2) for NWP activities undertaken by non-federal permittees. 
Such regional conditions can add PCN requirements to one or more NWPs 
where historic properties occur. Corps districts will continue to 
consider through regional consultations, local initiatives, or other 
cooperative efforts and additional information and measures to ensure 
protection of historic properties, the requirements established by the 
``Historic Properties'' general condition (which apply to all uses of 
all NWPs), and other provisions of the Corps regulations and guidance 
ensure full compliance with NHPA Section 106.
    Based on the fact that NWP issuance or reissuance has no potential 
to cause effects on historic properties and that any activity that 
``has the potential to cause effects'' to historic properties will 
undergo activity-specific NHPA Section 106 consultation, there is no 
requirement that the Corps undertake programmatic consultation for the 
NWP program. Regional programmatic agreements can be established by 
Corps districts and State Historic Preservation Officers and/or Tribal 
Historic Preservation Officers to comply with the requirements of 
Section 106 of the NHPA.
    Comments on compliance with Section 106 of the NHPA for the 2020 
Proposal are addressed in the final rule published in the January 13, 
2021, issue of the Federal Register at 86 FR 2851.

[[Page 73567]]

G. Section 401 of the Clean Water Act

    A water quality certification (WQC) issued by a state, authorized 
tribe, or EPA, or a waiver thereof, is required by section 401 of the 
Clean Water Act, for an activity authorized by an NWP which may result 
in a discharge from a point source into waters of the United States. 
Water quality certifications may be granted without conditions, granted 
with conditions, denied, or waived for specific NWPs. The water quality 
certification process for the 2020 Proposal was described in the 
preamble to the September 15, 2020, proposed rule at 85 FR 57362--
57363. A summary of comments received on the water quality 
certification process for the 2020 Proposal, and the Corps' responses 
to those comments, are provided in the final rule that was published in 
the Federal Register on January 13, 2021, at 86 FR 2851--2853.
    Nationwide permits numbered 15, 16, 17, 18, 25, 30, 34, 41, 46, 49, 
and 59 would authorize activities that may result in discharges and 
therefore water quality certification is required for those NWPs. 
Nationwide permits numbered 3, 4, 5, 6, 7, 13, 14, 19, 20, 22, 23, 27, 
31, 32, 33, 36, 37, 38, 45, 53, and 54 would authorize various 
activities, some of which may result in a discharge and require water 
quality certification, and others which may not. Nationwide permits 
numbered 1, 2, 8, 9, 10, 11, 24, 28, and 35 do not require water 
quality certification because they would authorize activities which, in 
the opinion of the Corps, could not reasonably be expected to result in 
a discharge into waters of the United States. In the case of NWP 8, it 
authorizes only activities seaward of the territorial seas.
    In October 2020, Corps districts requested WQC from certifying 
authorities for the proposed issuance of the NWPs, including the 41 
NWPs being issued in this final rule. Many certifying authorities 
requested an extension to the 60-day reasonable period of time 
established by the Corps to review and certify the proposed NWPs (see 
86 FR 2744, 2852). Commenters noted various reasons for such extension 
requests, including that certifying authorities could not comply with 
the reasonable period of time due to public participation requirements 
and the need for more time to review in light of recent changes to the 
EPA's regulation for Section 401 of the Clean Water Act and the 
issuance of the final Navigable Waters Protection Rule. In light of 
concerns noted by commenters, the Corps extended the reasonable period 
of time for certification of the 41 NWPs in this final rule. Corps 
districts sent letters to certifying authorities notifying them of the 
extended reasonable period of time for the 41 NWPs in this final rule. 
For the extended reasonable period of time, Corps districts gave the 
certifying authorities the opportunity to take different courses of 
action on the certification requests for the proposed issuance of these 
41 NWPs. Certifying authorities also had the option to take no further 
action during the extended reasonable period of time. If a certifying 
authority took no further action during the extended reasonable period 
of time, the Corps would consider the certifying authority's prior 
action on the certification request to be their final position on WQC 
for the issuance of these 41 NWPs: that is to issue with or without 
conditions, deny, or waive WQC for those 41 NWPs.
    Under EPA's 401 regulations, a ``[f]ederal agency may extend the 
reasonable period of time at the request of a certifying authority or a 
project proponent'' so long as the reasonable period of time does not 
exceed one year from receipt of the certification request.'' (See 40 
CFR 121.6(d).) In the October 2020 certification requests, the Corps 
established the reasonable period of time to be 60 days. Although the 
original reasonable period of time of 60 days has passed, EPA's 401 
regulations do not prohibit federal agencies from granting certifying 
authorities more time to take action on certification requests, as long 
as no more than one year has passed since the original certification 
request was submitted to a certifying authority. Additionally, the 
Corps' NWP regulations do not prohibit reopening the reasonable period 
of time as long as the one-year limit in Section 401 of the Clean Water 
Act is not exceeded. Therefore, in response to concerns expressed by 
certifying authorities and various commenters, the Corps extended the 
reasonable period of time to give certifying authorities the one-year 
maximum in the statute to act on the certification requests on the 
remaining 41 NWPs. To be clear, this extension of the reasonable period 
of time does not constitute the submittal of new certification requests 
by Corps districts to certifying authorities. If certifying authorities 
need additional time, the Corps will work with certifying authorities 
as necessary, as long as the statutory one-year limit is not exceeded. 
Furthermore, because the Corps is simply extending the reasonable 
period of time (and not re-requesting certification) certifying 
authorities were not required to reinitiate the certification process.
    Although certifying authorities previously submitted certifications 
on the 41 NWPs, the Corps finds that submission of new or revised 
certifications during this extended reasonable period of time would not 
be ``modifications'' of the earlier certifications or otherwise 
inconsistent with 40 CFR 121.6(e). Instead, any new or revised 
certifications submitted during the extended reasonable period of time 
will be deemed to supersede the earlier certifications or other actions 
(such as denials or waivers) that certifying authorities may have taken 
during the original reasonable period of time. See also Memorandum from 
Radhika Fox, Assistant Administrator, Office of Water, and Jaime 
Pinkham, Acting Assistant Secretary of the Army (Civil Works), Clean 
Water Act Section 401 Certification Implementation, at 6-7 (August 19, 
2021), available at https://www.epa.gov/system/files/documents/2021-08/8-19-21-joint-epa-army-memo-on-cwa-401-implementation_508.pdf 
(providing that ``EPA's 2020 Rule does not limit certifying authorities 
from issuing an updated certification within the reasonable period of 
time when this is authorized by the federal permitting agency. . . . In 
EPA's view, this outcome does not change if the new or revised 
certification is issued during an extended reasonable period of 
time.'') Certifying authorities that want to retain their prior 
certification decisions can confirm their prior positions affirmatively 
by sending confirmation to the Corps district prior the expiration of 
the extended reasonable period of time, If a certifying authority 
chooses not to respond to the Corps district during the extended 
reasonable period of time, the previous certification decisions will 
govern in the absence of an updated certification, affirmative 
confirmation, or other action, such as a denial or waiver.
    EPA was available to provide technical assistance to the Corps and 
certifying authorities pursuant to 40 CFR 121.16 during this extended 
reasonable period of time.
    Consistent with EPA's 401 regulations at 40 CFR part 121, 
certifying authorities may take one of four actions on a certification 
request: To issue with or without conditions, deny, or waive WQC for 
the issuance of the NWPs. If a certifying authority issues water 
quality certifications with conditions for the issuance of these NWPs, 
district engineers reviews the conditions in those water quality 
certifications to determine whether they comply with the requirements 
in 40 CFR 121.7(d). If the district engineer determines that any 
condition in the water quality

[[Page 73568]]

certification for the issuance of the NWPs does not comply with the 
requirements of 40 CFR 121.7(d), and is waived pursuant to 40 CFR 
121.9(d), the district engineer will notify the certifying authority 
and the EPA Administrator in accordance with 40 CFR 121.9(c). The 
conditions in the water quality certification for the issuance of the 
NWP that comply with the requirements of 40 CFR 121.7(d) and are not 
waived become conditions of the NWP authorization in accordance with 
Section 401(d) of the Clean Water Act.
    The Corps' regulations for reviewing WQCs issued for the issuance 
of the NWPs are located at 33 CFR 330.4(c)(2). If, prior to the 
issuance or reissuance of NWPs, a certifying authority issues a WQC for 
the issuance of an NWP, and that WQC includes conditions, the division 
engineer will make those conditions regional conditions of the NWP for 
activities which may result in a discharge into waters of United States 
in the geographic area covered by that WQC unless the division engineer 
determines that those conditions do not comply with the provisions of 
33 CFR 325.4. If the district engineer determines that the conditions 
in a WQC provided for the issuance of an NWP do not comply with 33 CFR 
325.4 the Corps will decline to rely on the WQC issued for the issuance 
of the NWP. In practice, this means the Corps will consider that 
decision to be a denial of the certification. In such cases, the 
proposed discharges are not authorized by that NWP and the Corps will 
require project proponents to obtain WQCs for individual discharges 
authorized by that NWP.
    If a certifying agency denies WQC for the issuance of an NWP, then 
the proposed discharges are not authorized by that NWP unless and until 
a project proponent obtains WQC for the specific discharge from the 
certifying authority, or a waiver of WQC occurs.
    After division engineers have approved the final regional 
conditions for the 41 NWPs published in this final rule, Corps 
districts will issue public notices announcing the final regional 
conditions for the 41 NWPs and the status of water quality 
certifications and Coastal Zone Management Act (CZMA) consistency 
concurrences for those final NWPs. The Corps will post copies of these 
district public notices in the www.regulations.gov docket for this 
rulemaking action (docket number COE-2020-0002).
    Further discussion of comments on compliance with Section 401 of 
the Clean Water Act for the 2020 Proposal are addressed in the final 
rule published in the January 13, 2021, issue of the Federal Register 
at 86 FR 2852-2853.

