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DEPARTMENT OF DEFENSE G. Executive Order 13777, Enforcing the List of Nationwide Permits Included in Regulatory Reform Agenda This Rule and General Conditions Department of the Army, Corps of H. Executive Order 13921, Promoting Nationwide Permits (NWPs) Engineers American Seafood Competitiveness and Economic Growth 12. Oil or Natural Gas Pipeline Activities I. 2018 Legislative Outline for Rebuilding 21. Surface Coal Mining Activities 33 CFR Chapter II 29. Residential Developments Infrastructure in America [Docket Number: COE–2020–0002] 39. Commercial and Institutional II. Discussion of Public Comments Developments RIN 0710–AA84 A. Overview 40. Agricultural Activities B. Responses to General Comments 42. Recreational Facilities Reissuance and Modification of C. Comments on Proposed Actions Under 43. Stormwater Management Facilities Nationwide Permits Executive Order 13921, Promoting 44. Mining Activities American Seafood Competitiveness and 48. Commercial Shellfish Mariculture AGENCY: Army Corps of Engineers, DoD. Economic Growth Activities ACTION: Final rule. D. Comments on the 2018 Legislative 50. Underground Coal Mining Activities Outline for Rebuilding Infrastructure in 51. Land-Based Renewable Energy SUMMARY: Nationwide Permits (NWPs) America Generation Facilities authorize certain activities under E. Comments on Regional Conditioning of 52. Water-Based Renewable Energy Generation Pilot Projects Section 404 of the Clean Water Act and Nationwide Permits 55. Seaweed Mariculture Activities Section 10 of the Rivers and Harbors Act F. Comments on Proposed Removal of the of 1899. The NWPs help protect the 56. Finfish Mariculture Activities 300 Linear Foot Limit for Losses of 57. Electric Utility Line and aquatic environment and the public Stream Bed Telecommunications Activities interest by providing incentives to G. Response to Comments on Specific 58. Utility Line Activities for Water and reduce impacts on jurisdictional waters Nationwide Permits Other Substances and wetlands while effectively H. Responses to Comments on the authorizing activities that have no more Nationwide Permit General Conditions Nationwide Permit General Conditions than minimal individual and I. Discussion of Proposed Modifications to 1. Navigation cumulative adverse environmental Section D, District Engineer’s Decision 2. Aquatic Life Movements effects. In this final rule, the Corps is J. Discussion of Proposed Modifications to 3. Spawning Areas reissuing and modifying 12 existing Section F, Definitions 4. Migratory Bird Breeding Areas NWPs and issuing four new NWPs. For III. Compliance With Relevant Statutes 5. Shellfish Beds these 16 NWPs, the Corps is also A. National Environmental Policy Act 6. Suitable Material 7. Water Supply Intakes reissuing and modifying the NWP Compliance B. Compliance With Section 404(e) of the 8. Adverse Effects from Impoundments general conditions and definitions. The 9. Management of Water Flows Corps is not reissuing or modifying the Clean Water Act C. 2020 Revisions to the Definition of 10. Fills Within 100-Year Floodplains remaining 40 existing NWPs or 11. Equipment ‘‘Waters of the United States’’ (i.e., the 12. Soil Erosion and Sediment Controls finalizing proposed new NWP E at this Navigable Waters Protection Rule) time. Those 40 remaining NWPs 13. Removal of Temporary Fills D. Compliance With the Endangered 14. Proper Maintenance continue to be in effect under the Species Act January 6, 2017, final rule and the 15. Single and Complete Project E. Compliance With the Essential Fish 16. Wild and Scenic Rivers existing general conditions and Habitat Provisions of the Magnuson- 17. Tribal Rights definitions in the 2017 final rule Stevens Fishery Conservation and 18. Endangered Species continue to apply to those permits. Management Act 19. Migratory Birds and Bald and Golden DATES: These 16 NWPs, the 32 general F. Compliance With Section 106 of the Eagles conditions, and the associated National Historic Preservation Act 20. Historic Properties definitions will go into effect on March G. Section 401 of the Clean Water Act 21. Discovery of Previously Unknown 15, 2021. H. Section 307 of the Coastal Zone Remains and Artifacts Management Act (CZMA) 22. Designated Critical Resource Waters ADDRESSES: U.S. Army Corps of IV. Economic Impact 23. Mitigation Engineers, Attn: CECW–CO–R, 441 G V. Administrative Requirements 24. Safety of Impoundment Structures Street NW, Washington, DC 20314– VI. References 25. Water Quality 1000. Authority 26. Coastal Zone Management 27. Regional and Case-by-Case Conditions Nationwide Permits, Conditions, Further FOR FURTHER INFORMATION CONTACT: Mr. 28. Use of Multiple Nationwide Permits David Olson at 202–761–4922 or access Information, and Definitions 29. Transfer of Nationwide Permit the U.S. Army Corps of Engineers List of Acronyms Verifications Regulatory Home Page at https:// 30. Compliance Certification www.usace.army.mil/Missions/Civil- BMP Best Management Practice 31. Activities Affecting Structures or Works Works/Regulatory-Program-and- CEQ Council on Environmental Quality Built by the United States Permits/. CWA Clean Water Act 32. Pre-Construction Notification DA Department of the Army SUPPLEMENTARY INFORMATION: EFH Essential Fish Habitat I. Background Table of Contents ESA Endangered Species Act A. General FWS U.S. Fish and Wildlife Service I. Background GC General Condition The U.S. Army Corps of Engineers A. General (Corps) issues nationwide permits B. Overview of Proposed Rule NEPA National Environmental Policy Act NHPA National Historic Preservation Act (NWPs) to authorize activities under C. Overview of This Final Rule Section 404 of the Clean Water Act and D. Status of Existing Permits NMFS National Marine Fisheries Service E. Nationwide Permit Verifications NPDES National Pollutant Discharge Section 10 of the Rivers and Harbors Act F. Executive Order 13783, Promoting Elimination System of 1899, where those activities will Energy Independence and Economic NWP Nationwide Permit result in no more than minimal Growth PCN Pre-construction Notification individual and cumulative adverse

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environmental effects. NWPs were first than 5 years) in a specific geographic engineer may add conditions to the issued by the Corps in 1977 (42 FR region. These concepts are defined in NWP authorization to ensure that the 37122) to authorize categories of paragraph 2 of section D, ‘‘District verified NWP activity results in no more activities that have minimal adverse Engineer’s Decision.’’ The appropriate than minimal individual and effects on the aquatic environment, for geographic area for assessing cumulative cumulative adverse environmental the purpose of streamlining the effects is determined by the decision- effects, consistent with processes and authorization process for those minor making authority for the general permit requirements set out in 33 CFR 330.5(d). activities. After 1977, NWPs have been (generally, the district engineer). See Section II.G for more information on issued or reissued in 1982 (47 FR Some NWPs include pre-construction regional conditions for the NWPs. 31794), 1984 (49 FR 39478), 1986 (51 FR notification (PCN) requirements. PCNs For some NWPs, when submitting a 41206), 1991 (56 FR 59110), 1995 (60 FR give the Corps the opportunity to PCN, an applicant may request a waiver 38650), 1996 (61 FR 65874), 2000 (65 FR evaluate certain proposed NWP for a particular limit specified in the 12818), 2002 (67 FR 2020), 2007 (72 FR activities on a case-by-case basis to NWP’s terms and conditions. If the 11092), 2012 (77 FR 10184), and 2017 ensure that they will cause no more applicant requests a waiver of an NWP (82 FR 1860). than minimal adverse environmental limit and the district engineer Section 404(e) of the Clean Water Act effects, individually and cumulatively. determines, after coordinating with the provides the statutory authority for the Except for activities conducted by non- resource agencies under paragraph (d) of Secretary of the Army, after notice and Federal permittees that require PCNs NWP general condition 32, that the opportunity for public hearing, to issue under paragraph (c) of the ‘‘Endangered proposed NWP activity will result in no general permits on a nationwide basis Species’’ and ‘‘Historic Properties’’ more than minimal adverse for any category of activities involving general conditions (general conditions environmental effects, the district discharges of dredged or fill material 18 and 20, respectively), if the Corps engineer may grant such a waiver. into waters of the United States for a district does not respond to the PCN Following the conclusion of the district period of no more than five years after within 45 days of a receipt of a complete engineer’s review of a PCN, he/she the date of issuance (33 U.S.C. 1344(e)). PCN, the activity is deemed authorized prepares an official, publicly-available The Secretary’s authority to issue by the NWP (see 33 CFR 330.1(e)(1)). decision document. This document permits has been delegated to the Chief In fiscal year 2018, the average discusses the district engineer’s findings of Engineers and his or her designated processing time for an NWP PCN was 45 as to whether a proposed NWP activity representatives. Nationwide permits are days and the average processing time for qualifies for NWP authorization, a type of general permit issued by the a standard individual permit was 264 including compliance with all Chief of Engineers and are designed to days. This difference in burden can applicable terms and conditions, and regulate with little, if any, delay or incentivize project proponents to reduce the rationale for any waivers granted, paperwork certain activities in federally the adverse effects of their planned and activity-specific conditions needed jurisdictional waters and wetlands, activities that would otherwise require to ensure that the activity being where those activities would have no an individual permit under Section 404 authorized by the NWP will have no more than minimal adverse of the Clean Water Act and/or Section more than minimal individual and environmental impacts (see 33 CFR 10 of the Rivers and Harbors Act of cumulative adverse environmental 330.1(b)). The categories of activities 1899, in order to qualify for NWP effects and will not be contrary to the authorized by NWPs must be similar in authorization. This reduction in adverse public interest (see § 330.6(a)(3)(i)). nature, cause only minimal adverse effects can therefore reduce a project’s The case-by-case review of PCNs often environmental effects when performed impact on the Nation’s aquatic results in district engineers adding separately, and have only minimal resources. activity-specific conditions to NWP cumulative adverse effect on the There are 38 Corps district offices and authorizations to ensure that the adverse environment (see 33 U.S.C. 1344(e)(1)). 8 Corps division offices. The district environmental effects are no more than NWPs can be issued for a period of no offices administer the NWP program on minimal. These can include permit more than 5 years (33 U.S.C. 1344(e)(2)), a day-to-day basis by reviewing PCNs conditions such as time-of-year and the Corps has the authority to for proposed NWP activities. The restrictions and/or use of best modify or revoke the NWPs before they division offices oversee district offices management practices and/or expire. Nationwide permits can also be and are managed by division engineers. compensatory mitigation requirements issued to authorize activities pursuant Division engineers have the authority, to offset authorized losses of to Section 10 of the Rivers and Harbors after public notice and comment, to jurisdictional waters and wetlands so Act of 1899 (see 33 CFR 322.2(f)). The modify, suspend, or revoke NWP that the net adverse environmental NWP program is designed to provide authorizations on a regional basis to effects caused by the authorized activity timely authorizations for the regulated take into account regional differences are no more than minimal. Any public while protecting the Nation’s among aquatic resources and to ensure compensatory mitigation required for aquatic resources. that the NWPs authorize only those NWP activities must comply with the The phrase ‘‘minimal adverse activities that result in no more than Corps’ compensatory mitigation environmental effects when performed minimal individual and cumulative regulations at 33 CFR part 332. Review separately’’ refers to the direct and adverse environmental effects in a of a PCN may also result in the district indirect adverse environmental effects region (see 33 CFR 330.5(c)). When a engineer asserting discretionary caused by a specific activity authorized Corps district receives a PCN, the authority to require an individual by an NWP. The phrase ‘‘minimal district engineer reviews the PCN and permit from the Corps for the proposed cumulative adverse effect on the determines whether the proposed activity, if he or she determines, based environment’’ refers to the collective activity will result in no more than on the information provided in the PCN direct and indirect adverse minimal individual and cumulative and other available information, that the environmental effects caused by all the adverse environmental effects, adverse environmental effects will be activities authorized by a particular consistent with the criteria in paragraph more than minimal, or otherwise NWP during the time period when the 2 of section D, ‘‘District Engineer’s determines that ‘‘sufficient concerns for NWP is in effect (a period of no more Decision.’’ At this point, the district the environment or any other factor of

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the public interest so requires’’ NWPs 12 or 14) or non-linear projects Memorandum, and that district will be consistent with 33 CFR 330.4(e)(2). authorized with two or more different responsible for serving as a single point During the review of PCNs, district NWPs (e.g., an NWP 28 for of contact for each permit applicant, engineers assess cumulative adverse reconfiguring an existing marina plus an forming a Project Delivery Team environmental effects at an appropriate NWP 19 for minor dredging within that comprising representatives of each of regional scale. Cumulative effects are marina), the district engineer will the affected districts, ensuring the result of the accumulation of direct evaluate the cumulative effects of the consistent reviews by the affected and indirect effects caused by multiple applicable NWP authorizations within districts, and taking responsibility for activities that persist over time in a the geographic area that she or he identifying and resolving particular geographic area (MacDonald determines is appropriate for assessing inconsistencies that may arise during 2000), such as a watershed or ecoregion cumulative effects caused by activities the review. The list of lead districts for (Gosselink and Lee 1989). Therefore, the authorized by that NWP. As discussed states is also used during the regional geographic and temporal scales for above, the geographic area may be a conditioning process for the NWPs. For cumulative effects analysis are larger waterbody, watershed, county, state, that process the lead district is than the analysis of the direct and Corps district, or other geographic area. responsible for coordinating the indirect adverse environmental effects Further, the Corps’ public interest development of the regional conditions caused by specific activities. For review regulations at 33 CFR 320.4(a)(1) and preparing the supplemental purposes of the NWP program, require consideration of cumulative documents required by 33 CFR cumulative effects are the result of the impacts for the issuance of DA permits. 330.5(c)(1)(iii). The Corps requests combined effects of activities authorized Since the required public interest comments on whether there are by NWPs during the period the NWPs review and 404(b)(1) Guidelines efficiencies that can be adopted to are in effect. The cumulative effects are cumulative effects analyses are improve the coordination and regional assessed against the current conducted by Corps Headquarters in its conditioning processes. environmental setting to determine decision documents for the issuance of B. Overview of Proposed Rule whether the cumulative adverse the NWPs, district engineers do not environmental effects are more than need to do comprehensive cumulative On September 15, 2020, the Corps minimal. The district engineer uses his effects analyses for NWP verifications. published in the Federal Register (85 or her discretion to determine the For an NWP verification, the district FR 57298) a proposed regulation to appropriate regional scale for evaluating engineer needs only to include a reissue with modification the existing cumulative effects. statement in the administrative record NWPs and associated general conditions For the NWPs, the appropriate stating whether the proposed activity to and definitions and to create five new regional scale for evaluating cumulative be authorized by an NWP, plus any NWPs (2020 Proposal). The Corps effects may be a waterbody, watershed, required mitigation, will result in no provided a 60-day public comment county, state, or a Corps district, as more than minimal individual and period which closed on November 16, appropriate. The appropriate regional cumulative adverse environmental 2020. Among other things, the Corps scale is dependent, in part, on where the effects. If the district engineer proposed the following: (1) To create NWP activities are occurring. For determines, after considering mitigation, two new NWPs to authorize certain example, for NWPs that authorizes that a proposed NWP activity will result categories of mariculture activities (i.e., structures and/or work in navigable in more than minimal cumulative seaweed and finfish mariculture) that waters of the United States under adverse environmental effects, she or he are not currently authorized by NWP 48; Section 10 of the Rivers and Harbors Act will exercise discretionary authority and (2) to divide the NWP that authorizes of 1899, the appropriate geographic require an application for an individual utility line activities (NWP 12) into region for assessing cumulative effects permit. three separate NWPs that address the may be a specific navigable waterbody. There may be activities authorized by differences in how different utility line For NWPs that authorize discharges of NWPs that cross more than one Corps projects are constructed, the substances dredged or fill material into non-tidal district or more than a single state. On they convey, and the different standards jurisdictional wetlands and streams, the May 15, 2018, the Director of Civil and best management practices that appropriate geographic region for Works at Corps Headquarters issued a help ensure those NWPs authorize only assessing cumulative effects may be a Director’s Policy Memorandum titled: those activities that have no more than watershed, county, state, or Corps ‘‘Designation of a Lead USACE District minimal adverse environmental effects; district. The direct individual adverse for Permitting of Non-USACE Projects (3) a new NWP which would authorize environmental effects caused by Crossing Multiple Districts or States.’’ 1 discharges of dredged or fill material activities authorized by NWPs are This Director’s Policy Memorandum into jurisdictional waters for the evaluated within the project footprint, identified lead districts for states that construction, expansion, and and the indirect individual adverse have more than one Corps district and maintenance of water reuse and environmental effects caused by established a policy for designating a reclamation facilities; and (4) to remove activities authorized by NWPs are lead district for activities that require the 300 linear foot limit for losses of evaluated within the geographic area to Department of the Army permits that stream bed from 10 NWPs (NWPs 21, which those indirect effects extend. cross district or state boundaries. Under 29, 39, 40, 42, 43, 44, 50, 51, and 52). When the district engineer reviews a this policy, when the Corps receives an The Corps requested comment on these PCN and determines that the proposed NWP PCN or individual permit and all other aspects of the proposal. activity qualifies for NWP authorization, application for such activities, a lead C. Overview of This Final Rule he or she will issue a written NWP Corps district will be designated by the This final rule replaces 12 of the verification to the permittee (see 33 CFR applicable Corps division office(s) using existing NWPs that were published in 330.6(a)(3)). If an NWP verification the criteria in the 2018 Director’s Policy includes multiple authorizations using a the January 6, 2017, final rule (82 FR single NWP (e.g., linear projects with 1 This document is available at: https:// 1860), specifically: NWP 12 (oil or crossings of separate and distant waters usace.contentdm.oclc.org/digital/collection/ natural gas pipeline activities; NWP 21 of the United States authorized by p16021coll11/id/2757/ (accessed 3/12/2020). (surface coal mining activities); NWP 29

