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Biological Assessment for 2021 Nationwide Permits

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Biological Assessment for 2021 Nationwide Permits Biological Assessment for the Proposed Issuance and Reissuance of the 2021 Nationwide Permits Prepared by: U.S. Army Corps of Engineers Headquarters, Regulatory Community of Practice Washington, DC January 2, 2021 1 Biological Assessment for the Proposed Issuance and Reissuance of the 2021 Nationwide Permits List of Preparers: David Olson, General Biological Scientist, Headquarters, U.S. Army Corps of Engineers Craig Litteken, Chief, Regulatory Division, Mobile District, U.S. Army Corps of Engineers Karen Mulligan, Regulatory Program Manager, Headquarters, U.S. Army Corps of Engineers Deanna Sarro, Physical Scientist, Engineer Research and Development Center, Cold Regions Research and Engineering Lab, U.S. Army Corps of Engineers List of Reviewers: Jennifer Moyer, Chief, Regulatory Branch, Headquarters, U.S. Army Corps of Engineers Melanie Casner, Office of Counsel, Headquarters, U.S. Army Corps of Engineers John Maxwell Wilson, Office of Counsel, Headquarters, U.S. Army Corps of Engineers 2 Table of Contents 1.0 Proposed Action ................................................................................................................................... 4 1.1 Introduction ....................................................................................................................................... 4 1.2 Description of the Proposed Action .............................................................................................. 5 1.3 Activities Not Included in the Proposed Action ........................................................................... 6 1.4 Action Area ....................................................................................................................................... 6 2.0 The Corps’ Nationwide Permit Program .......................................................................................... 8 2.1 Background ....................................................................................................................................... 8 2.2 The Nationwide Permit Authorization Process .......................................................................... 10 2.3 Nationwide Permit Regional Conditions ..................................................................................... 21 2.4 Nationwide Permit Case-Specific Conditions ............................................................................ 23 2.5 Consideration of Cumulative Effects for Nationwide Permit Activities .................................. 25 3.0 Species List ........................................................................................................................................ 31 4.0 Effects Analysis Under Section 7(a)(2) of the Endangered Species Act .................................. 32 4.1 Effects of the Proposed Action (i.e., the rulemaking to issue/reissue the Nationwide Permits) .................................................................................................................................................. 32 4.2 Cumulative Effects Under the Endangered Species Act ......................................................... 40 4.3 Conclusion ...................................................................................................................................... 46 5.0 Endangered Species Act Consultations Under the 2017 Nationwide Permits ......................... 48 6.0 Literature Cited ................................................................................................................................... 65 Appendix A. Species List Provided by the U.S. Fish and Wildlife Service ...................................... 68 Appendix B. Species List Provided by the National Marine Fisheries Service ............................... 69 Appendix C. Active and Pending Regional ESA Section 7 Consultation/Coordination Agreements Between Corps Districts and the U.S. Fish and Wildlife Service and the National Marine Fisheries Service ......................................................................................................................... 70 3 1.0 Proposed Action 1.1 Introduction 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 or regional basis for any category of activities involving discharges of dredged or fill material into waters of the United States for a period of no more than five years after the date of issuance (33 U.S.C. § 1344 (e)). Nationwide permits (NWPs) 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 that have no more than minimal adverse environmental impacts (see 33 CFR 330.1(b)). The categories of activities authorized by NWPs must be similar in nature, cause only minimal adverse environmental effects when performed separately, and have only minimal cumulative adverse effect on the environment (see 33 U.S.C. § 1344(e)(1)). Nationwide permits can be issued for a period of no more than 5 years (33 U.S.C. 1344(e)(2)), and the U.S. Army Corps of Engineers (Corps) has the authority to modify or revoke the NWPs before they expire. Nationwide permits can also be issued to authorize categories of activities pursuant to Section 10 of the Rivers and Harbors Act of 1899, as long as those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts (see 33 CFR 322.2(f)). This biological assessment has been prepared for the issuance or reissuance of the NWPs, which is a rulemaking activity under the Administrative Procedure Act (5 U.S.C. 553). This biological assessment does not address activity-specific NWP authorizations or NWP authorizations where regional programmatic Endangered Species Act (ESA) section 7 consultations may be used for ESA-compliance for individual activities authorized by NWPs. The U.S. Fish and Wildlife Service’s (U.S. FWS) and National Marine Fisheries Service’s (NMFS) regulations for ESA section 7 consultations at 50 CFR 402.12(f) identify the items that may be included in biological assessments: (1) The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally. (2) The views of recognized experts on the species at issue. (3) A review of the literature and other information. 4 (4) An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies. (5) An analysis of alternate actions considered by the Federal agency for the proposed action. This biological assessment does not include items 1, 2, and 5 because the issuance or reissuance of the NWPs through the rulemaking process does not include any specific sites in which proposed NWP activities are expected to occur. Alternatives are not considered in this biological assessment because alternatives to issuing or reissuing the NWPs are considered during the rulemaking process. This biological assessment includes a general discussion of cumulative effects, and discusses studies that examined cumulative effects to endangered and threatened species and their critical habitats. 1.2 Description of the Proposed Action The proposed action is the issuance and reissuance of NWPs to authorize various categories of activities under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act (33 U.S.C. 1344). The NWPs are issued by Corps Headquarters to authorize activities across the country that result in no more than minimal individual and cumulative adverse environmental effects. The issuance and reissuance of the NWPs is a rulemaking activity subject to the Administrative Procedure Act. After Corps Headquarters issues or reissues the NWPs, Corps division engineers may add regional conditions to one or more NWPs to restrict or prohibit their use in a particular region (e.g., a Corps district, state, county, watershed or other geographic region). For specific activities authorized by NWP, Corps district engineers may add conditions to the NWP authorization to avoid or minimize adverse environmental effects or require compensatory mitigation to offset losses of waters of the United States. A district engineer may also assert discretionary authority and require an individual permit for the proposed activity, if he or she determines the proposed activity will result in more than minimal individual and cumulative adverse environmental effects, after considering mitigation proposed by the applicant to reduce those adverse environmental effects. On September 15, 2020, the Corps proposed to reissue 52 existing nationwide permits (NWPs) and issue five new NWPs (see 85 FR 57298). The Corps also proposed to reissue the 32 general conditions that apply to those NWPs. The purpose of the NWP Program is to regulate with little, if any, delay or paperwork certain activities having 5 minimal impacts (33 CFR 330.1(b)). The Corps issues NWPs under the authorities of Section 404(e) 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). The purpose of this biological assessment is to evaluate the potential effects of the proposed action (i.e., the issuance or reissuance of the NWPs through the rulemaking process) on listed and proposed species and
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