H. Section 307 of the Coastal Zone Management Act (CZMA)

    Any state with a federally-approved CZMA program must concur with 
the Corps' determination that activities authorized by NWPs which are 
within, or will have reasonably foreseeable effects on any land or 
water uses or natural resources of, the state's coastal zone, are 
consistent with the CZMA program to the maximum extent practicable. 
Coastal Zone Management Act consistency concurrences may be issued 
without conditions, issued with conditions, or denied for specific 
NWPs.
    Prior to the issuance of the 16 NWPs, states made their decisions 
on whether to concur with or object to the Corps' CZMA consistency 
determination for the issuance of the NWPs. If a state issued a 
concurrence with conditions for the issuance of these NWPs, district 
engineers reviewed the conditions in those consistency concurrences to 
determine whether they comply with the Corps' regulations for permit 
conditions at 33 CFR 325.4. If a state objected to the Corps' CZMA 
consistency determination for the issuance of an NWP, then the activity 
is not authorized by that NWP unless and until a project proponent 
obtains a consistency concurrence from the state or a presumption of 
concurrence occurs.
    The Corps' CZMA consistency determination only applied to NWP 
authorizations for activities that are within, or affect, any land, 
water uses or natural resources of a state's coastal zone. A state's 
coastal zone management plan may identify geographic areas in federal 
waters on the outer continental shelf, where activities that require 
federal permits conducted in those areas require consistency 
certification from the state because they affect any coastal use or 
resource. In its coastal zone management plan, the state may include an 
outer continental shelf plan. An outer continental shelf plan is a plan 
for ``the exploration or development of, or production from, any area 
which has been leased under the Outer Continental Shelf Lands Act'' and 
regulations issued under that Act (see 15 CFR 930.73). Activities 
requiring federal permits that are not identified in the state's outer 
continental shelf plan are considered unlisted activities. If the state 
wants to review an unlisted activity under the CZMA, then it must 
notify the applicant and the federal permitting agency that it intends 
to review the proposed activity. Nationwide permit authorizations for 
activities that are not within or would not affect a state's coastal 
zone do not require the Corps' CZMA consistency determinations and thus 
are not contingent on a State's concurrence with the Corps' consistency 
determinations.
    If a state objects to the Corps' CZMA consistency determination for 
an NWP, then the affected activities are not authorized by an NWP 
within that state until a project proponent obtains an individual CZMA 
consistency concurrence, or sufficient time (i.e., six months) passes 
after requesting a CZMA consistency concurrence for the applicant to 
make a presumption of consistency, as provided in 33 CFR 330.4(d)(6). 
However, when applicants request NWP verifications for activities that 
require individual consistency concurrences, and the Corps determines 
that those activities meet the terms and conditions of the NWP, in 
accordance with 33 CFR 330.6(a)(3)(iii) the Corps will issue 
provisional NWP verification letters. The provisional verification 
letter will contain general and regional conditions as well as any 
activity-specific conditions the Corps determines are necessary for the 
NWP authorization. The Corps will notify the applicant that he or she 
must obtain an activity-specific CZMA consistency concurrence or a 
presumption of concurrence before he or she is authorized to start work 
in waters of the United States. That is, NWP authorization will be 
contingent upon obtaining the necessary CZMA consistency concurrence 
from the state, or a presumption of concurrence. Anyone wanting to 
perform such activities where pre-construction notification to the 
Corps is not required has an affirmative responsibility to present a 
CZMA consistency determination to the appropriate state agency for 
concurrence. Upon concurrence with such CZMA consistency determinations 
by the state, the activity would be authorized by the NWP. This 
requirement is provided at 33 CFR 330.4(d).
    Comments on compliance with the Coastal Zone Management Act for the 
2020 Proposal are addressed in the final rule published in the January 
13, 2021, issue of the Federal Register at 86 FR 2854.

IV. Economic Impact

    The NWPs are expected to increase the number of activities eligible 
for NWP authorization, and reduce the number of activities that require 
individual permits. The Corps estimates that the NWPs in this final 
rule will authorize 52 activities each year that would have otherwise 
required individual permits. For the combination

[[Page 73569]]

of this final rule with the final rule issued in January 2021, the 
Corps estimates that the 2021 NWPs will authorize 261 activities each 
year that would have otherwise required individual permits. While 
applying for a NWP may entail some burden (namely, in the form of a 
PCN, when applicable), by authorizing more activities by NWP, this 
proposal will reduce net burden for the regulated public. Specifically, 
increasing the number of activities that can be authorized by NWPs is 
expected to decrease compliance costs for permit applicants since, as 
discussed below, the compliance costs for obtaining NWP authorization 
are less than the compliance costs for obtaining individual permits. In 
addition, the NWPs can incentivize some project proponents to design 
their projects in such a way that they would qualify for a NWP thereby 
reducing impacts to jurisdictional waters and wetlands. In FY2018, the 
average time to receive an NWP verification was 45 days from the date 
the Corps district receives a complete PCN, compared to 264 days to 
receive a standard individual permit after receipt of a complete permit 
application (see table 1.2 of the regulatory impact analysis for this 
final rule, which is available in the www.regulations.gov docket 
(docket number COE-2020-0002)).
    As discussed in the Regulatory Impact Analysis for this rule, the 
Corps estimates that a permit applicant's compliance cost for obtaining 
NWP authorization in 2019$ ranges from $4,412 to $14,705 (Institute for 
Water Resources (2001),\5\ adjusted for inflation using the GDP 
deflator approach). The Corps estimates that a permit applicant's 
compliance costs for obtaining an individual permit for a proposed 
activity impacting up to 3 acres of wetland ranges from $17,646 to 
$35,293 in 2019$. Considering how the proposed NWPs will increase the 
number of activities authorized by an NWP each year, the Corps 
estimates that the 41 final NWPs, when compared with the 2017 NWPs, 
will decrease compliance costs for the regulated public by 
approximately $1.1 million (low end estimate) to $3.2 million per year 
(high end estimate). The Corps estimates that the 41 final NWPs in this 
final rule plus the 16 NWPs issued in the January 13, 2021, final rule, 
when compared with the 2017 NWPs, will decrease compliance costs for 
the regulated public by approximately $5.4 million (low end estimate) 
to $16.2 million per year (high end estimate). The Corps invited 
comment on the assumptions and methodology used to calculate the 
compliance costs and burden in general associated with the NWP and 
received no comments.
---------------------------------------------------------------------------

    \5\ Institute for Water Resources (IWR). 2001. Cost analysis for 
the 2000 issuance and modification of nationwide permits. Institute 
for Water Resources (Alexandria, VA). 29 pp. plus appendices.

------------------------------------------------------------------------
    Nationwide permit(s)             Changes         Anticipated impacts
------------------------------------------------------------------------
 NWP 14.............  Add ``driveways'' to  Increase number of
                               examples of           activities
                               activities            authorized by NWP;
                               authorized by this    decrease number of
                               NWP.                  activities
                                                     requiring
                                                     individual permits.
 NWP 27.............  Add coral             Increase number of
                               restoration and       activities
                               relocation to the     authorized by NWP;
                               list of examples of   decrease number of
                               authorized            activities
                               activities. Add       requiring
                               ``releases of         individual permits.
                               sediment from
                               reservoirs to
                               maintain sediment
                               transport
                               continuity to
                               restore downstream
                               habitats'' to the
                               list of examples of
                               authorized
                               activities.
 NWP 41.............  Add irrigation        Increased number of
                               ditches.              activities
                                                     authorized by NWP;
                                                     decreased number of
                                                     activities
                                                     requiring
                                                     individual permits.
 NWP 53.............  Change definition of  Slight increase in
                               low-head dam.         number of low-head
                                                     dams removed each
                                                     year.
 NWP 59.............  Issued new NWP to     Increased number of
                               authorize             activities
                               discharges of         authorized by NWP;
                               dredged or fill       decreased number of
                               material into         activities
                               waters of the         requiring
                               United States to      individual permits.
                               construct, expand,
                               and maintain water
                               reclamation and
                               reuse facilities.
------------------------------------------------------------------------

    Comments on the potential economic impacts of the 2020 Proposal, 
and the Corps' responses to those comments, are provided in the final 
rule published in the January 13, 2021, issue of the Federal Register 
at 86 FR 2855-2856.

V. Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31885, June 10, 1998) regarding plain language, 
this preamble is written using plain language. In writing this final 
rule, the Corps used the active voice, short sentences, and common 
everyday terms except for necessary technical terms.

Paperwork Reduction Act

    The paperwork burden associated with the NWP relates exclusively to 
the preparation of the PCN. While different NWPs require that different 
information be included in a PCN, the Corps estimates that a PCN takes, 
on average, 11 hours to complete. The 41 NWPs issued in this final rule 
would decrease the total paperwork burden associated with this program 
because the Corps estimates that under this final rule 47 more PCNs 
would be required each year. This increase is due to the number of 
activities that would be authorized under the 41 2021 NWPs that 
previously required individual permits. The paperwork burden associated 
with the 41 final NWPs is expected to increase by approximately 1,517 
hours per year from 198,397 hours to 199,914 hours.
    The following table summarizes the projected changes in paperwork 
burden from the 40 2017 NWPs to the 41 NWPs issued in this final rule.

----------------------------------------------------------------------------------------------------------------
                                                                                                     Estimated
                                                                                     Estimated      changes in
                                                   Number of NWP     Estimated      changes in       number of
                                   Number of NWP  activities not  changes in NWP     number of       standard
                                   PCNs per year  requiring PCNs   PCNs per year  authorized NWP    individual
                                                     per year                       activities      permits per
                                                                                                       year
----------------------------------------------------------------------------------------------------------------
40 2017 NWPs....................          18,127          29,265  ..............  ..............  ..............

[[Page 73570]]

 
41 2021 NWPs....................          18,164          29,280             +37             +52             -52
----------------------------------------------------------------------------------------------------------------

    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
For the Corps Regulatory Program under Section 10 of the Rivers and 
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements is 
maintained by the Corps of Engineers (OMB approval number 0710-0003).