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(residential developments); NWP 39 permittees may be unclear as to which twelve months of the date of an NWP’s (commercial and institutional limits, requirements, and conditions expiration, modification, or revocation, developments); NWP 40 (agricultural apply to their authorized activities. In unless discretionary authority has been activities); NWP 42 (recreational addition, differences in NWP limits, exercised by a division or district facilities); NWP 43 (stormwater requirements, and conditions between engineer on a case-by-case basis to management facilities); NWP 44 (mining two sets of NWPs can create challenges modify, suspend, or revoke the activities); NWP 48 (commercial for district engineers in terms of authorization in accordance with 33 shellfish mariculture activities); NWP enforcement and compliance efforts. CFR 330.4(e) and 33 CFR 330.5(c) or (d). 50 (underground coal mining activities); The Corps is modifying the expiration This provision applies to activities that NWP 51 (land-based renewable energy date for the 12 existing NWPs (i.e., were previously verified by the district generation facilities); and NWP 52 NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, engineer as qualifying for NWP (water-based renewable energy 50, 51, 52) that are issued in this final authorization, but no longer qualify for generation pilot projects). This final rule rule to March 15, 2021. The expiration NWP authorization under the modified issues four new NWPs: NWP 55 date for the 12 existing NWPs and the or reissued NWP. (seaweed mariculture activities); NWP 4 new NWPs issued in this final rule is The 16 NWPs issued in this final rule 56 (finfish mariculture activities); NWP five years after the date those NWPs go go into effect on March 15, 2021. The 57 (electric utility line and into effect. Activities authorized by the 2017 versions of the 12 NWPs reissued telecommunications activities); and 2017 NWPs currently remain authorized in this final rule expire on March 15, NWP 58 (utility line activities for water by those NWPs until March 18, 2022. 2021. The 12 existing NWPs and 4 new and other substances). Under 33 CFR 330.6(a)(3)(ii), if the NWP NWPs issued in this final rule expire For the 16 NWPs included in this is reissued without modification or the five years after March 15, 2021. final rule, the Corps is also reissuing the activity complies with any subsequent E. Nationwide Permit Verifications general conditions and definitions, with modification of the NWP authorization, some changes. The Corps is not the NWP verification letter (i.e., the Certain NWPs require the permittee to reissuing or modifying the remaining 40 written confirmation from the district submit a PCN, and thus request NWPs included in the 2020 Proposal or engineer that the proposed activity is confirmation from the district engineer taking any action on the proposed new authorized by an NWP) should include prior to commencing the proposed NWP NWP E at this time. The general a statement that the verification will activity, to ensure that the NWP activity conditions and definitions published in remain valid for a period of time complies with the terms and conditions the January 6, 2017, final rule (82 FR specified in the verification letter. The of the NWP. The requirement to submit 1860) continue to apply to the 40 specified period of time is usually the a PCN is identified in the NWP text, as existing 2017 NWPs that continue to expiration date of the NWP. In other well as certain general conditions. remain in effect after the final rule for words, for the 2017 NWPs, if the General condition 18 requires non- the 16 reissued and new NWPs goes into previously verified activity continues to federal permittees to submit PCNs for effect on March 15, 2021. qualify for NWP authorization under any proposed activity that might affect The 16 permits being finalized in this any of the 12 NWPs issued in this final ESA-listed species or designated critical rule include permits proposed partly in rule, that verification letter continues to habitat, if listed species or designated response to E.O. 13783, Promoting be in effect until March 18, 2022, unless critical habitat are in the vicinity of the Energy Independence and Economic the district engineer specified a different proposed activity, or if the proposed Growth, and E.O. 13921, Promoting expiration date in the NWP verification activity is located in critical habitat. American Seafood Competitiveness and letter. For most activities authorized by General condition 20 requires non- Economic Growth. The Corps is also the 2017 NWPs, where the district federal permittees to submit PCNs for reissuing NWPs 12 and 48 partly to engineer issued an NWP verification any proposed activity that may have the address issues raised in two federal letter, the verification letter identified potential to cause effects to any historic district court decisions: United States March 18, 2022, as the expiration date. properties listed in, determined to be District Court for the District of Montana As long as the verified NWP activities eligible for listing in, or potentially Great Falls Division’s decision in continue to comply with the terms and eligible for listing in, the National Northern Plains Resource Council, et al., conditions of the 12 existing NWPs Register of Historic Places. v. U.S. Army Corps of Engineers, et al., issued in this final rule, those activities In the PCN, the project proponent (Case No. CV 19–44–GF–BMM) and the continue to be authorized by the must specify which NWP or NWPs he United States District Court, Western applicable NWP(s) until March 18, or she wants to use to provide the District of Washington at Seattle’s 2022, unless a district engineer required Department of Army (DA) decision in the Coalition to Protect modifies, suspends, or revokes a authorization under Section 404 of the Puget Sound Habitat v. U.S. Army Corps specific NWP authorization. Clean Water Act and/or Section 10 of of Engineers et al. (Case No. C16– Under 33 CFR 330.6(b), Corps the Rivers and Harbors Act of 1899. For 0950RSL) and Center for Food Safety v. Headquarters may modify, reissue, or voluntary NWP verification requests U.S. Army Corps of Engineers et al. revoke the NWPs at any time. Activities (where a PCN is not required), the (Case No. C17–1209RSL). that were authorized by the 2017 NWPs, request should also identify the NWP(s) but no longer qualify for authorization the project proponent wants to use. The D. Status of Existing Permits under any of the 12 existing NWPs that district engineer should verify the When the Corps modifies existing are reissued in this final rule, continue activity under the NWP(s) requested by NWPs, the modified NWPs replace the to be authorized by the 2017 NWP(s) for the project proponent, as long as the prior versions of those NWPs so that 12 months as long as those activities proposed activity complies with all there are not two sets of NWPs in effect have commenced (i.e., are under applicable terms and conditions, at the same time. Having two sets of construction) or are under contract to including any applicable regional NWPs in effect at the same time creates commence in reliance upon an NWP conditions imposed by the division regulatory uncertainty if each set of prior to the date on which the NWP engineer. All NWPs have the same those NWPs has different limits, expires. That authorization is contingent general requirements: That the requirements, and conditions because on the activity being completed within authorized activities may only cause no

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more than minimal individual and request and determines that the proposed rules that would implement cumulative adverse environmental proposed activity does not comply with the recommendations in their reports. effects. Therefore, if the proposed the terms and conditions of an NWP, he Section 2(g) further states that agencies activity complies with the terms and all or she will notify the project proponent shall endeavor to coordinate the applicable conditions of the NWP the and provide instructions for applying regulatory reforms identified in their applicant wants to use, then the district for authorization under a regional reports with their activities undertaken engineer should issue the NWP general permit or an individual permit. in compliance with E.O. 13771, verification unless he or she exercises District engineers will respond to NWP ‘‘Reducing Regulation and Controlling discretionary authority and requires an verification requests, submitted Regulatory Costs.’’ individual permit. If the proposed voluntarily or as required through PCNs, G. Executive Order 13777, Enforcing the activity does not meet the terms and within 45 days of receiving a complete Regulatory Reform Agenda conditions of the NWP identified by the PCN. Except for NWP 49, and for applicant in his or her PCN, and that proposed NWP activities that require On February 24, 2017, the President activity meets the terms and conditions Endangered Species Act section 7 signed E.O. 13777, ‘‘Enforcing the of another NWP identified by the consultation and/or National Historic Regulatory Reform Agenda,’’ which district engineer, the district engineer Preservation Act section 106 required agencies to evaluate existing will process the PCN under the NWP consultation, if the project proponent regulations and make recommendations identified by the district engineer. If the has not received a reply from the Corps to the agency head regarding their district engineer exercises discretionary within 45 days, he or she may assume repeal, replacement, or modification, authority, he or she should explain to that the project is authorized, consistent consistent with applicable law. The E.O. the applicant why the proposed activity with the information provided in the specified that agencies must attempt to is not authorized by an NWP. PCN. For NWP 49, and for proposed identify regulations that eliminate jobs Pre-construction notification NWP activities that require ESA Section or inhibit job creation; are outdated, requirements may be added to NWPs by 7 consultation and/or NHPA Section unnecessary, or ineffective; impose division engineers through regional 106 consultation, the project proponent costs that exceed benefits; create a conditions to require PCNs for may not begin work before receiving a serious inconsistency or otherwise additional activities. For an activity written NWP verification. If the project interfere with regulatory reform where a PCN is not required, a project proponent requested a waiver of a limit initiatives and policies; or meet other proponent may submit a PCN in an NWP, the waiver is not granted criteria identified in that Executive voluntarily, if he or she wants written unless the district engineer makes a Order. Pursuant to this E.O., in the July confirmation that the activity is written determination that the proposed 20, 2017, issue of the Federal Register authorized by an NWP. Some project activity will result in no more than (82 FR 33470) the Corps published a proponents submit permit applications minimal individual and cumulative notice seeking public input from state, without specifying the type of adverse environmental effects, and local, and tribal governments, small authorization they are seeking. In such issues an NWP verification. businesses, consumers, non- cases, the district engineer will review governmental organizations, and trade those applications and determine if the F. Executive Order 13783, Promoting associations on its existing regulations proposed activity qualifies for NWP Energy Independence and Economic that may be appropriate for repeal, authorization or another form of DA Growth replacement, or modification. Some of authorization, such as a regional general Section 2(a) of E.O. 13783 requires the changes to the NWPs in this permit (see 33 CFR 330.1(f)). federal agencies to review their existing proposal are intended to address some In response to a PCN or a voluntary regulations that potentially burden the of the comments received in response to NWP verification request, the district development or use of domestically the July 20, 2017, Federal Register engineer reviews the information produced energy resources, with notice. Comments received in response submitted by the prospective permittee. particular attention to oil, natural gas, to the July 20, 2017, Federal Register If the district engineer determines that coal, and nuclear resources. For the notice can be viewed at the activity complies with the terms and Corps, the NWPs authorize activities www.regulations.gov in docket number conditions of the NWP, he or she will associated with the development or use COE–2017–0004. notify the permittee. Activity-specific of domestically produced energy H. Executive Order 13921, Promoting conditions, such as compensatory resources. In response to E.O. 13783, American Seafood Competitiveness and mitigation requirements, may be added Office of the Assistant Secretary of the Economic Growth to an NWP authorization to ensure that Army (Civil Works) issued a report that the activity to be authorized under the reviewed 12 NWPs that authorize On May 7, 2020, the President signed NWP will result in no more than activities associated with the Executive Order 13921 on Promoting minimal individual and cumulative development or use of domestically American Seafood Competitiveness and adverse environmental effects. The produced energy resources. That report Economic Growth. Section 6(b) of the activity-specific conditions are included recommendations for changes E.O., ‘‘Removing Barriers to incorporated into the NWP verification, that could be made to nine NWPs to Aquaculture Permitting,’’ requires the along with the NWP text and the NWP support the objectives of E.O. 13783. Secretary of the Army, acting through general conditions. In general, NWP The Office of the Assistant Secretary the Assistant Secretary of the Army for verification letters will expire on the of the Army (Civil Works) issued its Civil Works, to ‘‘develop and propose date the NWP expires (see 33 CFR report on October 25, 2017, and the for public comment, as appropriate and 330.6(a)(3)(ii)), although district November 28, 2017, issue of the Federal consistent with applicable law,’’ NWPs engineers have the authority to issue Register (82 FR 56192) published a authorizing finfish aquaculture NWP verification letters that will expire notice of availability for that report. activities and seaweed aquaculture before the NWP expires, if it is in the Section 2(g) of E.O. 13783 states that activities in marine and coastal waters, public interest to do so. agencies should, as soon as practicable including ocean waters beyond the If the district engineer reviews the and as appropriate and consistent with territorial sea within the exclusive PCN or voluntary NWP verification law, publish for notice and comment economic zone of the United States.

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Section 6(b) of the E.O. also requires the 33 CFR 320.2(b)). On the outer take action to address situations where Secretary of the Army, acting through continental shelf, the seaweed and the Federal agency incorrectly the Assistant Secretary of the Army for finfish mariculture structures may be determined that the NWP terms and Civil Works, to ‘‘develop and propose anchored to the seabed, and thus require conditions were met. for public comment, as appropriate and section 10 authorization as devices The Corps sought public comment on consistent with applicable law,’’ a located on the seabed. Each of these whether to exempt federal agencies from proposed NWP authorizing multi- NWPs includes a provision on multi- PCN requirements under the theory that species aquaculture activities in marine trophic species mariculture activities in federal agencies may employ staff who and coastal waters, including ocean marine and coastal waters, including are environmental experts and who waters beyond the territorial sea within federal waters on the outer continental already review these projects before the exclusive economic zone of the shelf. This provision for multi-trophic submitting PCNs to the Corps to United States. Section 6(b) of the E.O. species mariculture gives flexibility to determine whether they meet the also requires the Secretary of the Army, these NWPs to allow mariculture criteria for the applicable NWP. These acting through the Assistant Secretary of operators to propagate additional environmental staff are responsible for the Army for Civil Works to ‘‘assess species, such as mussels, on their ensuring that the agencies’ proposed whether to develop’’ NWPs for finfish seaweed or finfish mariculture activities comply with applicable aquaculture activities and seaweed structures. Including this provision was federal laws, regulations, and policies, aquaculture activities in other waters of an alternative to developing a separate as well as relevant Executive Orders. In the United States. Section 6(b) also NWP for multi-trophic species the proposed rule the Corps stated that requires the Secretary of the Army, mariculture activities, and provides it understands that non-federal acting through the Assistant Secretary of NWP authorization that is responsive to permittees that want to use the NWPs the Army for Civil Works, to assess the E.O. The Corps recognizes that some often hire consultants to help them whether to develop a United States mariculture operators may choose to secure NWP authorization in Army Corps of Engineers NWP produce seaweeds or finfish exclusively. compliance with applicable federal authorizing multi-species aquaculture As discussed in this final rule, the Corps laws, regulations, and policies and that activities in other waters of the United issued proposed new NWP A as NWP these consultants may have similar States. 55 and issued proposed new NWP B as expertise to staff at federal agencies. Instead of proposing a new, separate NWP 56. These consultants may provide general NWP for authorizing structures in services to assist in securing NWP coastal waters and federal waters on the I. 2018 Legislative Outline for Rebuilding Infrastructure in America authorizations on behalf of their clients, outer continental shelf for multi-species or they may specialize in complying aquaculture activities, the Corps On February 12, 2018, the with specific laws and regulations, such proposed to include provisions allowing Administration issued its ‘‘Legislative as Section 7 of the Endangered Species additional species to be cultivated with Outline for Rebuilding Infrastructure in Act, Section 106 of the National Historic seaweed mariculture activities America.’’ In Part 3 (Infrastructure Preservation Act, and the Essential Fish authorized under proposed new NWP A Permitting Improvement), Principle Habitat provisions of the Magnuson- I.C.1 recommends reforms for and finfish mariculture activities Stevens Act. Non-federal permittees are eliminating redundancy, duplication, authorized under proposed new NWP B. not bound to comply with Executive and inconsistency in the application of In addition, the Corps invited public Orders. comment on whether a separate NWP clean water provisions. One of the Consistent with this legislative should be issued to authorize structures recommended reforms was to make principle, the Corps requested comment or work regulated by the Corps for statutory changes to authorize Federal on whether to modify the NWPs that multi-species mariculture activities. agencies to select and use NWPs require PCNs to limit the PCN without additional review by the Corps. As required by the Executive Order, requirement to non-federal permittees. Principle I.C.1 recommends allowing the Corps proposed to issue two new The Corps requested that commenters Federal agencies to move forward on NWPs: NWP A to authorize seaweed provide their views on whether they mariculture activities in navigable NWP projects without submitting PCNs support or oppose having different PCN waters of the United States, including to the Corps. That principle also states requirements for Federal and non- federal waters on the outer continental that removing PCN requirements for Federal permittees, with supporting shelf, and NWP B to authorize finfish Federal agencies would allow the Corps information to explain their views. After mariculture activities in these waters. to focus on projects that do not qualify reviewing and considering public Based on the reasons set out in the final for NWPs, such as activities that require comments on this proposal, the Corps rule, the Corps has decided to issue individual permits that have greater has determined not to finalize any these two permits. These new NWPs environmental impacts. change to PCN requirements for federal authorize structures and work in Consistent with the recommendation permittees. navigable waters of the United States included in the Legislative Outline, in under Section 10 of the Rivers and the 2020 Proposal the Corps invited II. Discussion of Public Comments Harbors Act of 1899. These new NWPs comment on whether it can use its also authorize seaweed and finfish existing authority to create specific A. Overview mariculture structures attached to the procedures or conditions by which In response to the 2020 Proposal, the seabed on the outer continental shelf. Federal agencies that want to use NWPs Corps received more than 22,700 Section 4(f) of the Outer Continental for regulated activities would not need comment letters, of which Shelf Lands Act of 1953 as amended (43 to submit PCNs, consistent with approximately 22,330 were form letters U.S.C. 1333(e)), extended the Corps’ applicable law. The Corps specified pertaining to the proposed removal of Rivers and Harbors Act of 1899 section that, under such a mechanism, the the 300 linear foot limit for losses of 10 permitting authority to artificial Corps would retain under its authority stream bed, the proposed changes to islands, installations, and other devices for district engineers to modify, NWPs 21, 49, and 50, or the proposed located on the seabed, to the seaward suspend, or revoke NWP authorizations reissuance of NWP 12. In addition to the limit of the outer continental shelf (see (see 33 CFR 330.5(d)), and the right to various form letters, the Corps received

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a few hundred individual comment conditions. One commenter stated that Corps did not propose a large number or letters. Those individual comment each NWP should include a state-level substantial changes to the NWPs. letters, as well as examples of the review prior to verification. One Soliciting public comment on proposed various form letters, are posted in the commenter asserted that the proposal regional conditions concurrently with www.regulations.gov docket (COE– violates the authority of individual the proposed issuance or reissuance of 2020–0002) for this rulemaking action. states to resolve noncompliance with the NWPs is consistent with the Corps’ The Corps reviewed and fully water quality standard permits. One NWP regulations at 33 CFR considered all comments received in commenter stated that the Corps should 330.5(b)(2)(ii). The Corps has a response to the 2020 Proposal. ensure compliance with Safe Water designated a lead district for each state; Drinking Act when verifying NWP these districts have been identified B. Responses to General Comments eligibility. One commenter said that the since 2004. As discussed in Section I.A., Many commenters expressed general proposed rule conflicts with efforts to the Corps issued a Director’s Policy support for the proposed rule, as well as update state general permits. Memorandum on May 15, 2018, that the NWP program as a whole, and many The 16 NWPs issued in this final rule further clarified its policy for commenters stated opposition to the comply with the Corps’ NWP designating a lead district for activities proposed changes to the NWPs or the regulations at 33 CFR part 330. The that require Department of the Army use of NWPs to authorize certain NWPs authorize only those activities permits that cross district or state activities. Many commenters said that that have no more than minimal boundaries. the NWP program should be individual and cumulative adverse One commenter stated that the Corps discontinued. Many commenters environmental effects, so it is not is required under Section 404(e) of the objected to reissuing the NWPs ahead of necessary to issue public notices to Clean Water Act to hold a public schedule, stating that early reissuance of announce the tens of thousands of NWP hearing, which it cannot meaningfully the NWPs presents an unnecessary verification letters Corps districts issue accomplish given the pandemic. One burden and cost to the agency and the each year. The Corps acknowledges that commenter said the NWPs should not public. Many commenters stated that it does not have the authority to enforce allow losses of up to 1⁄2-acre of waters the proposed NWPs do not comply with conditions provided by states, except for of the United States in areas that have the Clean Water Act, the National those conditions added to the NWPs by already been heavily impacted and Environmental Policy Act, the water quality certifications by certifying should not be used in areas where Endangered Species Act, the National authorities and Coastal Zone critical and essential habitat exists for Historic Preservation Act, the Magnuson Management Act consistency species that are federally threatened or Stevens Act, and other federal laws. concurrences issued by states, that are endangered species. Many commenters said that the NWP within the Corps’ legal authority to The Corps declined to hold a public program is pushing species closer to enforce. States can take actions to hearing on the proposed NWPs because extinction. enforce their own water quality it determined that a public hearing was The NWP program is an important requirements, including permits issued unlikely to provide additional component of the Corps Regulatory under Section 402 of the Clean Water information that would inform the Program because it provides an efficient Act. The Corps does not have the legal Corps’ decision on whether to issue means of authorizing activities that authority to enforce the Safe Water these NWPs. Under the Corps’ result in no more than minimal Drinking Act. The issuance or regulations at 33 CFR 327.4(b), requests individual and cumulative adverse reissuance of the NWPs is independent for public hearing under this paragraph environmental effects so that the Corps of the issuance of general permits by shall be granted, unless the Corps can devote more of its resources for states, or the issuance of state determines that the issues raised are evaluating proposed activities that programmatic general permits by Corps insubstantial or there is otherwise no require Department of the Army (DA) districts. valid interest to be served by holding a authorization that have the potential to Several commenters said that the public hearing. The Corps received cause more substantial adverse proposed rule did not allow sufficient approximately 22,700 comments on the environmental effects. The time for adequate review by states and proposed rule, and it is unlikely that grandfathering provisions in the Corps’ tribes. Several commenters requested any statements provided during a public NWP regulations at 33 CFR additional time to review the proposed hearing would raise issues that are 330.6(a)(3)(ii) and 330.6(b) and as NWPs. One commenter said that the different that the issues or concerns described in Section I.D, Status of comment period should be extended by discussed in the written comments Existing Permits, provide mechanisms 180 days. One commenter stated that received in response to the 2020 to reduce regulatory burdens when the Corps divisions and districts should not Proposal. Corps modifies or reissues the NWPs to solicit comments on proposed regional The NWPs can be used in any area of replace existing NWPs. The NWPs are conditions concurrently with the public the United States, except where the issued in compliance with the Clean comment period of the NWP reissuance. NWPs have been revoked by division Water Act, the National Environmental Many commenters said that the Corps engineers on a regional basis (e.g., to use Policy Act, the Endangered Species Act, should have a lead district for every a programmatic general permit instead the National Historic Preservation Act, state. of the NWPs) or suspended or revoked the Magnuson Stevens Act, and other For the 2020 Proposal, the Corps by district engineers on a case-by-case applicable federal laws. provided a 60-day comment period, basis. The NWPs can be used in a Several commenters said that the which is same duration the Corps has variety of areas ranging from proposal is not compliant with the used for past rulemaking actions environmental settings that have been regulations that govern NWPs. Several involving the issuance, reissuance, and/ heavily impacted by human activities to commenters stated that every NWP or modification of the NWPs. The Corps environmental settings that have been authorization should be announced sent response letters to entities that shaped by fewer or less severe impacts through a public notice. Several made timely requests for extensions of caused by human activities. For those commenters said that the Corps does not the comment period for the 2020 NWPs with a 1⁄2-acre limit for losses of have the authority to enforce state Proposal. In the 2020 Proposal, the waters of the United States (e.g., NWPs

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21, 29, 39, 40, 42, 43, 44, 50, 51, and commenters said that the NWPs should issuance or reissuance of an NWP, the 52), PCNs are required for all proposed either not authorize activities that Corps goes further than estimating the activities (except for maintenance impact streams and rivers occupied by number of times an NWP may be used activities under NWP 43 and losses of anadromous salmon, or compensatory to authorize activities during the 5-year less than 1⁄10-acre of waters of the mitigation should always be required for period it is expected to be in effect by United States for NWP 51), which gives those activities. One commenter stated estimating the acreage of impacts and district engineers the opportunity to that the NWPs should not be used in the acreage of compensatory mitigation review proposed activities in their areas with substantial cumulative required by district engineers during current environmental setting and impacts, such as essential fish habitat that 5-year period. In its analysis of the determine whether those activities will and areas inhabited by ESA-listed effects or impacts of the proposed result in no more than minimal species. Many commenters said that issuance or reissuance of the NWPs individual and cumulative adverse Corps should fund an independent under the Council of Environmental environmental effects. evaluation of its methodology for Quality’s current NEPA regulations at The ability for division and district assessing cumulative impacts. One 40 CFR 1508.1(g), the Corps also engineers to modify, suspend, or revoke commenter said that the proposal estimates the impacts that are NWPs on a regional or case-by-case should be based on peer-reviewed reasonably foreseeable and have a basis is a key tool for ensuring that the scientific analysis. One commenter reasonably close causal relationship to NWPs only authorize activities that stated that the proposal should include the proposed action during the 5-year cause no more than minimal individual a scientific support document. One period the NWP is expected to be in and cumulative adverse environmental commenter said that NWPs should only effect. effects. There is substantial variation in authorize activities with predictable These analyses of effects and their aquatic resource types across the environmental effects and outcomes. associated estimates of authorized country, as well as a large amount of The NWP activities that do not activities, authorized impacts to variability among geographic regions in require PCNs are those activities that jurisdictional waters and wetlands, and the quantity of those resources. Those have characteristics that do not result in compensatory mitigation required by regional differences require division and more than minimal adverse district engineers, include NWP district engineers to have the authority environmental effects, such as small activities that require PCNs and NWP to tailor the NWPs to address regional structures in navigable waters subject to activities that do not require PCNs. The and site-specific concerns. The NWPs section 10 of the Rivers and Harbors Act Corps disagrees that an independent can only be issued for a period of 5 of 1899 or minor fills in waters of the evaluation of these approaches to years because of the statutory language United States associated with cumulative effects is necessary, or that in section 404(e) of the Clean Water Act, maintenance activities or temporary a peer-reviewed scientific analysis or a as well as the Corps’ regulations at 33 impacts. scientific support document should be CFR 330.6(b). Section 330.6(b) states For the issuance or reissuance of these prepared. The Corps follows existing that if ‘‘an NWP is not modified or NWPs, the Corps has conducted the federal regulations for assessing reissued within five years of its effective required cumulative effects analyses. In cumulative effects. In its evaluations of date it automatically expires and the national decision document for each individual and cumulative adverse becomes null and void.’’ The 5-year NWP issued or reissued in this final environmental effects of activities cycle for reissuing the NWPs provides rule, the Corps evaluated the cumulative authorized by NWPs, the Corps sufficient time to make necessary impacts that are anticipated to occur considers reasonably foreseeable effects changes to the NWPs to ensure that the during the 5-year period the NWPs are or impacts, especially those effects or NWPs only authorize those activities expected to be in effect. The cumulative impacts that are directly or indirectly that result in no more than minimal impacts are evaluated against the caused by the activity authorized under individual and cumulative adverse current environmental setting or the Corps’ permitting authorities under environmental effects. baseline, in accordance with typical Section 10 of the Rivers and Harbors Act Many commenters objected to the practices for conducting environmental of 1899 and Section 404 of the Clean proposed NWPs, stating that they impact analyses. The Corps’ public Water Act. authorize activities that result in more interest review regulations at 33 CFR The NWP program provides a three- than minimal individual and 320.4(a)(1) and the Corps’ general tiered approach to ensure compliance cumulative adverse environmental permit regulations at 33 CFR 322.2(f) with Section 404(e) of the Clean Water effects and that they do not authorize and 323.2(h) require consideration of Act. Those three tiers are: (1) the terms categories of activities that are similar in cumulative effects for the issuance of and conditions of the NWPs issued by nature. Many commenters said that the permits. Corps Headquarters; (2) the authority of Corps has not done any meaningful For those NWPs that authorize division engineers to modify, suspend, analysis of the cumulative effects from discharges of dredged or fill material or revoke NWPs on a regional basis; and NWPs. A few commenters said that into waters of the United States, the (3) the authority of district engineers to since the Corps does not require pre- Corps complies with the U.S. EPA’s modify, suspend, or revoke NWPs on a construction notifications (PCNs) for all regulations at 40 CFR 230.7(b)(3) for case-by-case basis. Section 404(e) of the NWP activities, it could not ensure that assessing cumulative impacts for the Clean Water Act does not specify how NWP activities result in no more than issuance of general permits. Section broad or narrow a category of activity minimal individual and cumulative 230.7(b)(3) requires the permitting must be in order to be covered by a adverse environmental effects. One authority (e.g., the Corps) to predict general permit. Therefore, that section commenter said that Corps districts cumulative effects by evaluating the of the Clean Water Act gives the Corps should improve their tracking of number of individual discharge the discretion to identify categories of cumulative impacts. A number of activities likely to be regulated under a activities for the issuance of NWPs. The commenters opposed the NWPs, stating general permit until its expiration, Corps interprets broadly the that they authorize activities associated including repetitions of individual requirement for general permits to with larger projects that have substantial discharge activities at a single location. authorize categories of activities that are environmental impacts. Several In its cumulative effects analyses for the similar in nature, to provide program