Executive Order 12866

    This action is a significant regulatory action under Executive 
Order 12866 (58 FR 51735, October 4, 1993) that was submitted to the 
Office of Management and Budget (OMB) for review.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The issuance and modification of NWPs does not have 
federalism implications. The Corps does not believe that the final NWPs 
will have substantial direct effects on the states, on the relationship 
between the federal government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
These NWPs will not impose any additional substantive obligations on 
state or local governments. Therefore, Executive Order 13132 does not 
apply to these NWPs.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the issuance and 
modification of NWPs on small entities, a small entity is defined as: 
(1) A small business based on Small Business Administration size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise which is independently owned and operated and 
is not dominant in its field.
    The statutes under which the Corps issues, reissues, or modifies 
NWPs are Section 404(e) of the Clean Water Act (33 U.S.C. 1344(e)) and 
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403). Under 
section 404, DA permits are required for discharges of dredged or fill 
material into waters of the United States. Under section 10, DA permits 
are required for any structures or other work that affect the course, 
location, or condition of navigable waters of the United States. Small 
entities proposing to discharge dredged or fill material into waters of 
the United States and/or install structures or conduct work in 
navigable waters of the United States must obtain DA permits to conduct 
those activities, unless a particular activity is exempt from those 
permit requirements. Individual permits and general permits can be 
issued by the Corps to satisfy the permit requirements of these two 
statutes. Nationwide permits are a form of general permit issued by the 
Chief of Engineers.
    Nationwide permits automatically expire and become null and void if 
they are not modified or reissued within five years of their effective 
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean 
Water Act states that general permits, including NWPs, can be issued 
for no more than five years. If the 40 2017 NWPs that were not included 
in the final rule published in the January 13, 2021, issue of the 
Federal Register are not modified or reissued, they will expire on 
March 18, 2022, and small entities and other project proponents would 
be required to obtain alternative forms of DA permits (i.e., standard 
permits, letters of permission, or regional general permits) for 
activities involving discharges of dredged or fill material into waters 
of the United States or structures or work in navigable waters of the 
United States. Regional general permits that authorize similar 
activities as the NWPs may be available in some geographic areas, but 
small entities conducting regulated activities outside those geographic 
areas would have to obtain individual permits for activities that 
require DA permits.
    When compared with the compliance costs for individual permits, 
most of the terms and conditions of the NWPs are expected to result in 
decreases in the costs of complying with the permit requirements of 
sections 10 and 404. The anticipated decrease in compliance cost 
results from the lower cost of obtaining NWP authorization instead of 
standard permits. Unlike standard permits, NWPs authorize activities 
without the requirement for public notice and comment on each proposed 
activity.
    Another requirement of Section 404(e) of the Clean Water Act is 
that general permits, including NWPs, authorize only those activities 
that result in no more than minimal adverse environmental effects, 
individually and cumulatively. The terms and conditions of the NWPs, 
such as acreage limits and the mitigation measures in some of the NWP 
general conditions, are imposed to ensure that the NWPs authorize only 
those activities that result in no more than minimal adverse effects on 
the aquatic environment and other public interest review factors.
    After considering the economic impacts of the NWPs on small 
entities, I certify that this action will not have a significant impact 
on a substantial number of small entities. Small entities may obtain 
required DA authorizations through the NWPs, in cases where there are 
applicable NWPs authorizing those activities and the proposed work will 
result in only minimal adverse effects on the aquatic environment and 
other public interest review factors. The terms and conditions of the 
revised NWPs will not impose substantially higher costs on small 
entities than those of the existing NWPs. If an NWP is not available to

[[Page 73571]]

authorize a particular activity, then another form of DA authorization, 
such as an individual permit or a regional general permit 
authorization, must be secured. However, as noted above, the Corps 
estimates an increase in the number of activities than can be 
authorized through NWPs, because the Corps made some modifications to 
the NWPs to authorize additional activities. Because those activities 
required authorization through other forms of DA authorization (e.g., 
individual permits or regional general permits) the Corps expects a 
concurrent decrease in the numbers of individual permit and regional 
general permit authorizations required for these activities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments, and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal 
mandates'' that may result in expenditures to state, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    The Corps has determined that the NWPs do not contain a federal 
mandate that may result in expenditures of $100 million or more for 
state, local, and tribal governments, in the aggregate, or the private 
sector in any one year. The NWPs are generally consistent with current 
agency practice, do not impose new substantive requirements and 
therefore do not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Therefore, this final rule is not subject to the requirements of 
Sections 202 and 205 of the UMRA. For the same reasons, the Corps has 
determined that the NWPs contain no regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, the 
issuance and modification of NWPs is not subject to the requirements of 
Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The NWPs are not subject to this Executive Order because they are 
not economically significant as defined in Executive Order 12866. In 
addition, the proposed NWPs do not concern an environmental health or 
safety risk that the Corps has reason to believe may have a 
disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Tribes, on the relationship between the federal government 
and the Tribes, or on the distribution of power and responsibilities 
between the federal government and Tribes.''
    The issuance of these NWPs is generally consistent with current 
agency practice and will not have substantial direct effects on tribal 
governments, on the relationship between the federal government and the 
tribes, or on the distribution of power and responsibilities between 
the federal government and tribes. Therefore, Executive Order 13175 
does not apply to this final rule. However, in the spirit of Executive 
Order 13175, the Corps specifically requested comments from tribal 
officials on the proposed rule. Their comments were fully considered 
during the preparation of this final rule. Each Corps district 
conducted government-to-government consultation with tribes, to 
identify regional conditions, other local NWP modifications to protect 
aquatic resources of interest to tribes, and coordination procedures 
with tribes, as part of the Corps' responsibility to protect tribal 
trust resources and fulfill its tribal trust responsibilities.
    Comments on compliance of the 2020 Proposal with E.O. 13175, and 
the Corps' responses to those comments, are provided in the final rule 
published in the January 13, 2021, issue of the Federal Register at 86 
FR 2858-2859.

Environmental Documentation

    A decision document has been prepared for each of the 41 NWPs being 
issued in this final rule. Each decision document includes an 
environmental assessment and public interest review determination. If 
an NWP authorizes discharges of dredged or fill material into waters of 
the United States, the decision document includes a 404(b)(1) 
Guidelines analysis. These decision documents are available at: 
www.regulations.gov (docket ID number COE-2020-0002). They are also 
available by contacting Headquarters, U.S. Army Corps of Engineers, 
Operations and Regulatory Community of Practice, 441 G Street NW, 
Washington, DC 20314-1000.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The Corps will submit a report containing the final 41 
NWPs and other required information to

[[Page 73572]]

the U.S. Senate, the U.S. House of Representatives, and the Government 
Accountability Office. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. The 41 NWPs are not a 
``major rule'' as defined by 5 U.S.C. 804(2), because they are not 
likely to result in (1) an annual effect on the economy of $100,000,000 
or more; (2) a major increase in costs or prices for consumers, 
individual industries, federal, state, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States-based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    In response to the 2020 Proposal, the Corps received one comment 
concerning environmental justice. One commenter said that the proposed 
NWPs would diminish protections for subsistence hunting and fishing 
rights for tribes, and that the proposed rule does not comply with E.O. 
12898. This commenter concluded that the final rule should not be 
issued.
    Activities authorized by the NWPs must comply with general 
condition 17, tribal rights. General condition 17 states that no NWP 
activity or its operation may impair reserved tribal rights, including, 
but not limited to, reserved water rights and treaty fishing and 
hunting rights. For the 2021 NWPs, Corps districts conducted 
consultation or coordination with tribes to identify regional 
conditions that protect reserved tribal rights and to develop 
coordination procedures for specific NWP activities to ensure that 
those activities do not impair reserved tribal rights.
    The NWPs are not expected to have any discriminatory effect or 
disproportionate negative impact on any community or group, and 
therefore are not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities. The NWPs can 
only be used to authorize activities that require DA authorization and 
result in no more than minimal individual and cumulative adverse 
environmental effects. The NWPs may be used by people who live in 
communities with environmental justice interests and undertake 
activities that require DA authorization. The NWPs are available in all 
communities to authorize discharges of dredged or fill material into 
waters of the United States and/or structures and work in navigable 
waters of the United States that result in no more than minimal 
individual and cumulative adverse environmental effects, as long as 
those NWPs have not been suspended or revoke by a division engineer on 
a regional basis. Those NWP activities may help provide goods and 
services (e.g., housing, energy, food production, internet access) that 
benefit members of communities with environmental justice interests.

Executive Order 13211

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy and has not otherwise been designated by 
the OIRA Administrator as a significant energy action.

VI. References

    A complete list of all references cited in this document is 
available on the internet at https://www.regulations.gov in docket 
number COE-2020-0002 or upon request from the U.S. Army Corps of 
Engineers (see FOR FURTHER INFORMATION CONTACT).

Authority

    The Corps is reissuing 40 existing NWPs and issuing one new NWP 
under the authority of Section 404(e) of the Clean Water Act (33 U.S.C. 
1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33 
U.S.C. 401 et seq.).

William H. Graham, Jr.,
Major General, U.S. Army, Deputy Commanding General for Civil and 
Emergency Operations.

A. Index of Nationwide Permits Issued in This Final Rule

1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities
28. Modifications of Existing Marinas
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
41. Reshaping Existing Drainage Ditches
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
49. Coal Remining Activities
53. Removal of Low-Head Dams
54. Living Shorelines
59. Water Reclamation and Reuse Facilities

B. Nationwide Permits

    1. Aids to Navigation. The placement of aids to navigation and 
regulatory markers that are approved by and installed in accordance 
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I, 
subchapter C, part 66). (Authority: Section 10 of the Rivers and 
Harbors Act of 1899 (Section 10)).
    2. Structures in Artificial Canals. Structures constructed in 
artificial canals within principally residential developments where the 
connection of the canal to a navigable water of the United States has 
been previously

[[Page 73573]]