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efficiency, to keep the number of NWPs protective of the environment. Several fills in jurisdictional waters and manageable, and to facilitate commenters said that public notices wetlands authorized by general permits implementation by the Corps and should be issued for NWP PCNs to and individual permits are less than 1⁄10- project proponents that need to obtain disclose proposed NWP activities and acre (see Figure 5.1 in the Regulatory Department of the Army (DA) increase public participation. A number Impact Analysis for this final rule, authorization for activities that have no of commenters suggested that NWPs which is available in the more than minimal adverse should require no net loss of aquatic www.regulations.gov docket (COE– environmental effects. resources. A number of commenters 2020–0002)). The 16 NWPs use the term While the Corps recognizes that many asked why the proposed NWPs use the ‘‘no more than minimal adverse NWP activities may be components of term ‘‘no more than minimal adverse environmental effects’’ to be consistent larger overall projects, the Corps’ environmental effects’’ instead of ‘‘no with the text of Section 404(e) of the authorities under the NWP program are more than minimal adverse effects on Clean Water Act and 33 CFR 322.2(f)(1) limited to discharges of dredged or fill the aquatic environment.’’ for Section 10 of the Rivers and Harbors material into waters of the United States Section 404(e) of the Clean Water Act Act of 1899. When making no more than that are regulated under Section 404 of recognizes that activities authorized by minimal adverse environmental effects the Clean Water Act, and structures and general permits, including NWPs, will determinations for proposed NWP work in navigable waters that are result in adverse environmental activities, the district engineer considers regulated under Section 10 of the Rivers impacts, but limits those adverse the adverse effects to the aquatic and Harbors Act of 1899. The Corps impacts so that they can only be no environment and any other factor of the does not regulate other components of more than minimal. The Corps has public interest (e.g., 33 CFR 330.1(d)). those larger overall projects, such as adopted terms and conditions for the The district engineer also applies the 10 activities that occur in upland areas. In NWPs to be sufficiently protective of the criteria listed in paragraph 2 of Section many cases, the NWPs are authorizing aquatic environment while allowing D, District Engineer’s Decision. The use minor features that may be part of those activities that result in no more than of the term ‘‘no more than minimal larger overall projects but that still does minimal adverse environmental effects adverse environmental effects’’ does not not bring those larger upland features to be conducted. expand the Corps’ scope of analysis. into the Corps’ jurisdiction. Requiring public notices for PCNs The Corps’ control and responsibility Division engineers can impose would be contrary to the purpose of the remains limited to the activities it has regional conditions on the NWPs to general permit program established the authority to regulate, and the effects protect rivers and streams inhabited by through section 404(e) of the Clean to the environment caused by those anadromous fish, including salmon. For Water Act, for a streamlined activities. those salmonids that are listed as authorization process for activities that Several commenters said that the endangered or threatened under the result in no more than minimal proposed NWPs are not sufficiently Endangered Species Act (ESA), general individual and cumulative adverse protective of freshwater mussels. One condition 18 requires PCNs for all NWP environmental effects. In addition, it is commenter stated that the NWPs should activities proposed to be undertaken by unlikely that there would be any be modified to provide additional non-federal permittees that might affect meaningful public comment submitted protections to wilderness areas. Several those listed species or their designated to Corps districts in response to public commenters identified specific areas of critical habitat (or proposed species or notices for the minor activities the country where they were concerned proposed critical habitat), or that occur authorized by these NWPs that would that the use of the NWPs would in their designated or proposed critical warrant the reduction in permitting authorize activities with adverse habitat. If a proposed NWP activity may efficiency providing such a comment environmental impacts. Many adversely affect essential fish habitat, period would cause. Compensatory commenters said that the NWPs have the district engineer will conduct mitigation can only be required by the increased coastal communities’ essential fish habitat consultation with district engineer after he or she reviews vulnerability to future flood events by the NMFS. District engineers have the the PCN and determines that accelerating wetland alteration discretion to require compensatory compensatory mitigation is necessary to following hurricanes. One commenter mitigation to offset stream losses caused comply with the ‘‘no more than minimal stated that the NWPs should be revoked by NWP activities. After conducting adverse environmental effects’’ in areas included under the Safe ESA section 7 consultation or essential requirement for NWPs (see 33 CFR Drinking Water Act, such as public fish habitat consultation, the district 330.1(e)(3)). There is no federal statute water systems source water areas. One engineer may determine that stream or regulation that requires ‘‘no net loss’’ commenter said that all NWPs should compensatory mitigation is necessary to of aquatic resources. The ‘‘no overall net be subject to an acreage limit of 1⁄10-acre. ensure that the NWP activity results in loss’’ goal for wetlands articulated in the Impacts to freshwater mussels that are no more than minimal individual and 1990 U.S. EPA-Army Memorandum of listed as endangered or threatened cumulative adverse environmental Agreement for mitigation for Clean under the ESA are addressed through effects. A division engineer has the Water Act section 404 permits states general condition 18 and the subsequent authority to modify, suspend, or revoke that the section 404 permit program will ESA section 7 consultations that occur one or more NWPs in a geographic contribute to that national goal. The when district engineers review PCNs region if he or she determines that the 1990 Memorandum of Agreement only and determine that a proposed NWP use of that NWP or NWPs will result in applies to standard individual permits, activity may affect listed mussels. more than minimal cumulative adverse not to general permits. Where there are concerns about the use environmental effects. The NWP program provides valuable of NWPs in wilderness areas and other One commenter said the NWPs protection to the Nation’s aquatic specific waterbodies or geographic areas should not authorize activities that resources by establishing incentives to of the United States, division engineers result in adverse environmental avoid and minimize losses of can add regional conditions to the impacts. One commenter stated that the jurisdictional waters and wetlands in NWPs to restrict or prohibit their use in terms and conditions of the NWPs order to qualify for the streamlined those areas. The Corps does not have the should not be changed to be less NWP authorizations. A large majority of legal authority to address the

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vulnerability of coastal communities to application of the provisions of the engineers currently have the authority future flood events or the loss of NWPR at 33 CFR part 328. Many of the to prioritize authorization of time- wetlands in coastal areas due to erosion, NWPs can be used to authorize sensitive maintenance and emergency subsidence, and sea level rise. Public discharges of dredged or fill material work, including the use of the water systems source water areas are into numerous wetland types that are emergency permitting procedures at 33 generally watersheds, and the Corps subject to Clean Water Act jurisdiction CFR 325.2(e)(4). Certain NWPs include does not have the authority to regulate under the NWPR. There are no notes that point to exemptions that may activities in uplands in these inconsistencies between the proposed be related to authorized activities. The watersheds that may affect water NWPs and the NWPR. The NWPs can be Corps declines to add a general supplies for communities. For those used to authorize specific activities in condition to the NWPs to require NWP activities that require PCNs, waters and wetlands that are subject to permittees to take actions to limit the district engineers can consider effects to Clean Water Act jurisdiction under the spread of invasive or noxious species water supplies caused by regulated NWPR. Some of the NWPs specifically because such a condition would not be activities, as one of the Corps’ public authorize discharges of dredged or fill reasonably enforceable and invasive or interest review factors (i.e., water material into streams, so the Corps noxious species can spread through supply and conservation at 33 CFR declines to replace the term ‘‘stream’’ natural mechanisms outside the control 320.4(m)) that can be a basis for with ‘‘tributary.’’ Under the NWPR, of permittees. The Corps’ regulations at exercising discretionary authority. The ephemeral features, including 33 CFR 325.4(a) requires permit Corps believes that the 1⁄2-acre limit for ephemeral streams are excluded from conditions to be directly related to the the NWPs, the PCN review process, and Clean Water Act jurisdiction. impacts of the proposal, appropriate to the ability of division engineers to One commenter requested that the the scope and degree of those impacts, modify, suspend, or revoke the NWPs Corps issue a new NWP with no PCN and reasonably enforceable. on a regional or case-specific basis is requirements that authorizes emergency (1) Status of Existing Permits sufficient for ensuring that the NWPs projects such as repair of significant that have the 1⁄2-acre limit authorize leaks from canals, tunnels, and other In response to the 2020 Proposal, the only those activities that result in no features, culvert repair and replacement, Corps received comments concerning more than minimal individual and critical pump plant repairs, and small the status of existing NWP cumulative adverse environmental scale urgent natural disaster mitigation authorizations and how the issuance of effects. projects. One commenter suggested that the final rule may affect those existing One commenter stated that the Corps issue a new NWP to authorize authorizations. The Corps also invited implementing NWPs under the natural disaster mitigation projects (e.g., public comment on changing the Navigable Waters Protection Rule fire or flood repairs or mitigation expiration date for the 2017 NWPs to (NWPR) will result in more than projects) with an acreage limit of 1⁄10- avoid having two sets of NWPs in effect minimal impacts and not account for acre. One commenter stated that the at the same time. areas that were jurisdictional but are not Corps should issue a new NWP to Many commenters stated that current under current rule. Many commenters authorize aggregate mining activities, NWPs should expire on their original said that the NWPs should include instead of NWP 44. One commenter said expiration date (i.e., March 18, 2022). language clarifying that not all ditches that the Corps should prioritize NWP Several commenters expressed support constructed in adjacent wetlands are verifications for time-sensitive for the 2017 NWPs expiring the day jurisdictional. Many commenters stated maintenance and emergency work. One before the new NWPs become effective that the discussion of wetland commenter stated that the proposal in order to provide certainty and jurisdiction in the NWPs should mirror should include a list of typically continuity without imposing burdens on that in the NWPR. Many commenters exempted activities, such as ditch permittees, provided that all activities asserted that there are inconsistencies maintenance. One commenter said that authorized by the 2017 NWPs remain between the proposed NWPs and the that the NWPs should include a general approved regardless of whether those NWPR. Several commenters said that condition to limit the spread of activities meet the requirements of the the terminology in the NWPs should be invasive/noxious species. new NWPs. These commenters also consistent with the NWPR, especially The Corps declines to issue a new wanted to avoid having differing sets of the terms ‘‘stream,’’ ‘‘tributary,’’ and NWP to authorize the repair of leaks NWPs in effect at the same time. ‘‘ephemeral.’’ from canals, tunnels, and other features Many commenters stated that the The NWPs are used to authorize because NWP 3 can be used to authorize Corps proposed grandfathering activities in waters and wetlands that discharges of dredged or fill material procedure would cause uncertainty and are jurisdictional under the Corps’ into waters of the United States or disruption to those who are relying on permitting authorities: Section 404 of structures or work in navigable waters the expiration date of the 2017 NWPs the Clean Water Act and Section 10 of of the United States to repair leaking and the 12-month grandfathering the Rivers and Harbors Act of 1899. If structures or fills. The Corps also period. A few commenters said that the a project proponent wants to discharge declines to issue a new NWP to grandfathering process and applicability dredged or fill material into a waterbody authorize natural disaster mitigation was unclear. One commenter stated that that is not subject to Clean Water Act projects. Some of these activities are previously verified activities should be jurisdiction under the NWPR, then DA already authorized by NWP 37, allowed to continue under the 2017 authorization under an NWP or any emergency watershed protection and NWPs unless the new NWPs are more other type of Corps permit is not rehabilitation activities. Some of these restrictive. One commenter stated that if required for that proposed discharge. activities can also be authorized through the NWPs issued in the final rule The Corps declines to add language to the Corps’ emergency permitting replaces the 2017 NWPs and the NWPs this final rule regarding the procedures at 33 CFR 325.2(e)(4). issued in the final rule go into effect jurisdictional status of ditches under the Nationwide permit 44 authorizes before the 2017 NWPs were originally Clean Water Act because that aggregate mining activities, so it is not scheduled to expire on March 18, 2022, jurisdictional status is more necessary to issue another NWP to the Corps should notify all permittees appropriately addressed through authorize those activities. District who submitted PCNs or received NWP