authorized (see 33 CFR 322.5(g)). (Authority: Section 10).
    3. Maintenance. (a) The repair, rehabilitation, or replacement of 
any previously authorized, currently serviceable structure or fill, or 
of any currently serviceable structure or fill authorized by 33 CFR 
330.3, provided that the structure or fill is not to be put to uses 
differing from those uses specified or contemplated for it in the 
original permit or the most recently authorized modification. Minor 
deviations in the structure's configuration or filled area, including 
those due to changes in materials, construction techniques, 
requirements of other regulatory agencies, or current construction 
codes or safety standards that are necessary to make the repair, 
rehabilitation, or replacement are authorized. This NWP also authorizes 
the removal of previously authorized structures or fills. Any stream 
channel modification is limited to the minimum necessary for the 
repair, rehabilitation, or replacement of the structure or fill; such 
modifications, including the removal of material from the stream 
channel, must be immediately adjacent to the project. This NWP also 
authorizes the removal of accumulated sediment and debris within, and 
in the immediate vicinity of, the structure or fill. This NWP also 
authorizes the repair, rehabilitation, or replacement of those 
structures or fills destroyed or damaged by storms, floods, fire or 
other discrete events, provided the repair, rehabilitation, or 
replacement is commenced, or is under contract to commence, within two 
years of the date of their destruction or damage. In cases of 
catastrophic events, such as hurricanes or tornadoes, this two-year 
limit may be waived by the district engineer, provided the permittee 
can demonstrate funding, contract, or other similar delays.
    (b) This NWP also authorizes the removal of accumulated sediments 
and debris outside the immediate vicinity of existing structures (e.g., 
bridges, culverted road crossings, water intake structures, etc.). The 
removal of sediment is limited to the minimum necessary to restore the 
waterway in the vicinity of the structure to the approximate dimensions 
that existed when the structure was built, but cannot extend farther 
than 200 feet in any direction from the structure. This 200 foot limit 
does not apply to maintenance dredging to remove accumulated sediments 
blocking or restricting outfall and intake structures or to maintenance 
dredging to remove accumulated sediments from canals associated with 
outfall and intake structures. All dredged or excavated materials must 
be deposited and retained in an area that has no waters of the United 
States unless otherwise specifically approved by the district engineer 
under separate authorization.
    (c) This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to conduct the 
maintenance activity. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges of dredged 
or fill material, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. After conducting the 
maintenance activity, temporary fills must be removed in their entirety 
and the affected areas returned to pre-construction elevations. The 
areas affected by temporary fills must be revegetated, as appropriate.
    (d) This NWP does not authorize maintenance dredging for the 
primary purpose of navigation. This NWP does not authorize beach 
restoration. This NWP does not authorize new stream channelization or 
stream relocation projects.
    Notification: For activities authorized by paragraph (b) of this 
NWP, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 32). The pre-construction notification must include 
information regarding the original design capacities and configurations 
of the outfalls, intakes, small impoundments, and canals. (Authorities: 
Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the 
Clean Water Act (Sections 10 and 404)).
    Note: This NWP authorizes the repair, rehabilitation, or 
replacement of any previously authorized structure or fill that does 
not qualify for the Clean Water Act Section 404(f) exemption for 
maintenance.
    4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. Fish and wildlife harvesting devices and 
activities such as pound nets, crab traps, crab dredging, eel pots, 
lobster traps, duck blinds, and clam and oyster digging, fish 
aggregating devices, and small fish attraction devices such as open 
water fish concentrators (sea kites, etc.). This NWP does not authorize 
artificial reefs or impoundments and semi-impoundments of waters of the 
United States for the culture or holding of motile species such as 
lobster, or the use of covered oyster trays or clam racks. 
(Authorities: Sections 10 and 404).
    5. Scientific Measurement Devices. Devices, whose purpose is to 
measure and record scientific data, such as staff gages, tide and 
current gages, meteorological stations, water recording and biological 
observation devices, water quality testing and improvement devices, and 
similar structures. Small weirs and flumes constructed primarily to 
record water quantity and velocity are also authorized provided the 
discharge of dredged or fill material is limited to 25 cubic yards. 
Upon completion of the use of the device to measure and record 
scientific data, the measuring device and any other structures or fills 
associated with that device (e.g., foundations, anchors, buoys, lines, 
etc.) must be removed to the maximum extent practicable and the site 
restored to pre-construction elevations. (Authorities: Sections 10 and 
404).
    6. Survey Activities. Survey activities, such as core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other exploratory-type bore holes, exploratory trenching, soil surveys, 
sampling, sample plots or transects for wetland delineations, and 
historic resources surveys. For the purposes of this NWP, the term 
``exploratory trenching'' means mechanical land clearing of the upper 
soil profile to expose bedrock or substrate, for the purpose of mapping 
or sampling the exposed material. The area in which the exploratory 
trench is dug must be restored to its pre-construction elevation upon 
completion of the work and must not drain a water of the United States. 
In wetlands, the top 6 to 12 inches of the trench should normally be 
backfilled with topsoil from the trench. This NWP authorizes the 
construction of temporary pads, provided the discharge of dredged or 
fill material does not exceed 1/10-acre in waters of the U.S. 
Discharges of dredged or fill material and structures associated with 
the recovery of historic resources are not authorized by this NWP. 
Drilling and the discharge of excavated material from test wells for 
oil and gas exploration are not authorized by this NWP; the plugging of 
such wells is authorized. Fill placed for roads and other similar 
activities is not authorized by this NWP. The NWP does not authorize 
any permanent structures. The discharge of drilling mud and cuttings 
may require a permit under Section 402 of the Clean Water Act. 
(Authorities: Sections 10 and 404).

[[Page 73574]]

    7. Outfall Structures and Associated Intake Structures. Activities 
related to the construction or modification of outfall structures and 
associated intake structures, where the effluent from the outfall is 
authorized, conditionally authorized, or specifically exempted by, or 
otherwise in compliance with regulations issued under the National 
Pollutant Discharge Elimination System Program (Section 402 of the 
Clean Water Act). The construction of intake structures is not 
authorized by this NWP unless they are directly associated with an 
authorized outfall structure.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authorities: Sections 10 and 404).
    8. Oil and Gas Structures on the Outer Continental Shelf. 
Structures for the exploration, production, and transportation of oil, 
gas, and minerals on the outer continental shelf within areas leased 
for such purposes by the Department of the Interior, Bureau of Ocean 
Energy Management. Such structures shall not be placed within the 
limits of any designated shipping safety fairway or traffic separation 
scheme, except temporary anchors that comply with the fairway 
regulations in 33 CFR 322.5(l). The district engineer will review such 
proposals to ensure compliance with the provisions of the fairway 
regulations in 33 CFR 322.5(l). Any Corps review under this NWP will be 
limited to the effects on navigation and national security in 
accordance with 33 CFR 322.5(f), as well as 33 CFR 322.5(l) and 33 CFR 
part 334. Such structures will not be placed in established danger 
zones or restricted areas as designated in 33 CFR part 334, nor will 
such structures be permitted in EPA or Corps-designated dredged 
material disposal areas.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authority: Section 10).
    9. Structures in Fleeting and Anchorage Areas. Structures, buoys, 
floats, and other devices placed within anchorage or fleeting areas to 
facilitate moorage of vessels where such areas have been established 
for that purpose. (Authority: Section 10).
    10. Mooring Buoys. Non-commercial, single-boat, mooring buoys. 
(Authority: Section 10).
    11. Temporary Recreational Structures. Temporary buoys, markers, 
small floating docks, and similar structures placed for recreational 
use during specific events such as water skiing competitions and boat 
races or seasonal use, provided that such structures are removed within 
30 days after use has been discontinued. At Corps of Engineers 
reservoirs, the reservoir managers must approve each buoy or marker 
individually. (Authority: Section 10).
    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion control or prevention, such as vegetative stabilization, 
bioengineering, sills, rip rap, revetment, gabion baskets, stream 
barbs, and bulkheads, or combinations of bank stabilization techniques, 
provided the activity meets all of the following criteria:
    (a) No material is placed in excess of the minimum needed for 
erosion protection;
    (b) The activity is no more than 500 feet in length along the bank, 
unless the district engineer waives this criterion by making a written 
determination concluding that the discharge of dredged or fill material 
will result in no more than minimal adverse environmental effects (an 
exception is for bulkheads--the district engineer cannot issue a waiver 
for a bulkhead that is greater than 1,000 feet in length along the 
bank);
    (c) The activity will not exceed an average of one cubic yard per 
running foot, as measured along the length of the treated bank, below 
the plane of the ordinary high water mark or the high tide line, unless 
the district engineer waives this criterion by making a written 
determination concluding that the discharge of dredged or fill material 
will result in no more than minimal adverse environmental effects;
    (d) The activity does not involve discharges of dredged or fill 
material into special aquatic sites, unless the district engineer 
waives this criterion by making a written determination concluding that 
the discharge of dredged or fill material will result in no more than 
minimal adverse environmental effects;
    (e) No material is of a type, or is placed in any location, or in 
any manner, that will impair surface water flow into or out of any 
waters of the United States;
    (f) No material is placed in a manner that will be eroded by normal 
or expected high flows (properly anchored native trees and treetops may 
be used in low energy areas);
    (g) Native plants appropriate for current site conditions, 
including salinity, must be used for bioengineering or vegetative bank 
stabilization;
    (h) The activity is not a stream channelization activity; and
    (i) The activity must be properly maintained, which may require 
repairing it after severe storms or erosion events. This NWP authorizes 
those maintenance and repair activities if they require authorization.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to construct the bank 
stabilization activity. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges of dredged 
or fill material, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. After construction, 
temporary fills must be removed in their entirety and the affected 
areas returned to pre-construction elevations. The areas affected by 
temporary fills must be revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the bank stabilization activity: (1) Involves discharges of dredged 
or fill material into special aquatic sites; or (2) is in excess of 500 
feet in length; or (3) will involve the discharge of dredged or fill 
material of greater than an average of one cubic yard per running foot 
as measured along the length of the treated bank, below the plane of 
the ordinary high water mark or the high tide line. (See general 
condition 32.) (Authorities: Sections 10 and 404)
    Note: In coastal waters and the Great Lakes, living shorelines may 
be an appropriate option for bank stabilization, and may be authorized 
by NWP 54.
    14. Linear Transportation Projects. Activities required for 
crossings of waters of the United States associated with the 
construction, expansion, modification, or improvement of linear 
transportation projects (e.g., roads, highways, railways, trails, 
driveways, airport runways, and taxiways) in waters of the United 
States. For linear transportation projects in non-tidal waters, the 
discharge of dredged or fill material cannot cause the loss of greater 
than \1/2\-acre of waters of the United States. For linear 
transportation projects in tidal waters, the discharge of dredged or 
fill material cannot cause the loss of greater than \1/3\-acre of 
waters of the United States. Any stream channel modification, including 
bank stabilization, is limited to the minimum

[[Page 73575]]