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verification letters under the 2017 commences construction. If the activity they are supportive of the removal of the NWPs. is not authorized by the reissued NWP, 300 linear foot PCN threshold. Many The Corps acknowledges that that then the project proponent has 12 commenters stated that they are these changes to the NWPs may cause months to complete the authorized opposed to reducing the number of PCN uncertainty and disruption for some activity after the 16 final NWPs go into thresholds for the NWPs because they project proponents who have received effect as long as the project proponent believe these PCN thresholds are NWP verifications from the Corps. has commenced construction or is necessary to ensure that the activities However, the Corps believes this under contract to commence authorized by these NWPs have no more disruption will be limited because the construction before the new expiration than minimal adverse environmental activities affected by the changes to the date for the twelve 2017 NWPs that are effects. A few commenters said that the 12 existing NWPs are likely to continue reissued in this final rule (see 33 CFR lack of PCNs does not meet the national to qualify for NWP authorization. 330.6(b)). The Corps’ regulations at 33 no-net-loss of aquatic resources goal Further, project proponents can work CFR 330.6(b) specify a 12-month because these losses are not being with Corps districts to efficiently obtain grandfathering period for activities that mitigated. A few commenters stated NWP verifications under the reissued no longer qualify for authorization their opposition to the removal of the NWPs. The information previously under the reissued NWP if the activity 300 linear foot PCN thresholds. Several submitted to Corps districts via PCNs has commenced or is under contract to commenters said that they are opposed can be used to provide NWP commence prior to the expiration of the to federal agencies not having to submit verifications for many of the activities NWP. To change that 12-month period PCNs because it is contrary to the Clean that will be authorized by the new to 18 months would require rulemaking Water Act. NWPs for different types of utility line to amend the regulation. The validity of The changes to the PCN thresholds for activities that were previously the prior NWP authorization would the NWPs are discussed in the sections authorized by NWP 12. It is impractical depend on whether the activity of the final rule that apply to each NWP. to require the Corps districts to reach continues to be authorized by any of the With the removal of the 300 linear foot out to all permittees who received NWP 16 NWPs issued in this final rule, and limit for losses of stream bed, the Corps verifications under the 2017 NWPs that whether any of the grandfathering has also removed the ability of district are reissued in this final rule because of provisions in 33 CFR 330.6 apply. engineers to waive that 300 linear foot the number of verified activities. Once One commenter said that based on limit on a case-by-case basis after an NWP verification has been provided section 330.6(b) permittees should have reviewing PCNs. Activities can be there is no obligation for a permittee to until March 18, 2023 to complete authorized by NWPs with no undertake the work that has been projects authorized under the 2017 compensatory mitigation requirements permitted; therefore, there it is NWPs as long as they are under as long as those activities result in no impractical for the Corps to follow-up construction or contract to commence more than minimal individual and on every verification to ascertain if the construction. One commenter stated cumulative adverse environmental work has been completed and/or that special emphasis should be placed effects. In FY 2018, approximately 11 whether the project proponent still on NWP 12 if it is split into three NWPs, percent of activities verified by district intends to proceed with the activity to ensure that activities previously engineers as qualifying for NWP authorized under the NWP. authorized under the 2017 NWP 12 authorization required compensatory One commenter asked what would continue to be permitted through the mitigation. There is no requirement in happen to activities approved under the date specified in the verification letter. law or regulation for no net loss of 2017 NWPs that would start One commenter stated that the Corps aquatic resources. The requirement for construction prior to March 18, 2022, should allow for a reasonable transition what can be authorized by an NWP is but after the implementation dated of between existing activities authorized that established by Section 404(e) of the the new NWPs. One commenter stated by an NWP and the new NWPs, for up Clean Water Act requiring activities that activities that no longer qualify to one year. authorized by NWPs to cause only under the new NWPs but were verified As discussed above, electric utility minimal individual and cumulative under the 2017 NWPs should have 18 line and telecommunications activities adverse environmental effects. As months to complete the authorized and utility line activities for water and discussed in Section II.D, the Corps is activity. One commenter questioned other substances continue to be retaining PCN requirements for federal whether projects verified under the authorized by the 2017 NWP 12 for up agencies that use the NWPs to authorize 2017 NWPs would still be valid as to 12 months as long as the project their activities. verified or would they be in non- proponent has commenced construction A few commenters said that PCNs compliance and require re-authorization or is under contract to commence should be required for all NWP either by NWP or by individual permit. construction before NWPs 57 and 58 go activities to ensure the authorized If a project proponent received an into effect. Given the anticipated activities are not affecting the NWP verification under one of the 2017 effective date of this final rule, the 12- environment adversely and to ensure NWPs, and the activity continues to be month grandfathering provision is likely the permittee is avoiding and authorized by one of the existing NWPs to end close to March 18, 2022. The minimizing impacts to the maximum that was reissued, that activity Corps believes that the current extent practicable. One commenter continues to be authorized by the 2017 regulations provide a reasonable stated that a PCN should be required to NWP until it expires on March 18, 2022, transition from the 2017 NWPs to the 16 ensure compliance with Section 106 of unless the district engineer specified a NWPs issued in this final rule. the National Historic Preservation Act. different expiration date in the NWP One commenter said that the timing of verification letter (see 33 CFR (2) Pre-Construction Notification the review process for a PCN is not 330.6(a)(3)(ii)). In contrast to the Requirements identified in the proposed rule for any grandfathering provision at 33 CFR A few commenters stated they are of the NWPs. 330.6(b), the grandfathering provided by supportive of the reduction of the The Corps establishes PCN thresholds section 330.6(a)(3)(ii) is not dependent number of PCN thresholds under for those NWP activities that have the on when the project proponent various NWPs. A few commenters said potential to cause more than minimal

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adverse environmental effects, to informed decisions can be made activity and have an insignificant provide activity-specific review and regarding changes to the NWP program. contribution to cumulative greenhouse allow district engineers to exercise The information on the non-PCN gas emissions in the region. The discretionary authority and require crossings associated with a linear activities authorized by NWPs may individual permits for activities that project is necessary so that the district result in permanent or temporary will have more than minimal adverse engineer can consider all crossings of impacts to wetlands and streams, and environmental effects. General waters of the United States that require the discharges of dredged or fill material condition 20 establishes PCN DA authorization when making his or into waters of the United States and requirements for proposed NWP her determination that the proposed structures and work in navigable waters activities that have the potential to NWP activities will result in no more of the United States are only a subset of cause effects to historic properties that than minimal cumulative adverse the variety of human activities that are undertaken by non-federal environmental effects. The information change the quantity and quality of permittees. The timing of the PCN required by paragraphs (b)(4)(i) and (ii) wetlands, streams, and other aquatic review process is provided in general of general condition 32 does not change resources. Those other human activities condition 32. these non-PCN crossings into those are discussed in section 4.0 of the One commenter stated that the Corps requiring PCNs. The Corps tracks all national decision documents for these undertakes many actions under its NWP verifications issued for activities NWPs. Some activities authorized by permitting authorities for which the that require PCNs and for activities the NWPs, such as utility line activities, tribes and villages are not notified. One reported to Corps districts through bank stabilization activities, living commenter asked how the Corps voluntary PCNs where the permittee shorelines, and aquatic resource ensures no more than minimal adverse seeks written verification even though restoration activities contribute to environmental effects if a default NWP he or she is not required to do so. adaptation to climate change. authorization occurs after 45 days has (3) Climate Change C. Comments on Proposed Actions passed after the district engineer Many commenters said that the Corps Under Executive Order 13921, receives a PCN. One commenter asked should consider climate change during Promoting American Seafood for clarification as to how the Corps the reissuance of these NWPs. One Competitiveness and Economic Growth ensures compliance for activities that do commenter stated that the Corps failed In response to the 2020 Proposal, the not require PCNs. One commenter to analyze climate change, the risk of Corps received comments on its requested that Corps Headquarters which will be exacerbated by the proposed actions under Executive Order clarify to each of the Corps districts that issuance of the NWPs. Some of these 13921, Promoting American Seafood it is up to the permittee to determine commenters stated that the Corps Competitiveness and Economic Growth. whether a PCN is required or not. should consider increased energy The comments on proposed NWPs A In conjunction with the rulemaking consumption as a foreseeable indirect and B for seaweed mariculture activities process for the issuance of these NWPs, effect of the Corps’ decisions for these and finfish mariculture activities, Corps districts have been conducting NWPs. Several commenters asserted respectively, are discussed in Section consultation and coordination with that the proposed changes to the NWPs II.G of this final rule. In response to the tribes to identify regional conditions will have significant impacts on the section of the 2020 Proposal on E.O. and coordination procedures to ensure environment, including climate change. 13921, the Corps received a few compliance with general condition 17, One commenter said that the comments on aquaculture in other concerning tribal rights. Activities that cumulative impacts of stream and waters of the United States, but those qualify for the default authorization that wetland losses from NWP activities commenters seemed to think that the occurs 45-days after the district engineer must be considered in the context of the mariculture NWPs might also authorize receives a complete PCN must comply changing climate. Several commenters aquaculture activities in those other with all conditions of the NWP, stated that the proposed NWPs help waters (e.g., freshwater lakes, ponds, including the general conditions and support the nation’s investment of its and wetlands). The new NWPs 55 any applicable regional conditions infrastructure, including changes to (seaweed mariculture activities) and 56 imposed by the division engineer. The infrastructure to address global climate (finfish mariculture activities) limit permittee is responsible for reading the change. those activities to estuarine and marine NWPs and all of their conditions to The Corps has considered climate waters. These new NWPs also authorize determine whether he or she is required change during the reissuance of the multi-trophic mariculture activities. to submit a PCN before proceeding with NWPs, and each of the national decision an authorized activity. documents includes a discussion of D. Comments on the 2018 Legislative One commenter said that for linear climate change. Although some Outline for Rebuilding Infrastructure in projects that are considered ‘‘single and activities authorized by various NWPs America complete,’’ where some crossings do not may be associated with energy In the 2020 Proposal, the Corps require PCNs, the permittee should not production, distribution, and use, the requested comment on whether to have to divulge the non-PCN crossing Corps does not have the authority to modify the NWPs that require PCNs to information to the Corps because the regulate or control the production, limit the PCN requirement to non- permittee is not required to provide the distribution, or combustion of federal permittees. The Corps requested same level of documentation for non- hydrocarbons and other materials are that commenters provide their views on PCN crossings, and the project sources of carbon dioxide and other whether they support or oppose having proponent should be free to move greenhouse gases that contribute to different PCN requirements for Federal forward with the non-PCN crossings. global climate change. Permittees may and non-Federal permittees, with One commenter encouraged the Corps use equipment during the construction supporting information to explain their to implement a nationwide tracking and of the NWP activity that emits carbon views. monitoring system for NWPs with PCN dioxide and other greenhouse gases, but After considering the comments requirements to share information with those emissions occur during the received in response to the proposal cooperating resource agencies so that construction period for the authorized based on the 2018 Legislative Outline

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for Rebuilding Infrastructure in federal agencies. They stated that staff at the Corps is retaining PCN requirements America, for the final NWPs the Corps Corps districts are the best equipped for federal agencies, it declines to decided to continue to subject both with the technical knowledge and speculate on how it would have federal permittees and non-federal familiarity to administer the program implemented the proposal. permittees to the same PCN and provide compliance oversight. Several commenters stated that requirements. Overall, the comments The Corps agrees that knowledge delegation of the section 404 permitting received in response to this aspect of the regarding environmental laws and program to another federal agency is not proposed rule did not support a regulations, and experience in preparing likely to be legally permissible and reasoned and defensible rational for environmental documentation to might expose the Corps to litigation. establishing different PCN requirements demonstrate compliance with Some of these commenters said that for federal and non-federal entities that environmental laws, varies among case law suggests that such delegation of use the NWPs to authorized activities people as a whole, and is not dependent a federal agency’s statutory authority is that require DA authorization under on whether they work for a federal not allowed, especially in the absence of Section 404 of the Clean Water Act and government agency. As discussed in the memorandum of agreement between Section 10 of the Rivers and Harbors Act 2020 Proposal, many non-federal agencies. Not requiring PCNs from of 1899. The comments the Corps permittees seek the assistance of federal permittees for NWP activities is received did not provide a substantive environmental consultants to help them not be a delegation of the section 404 basis for establishing different PCN obtaining DA authorization through the permitting program. The Corps requirements for federal permittees and NWP authorization process. continues to implement the NWP non-federal permittees, or establishing Many commenters pointed out that program and take actions necessary that federal permittees generally have a PCNs allow the NWP program to meet ensure that NWP activities comply with better record than non-federal the goal of no more than minimal the terms and conditions of those permittees for complying with the individual and cumulative adverse authorizations, including potential NWPs and complying with related laws impacts to the environment. Many of actions identified in its enforcement such as the Endangered Species Act and them said that exempting activities regulations at 33 part CFR 326. the National Historic Preservation Act. undertaken by federal agencies would Several commenters did not support While the Corps would retain its reduce the ability of the Corps to track the inclusion of state departments of enforcement authorities under the the cumulative effects of the NWP transportation (DOTs) that have been proposal, continuing to require federal program. Many commenters expressed assigned NEPA responsibilities in the agencies to submit PCNs is a more concerns with the Corps not assessing category of federal permittees that efficient means of ensuring that the compensatory mitigation for federal would not have to submit PCNs for NWPs authorize only those activities permittees. They said there would be no proposed NWP activities. Some of these that result in no more than minimal mechanism for oversight and assurance commenters said that state DOTs may individual and cumulative adverse that mitigation is completed and legally forgo internal mitigation programs if environmental effects. binding. Some of these commenters PCNs were no longer required and Many commenters opposed the stated that federal permittees would district engineers would not have the proposal to remove PCN requirements have no incentive to avoid and ability to impose mitigation for federal permittees that want to use minimize impacts and it is a clear requirements on NWP activities through the NWPs to authorize their activities, conflict of interest for federal agencies, conditions added to the NWP because it would apply different PCN as they are incentivized to ensure their authorization. Some commenters said requirements and standards to federal projects are permitted with as little cost that long-term linear transportation versus non-federal permittees. Some of as possible. projects are some of the biggest these commenters said this change may The Corps is continuing to require contributors of turbidity in the nation’s result in inadvertent violations. Some of PCNs from federal permittees, so there waterbodies and can have permanent these commenters stated that applying will be no change in the number of impacts to streams and wetlands. Some different PCN requirements for federal PCNs. District engineers will still review DOTs already have funding agreements and non-federal permittees has no PCNs and require compensatory with the Corps in most states to provide rational basis, and PCN requirements mitigation and other forms of mitigation supplemental staff that are required to should be based on the regulated when necessary to ensure that NWP implement impartial decision-making activity, not who undertakes the activities result in no more than and are overseen and reviewed by non- regulated activity. minimal individual and cumulative funded regulators to ensure After reviewing the comments adverse environmental effects. transparency and fairness. A few received in response to this aspect of the Regarding the proposed definition of commenters said that if these critical proposal, the Corps agrees that there is non-federal permittee, several safeguards be removed, DOTs will not no substantive basis for establishing commenters asked about the be impartial or unbiased, and could different PCN requirements for federal circumstances under which a non- undermine the environmental and non-federal permittees. The Corps federal permittee would be considered a protections provided by the PCN is thus retaining the existing PCN federal permittee, and whether federal process. Since the Corps is not changing requirements for federal permittees. funding or some other federal nexus the PCN requirements for federal Many commenters questioned involving a local partner would be a permittees, it declines to speculate on whether federal agencies employ factor. Some commenters inquired how it would have implemented the environmental experts qualified to whether a state or local agency who has proposed definition of ‘‘non-federal review the projects before submitting been delegated NEPA authority be permittee’’ and other aspects of the the PCNs to the Corps and ensure that considered a non-federal permittee. proposal. those federal agencies comply with Several commenters said that there A few commenters stated that applicable laws, regulations, and would need to be a clearer definition to removing PCN requirements for federal policies. Some these commenters said help identify federal permittees who permittees could limit the ability of that expertise is inconsistent in terms of would no longer have to submit PCNs states to ensure that state water quality presence and depth among different for proposed NWP activities. Because standards are being met under Section