necessary to construct or protect the linear transportation project; 
such modifications must be in the immediate vicinity of the project.
    This NWP also authorizes temporary structures, fills, and work, 
including the use of temporary mats, necessary to construct the linear 
transportation project. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges of dredged 
or fill material, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. Temporary fills must be 
removed in their entirety and the affected areas returned to pre-
construction elevations. The areas affected by temporary fills must be 
revegetated, as appropriate.
    This NWP cannot be used to authorize non-linear features commonly 
associated with transportation projects, such as vehicle maintenance or 
storage buildings, parking lots, train stations, or aircraft hangars.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The loss of waters of the United States exceeds \1/10\ acre; or 
(2) there is a discharge of dredged or fill material in a special 
aquatic site, including wetlands. (See general condition 32.) 
(Authorities: Sections 10 and 404).
    Note 1: For linear transportation projects crossing a single 
waterbody more than one time at separate and distant locations, or 
multiple waterbodies at separate and distant locations, each crossing 
is considered a single and complete project for purposes of NWP 
authorization. Linear transportation projects must comply with 33 CFR 
330.6(d).
    Note 2: Some discharges of dredged or fill material for the 
construction of farm roads or forest roads, or temporary roads for 
moving mining equipment, may qualify for an exemption under Section 
404(f) of the Clean Water Act (see 33 CFR 323.4).
    Note 3: For NWP 14 activities that require pre-construction 
notification, the PCN must include any other NWP(s), regional general 
permit(s), or individual permit(s) used or intended to be used to 
authorize any part of the proposed project or any related activity, 
including other separate and distant crossings that require Department 
of the Army authorization but do not require pre-construction 
notification (see paragraph (b)(4) of general condition 32). The 
district engineer will evaluate the PCN in accordance with Section D, 
``District Engineer's Decision.'' The district engineer may require 
mitigation to ensure that the authorized activity results in no more 
than minimal individual and cumulative adverse environmental effects 
(see general condition 23).
    15. U.S. Coast Guard Approved Bridges. Discharges of dredged or 
fill material incidental to the construction of a bridge across 
navigable waters of the United States, including cofferdams, abutments, 
foundation seals, piers, and temporary construction and access fills, 
provided the construction of the bridge structure has been authorized 
by the U.S. Coast Guard under Section 9 of the Rivers and Harbors Act 
of 1899 or other applicable laws. Causeways and approach fills are not 
included in this NWP and will require a separate Clean Water Act 
Section 404 permit. (Authority: Section 404 of the Clean Water Act 
(Section 404)).
    16. Return Water From Upland Contained Disposal Areas. Return water 
from an upland contained dredged material disposal area. The return 
water from a contained disposal area is administratively defined as a 
discharge of dredged material by 33 CFR 323.2(d), even though the 
disposal itself occurs in an area that has no waters of the United 
States and does not require a section 404 permit. This NWP satisfies 
the technical requirement for a section 404 permit for the return water 
where the quality of the return water is controlled by the state 
through the Clean Water Act Section 401 certification procedures. The 
dredging activity may require a section 404 permit (33 CFR 323.2(d)), 
and will require a section 10 permit if located in navigable waters of 
the United States. (Authority: Section 404).
    17. Hydropower Projects. Discharges of dredged or fill material 
associated with hydropower projects having: (a) Less than 10,000 kW of 
total generating capacity at existing reservoirs, where the project, 
including the fill, is licensed by the Federal Energy Regulatory 
Commission (FERC) under the Federal Power Act of 1920, as amended; or 
(b) a licensing exemption granted by the FERC pursuant to Section 408 
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and 
Section 30 of the Federal Power Act, as amended.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authority: Section 404)
    18. Minor Discharges. Minor discharges of dredged or fill material 
into all waters of the United States, provided the activity meets all 
of the following criteria:
    (a) The quantity of discharged dredged or fill material and the 
volume of area excavated do not exceed 25 cubic yards below the plane 
of the ordinary high water mark or the high tide line;
    (b) The discharge of dredged or fill material will not cause the 
loss of more than \1/10\ acre of waters of the United States; and
    (c) The discharge of dredged or fill material is not placed for the 
purpose of a stream diversion.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge of dredged or fill material or the volume of area 
excavated exceeds 10 cubic yards below the plane of the ordinary high 
water mark or the high tide line, or (2) the discharge of dredged or 
fill material is in a special aquatic site, including wetlands. (See 
general condition 32.) (Authorities: Sections 10 and 404).
    19. Minor Dredging. Dredging of no more than 25 cubic yards below 
the plane of the ordinary high water mark or the mean high water mark 
from navigable waters of the United States (i.e., section 10 waters). 
This NWP does not authorize the dredging or degradation through 
siltation of coral reefs, sites that support submerged aquatic 
vegetation (including sites where submerged aquatic vegetation is 
documented to exist but may not be present in a given year), anadromous 
fish spawning areas, or wetlands, or the connection of canals or other 
artificial waterways to navigable waters of the United States (see 33 
CFR 322.5(g)). All dredged material must be deposited and retained in 
an area that has no waters of the United States unless otherwise 
specifically approved by the district engineer under separate 
authorization. (Authorities: Sections 10 and 404).
    20. Response Operations for Oil or Hazardous Substances. Activities 
conducted in response to a discharge or release of oil or hazardous 
substances that are subject to the National Oil and Hazardous 
Substances Pollution Contingency Plan (40 CFR part 300) including 
containment, cleanup, and mitigation efforts, provided that the 
activities are done under either: (1) The Spill Control and 
Countermeasure Plan required by 40 CFR 112.3; (2) the direction or 
oversight of the federal on-scene coordinator designated by 40 CFR part 
300; or (3) any approved existing state, regional or local contingency 
plan provided that the Regional Response

[[Page 73576]]

Team (if one exists in the area) concurs with the proposed response 
efforts. This NWP also authorizes activities required for the cleanup 
of oil releases in waters of the United States from electrical 
equipment that are governed by EPA's polychlorinated biphenyl spill 
response regulations at 40 CFR part 761. This NWP also authorizes the 
use of temporary structures and fills in waters of the U.S. for spill 
response training exercises. (Authorities: Sections 10 and 404).
    22. Removal of Vessels. Temporary structures or minor discharges of 
dredged or fill material required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-made obstructions 
to navigation. This NWP does not authorize maintenance dredging, shoal 
removal, or riverbank snagging.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The vessel is listed or eligible for listing in the National 
Register of Historic Places; or (2) the activity is conducted in a 
special aquatic site, including coral reefs and wetlands. (See general 
condition 32.) If the vessel is listed or eligible for listing in the 
National Register of Historic Places, the permittee cannot commence the 
activity until informed by the district engineer that compliance with 
the ``Historic Properties'' general condition is completed. 
(Authorities: Sections 10 and 404).
    Note 1: Intentional ocean disposal of vessels at sea requires a 
permit from the U.S. EPA under the Marine Protection, Research and 
Sanctuaries Act, which specifies that ocean disposal should only be 
pursued when land-based alternatives are not available. If a Department 
of the Army permit is required for vessel disposal in waters of the 
United States, separate authorization will be required.
    Note 2: Compliance with general condition 18, Endangered Species, 
and general condition 20, Historic Properties, is required for all 
NWPs. The concern with historic properties is emphasized in the 
notification requirements for this NWP because of the possibility that 
shipwrecks may be historic properties.
    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where:
    (a) That agency or department has determined, pursuant to the 
Council on Environmental Quality's implementing regulations for the 
National Environmental Policy Act (40 CFR part 1500 et seq.), that the 
activity is categorically excluded from the requirement to prepare an 
environmental impact statement or environmental assessment analysis, 
because it is included within a category of actions which neither 
individually nor cumulatively have a significant effect on the human 
environment; and
    (b) The Office of the Chief of Engineers (Attn: CECW-CO) has 
concurred with that agency's or department's determination that the 
activity is categorically excluded and approved the activity for 
authorization under NWP 23.
    The Office of the Chief of Engineers may require additional 
conditions, including pre-construction notification, for authorization 
of an agency's categorical exclusions under this NWP.
    Notification: Certain categorical exclusions approved for 
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing 
the activity (see general condition 32). The activities that require 
pre-construction notification are listed in the appropriate Regulatory 
Guidance Letter(s). (Authorities: Sections 10 and 404).
    Note: The agency or department may submit an application for an 
activity believed to be categorically excluded to the Office of the 
Chief of Engineers (Attn: CECW-CO). Prior to approval for authorization 
under this NWP of any agency's activity, the Office of the Chief of 
Engineers will solicit public comment. As of the date of issuance of 
this NWP, agencies with approved categorical exclusions are: the Bureau 
of Reclamation, Federal Highway Administration, and U.S. Coast Guard. 
Activities approved for authorization under this NWP as of the date of 
this notice are found in Corps Regulatory Guidance Letter 05-07. Any 
future approved categorical exclusions will be announced in Regulatory 
Guidance Letters and posted on this same website.
    24. Indian Tribe or State Administered Section 404 Programs. Any 
activity permitted by a state or Indian Tribe administering its own 
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is 
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899. 
(Authority: Section 10).
    Note 1: As of the date of the promulgation of this NWP, only 
Florida, New Jersey and Michigan administer their own Clean Water Act 
Section 404 permit programs.
    Note 2: Those activities that do not involve an Indian Tribe or 
State Clean Water Act Section 404 permit are not included in this NWP, 
but certain structures will be exempted by Section 154 of Public Law 
94-587, 90 Stat. 2917 (33 U.S.C. 591) (see 33 CFR 322.4(b)).
    25. Structural Discharges. Discharges of dredged or fill material 
such as concrete, sand, rock, etc., into tightly sealed forms or cells 
where the material will be used as a structural member for standard 
pile supported structures, such as bridges, transmission line footings, 
and walkways, or for general navigation, such as mooring cells, 
including the excavation of bottom material from within the form prior 
to the discharge of concrete, sand, rock, etc. This NWP does not 
authorize filled structural members that would support buildings, 
building pads, homes, house pads, parking areas, storage areas and 
other such structures. The structure itself may require a separate 
section 10 permit if located in navigable waters of the United States. 
(Authority: Section 404).
    27. Aquatic Habitat Restoration, Enhancement, and Establishment 
Activities. Activities in waters of the United States associated with 
the restoration, enhancement, and establishment of tidal and non-tidal 
wetlands and riparian areas, the restoration and enhancement of non-
tidal streams and other non-tidal open waters, and the rehabilitation 
or enhancement of tidal streams, tidal wetlands, and tidal open waters, 
provided those activities result in net increases in aquatic resource 
functions and services.
    To be authorized by this NWP, the aquatic habitat restoration, 
enhancement, or establishment activity must be planned, designed, and 
implemented so that it results in aquatic habitat that resembles an 
ecological reference. An ecological reference may be based on the 
characteristics of one or more intact aquatic habitats or riparian 
areas of the same type that exist in the region. An ecological 
reference may be based on a conceptual model developed from regional 
ecological knowledge of the target aquatic habitat type or riparian 
area.
    To the extent that a Corps permit is required, activities 
authorized by this NWP include, but are not limited to the removal of 
accumulated sediments; releases of sediment from reservoirs to maintain 
sediment transport continuity to restore downstream habitats; the 
installation, removal, and maintenance of small water control 
structures, dikes, and berms, as well as discharges of dredged or fill 
material to restore appropriate stream channel configurations after 
small water control structures, dikes, and berms are

[[Page 73577]]

removed; the installation of current deflectors; the enhancement, 
rehabilitation, or re-establishment of riffle and pool stream 
structure; the placement of in-stream habitat structures; modifications 
of the stream bed and/or banks to enhance, rehabilitate, or re-
establish stream meanders; the removal of stream barriers, such as 
undersized culverts, fords, and grade control structures; the 
backfilling of artificial channels; the removal of existing drainage 
structures, such as drain tiles, and the filling, blocking, or 
reshaping of drainage ditches to restore wetland hydrology; the 
installation of structures or fills necessary to restore or enhance 
wetland or stream hydrology; the construction of small nesting islands; 
the construction of open water areas; the construction of oyster 
habitat over unvegetated bottom in tidal waters; coral restoration or 
relocation activities; shellfish seeding; activities needed to 
reestablish vegetation, including plowing or discing for seed bed 
preparation and the planting of appropriate wetland species; re-
establishment of submerged aquatic vegetation in areas where those 
plant communities previously existed; re-establishment of tidal 
wetlands in tidal waters where those wetlands previously existed; 
mechanized land clearing to remove non-native invasive, exotic, or 
nuisance vegetation; and other related activities. Only native plant 
species should be planted at the site.
    This NWP authorizes the relocation of non-tidal waters, including 
non-tidal wetlands and streams, on the project site provided there are 
net increases in aquatic resource functions and services.
    Except for the relocation of non-tidal waters on the project site, 
this NWP does not authorize the conversion of a stream or natural 
wetlands to another aquatic habitat type (e.g., the conversion of a 
stream to wetland or vice versa) or uplands. Changes in wetland plant 
communities that occur when wetland hydrology is more fully restored 
during wetland rehabilitation activities are not considered a 
conversion to another aquatic habitat type. This NWP does not authorize 
stream channelization. This NWP does not authorize the relocation of 
tidal waters or the conversion of tidal waters, including tidal 
wetlands, to other aquatic uses, such as the conversion of tidal 
wetlands into open water impoundments.
    Compensatory mitigation is not required for activities authorized 
by this NWP since these activities must result in net increases in 
aquatic resource functions and services.
    Reversion. For enhancement, restoration, and establishment 
activities conducted: (1) In accordance with the terms and conditions 
of a binding stream or wetland enhancement or restoration agreement, or 
a wetland establishment agreement, between the landowner and the U.S. 
Fish and Wildlife Service (FWS), the Natural Resources Conservation 
Service (NRCS), the Farm Service Agency (FSA), the National Marine 
Fisheries Service (NMFS), the National Ocean Service (NOS), U.S. Forest 
Service (USFS), or their designated state cooperating agencies; (2) as 
voluntary wetland restoration, enhancement, and establishment actions 
documented by the NRCS or USDA Technical Service Provider pursuant to 
NRCS Field Office Technical Guide standards; or (3) on reclaimed 
surface coal mine lands, in accordance with a Surface Mining Control 
and Reclamation Act permit issued by the Office of Surface Mining 
Reclamation and Enforcement (OSMRE) or the applicable state agency, 
this NWP also authorizes any future discharge of dredged or fill 
material associated with the reversion of the area to its documented 
prior condition and use (i.e., prior to the restoration, enhancement, 
or establishment activities). The reversion must occur within five 
years after expiration of a limited term wetland restoration or 
establishment agreement or permit, and is authorized in these 
circumstances even if the discharge of dredged or fill material occurs 
after this NWP expires. The five-year reversion limit does not apply to 
agreements without time limits reached between the landowner and the 
FWS, NRCS, FSA, NMFS, NOS, USFS, or an appropriate state cooperating 
agency. This NWP also authorizes discharges of dredged or fill material 
in waters of the United States for the reversion of wetlands that were 
restored, enhanced, or established on prior-converted cropland or on 
uplands, in accordance with a binding agreement between the landowner 
and NRCS, FSA, FWS, or their designated state cooperating agencies 
(even though the restoration, enhancement, or establishment activity 
did not require a section 404 permit). The prior condition will be 
documented in the original agreement or permit, and the determination 
of return to prior conditions will be made by the Federal agency or 
appropriate state agency executing the agreement or permit. Before 
conducting any reversion activity, the permittee or the appropriate 
Federal or state agency must notify the district engineer and include 
the documentation of the prior condition. Once an area has reverted to 
its prior physical condition, it will be subject to whatever the Corps 
Regulatory requirements are applicable to that type of land at the 
time. The requirement that the activity results in a net increase in 
aquatic resource functions and services does not apply to reversion 
activities meeting the above conditions. Except for the activities 
described above, this NWP does not authorize any future discharge of 
dredged or fill material associated with the reversion of the area to 
its prior condition. In such cases a separate permit would be required 
for any reversion.
    Reporting. For those activities that do not require pre-
construction notification, the permittee must submit to the district 
engineer a copy of: (1) The binding stream enhancement or restoration 
agreement or wetland enhancement, restoration, or establishment 
agreement, or a project description, including project plans and 
location map; (2) the NRCS or USDA Technical Service Provider 
documentation for the voluntary stream enhancement or restoration 
action or wetland restoration, enhancement, or establishment action; or 
(3) the SMCRA permit issued by OSMRE or the applicable state agency. 
The report must also include information on baseline ecological 
conditions on the project site, such as a delineation of wetlands, 
streams, and/or other aquatic habitats. These documents must be 
submitted to the district engineer at least 30 days prior to commencing 
activities in waters of the United States authorized by this NWP.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing any activity 
(see general condition 32), except for the following activities:
    (1) Activities conducted on non-Federal public lands and private 
lands, in accordance with the terms and conditions of a binding stream 
enhancement or restoration agreement or wetland enhancement, 
restoration, or establishment agreement between the landowner and the 
FWS, NRCS, FSA, NMFS, NOS, USFS or their designated state cooperating 
agencies;
    (2) Activities conducted in accordance with the terms and 
conditions of a binding coral restoration or relocation agreement 
between the project proponent and the NMFS or any of its designated 
state cooperating agencies;
    (3) Voluntary stream or wetland restoration or enhancement action, 
or wetland establishment action, documented by the NRCS or USDA 
Technical Service Provider pursuant to

[[Page 73578]]

NRCS Field Office Technical Guide standards; or
    (4) The reclamation of surface coal mine lands, in accordance with 
an SMCRA permit issued by the OSMRE or the applicable state agency.
    However, the permittee must submit a copy of the appropriate 
documentation to the district engineer to fulfill the reporting 
requirement. (Authorities: Sections 10 and 404).
    Note: This NWP can be used to authorize compensatory mitigation 
projects, including mitigation banks and in-lieu fee projects. However, 
this NWP does not authorize the reversion of an area used for a 
compensatory mitigation project to its prior condition, since 
compensatory mitigation is generally intended to be permanent.
    28. Modifications of Existing Marinas. Reconfiguration of existing 
docking facilities within an authorized marina area. No dredging, 
additional slips, dock spaces, or expansion of any kind within waters 
of the United States is authorized by this NWP. (Authority: Section 
10).
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material into non-tidal waters of the United States and 
maintenance activities that are associated with moist soil management 
for wildlife for the purpose of continuing ongoing, site-specific, 
wildlife management activities where soil manipulation is used to 
manage habitat and feeding areas for wildlife. Such activities include, 
but are not limited to, plowing or discing to impede succession, 
preparing seed beds, or establishing fire breaks. Sufficient riparian 
areas must be maintained adjacent to all open water bodies, including 
streams, to preclude water quality degradation due to erosion and 
sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, or similar features associated 
with the management areas. The activity must not result in a net loss 
of aquatic resource functions and services. This NWP does not authorize 
the conversion of wetlands to uplands, impoundments, or other open 
water bodies. (Authority: Section 404).
    Note: The repair, maintenance, or replacement of existing water 
control structures or the repair or maintenance of dikes may be 
authorized by NWP 3. Some such activities may qualify for an exemption 
under Section 404(f) of the Clean Water Act (see 33 CFR 323.4).
    31. Maintenance of Existing Flood Control Facilities. Discharges of 
dredged or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, levees, and channels that: (i) Were 
previously authorized by the Corps by individual permit, general 
permit, or 33 CFR 330.3, or did not require a permit at the time they 
were constructed, or (ii) were constructed by the Corps and transferred 
to a non-Federal sponsor for operation and maintenance. Activities 
authorized by this NWP are limited to those resulting from maintenance 
activities that are conducted within the ``maintenance baseline,'' as 
described in the definition below. Discharges of dredged or fill 
materials associated with maintenance activities in flood control 
facilities in any watercourse that have previously been determined to 
be within the maintenance baseline are authorized under this NWP. To 
the extent that a Corps permit is required, this NWP authorizes the 
removal of vegetation from levees associated with the flood control 
project. This NWP does not authorize the removal of sediment and 
associated vegetation from natural water courses except when these 
activities have been included in the maintenance baseline. All dredged 
and excavated material must be deposited and retained in an area that 
has no waters of the United States unless otherwise specifically 
approved by the district engineer under separate authorization. Proper 
sediment controls must be used.
    Maintenance Baseline: The maintenance baseline is a description of 
the physical characteristics (e.g., depth, width, length, location, 
configuration, or design flood capacity, etc.) of a flood control 
project within which maintenance activities are normally authorized by 
NWP 31, subject to any case-specific conditions required by the 
district engineer. The district engineer will approve the maintenance 
baseline based on the approved or constructed capacity of the flood 
control facility, whichever is smaller, including any areas where there 
are no constructed channels but which are part of the facility. The 
prospective permittee will provide documentation of the physical 
characteristics of the flood control facility (which will normally 
consist of as-built or approved drawings) and documentation of the 
approved and constructed design capacities of the flood control 
facility. If no evidence of the constructed capacity exists, the 
approved capacity will be used. The documentation will also include 
best management practices to ensure that the adverse environmental 
impacts caused by the maintenance activities are no more than minimal, 
especially in maintenance areas where there are no constructed 
channels. (The Corps may request maintenance records in areas where 
there has not been recent maintenance.) Revocation or modification of 
the final determination of the maintenance baseline can only be done in 
accordance with 33 CFR 330.5. Except in emergencies as described below, 
this NWP cannot be used until the district engineer approves the 
maintenance baseline and determines the need for mitigation and any 
regional or activity-specific conditions. Once determined, the 
maintenance baseline will remain valid for any subsequent reissuance of 
this NWP. This NWP does not authorize maintenance of a flood control 
facility that has been abandoned. A flood control facility will be 
considered abandoned if it has operated at a significantly reduced 
capacity without needed maintenance being accomplished in a timely 
manner. A flood control facility will not be considered abandoned if 
the prospective permittee is in the process of obtaining other 
authorizations or approvals required for maintenance activities and is 
experiencing delays in obtaining those authorizations or approvals.
    Mitigation: The district engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that the maintenance baseline is approved. Such one-
time mitigation will be required when necessary to ensure that adverse 
environmental effects are no more than minimal, both individually and 
cumulatively. Such mitigation will only be required once for any 
specific reach of a flood control project. However, if one-time 
mitigation is required for impacts associated with maintenance 
activities, the district engineer will not delay needed maintenance, 
provided the district engineer and the permittee establish a schedule 
for identification, approval, development, construction and completion 
of any such required mitigation. Once the one-time mitigation described 
above has been completed, or a determination made that mitigation is 
not required, no further mitigation will be required for maintenance 
activities within the maintenance baseline (see Note, below). In 
determining appropriate mitigation, the district engineer will give 
special consideration to natural water courses that have been included 
in the maintenance baseline and require mitigation and/or best 
management practices as appropriate.
    Emergency Situations: In emergency situations, this NWP may be used 
to authorize maintenance activities in flood control facilities for 
which no maintenance baseline has been