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401 of the Clean Water Act. If PCNs are the same or higher expertise than the certification process through which not required, the regulatory scope of federal government is arbitrary and individuals receive training by the water quality protection shifts from pre- unfair. One commenter stated that there Corps and demonstrate that they have impact permitting review to more has been an erosion of positions within sufficient knowledge to preserve the resource intensive field compliance, agencies along with the required intent of the NWPs. They said the Corps creating a burden on the regulatory expertise for such environmental should develop a set of criteria that each entities responsible for protection of reviews. Since the Corps is retaining entity needs to meet to demonstrate water quality. Pre-construction PCN requirements for federal proficiency to allow the entity to be notifications ensure that NWP activities permittees, there is no need to speculate exempt from submitting PCNs for are consistent with water quality on how it would have implemented the proposed NWP activities. standards, water quality management proposal. The Corps does not solicit comments plans/continuing planning process, total A couple of commenters said that from state agencies on proposed NWP daily maximum loads, and anti- Section 313 of the Clean Water Act activities, except for certain NWP degradation policy. states in no uncertain terms that all activities identified in paragraph (d) of The PCN requirements do not affect federal agencies ‘‘shall be subject to, and general condition 32. The Corps does the requirements of Section 401 of the comply with, all federal, state, support the development of a Clean Water Act. If a certifying agency interstate, and local requirements certification process for potential users does not issue water quality certification respecting the control and abatement of of the NWPs. Certain NWPs do not for the issuance of an NWP that does not water pollution in the same manner, require the submission of PCNs but for require pre-construction notification, and to the same extent, as any those that do, district engineers will the project proponent is still required to nongovernmental entity.’’ A couple of continue to review and render decisions obtain an activity-specific water quality commenters stated that removal of the on those actions. certification or waiver for the proposed PCN requirements for federal permittees One commenter suggested that the discharge. would make it difficult for states to Corps exempt private companies that A few commenters stated that the identify violations and impossible for are undertaking projects in conjunction further an agency’s focus is from natural the Corps to ensure that the conditions with, or in response to, federal projects. resource management, the input from of the permits are being property One commenter stated that the Corps state fish and wildlife agencies is more implemented, especially since recent should clarify whether states, or entities critical. These commenters said that the changes to the EPA’s regulations for acting with or on behalf of states, would participation of state natural resource Clean Water Act Section 401 water be exempt from the requirement to agencies in the PCN review process quality certifications, which preclude submit PCNs when operating under the helps ensure potential impacts to state certifying authorities from monitoring Surface Transportation Block Grant trust resources are considered, and and enforcing conditions of permitted Program, which allows states to ensures public trust property is not activities. Since the Corps is retaining implement road projects and other taken without compensation. The Corps PCN requirements for federal projects using federal money with some does not coordinate PCNs with state permittees, there is no need to respond amount of regulatory oversight by the natural resource agencies, except for a to these comments. Federal Highways Administration. A few exceptions. Those exceptions are One commenter requested couple commenters suggested that if the identified in paragraph (d) of general clarification regarding use of the phrase Corps does not require PCNs for condition 32. ‘‘NEPA responsibility for all federal activities undertaken federal permittees, Several commenters pointed out that highway project in the state’’, and asked the PCN requirements for all applicants both federal and state projects are whether the Corps intended to only could be included as regional causes of some of the nation’s largest provide federal permittee status to those conditions to the NWPs. The Corps is wetland losses. These commenters said NEPA assignment states who accept all retaining the PCN requirements for that if PCN requirements are removed, federal highway projects in the state. federal permittees, therefore it declines there will be no way to assess the One commenter stated that state to speculate on how it would have impacts of these large-scale projects and transportation agencies would gain implemented the proposal. it would result in huge aquatic resource efficiency by elimination of PCNs for One commenter suggested modifying losses. Several commenters stated that many small projects. A few commenters the PCN exemption to only encompass few federal agencies have the level of supported the proposal and believe it federal, state, or local agencies that have experience in working with and will streamline review and approval of established their credentials for consulting tribes and said that PCNs permitting while allowing the Corps to application of the NWP program. One should continue to be required in order focus on individual permitting needs. commenter suggested an exemption to provide communication between the Several commenters supported the from PCN requirements for federal potentially impacted tribe, the Corps, proposed definition of ‘‘non-federal permittees when pre-construction and the federal agency regarding any permittee’’ including the inclusion of notification is required solely as a result potential impacts to tribal lands and state DOTs. The Corps is not adopting of federal consultation thresholds noted resources. Since the Corps is retaining the proposed definition of ‘‘non-federal in the NWP general conditions. One PCN requirements for federal permittee’’ so it is not necessary to commenter suggested there would be a permittees, these concerns have been address the comments on the proposed benefit in including a statement addressed. definition. clarifying that state transportation A commenter said that the preamble One commenter supports the PCN agencies with NEPA delegation are the to the proposed rule explains that the process and encourages the Corps to federal leads in terms of ESA Section 7 PCN process also provides a database to work with state agencies for additional and NHPA 106 compliance. One inform renewal of NWPs. A couple of options such as reducing comment commenter stated that most DOTs strive commenters stating that the Corps’ periods to reduce overall time for consistency and implement NEPA assumption that non-federal entities, constraints associated with Corps requirements on all projects, which such as private entities, non-profits and permitting. Several commenters ensures compliance with federal even state governments do not possess suggested that there should be a regulations and allows previously non-

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federal aid projects to become federal individual and cumulative adverse agencies, as well as tribes. After Corps aid projects when additional federal effects on the environment and are not Headquarters publishes in the Federal funds become available. One commenter contrary to the public interest. Register the proposal to issue, reissue, suggested that if this proposal is Corps regional conditions are added or modify NWPs, all district engineers enacted, the Corps should provide to the NWPs by division engineers in issue local public notices to advertise specific standards for professional accordance with the procedures at 33 the availability of the proposed rule in qualifications similar to 36 CFR part 61, CFR 330.5(c). Water quality certification the Federal Register and to solicit Appendix A. The Corps is retaining the (WQC) and Coastal Zone Management public comment on proposed regional PCN requirements for federal Act (CZMA) consistency concurrence conditions and/or proposed revocations permittees, so it declines to speculate on regional conditions are also added to the of NWP authorizations for specific how it would implement the proposal. NWPs if an appropriate certifying geographic areas, classes of activities, or One commenter stated that to the authority issues a water quality classes of waters (see 33 CFR extent there is a perception of delay certification or CZMA consistency 330.5(b)(1)(ii)). caused through federal administrative concurrence with special conditions As discussed above, regional shortfalls and backlogs, a greater level of prior to the finalization of the issued, conditions are an important tool for funding for Corps staff and offices reissued, or modified NWPs. taking into account regional differences would be a better investment in Corps regional conditions approved in aquatic resources and their local reducing perceived delays. This by division engineers cannot remove or importance and for ensuring that the commenter said that exchanging one reduce any of the terms and conditions NWPs comply with the requirements of federal staff funding shortfall for of the NWPs, including general Section 404(e) of the Clean Water Act, another agency with less expertise conditions. Corps regional conditions especially the requirement that would not produce a net gain in cannot lessen PCN requirements. In activities authorized by NWPs may only permitting efficiency while complying other words, Corps regional conditions result in no more than minimal with the duty to authorize only those can only be more restrictive than the individual and cumulative adverse impacts that will have minimal adverse NWP terms and conditions established environmental effects. Regional effects on the environment. One by Corps Headquarters when it issues or conditions are modifications of the commenter suggested that the Corps reissues an NWP. NWPs that are made by division evaluate whether a PCN requirement The Corps’ regulations for engineers. Regional conditions can only should be based on qualifications rather establishing WQC regional conditions further condition or restrict the than the federal status of a permittee. for the NWPs are located at 33 CFR applicability of an NWP (see 33 CFR This commenter said that an audit 330.4(c)(2). If, prior to the issuance or 330.1(d)). Under 33 CFR 330.5(c)(1)(i), process could be implemented to verify reissuance of NWPs, a state, authorized the first step of the Corps’ regional past and continued quality of the tribe, or EPA issues a Clean Water Act conditioning is for district engineers to applicant’s work. One commenter section 401 water quality certification issue public notices announcing suggested the Corps focus on how to with conditions, the division engineer proposed regional conditions, and to improve staff training and the will make those water quality solicit public comment on those mechanics of the PCN process so that it certification conditions regional proposed regional conditions, usually is completed in a reliable, transparent, conditions for the applicable NWPs, for a 45-day comment period. Those and effective manner within the unless he or she determines that a public notices also solicit suggestions designated time frames. The Corps is specific condition in a water quality from interested agencies and the public retaining the PCN requirements for certification issued for the issuance of on additional regional conditions that federal permittees, so these concerns an NWP does not comply with 40 CFR they believe are necessary to ensure that have been addressed. 121.7(d)(2). If the district engineer the NWPs authorize only those activities makes such a determination, then he or that have no more than minimal adverse E. Comments on Regional Conditioning she will consider that condition waived environmental effects. The district of Nationwide Permits under 40 CFR 121.9(b) after written public notices are generally issued Under Section 404(e) of the Clean notice is provided to EPA and the shortly after Corps Headquarters Water Act, NWPs can only be issued for certifying authority consistent with 40 publishes the proposed NWPs in the those activities that result in no more CFR 121.9(c). For more information on Federal Register. than minimal individual and compliance with Section 401 of the After the public comment period ends cumulative adverse environmental CWA, refer to Section III.G. for the district public notices, the Corps effects. For activities that require For CZMA consistency concurrences district evaluates the comments and authorization under Section 10 of the issued by a state for the issuance of an begins preparing the supplemental Rivers and Harbors Act of 1899 (33 NWP, if the division engineer documents required by 33 CFR U.S.C. 403), the Corps’ regulations at 33 determines those CZMA concurrence 330.5(c)(1)(iii) for each NWP. Each CFR 322.2(f) have a similar requirement. conditions do not comply with 33 CFR supplemental document will evaluate a Since it can be difficult for the Corps to 325.4, then the conditioned CZMA specific NWP on a regional basis (e.g., draft national NWPs in such a way that consistency certification will be by Corps district geographic area of they account for regional differences, an considered an objection, and the project responsibility or by state) and discuss important mechanism for ensuring proponent will need to request an the need for regional conditions for that compliance with these requirements is activity-specific CZMA consistency NWP. Each supplemental document regional conditions imposed by division concurrence from the state (see 15 CFR will also include a statement by the engineers to address local 930.31(d)) under subpart D of 15 CFR division engineer that will certify that environmental concerns. Effective part 930. the NWP, with approved regional regional conditions help protect local Corps regional conditions may be conditions, will authorize only those aquatic ecosystems and other resources added to NWPs by division engineers activities that will have no more than and help ensure that the NWPs after a public notice and comment minimal individual and cumulative authorize only those activities that process and coordination with adverse environmental effects. The result in no more than minimal appropriate federal, state, and local supplemental documents may cover a

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Corps district, especially in cases where decentralized organization, with most of When the final WQCs and CZMA the geographic area of responsibility for the authority for administering the consistency concurrences are issued, the Corps district covers an entire state. regulatory program delegated to the 38 District and division engineers will The supplemental documents may cover district engineers and 8 division review those WQCs and CZMA a state when there is more than one engineers (see 33 CFR 320.1(a)(2)). consistency concurrences and Corps district in the state, and the lead District engineers are responsible for the determine which conditions become Corps district for that state is day-to-day implementation of the Corps conditions for the final NWPs. Division responsible for preparing the Regulatory Program, including the engineers will then finalize any Corps supplemental documents. If more than evaluation of applications for individual regional conditions. After division one Corps district operates in a state, the permits, evaluating PCNs for proposed engineers finalize Corps regional lead district is responsible for preparing NWP activities, evaluating notifications conditions, Corps districts will issue the supplemental documents and for activities authorized by regional public notices announcing the final coordinating with the other Corps general permits, responding to requests regional conditions and the final WQCs districts. The supplemental documents for approved and preliminary and CZMA consistency concurrences for include an evaluation of public and jurisdictional determinations, the issuance of the NWPs. The Corps agency comments, with responses to conducting compliance and will post copies of the district public those comments, to show that the views enforcement actions, and other tasks. notices announcing the final Corps of potentially affected parties were fully Division engineers are responsible for regional conditions and final WQC/ considered (33 CFR 330.5(c)(1)(ii)). The overseeing implementation of the CZMA conditions in the regulations.gov supplemental document also includes a Regulatory Program by their districts, docket (docket number COE–2020– statement of findings demonstrating and making permit decisions referred to 0002), under ‘‘Supporting and Related how substantive comments were them by district engineers under the Material.’’ considered. After the supplemental circumstances identified in 33 CFR At present, districts manage their own documents are drafted by the district, 325.9(c). Under that section of the processes for soliciting public comment they are sent to the division engineer for Corps’ regulations, a division engineer on their regional conditions. In general, review along with the district’s can refer certain permit applications to they make solicitations of public recommendations for regional the Chief of Engineers for a decision. comment available on their own website conditions. The division engineer may Other than making permit decisions and do not always make the comments approve the supplemental documents or under the circumstances listed in they receive publicly available. To request changes to those supplemental § 325.9(c), Corps Headquarters is further improve the nationwide documents, including changes to the responsible for development of transparency of the regional regional conditions recommended by regulations, guidance, and policies. conditioning process, the Corps is considering revising the regulations the district. When a state, authorized tribe, or EPA After the division engineer approves governing the regional conditioning issues a WQC for the issuance of an the regional conditions and signs the process at 33 CFR 330.5(c). Specifically, NWP and that WQC includes supplemental documents, the district the Corps is considering whether to conditions, those conditions become issues a public notice on its website require the districts to post and solicit conditions of the NWP authorization, announcing the final Corps regional public comment on notices proposing unless one or more conditions is waived conditions and when those regional regional conditions in separate dockets conditions go into effect (see 33 CFR because they do not meet the criteria at at www.regulations.gov. Even though 330.5(c)(1)(v)). Copies of the district’s 40 CFR 121.7(d)(2). The processes for such changes were outside the scope of public notice are also sent to interested states, approved tribes, and EPA to issue this action, the Corps solicited public parties that are on the district’s public WQCs for the issuance of the NWPs, are comment on whether to implement this notice mailing list via email or the U.S. separate from the Corps’ regional or a similar requirement relating to the mail. The public notice will also conditioning process under 33 CFR regional conditioning process and any describe, if appropriate, a 330.5(c), and are governed by state, factors we should consider in a future grandfathering period as specified by 33 tribal, or EPA, regulations. The Corps’ rulemaking. While the comments relate CFR 330.6(b) for those who have current regulations for water quality to matters that were outside the scope commenced work under the NWP or are certification for the NWPs are found at of this action, the Corps appreciates the under contract to commence work 33 CFR 330.4(c), and those regulations helpful suggestions it received from the under the NWP (see 33 CFR provide a process for WQC conditions public. The Corps will consider them as 330.5(c)(1)(iv)). A copy of all Corps becoming conditions of the NWPs when we continue to examine whether regional conditions approved by the WQCs are issued for the NWPs before changes may be necessary to the division engineers for the NWPs are the NWPs are issued by Corps regulations governing the regional forwarded to Corps Headquarters (see 33 Headquarters. conditioning process. CFR 330.5(c)(3)). When a state issues a general CZMA Several commenters said that regional Under the current regulations, Corps consistency concurrence with conditions are excessive and/or Headquarters does not have a formal conditions for an NWP, those conditions unnecessary. Several commenters role in the development and approval of become CZMA regional conditions if, requested that Corps Headquarters Corps’ regional conditions by division after recommendation by the district review and concur with regional engineers. However, Corps Headquarters engineer, the division engineer conditions before they are finalized. A provides templates for the supplemental determines those conditions are few commenters said that regional documents required by § 330.5(c)(1)(iii), acceptable under 33 CFR 330.4(d)(2). conditions may be appropriate in some to promote consistency in those The processes for states to issue general cases in specific areas of the country. A supplemental documents. If requested CZMA consistency concurrences for the few commenters said that rationale and by district and division offices, Corps NWPs, are separate from the Corps’ justification for regional conditions Headquarters also provides advice on regional conditioning process under 33 should be made available to the public. appropriate Corps regional conditions CFR 330.5(c), and are governed by A few commenters recommended that for the NWPs. The Corps is a highly Department of Commerce regulations. Corps Headquarters provide detailed