[[Page 73579]]

approved. Emergency situations are those which would result in an 
unacceptable hazard to life, a significant loss of property, or an 
immediate, unforeseen, and significant economic hardship if action is 
not taken before a maintenance baseline can be approved. In such 
situations, the determination of mitigation requirements, if any, may 
be deferred until the emergency has been resolved. Once the emergency 
has ended, a maintenance baseline must be established expeditiously, 
and mitigation, including mitigation for maintenance conducted during 
the emergency, must be required as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer before any maintenance work is 
conducted (see general condition 32). The pre-construction notification 
may be for activity-specific maintenance or for maintenance of the 
entire flood control facility by submitting a five-year (or less) 
maintenance plan. The pre-construction notification must include a 
description of the maintenance baseline and the disposal site for 
dredged or excavated material. (Authorities: Sections 10 and 404)
    Note: If the maintenance baseline was approved by the district 
engineer under a prior version of NWP 31, and the district engineer 
imposed the one-time compensatory mitigation requirement on maintenance 
for a specific reach of a flood control project authorized by that 
prior version of NWP 31, during the period this version of NWP 31 is in 
effect, the district engineer will not require additional compensatory 
mitigation for maintenance activities authorized by this NWP in that 
specific reach of the flood control project.
    32. Completed Enforcement Actions. Any structure, work, or 
discharge of dredged or fill material remaining in place or undertaken 
for mitigation, restoration, or environmental benefit in compliance 
with either:
    (i) The terms of a final written Corps non-judicial settlement 
agreement resolving a violation of Section 404 of the Clean Water Act 
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms 
of an EPA 309(a) order on consent resolving a violation of Section 404 
of the Clean Water Act, provided that:
    (a) The activities authorized by this NWP cannot adversely affect 
more than 5 acres of non-tidal waters or 1 acre of tidal waters;
    (b) The settlement agreement provides for environmental benefits, 
to an equal or greater degree, than the environmental detriments caused 
by the unauthorized activity that is authorized by this NWP; and
    (c) The district engineer issues a verification letter authorizing 
the activity subject to the terms and conditions of this NWP and the 
settlement agreement, including a specified completion date; or
    (ii) The terms of a final Federal court decision, consent decree, 
or settlement agreement resulting from an enforcement action brought by 
the United States under Section 404 of the Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899; or
    (iii) The terms of a final court decision, consent decree, 
settlement agreement, or non-judicial settlement agreement resulting 
from a natural resource damage claim brought by a trustee or trustees 
for natural resources (as defined by the National Contingency Plan at 
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 
of the Comprehensive Environmental Response, Compensation and Liability 
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002 
of the Oil Pollution Act of 1990, or the Park System Resource 
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is 
required.
    Compliance is a condition of the NWP itself; non-compliance of the 
terms and conditions of an NWP 32 authorization may result in an 
additional enforcement action (e.g., a Class I civil administrative 
penalty). Any authorization under this NWP is automatically revoked if 
the permittee does not comply with the terms of this NWP or the terms 
of the court decision, consent decree, or judicial/non-judicial 
settlement agreement. This NWP does not apply to any activities 
occurring after the date of the decision, decree, or agreement that are 
not for the purpose of mitigation, restoration, or environmental 
benefit. Before reaching any settlement agreement, the Corps will 
ensure compliance with the provisions of 33 CFR part 326 and 33 CFR 
330.6(d)(2) and (e). (Authorities: Sections 10 and 404)
    33. Temporary Construction, Access, and Dewatering. Temporary 
structures, work, and discharges of dredged or fill material, including 
cofferdams, necessary for construction activities or access fills or 
dewatering of construction sites, provided that the associated primary 
activity is authorized by the Corps of Engineers or the U.S. Coast 
Guard. This NWP also authorizes temporary structures, work, and 
discharges of dredged or fill material, including cofferdams, necessary 
for construction activities not otherwise subject to the Corps or U.S. 
Coast Guard permit requirements. Appropriate measures must be taken to 
maintain near normal downstream flows and to minimize flooding. Fill 
must consist of materials, and be placed in a manner, that will not be 
eroded by expected high flows. The use of dredged material may be 
allowed if the district engineer determines that it will not cause more 
than minimal adverse environmental effects. Following completion of 
construction, temporary fill must be entirely removed to an area that 
has no waters of the United States, dredged material must be returned 
to its original location, and the affected areas must be restored to 
pre-construction elevations. The affected areas must also be 
revegetated, as appropriate. This permit does not authorize the use of 
cofferdams to dewater wetlands or other aquatic areas to change their 
use. Structures left in place after construction is completed require a 
separate section 10 permit if located in navigable waters of the United 
States. (See 33 CFR part 322.)
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the activity is conducted in navigable waters of the United States 
(i.e., section 10 waters) (see general condition 32). The pre-
construction notification must include a restoration plan showing how 
all temporary fills and structures will be removed and the area 
restored to pre-project conditions. (Authorities: Sections 10 and 404)
    34. Cranberry Production Activities. Discharges of dredged or fill 
material for dikes, berms, pumps, water control structures or leveling 
of cranberry beds associated with expansion, enhancement, or 
modification activities at existing cranberry production operations. 
The cumulative total acreage of disturbance per cranberry production 
operation, including but not limited to, filling, flooding, ditching, 
or clearing, must not exceed 10 acres of waters of the United States, 
including wetlands. The activity must not result in a net loss of 
wetland acreage. This NWP does not authorize any discharge of dredged 
or fill material related to other cranberry production activities such 
as warehouses, processing facilities, or parking areas. For the 
purposes of this NWP, the cumulative total of 10 acres will be measured 
over the period that this NWP is valid.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer once during the period that this 
NWP is valid, and the NWP will then authorize discharges of dredge or 
fill material at an existing operation for the permit term, provided

[[Page 73580]]

the 10-acre limit is not exceeded. (See general condition 32.) 
(Authority: Section 404)
    35. Maintenance Dredging of Existing Basins. The removal of 
accumulated sediment for maintenance of existing marina basins, access 
channels to marinas or boat slips, and boat slips to previously 
authorized depths or controlling depths for ingress/egress, whichever 
is less. All dredged material must be deposited and retained in an area 
that has no waters of the United States unless otherwise specifically 
approved by the district engineer under separate authorization. Proper 
sediment controls must be used for the disposal site. (Authority: 
Section 10)
    36. Boat Ramps. Activities required for the construction, repair, 
or replacement of boat ramps, provided the activity meets all of the 
following criteria:
    (a) The discharge of dredged or fill material into waters of the 
United States does not exceed 50 cubic yards of concrete, rock, crushed 
stone or gravel into forms, or in the form of pre-cast concrete planks 
or slabs, unless the district engineer waives the 50 cubic yard limit 
by making a written determination concluding that the discharge of 
dredged or fill material will result in no more than minimal adverse 
environmental effects;
    (b) The boat ramp does not exceed 20 feet in width, unless the 
district engineer waives this criterion by making a written 
determination concluding that the discharge of dredged or fill material 
will result in no more than minimal adverse environmental effects;
    (c) The base material is crushed stone, gravel or other suitable 
material;
    (d) The excavation is limited to the area necessary for site 
preparation and all excavated material is removed to an area that has 
no waters of the United States; and,
    (e) No material is placed in special aquatic sites, including 
wetlands.
    The use of unsuitable material that is structurally unstable is not 
authorized. If dredging in navigable waters of the United States is 
necessary to provide access to the boat ramp, the dredging must be 
authorized by another NWP, a regional general permit, or an individual 
permit.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge of dredged or fill material into waters of the 
United States exceeds 50 cubic yards, or (2) the boat ramp exceeds 20 
feet in width. (See general condition 32.) (Authorities: Sections 10 
and 404)
    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    (a) The Natural Resources Conservation Service for a situation 
requiring immediate action under its emergency Watershed Protection 
Program (7 CFR part 624);
    (b) The U.S. Forest Service under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 2509.13);
    (c) The Department of the Interior for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual part 
620, Ch. 3);
    (d) The Office of Surface Mining, or states with approved programs, 
for abandoned mine land reclamation activities under Title IV of the 
Surface Mining Control and Reclamation Act (30 CFR subchapter R), where 
the activity does not involve coal extraction; or
    (e) The Farm Service Agency under its Emergency Conservation 
Program (7 CFR part 701).
    In general, the permittee should wait until the district engineer 
issues an NWP verification or 45 calendar days have passed before 
proceeding with the watershed protection and rehabilitation activity. 
However, in cases where there is an unacceptable hazard to life or a 
significant loss of property or economic hardship will occur, the 
emergency watershed protection and rehabilitation activity may proceed 
immediately and the district engineer will consider the information in 
the pre-construction notification and any comments received as a result 
of agency coordination to decide whether the NWP 37 authorization 
should be modified, suspended, or revoked in accordance with the 
procedures at 33 CFR 330.5.
    Notification: Except in cases where there is an unacceptable hazard 
to life or a significant loss of property or economic hardship will 
occur, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 32). (Authorities: Sections 10 and 404)
    38. Cleanup of Hazardous and Toxic Waste. Specific activities 
required to effect the containment, stabilization, or removal of 
hazardous or toxic waste materials that are performed, ordered, or 
sponsored by a government agency with established legal or regulatory 
authority. Court ordered remedial action plans or related settlements 
are also authorized by this NWP. This NWP does not authorize the 
establishment of new disposal sites or the expansion of existing sites 
used for the disposal of hazardous or toxic waste.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authorities: Sections 10 and 404)
    Note: Activities undertaken entirely on a Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) site 
by authority of CERCLA as approved or required by EPA, are not required 
to obtain permits under Section 404 of the Clean Water Act or Section 
10 of the Rivers and Harbors Act.
    41. Reshaping Existing Drainage and Irrigation Ditches. Discharges 
of dredged or fill material into non-tidal waters of the United States, 
excluding non-tidal wetlands adjacent to tidal waters, to modify the 
cross-sectional configuration of currently serviceable drainage and 
irrigation ditches constructed in waters of the United States, for the 
purpose of improving water quality by regrading the drainage or 
irrigation ditch with gentler slopes, which can reduce erosion, 
increase growth of vegetation, and increase uptake of nutrients and 
other substances by vegetation. The reshaping of the drainage ditch 
cannot increase drainage capacity beyond the original as-built capacity 
nor can it expand the area drained by the drainage ditch as originally 
constructed (i.e., the capacity of the drainage ditch must be the same 
as originally constructed and it cannot drain additional wetlands or 
other waters of the United States). Compensatory mitigation is not 
required because the work is designed to improve water quality.
    This NWP does not authorize the relocation of drainage or 
irrigation ditches constructed in waters of the United States; the 
location of the centerline of the reshaped drainage or irrigation ditch 
must be approximately the same as the location of the centerline of the 
original drainage or irrigation ditch. This NWP does not authorize 
stream channelization or stream relocation projects. (Authority: 
Section 404)
    45. Repair of Uplands Damaged by Discrete Events. This NWP 
authorizes discharges of dredged or fill material, including dredging 
or excavation, into all waters of the United States for activities 
associated with the restoration of upland areas damaged by storms, 
floods, or other discrete events. This NWP authorizes bank 
stabilization to protect the restored uplands. The restoration of the 
damaged areas, including any bank stabilization, must not exceed the 
contours, or ordinary high water mark, that existed before the damage 
occurred. The district engineer