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guidance to district offices regarding with the division engineer (see 33 CFR that public notices, rationales for how to develop regional conditions. A 330.5(c)). Regional conditions can regional conditions, and comments few commenters said that Corps provide for coordination with state received on proposed regional districts are inconsistent on how they partners, and that coordination may be conditions should be available on create regional conditions. A couple of removed as regional conditions are separate dockets at commenters said that current regional considered for a new set of NWPs. The www.regulations.gov. Several conditions should not change. One Corps does not have the authority to commenters requested revisions to commenter said that regional conditions regulate floodplains and flood-prone governing regulations to require posting should be specific to watersheds or areas per se. The Corps has the authority of any proposed additions of, changes ecoregions and not differ between to regulate discharges of dredged or fill to, or revocations of regional conditions districts. material into waters of the United in separate dockets on The Corps believes that regional States, and those waters and proposed www.regulations.gov. Several conditions are necessary to tailor the discharges may be located in commenters requested that the Corps NWPs on a regional basis to ensure that floodplains or flood-prone areas. Having create and maintain a single, national the NWPs authorize only those activities identical regional conditions for NWPs website where all proposed and final that result in no more than minimal that authorize utility line activities regional conditions can be viewed. The individual and cumulative adverse would be contrary to the intent of Corps will consider these comments environmental effects. Under the Corps’ regional conditions, which is to address when it prepares the next rulemaking current regulations at 33 CFR 330.5(c), regional differences in aquatic resources for the issuance of NWPs. division engineers have the authority to and ensure that the NWPs authorize A few commenters said that public add regional conditions to the NWPs only those activities that result in no notice processes for regional conditions and Corps Headquarters has no role in more than minimal individual and should be consistent between districts. that approval process. The cumulative adverse environmental A few commenters stated that districts supplemental documents division effects. Oil and natural gas pipelines are are inconsistent and limit comment by engineers prepare for adding regional a type of utility line and regional requiring subscriptions to respective conditions to the NWPs require conditions are intended to address mailing lists rather than publishing consideration of the comments received specific resource concerns. notices in the Federal Register or on on the district’s public notices on the One commenter said that regional www.regulations.gov. One commenter proposed regional conditions and a conditions should include said that public notices for regional statement of findings showing how programmatic compliance with other conditions should be published in the substantive comments were considered federal laws. One commenter stated that Federal Register. Two commenters by the division engineer (see 33 CFR regional conditions should be used to asked for the same level of written 330.5(c)(1)(iii)). Regional conditions do require in-kind mitigation and adopt justification for adoption of regional not need to be consistent across impact and mitigation thresholds or conditions that is required to reissue or districts, among divisions, or nationally associated methodologies. One modify the NWPs. One commenter said because they are intended to address commenter said that regional conditions that publication of these documents on specific regional issues or concerns for should be developed to provide separate web pages or dockets is the aquatic environment or any of the additional protection for species of redundant and unnecessary. One Corps’ public interest review factors. If concern and cultural/historical sites. commenter stated that that comments regional conditions are specific to One commenter asserted that regional received on regional conditions should watersheds, differences in regional conditions should be developed to be posted to a web page. One conditions among districts are require tribal consultation for every commenter stated that the Corps inevitable because different watersheds permit. One commenter said that analyses for regional conditions do not are likely to have different resource regional conditions should prohibit satisfy statutory requirements. Two concerns and different factors affecting work during spawning period for fish of commenters said that it is difficult to what adverse environmental effects cultural concern or which would find public notices or regional might be considered more than jeopardize wild rice beds. conditions on district web pages. minimal. Regional conditions may be helpful in The public notice process for regional One commenter stated that Corps ensuing programmatic compliance with conditions is consistent among all Corps districts should be able to develop and other federal laws. Regional conditions districts, because the public notice identify appropriate regional conditions. can also be used to specify mitigation process is described in the Corps’ One commenter said that the proposed requirements for the NWPs. Regional regulations at 33 CFR 330.5(c)(1). The changes to regional conditions will conditions can help provide protection current regulations governing the remove coordination processes with for listed species, historic properties, regional conditioning process relies on state partners. One commenter remarked and cultural resources, often by adding public notices, and does not include that the proposed changes will result in PCN requirements to help ensure that provisions requiring the publication of a disproportionate impact to floodplains required consultations for those notices in the Federal Register. During and flood-prone areas. One commenter resources are undertaken. Decisions on the next rulemaking process for the said that the regional conditions for whether and how to consult with tribes NWPs, the Corps will decide whether to NWPs 12, C, and D should be the same on proposed NWP activities are made use www.regulations.gov for managing in each region. One commenter stated on a case-by-case basis by district and posting public comments received that there is inconsistency between engineers. Regional conditions may add on proposed regional conditions. Each whether or not Corps districts consider time-of-year restrictions on authorized Corps district is responsible for oil and gas natural pipelines as utility activities to ensure that those activities managing its own web pages, and lines in regional conditions. have no more than minimal adverse regional conditions apply to a particular Corps districts identify regional effects on fish spawning or rice beds. Corps district, so it is appropriate for conditions, and make recommendations Several commenters requested greater Corps districts to post public notices for to division engineers. The approval transparency in the process of regional conditions proposed for their authority for regional conditions lies establishing regional conditions, saying districts on their web pages.

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F. Comments on Proposed Removal of minimal impacts), by providing permit applications for proposed the 300 Linear Foot Limit for Losses of equivalent quantitative limits for activities that have the potential to Stream Bed jurisdictional wetlands, streams, and cause more than minimal adverse In the proposed rule, the Corps other types of non-tidal jurisdictional environmental effects. proposed to remove the 300 linear foot waters, and NWP authorization for Removing the 300 linear foot limit for for losses of stream bed from NWPs 21 losses of jurisdictional stream bed that losses of stream bed under these 10 (Surface Coal Mining Activities), 29 have no more than minimal individual NWPs provides equivalent quantitative (Residential Developments), 39 and cumulative adverse environmental limits for all categories of non-tidal (Commercial and Institutional effects; and (4) using acres or square feet jurisdictional waters, including non- Developments), 40 (Agricultural (i.e., an area-based metric) instead of tidal ‘‘tributaries,’’ ‘‘lakes, ponds, and Activities), 42 (Recreational Facilities), linear feet is a more accurate approach impoundments of jurisdictional 43 (Stormwater Management Facilities), to quantifying losses of stream bed and waters,’’ and ‘‘adjacent wetlands’’ (see also serves as a better surrogate for 33 CFR 328.3(a)). These non-tidal waters 44 (Mining Activities), 50 (Underground 1 Coal Mining Activities), 51 (Land-Based losses of stream functions when a will continue to be subjected to the ⁄2- Renewable Energy Generation functional assessment method is not acre limit for losses of non-tidal waters. Facilities), and 52 (Water-Based available or practical to use. Except for NWPs 43 and 51, these NWPs After reviewing the comments Renewable Energy Generation Pilot require PCNs for all authorized received in response to the proposed activities, and district engineers will Projects). All of these NWPs have a 1⁄2- rule, for the reasons discussed below the acre limit for losses of non-tidal waters review these PCNs to determine which Corps has decided to remove the 300 of the United States, including non-tidal activities can be authorized by an NWP linear foot limit for losses of stream bed and which activities should require wetlands and non-tidal streams. With from the 10 NWPs listed above. The the exception of NWPs 43 and 51, these individual permits. When reviewing a comments received in response to the PCN, the district engineer has the NWPs require pre-construction proposed rule are summarized below. notification for all activities. authority to exercise discretionary The Corps’ responses to those comments authority to modify, suspend, or revoke Nationwide permit 43 does not require are also provided along with the PCNs for maintenance of existing the NWP authorization (see 33 CFR comment summaries. 330.1(d)). When a district engineer stormwater management facilities, as Retaining the 1⁄2-acre limit for losses long as those maintenance activities are reviews a PCN, and if she or he of non-tidal jurisdictional waters and determines that the proposed activity limited to restoring the original design wetlands in these 10 NWPs while capacities of the stormwater would have more than minimal removing the 300 linear foot limit for individual or cumulative net adverse management facility or pollutant losses of stream bed will help further reduction green infrastructure feature. effects on the environment or otherwise Congressional intent with respect to may be contrary to the public interest, Nationwide permit 51 does not require Section 404(e) of the Clean Water Act PCNs for activities that result in the loss he or she will either modify the NWP when that provision was enacted into authorization to reduce or eliminate of 1⁄10-acre or less of waters of the law in 1977. Section 404(e) authorizes United States. Therefore, district those adverse effects, or instruct the the Corps to issue, after notice and prospective permittee to apply for a engineers will review all proposed opportunity for public hearing, general activities for these on a case-by-case regional general permit or an individual permits on a state, regional, or permit (§ 330.1(d)). To determine basis, except for the NWP 43 and 51 nationwide basis for any category of activities identified above. When whether a proposed NWP activity will activities involving discharges of result in no more than minimal reviewing these PCNs, district engineers dredged or fill material if the Corps apply the 10 criteria in paragraph 2 of individual and cumulative adverse determines that the activities in such environmental effects, the district Section D, District Engineer’s Decision, category are similar in nature, will cause to determine whether the proposed engineer will apply the 10 criteria in only minimal adverse environmental paragraph 2 of Section D, District activities will result in no more than effects when performed separately, and minimal individual and cumulative Engineer’s decision. will have only minimal cumulative Those ten criteria for making minimal adverse environmental effects. adverse effect on the environment. adverse environmental effects In the proposed rule, the Corps Section 404(e) does not prescribe any presented a number of reasons for these determinations are: particular approaches for ensuring that (1) The direct and indirect effects proposed changes to NWPs 21, 29, 39, activities authorized by general permits caused by the NWP activity; 40, 42, 43, 44, 50, 51, and 52. The Corps’ result in no more than minimal (2) the cumulative adverse rationale comprises four categories of individual and cumulative adverse environmental effects caused by considerations: (1) The Corps employs environmental effects, thus the Corps activities authorized by an NWP and several tools in the NWP Program to developed the PCN process and whether those cumulative adverse ensure that NWP activities result only in provided division and district engineers environmental effects are no more than no more than minimal individual and with the authority to modify, suspend, minimal; cumulative adverse environmental or revoke NWP authorizations on a (3) the environmental setting in the effects; (2) removing the 300 linear foot regional or activity-specific basis after vicinity of the NWP activity; limit would provide consistency across the NWPs are issued by Corps (4) the type of resource that will be the numeric limits used by the NWP Headquarters. General permits provide a affected by the NWP activity; Program for all categories of non-tidal process for authorizing, with minimal (5) the functions provided by the waters of the United States (i.e., paperwork and delays, activities that aquatic resources that will be affected jurisdictional wetlands, streams, ponds, have no more than minimal individual by the NWP activity; and other non-tidal waters); (3) it would and cumulative adverse environmental (6) the degree or magnitude to which further the objective of the NWP effects. General permits are an the aquatic resources perform those Program stated in 33 CFR 330.1(b) (i.e., important tool for the Corps managing functions; to authorize with little, if any, delay or its personnel and workload so that it (7) the extent that aquatic resource paperwork certain activities having can focus its efforts on evaluating functions will be lost as a result of the

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NWP activity (e.g., partial or complete by an NWP, there can be more staff and whether a proposed NWP activity will loss); other resources for Corps districts to result in no more than minimal (8) the duration of the adverse effects devote to undertaking other tasks, such individual adverse environmental (temporary or permanent); as the review and approval of mitigation effects. (See item 1 above from (9) the importance of the aquatic banks and in-lieu fee programs and paragraph 2 of Section D, District resource functions to the region (e.g., overseeing their operation, conducting Engineer’s Decision: Understanding watershed or ecoregion); and compliance actions to ensure that ‘‘the direct and indirect effects caused (10) mitigation required by the district authorized activities are being by the NWP activity.’’) Accurate engineer. conducted in accordance with the terms quantification of stream bed losses is If an appropriate functional assessment and conditions of their DA also important for tracking cumulative method is available and practicable to authorizations, and conducting impacts of activities authorized by an use, that assessment method may be approved and preliminary jurisdictional NWP, both on a national and regional used by the district engineer to help determinations that help project basis, and for determining whether a determine whether the proposed proponents plan and design their particular NWP activity will contribute activity will result in no more than proposed projects to avoid and to more than minimal cumulative minimal adverse environmental effects. minimize impacts to jurisdictional adverse environmental effects. (See item The removal of the 300 linear foot waters and wetlands. 2 of paragraph 2 of the District limit for losses of stream bed will help Another benefit of removing the 300 Engineer’s Decision: ‘‘The cumulative linear foot limit for losses of increase administrative efficiency by adverse environmental effects caused by jurisdictional stream bed and shifting providing a mechanism to authorize, activities authorized by an NWP and the quantification of losses of through the NWP Program activities that whether those cumulative adverse jurisdictional stream bed towards the result in the loss of greater than 300 environmental effects are no more than 1⁄2-acre limit for losses of non-tidal linear feet of jurisdictional stream bed, minimal.’’) waters of the United States is more As discussed in the 2020 Proposal (85 but less than 1⁄2-acre of non-tidal accurate accounting of the impacts of FR 57316), discharges of dredged or fill jurisdictional waters. Under the 2017 activities authorized by these 10 NWPs. material into jurisdictional streams can NWPs, filling or excavating more than The discharges of dredged or fill cause losses of stream bed along only a 300 linear feet of a perennial stream bed material authorized by these NWPs portion of the stream bed (e.g., bank requires an individual permit even occur over an area of a river or stream stabilization projects that involve under circumstances where the loss of bed and also may include impacts to discharging fill along the edge of the the stream bed would result in no more other aquatic resources such as stream, with no fill in the rest of the than minimal individual and wetlands or open water areas (e.g., lakes stream bed) or across the entire stream cumulative adverse environmental or ponds). The discharge to a river or bed (e.g., excavating the stream bed to effects. Under this final rule, district stream has a length and a width, and the mine aggregates) along a stream reach. A engineers would review PCNs for width can vary depending on the wide variety of activities involving proposed losses of jurisdictional stream physical characteristics of the impact filling or excavating stream bed may be bed (plus any other losses of non-tidal area, the type of activity being authorized by these NWPs, such as bank waters of the United States) that are less conducted (e.g., bank stabilization, stabilization, channel realignment, 1 than ⁄2-acre and determine whether channel excavation, channel culvert installation or replacement, those proposed activities can be realignment), and other factors. To be stream channel restoration, the authorized by one of these 10 NWPs. If, regulated under Section 404 of the installation of grade control structures for a particular PCN, the district Clean Water Act, a discharge of dredged (e.g., rock), fills for footings for bridges, engineer determines that the individual material involves any addition, livestock crossings, utility line and cumulative adverse environmental including redeposit other than crossings, and temporary fills for effects would be more than minimal, he incidental fallback, of dredged material, construction and access. Quantifying or she will exercise discretionary including excavated material, into losses of stream bed in linear feet does authority and require an individual waters of the United States that is not distinguish between filling or permit. This approach provides incidental to any activity, including excavation activities that occur only in administrative efficiency by providing a mechanized land clearing, ditching, a portion of the stream bed along an mechanism for district engineers to channelization, or other excavation (see ordinary high water mark versus filling distinguish which proposed activities 33 CFR 323.2(d)(1)(iii)). A regulated or excavation activities that occur in the should be authorized by an NWP versus discharge of fill material involves the entire stream bed, from ordinary high which activities should require addition of fill material into waters of water mark to ordinary high water mark. individual permits with a public notice the United States that has the effect of Accurate quantification of losses of and comment process and activity- either replacing any portion of a water stream bed and losses of other types of specific evaluations under NEPA, the of the United States with dry land or jurisdictional waters and wetlands is public interest review, and the Clean changing the bottom elevation of any also important for monitoring and Water Act section 404(b)(1) Guidelines. portion of a water of the United States evaluating the cumulative adverse This approach also adds efficiency in (see 33 CFR 323.3(e) and (f)). The direct environmental effects caused by NWP terms of reducing processing times and impacts of these activities are most activities. In response to the 2020 paperwork for proposed activities that accurately quantified on an area basis, Proposal, numerous commenters have no more than minimal adverse not a linear basis, to inform a district criticized the Corps’ assessment of environmental effects and that are likely engineer’s decision on whether a cumulative effects for the NWPs. An to generate few, if any, public or agency proposed activity should be or is essential step in conducting a comments in response to a public notice authorized by an NWP and to track cumulative effects analysis for an NWP for an individual permit application. cumulative impacts. is estimating how many times that NWP When more activities that result in no Accurate quantification of stream bed may be used during the period the NWP more than minimal adverse losses authorized by an NWP is an is in effect, the quantity of jurisdictional environmental effects can be authorized important component of determining waters and wetlands that may be lost or