[[Page 73581]]

retains the right to determine the extent of the pre-existing 
conditions and the extent of any restoration work authorized by this 
NWP. The work must commence, or be under contract to commence, within 
two years of the date of damage, unless this condition is waived in 
writing by the district engineer. This NWP cannot be used to reclaim 
lands lost to normal erosion processes over an extended period.
    This NWP does not authorize beach restoration or nourishment.
    Minor dredging is limited to the amount necessary to restore the 
damaged upland area and should not significantly alter the pre-existing 
bottom contours of the waterbody.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer (see general condition 32) within 
12 months of the date of the damage; for major storms, floods, or other 
discrete events, the district engineer may waive the 12-month limit for 
submitting a pre-construction notification if the permittee can 
demonstrate funding, contract, or other similar delays. The pre-
construction notification must include documentation, such as a recent 
topographic survey or photographs, to justify the extent of the 
proposed restoration. (Authorities: Sections 10 and 404)
    Note: The uplands themselves that are lost as a result of a storm, 
flood, or other discrete event can be replaced without a Clean Water 
Act Section 404 permit, if the uplands are restored to the ordinary 
high water mark (in non-tidal waters) or high tide line (in tidal 
waters). (See also 33 CFR 328.5.) This NWP authorizes discharges of 
dredged or fill material into waters of the United States associated 
with the restoration of uplands.
    46. Discharges in Ditches. Discharges of dredged or fill material 
into non-tidal ditches that are (1) constructed in uplands, (2) receive 
water from an area determined to be a water of the United States prior 
to the construction of the ditch, (3) divert water to an area 
determined to be a water of the United States prior to the construction 
of the ditch, and (4) determined to be waters of the United States. The 
discharge of dredged or fill material must not cause the loss of 
greater than one acre of waters of the United States.
    This NWP does not authorize discharges of dredged or fill material 
into ditches constructed in streams or other waters of the United 
States, or in streams that have been relocated in uplands. This NWP 
does not authorize discharges of dredged or fill material that increase 
the capacity of the ditch and drain those areas determined to be waters 
of the United States prior to construction of the ditch.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authority: Section 404)
    49. Coal Remining Activities. Discharges of dredged or fill 
material into non-tidal waters of the United States associated with the 
remining and reclamation of lands that were previously mined for coal. 
The activities must already be authorized, or they must currently be in 
process by the Department of the Interior Office of Surface Mining 
Reclamation and Enforcement, or by states with approved programs under 
Title IV or Title V of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). Areas previously mined include reclaimed mine sites, 
abandoned mine land areas, or lands under bond forfeiture contracts.
    As part of the project, the permittee may conduct new coal mining 
activities in conjunction with the remining activities when he or she 
clearly demonstrates to the district engineer that the overall mining 
plan will result in a net increase in aquatic resource functions. The 
Corps will consider the SMCRA agency's decision regarding the amount of 
currently undisturbed adjacent lands needed to facilitate the remining 
and reclamation of the previously mined area. The total area disturbed 
by new mining must not exceed 40 percent of the total acreage covered 
by both the remined area and the additional area necessary to carry out 
the reclamation of the previously mined area.
    Notification: The permittee must submit a pre-construction 
notification and a document describing how the overall mining plan will 
result in a net increase in aquatic resource functions to the district 
engineer and receive written authorization prior to commencing the 
activity. (See general condition 32.) (Authorities: Sections 10 and 
404)
    53. Removal of Low-Head Dams. Structures and work in navigable 
waters of the United States and discharges of dredged or fill material 
into waters of the United States associated with the removal of low-
head dams.
    For the purposes of this NWP, the term ``low-head dam'' is 
generally defined as a dam or weir built across a stream to pass flows 
from upstream over all, or nearly all, of the width of the dam crest 
and does not have a separate spillway or spillway gates, but it may 
have an uncontrolled spillway. The dam crest is the top of the dam from 
left abutment to right abutment. A low-head dam may have been built for 
a range of purposes (e.g., check dam, mill dam, irrigation, water 
supply, recreation, hydroelectric, or cooling pond), but in all cases, 
it provides little or no storage function.
    The removed low-head dam structure must be deposited and retained 
in an area that has no waters of the United States unless otherwise 
specifically approved by the district engineer under separate 
authorization.
    Because the removal of the low-head dam will result in a net 
increase in ecological functions and services provided by the stream, 
as a general rule compensatory mitigation is not required for 
activities authorized by this NWP. However, the district engineer may 
determine for a particular low-head dam removal activity that 
compensatory mitigation is necessary to ensure that the authorized 
activity results in no more than minimal adverse environmental effects.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authorities: Sections 10 and 404)
    Note: This NWP does not authorize discharges of dredged or fill 
material into waters of the United States or structures or work in 
navigable waters to restore the stream in the vicinity of the low-head 
dam, including the former impoundment area. Nationwide permit 27 or 
other Department of the Army permits may authorize such activities. 
This NWP does not authorize discharges of dredged or fill material into 
waters of the United States or structures or work in navigable waters 
to stabilize stream banks. Bank stabilization activities may be 
authorized by NWP 13 or other Department of the Army permits.
    54. Living Shorelines. Structures and work in navigable waters of 
the United States and discharges of dredged or fill material into 
waters of the United States for the construction and maintenance of 
living shorelines to stabilize banks and shores in coastal waters, 
which includes the Great Lakes, along shores with small fetch and 
gentle slopes that are subject to low- to mid-energy waves. A living 
shoreline has a footprint that is made up mostly of native material. It 
incorporates vegetation or other living, natural ``soft'' elements 
alone or in combination with some type of harder shoreline structure 
(e.g., oyster or mussel reefs or rock sills) for added protection and 
stability. Living shorelines should maintain the natural continuity of 
the land-water interface, and retain or enhance shoreline ecological 
processes. Living

[[Page 73582]]

shorelines must have a substantial biological component, either tidal 
or lacustrine fringe wetlands or oyster or mussel reef structures. The 
following conditions must be met:
    (a) The structures and fill area, including sand fills, sills, 
breakwaters, or reefs, cannot extend into the waterbody more than 30 
feet from the mean low water line in tidal waters or the ordinary high 
water mark in the Great Lakes, unless the district engineer waives this 
criterion by making a written determination concluding that the 
activity will result in no more than minimal adverse environmental 
effects;
    (b) The activity is no more than 500 feet in length along the bank, 
unless the district engineer waives this criterion by making a written 
determination concluding that the activity will result in no more than 
minimal adverse environmental effects;
    (c) Coir logs, coir mats, stone, native oyster shell, native wood 
debris, and other structural materials must be adequately anchored, of 
sufficient weight, or installed in a manner that prevents relocation in 
most wave action or water flow conditions, except for extremely severe 
storms;
    (d) For living shorelines consisting of tidal or lacustrine fringe 
wetlands, native plants appropriate for current site conditions, 
including salinity and elevation, must be used if the site is planted 
by the permittee;
    (e) Discharges of dredged or fill material into waters of the 
United States, and oyster or mussel reef structures in navigable 
waters, must be the minimum necessary for the establishment and 
maintenance of the living shoreline;
    (f) If sills, breakwaters, or other structures must be constructed 
to protect fringe wetlands for the living shoreline, those structures 
must be the minimum size necessary to protect those fringe wetlands;
    (g) The activity must be designed, constructed, and maintained so 
that it has no more than minimal adverse effects on water movement 
between the waterbody and the shore and the movement of aquatic 
organisms between the waterbody and the shore; and
    (h) The living shoreline must be properly maintained, which may 
require periodic repair of sills, breakwaters, or reefs, or replacing 
sand fills after severe storms or erosion events. Vegetation may be 
replanted to maintain the living shoreline. This NWP authorizes those 
maintenance and repair activities, including any minor deviations 
necessary to address changing environmental conditions.
    This NWP does not authorize beach nourishment or land reclamation 
activities.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the 
construction of the living shoreline. (See general condition 32.) The 
pre-construction notification must include a delineation of special 
aquatic sites (see paragraph (b)(4) of general condition 32). Pre-
construction notification is not required for maintenance and repair 
activities for living shorelines unless required by applicable NWP 
general conditions or regional conditions. (Authorities: Sections 10 
and 404)
    Note: In waters outside of coastal waters, nature-based bank 
stabilization techniques, such as bioengineering and vegetative 
stabilization, may be authorized by NWP 13.
    59. Water reclamation and reuse facilities. Discharges of dredged 
or fill material into non-tidal waters of the United States for the 
construction, expansion, and maintenance of water reclamation and reuse 
facilities, including vegetated areas enhanced to improve water 
infiltration and constructed wetlands to improve water quality.
    The discharge of dredged or fill material must not cause the loss 
of greater than 1/2-acre of waters of the United States. This NWP does 
not authorize discharges of dredged or fill material into non-tidal 
wetlands adjacent to tidal waters.
    This NWP also authorizes temporary fills, including the use of 
temporary mats, necessary to construct the water reuse project and 
attendant features. Appropriate measures must be taken to maintain 
normal downstream flows and minimize flooding to the maximum extent 
practicable, when temporary structures, work, and discharges of dredged 
or fill material, including cofferdams, are necessary for construction 
activities, access fills, or dewatering of construction sites. 
Temporary fills must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. After construction, 
temporary fills must be removed in their entirety and the affected 
areas returned to pre-construction elevations. The areas affected by 
temporary fills must be revegetated, as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 32.) (Authorities: Sections 10 and 404)

C. Nationwide Permit General Conditions

    See the final rule published in the January 13, 2021, issue of the 
Federal Register at 86 FR 2867-2874 for the text of section C, General 
Conditions:

1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Birds and Bald and Golden Eagles
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Activities Affecting Structures or Works Built by the United States
32. Pre-Construction Notification

D. District Engineer's Decision

    See the final rule published in the January 13, 2021, issue of the 
Federal Register at 86 FR 2874-2875 for the text of section D, District 
Engineer's Decision:

E. Further Information

    See the final rule published in the January 13, 2021, issue of the 
Federal Register at 86 FR 2875 for the text of section E, Further 
Information.

F. Definitions

    See the final rule published in the January 13, 2021, issue of the 
Federal Register at 86 FR 2875-2877 for the text of section F, 
Definitions:

Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Direct effects
Discharge
Ecological reference

[[Page 73583]]

Enhancement
Establishment (creation)
High Tide Line
Historic property
Independent utility
Indirect effects
Loss of waters of the United States
Navigable waters
Non-tidal wetland
Open water
Ordinary high water mark
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Shellfish seeding
Single and complete linear project
Single and complete non-linear project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Tribal lands
Tribal rights
Vegetated shallows
Waterbody

[FR Doc. 2021-27441 Filed 12-23-21; 8:45 am]
BILLING CODE 3720-58-P