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directly altered by the activities effects caused by an NWP activity might Commenters were encouraged to authorized by that NWP, whether those be to require the use of certain best provide supporting information in the losses or alterations are permanent or management practices. A district form of citations to laws, regulations, temporary, and what, if any engineer might also add permit and policies, and the scientific compensatory mitigation is being used conditions to the NWP authorization to literature, because substantive to offset those losses. The Corps require compensatory mitigation to information would be valuable in provides those estimates in its national offset losses of waters of the United assisting the Corps in preparing the final decision documents, and those States caused by the NWP activity. NWPs. estimates are more robust if they use a As the Corps implements this final The Corps also requested comment on common metric, so that it is possible to rule, it will continue to rely on these an alternative hybrid approach to calculate total losses and offsets during administrative tools that have long been establishing consistent quantitative the period the NWP is in effect. used with these 10 NWPs to help ensure limits for losses of stream bed Division engineers have discretionary that authorized activities will result in authorized by NWPs 21, 29, 39, 40, 42, authority to modify, suspend, or revoke no more than minimal individual and 43, 44, 50, 51, and 52. Under the NWP authorizations on a regional basis cumulative adverse environmental proposed hybrid approach, losses of (33 CFR 330.5(c)) to help ensure that the effects. Those tools are the 1⁄2-acre limit stream bed would continue to be NWPs are only used to authorize for losses of non-tidal waters of the quantified in linear feet as long as the activities that have no more than United States, the pre-construction activities authorized by these NWPs minimal individual and cumulative notification requirements and associated would result only in the loss of stream adverse environmental effects. For activity-specific review by district bed. There would be linear foot limits example, if a Corps district determines, engineers, the regional conditions that for losses of stream bed by stream order in a particular watershed, county, Corps can be added by division engineers, and identified using the Strahler (1957) district, or other geographic region, that the activity-specific conditions that can method, and the mean stream widths cumulative losses of stream bed be added by district engineers when identified by Downing et al. (2012). If a authorized by NWPs may be reviewing individual PCNs. proposed NWP activity would result in approaching a level that might exceed The proposal was made in accordance the loss of jurisdictional stream bed plus the ‘‘no more than minimal cumulative with the recommendations in the report other types of waters of the United adverse environmental effects’’ issued by the Office of the Assistant States, such as non-tidal jurisdictional threshold, the Corps district can request Secretary of the Army (Civil Works) in wetlands, the losses of waters of the that the division engineer modify, response to E.O. 13783 on ways to United States would be quantified in suspend, or revoke the relevant NWP streamline the NWPs. In the proposed acres and subjected to the 1⁄2-acre limit. authorizations in that region. The rule, the Corps invited public comment In the preamble to the proposed rule, division engineer can add regional on the proposal to remove the 300 linear the Corps provided a table for the conditions to the appropriate NWPs to foot limit and to rely on the 1⁄2-acre hybrid approach (see 85 FR 57321). A restrict or prohibit their use in limit, the PCN process, the proposed critical component of effectively particular categories of waters, or modification of the ‘‘mitigation’’ general applying the hybrid approach is suspend or revoke the NWP condition (general condition 23), and identifying the correct stream order for authorization so that those NWP(s) can other tools to comply with the statutory the stream segment that is proposed to no longer be used to authorize regulated and regulatory requirement that be filled or excavated as a result of the activities in that geographic region. The activities authorized by an NWP must proposed NWP activity. In this hybrid division engineer’s authority to modify, result in no more than minimal approach, the linear foot limits would suspend, or revoke NWP authorizations individual and cumulative adverse only apply to losses of stream bed. If a on a regional basis can also be used to environmental effects. The Corps also proposed NWP activity would result in sort out which activities can be invited comment on whether there are a combination of losses of jurisdictional authorized by an NWP versus which situations where quantifying losses of stream bed and other types of waters of activities should require individual stream bed in linear feet might more the United States, such as non-tidal permits. accurately represents the actual amount jurisdictional wetlands, then the 1⁄2-acre District engineers have discretionary of stream bed filled or excavated as a limit would apply to the combined authority to modify, suspend, or revoke result of an NWP activity and would losses of stream bed and non-tidal NWP authorizations on a case-specific result in more defensible determinations wetlands, to keep those losses below 1⁄2- basis (see 33 CFR 330.5(d)) to help on whether a proposed NWP activity acre. ensure that NWPs are only used to will result in no more than minimal In conjunction with the proposal to authorize specific activities that have no individual and cumulative adverse remove the 300 linear foot limit for more than minimal individual and environmental effects. In the proposed losses of stream bed, the Corps proposed cumulative adverse environmental rule, the Corps asked commenters to to remove the provisions in these NWPs effects. A district engineer can add provide information that would help regarding the ability of district engineers conditions to an NWP authorization to illustrate or explain how and under to waive the 300 linear foot limit for reduce potential adverse environmental what circumstance using a linear foot losses of intermittent and ephemeral effects that might be caused by a measure to quantify losses of stream bed stream bed when the applicant submits proposed NWP activity, such as would be more accurate than using a PCN and requests a waiver of that 300 mitigation requirements to avoid or square feet or acres to quantify the linear foot limit. On April 21, 2020, EPA minimize direct and indirect effects amount of authorized impacts. and the Department of the Army caused by that activity. One example is The Corps also invited comment on published a final rule to define ‘‘waters a time of year restriction to prevent the legal, regulatory, policy, or scientific of the United States’’ entitled the discharges of dredged or fill material bases for imposing different numeric Navigable Waters Protection Rule (85 FR from occurring during spawning seasons limits on jurisdictional stream bed 22250). On June 22, 2020, the Navigable for fish or other aquatic organisms. losses versus losses of non-tidal Waters Protection Rule became effective Another example of a permit conditions jurisdictional wetlands or other types of in all states and jurisdictions except for to help reduce adverse environmental non-tidal jurisdictional waters. the State of Colorado due to a federal

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district court-issued stay in that state. amount of stream bed filled or adverse environmental effects, by The rule revised the definition of excavated by an NWP activity. Several providing activity-specific review of ‘‘waters of the United States’’ at 33 CFR commenters in favor of the proposed these activities by district engineers 328.3 such that ephemeral features, change expressed concern with how this before they are authorized by an NWP. including ephemeral streams, are change would affect mitigation banks The 1⁄2-acre limit is another tool that categorically excluded from jurisdiction and credit calculations for future and helps ensure that activities authorized under the Clean Water Act (see 33 CFR past permits. Several commenters by these NWPs have no more than 328.3(b)(3)). Therefore, there would be believed this change would continue to minimal adverse environmental effects. no need to request waivers for losses of ensure that the activities authorized by In geographic areas where there are ephemeral stream bed (regardless of these NWPs would result in no more concerns about cumulative losses of length) since NWP authorization (or any than minimal impacts. headwater streams and the functions other form of DA authorization) will not As discussed above, the Corps is they provide, division engineers can be needed to authorize discharges of removing the 300 linear foot limit for add regional conditions to these NWPs dredge or fill material into ephemeral losses of stream bed from NWPs 21, 29, to reduce the acreage limit from 1⁄2-acre streams. See Section III.C, for more 39, 40, 42, 43, 44, 50, 51, and 52 for the to a lower acreage limit, such as 1⁄4-acre discussion on the potential impact of reasons discussed in this final rule to or 1⁄10-acre. In addition, division the Navigable Water Protection Rule on increase the efficiency of the NWP engineers can add regional conditions to the NWPs. program, utilize a metric that more these NWPs to lower the threshold for In addition, the Corps proposed to accurately reflects the amount of requiring stream compensatory remove the agency coordination process impact, and to allow NWP authorization mitigation from 3⁄100-acre to a different for seeking input from federal and state of losses of stream bed where district acreage threshold. agencies on whether the district engineers determine that those losses Many commenters expressed engineer should grant the waiver of the would have no more than minimal concerns with removing the 300-linear 300 linear foot limit requested by an adverse environmental effects after foot limit on loss of stream bed for these applicant for an NWP verification. reviewing PCNs. Quantifying losses of NWPs, stating that this change would Removing the waiver provision may stream bed in acres or square feet will allow much larger impacts to smaller reduce costs to permittees by reducing be more accurate, provide a more stream channels since they typically the amount of time the district engineer substantial and defensible basis for have smaller widths and therefore a needs to make her or his decision. For decision-making by district engineers on permittee could impact a much longer example, the district engineer would not PCNs for these activities, and provide length of stream before reaching the 1⁄2- have to wait up to 25 days (see more accurate data for the Corps to track acre limit. Many commenters said that paragraph (d)(3) of the ‘‘pre- cumulative impacts of the activities a linear foot measurement was more construction notification’’ general authorized by these NWPs. The removal appropriate for calculating stream condition (GC 32) to make the decision of the 300 linear foot limit will not impacts and losses than an acreage- on whether to issue the NWP affect the ability of district engineers to based system because streams are verification. Removal of the agency require compensatory mitigation or fundamentally linear features in the coordination for these activities is also other forms of mitigation for losses of landscape. Many commenters stated likely to reduce administrative costs to stream bed. In addition, it should not that the Corps has not provided any the Corps, by reducing the amount of have a substantial effect on mitigation scientific rational or reasoning behind staff time needed to send copies of PCNs banks that have already been approved this change and even the scientific to the agencies and summarizing and and mitigation banks that may be studies cited by the Corps were not responding to agency comments. approved in the future. Depending on interpreted appropriately. Removal of the waiver provision and how existing mitigation banks quantify As discussed above, the Corps will associated agency coordination would the credits they produce, there may rely on other, existing protective also free up additional time for Corps have to be some technical changes in mechanisms within the NWPs to ensure staff to review other PCNs, other permit how credit transactions occur between that the activities authorized by these applications, and other regulatory mitigation bank sponsors and NWPs will result in no more than actions such as jurisdictional permittees, to determine the appropriate minimal individual and cumulative determinations and compliance number of stream credits that are adverse environmental effects. Those activities. As mentioned above, under needed to offset a permitted loss of tools include the 1⁄2-acre limit, the PCN the Navigable Waters Protection Rule, stream bed. requirements for these NWPs, and the ephemeral streams are not ‘‘waters of A few commenters supported the ability of division and district engineers the United States.’’ See 33 CFR removal of the 300 linear foot limit to further condition or restrict the 328.3(b)(3). Therefore, it should be because the district engineer retains the applicability of an NWP in situations noted that this would likely reduce the ability to exercise discretionary where they have concerns for the current number of waivers and required authority to require individual permits aquatic environment under the Clean interagency coordination process from if the adverse environmental effects Water Act section 404(b)(1) Guidelines state and federal agencies, since the caused by a proposed activity would be or for any factor of the public interest current waivers apply only to certain more than minimal. These commenters (see 33 CFR 330.1(d)). While rivers and intermittent streams. also said they support the removal of streams have a strong linear component, Many commenters opposed the the 300 linear foot limit as long as Corps they also vary substantially in width. removal of the 300 linear foot limit for divisions and districts can continue to Discharges of dredged or fill material losses of stream bed. Many commenters develop and use regional conditions in into waters of the United States that supported the proposed change, stating districts that have specific resource cause losses of waters of United States that calculating losses of stream bed in concerns. through the filling or excavation of acres is a more accurate measure of The PCN process is an administrative stream beds occur over an area, and those losses since acreage takes both the tool that helps ensure that activities using acres or square feet to quantify length and width of the stream channel authorized by NWPs cause no more than losses of stream bed is more informative into account when determining the minimal individual and cumulative to determinations of minimal effects and

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accurate in data accounting than using United States (citing an average width high water mark versus stream bed/ linear feet. The potential losses of in the United States of 2.6 feet). Several bottom) which could also produce stream functions, and whether those commenters stated support of a hybrid variability in how an acreage limit losses are more than minimal, can be approach in lieu of an acreage would be applied. Many commenters addressed through the PCN review calculation, but were concerned about recognized that the measures for small process. When determining whether a the variability of stream order and large streams should be different proposed NWP activity will result in no classifications and the availability of but until a more appropriate metric is more than minimal individual and tools to Corps districts to implement developed, acreage should not be used cumulative adverse environmental that approach in an effective and in lieu of linear feet since it would be effects, district engineers will apply the defensible manner. One of these inappropriate to adopt a measure that 10 criteria in paragraph 2 of Section D, commenters noted that LiDAR is not better represents larger stream systems District Engineer’s Decision. Decisions available in all areas of the country. while the overwhelming majority of regarding quantitative limits for the Many commenters opposed the impacts occur to smaller streams and NWPs are administrative decisions proposed ‘hybrid approach’ in the are therefore better represented for the because the legal threshold for general preamble in which stream impact limits time being by a linear foot permits (‘‘no more than minimal would vary by stream order by applying measurement. individual and cumulative adverse a mean stream width. Some of these Stream width should be measured environmental effects’’) is a subjective commenters asserted that a linear foot from ordinary high water mark to threshold. Applying this subjective metric is still likely a more accurate and ordinary high water mark, threshold to complex ecological systems easier method since determining stream perpendicular to the longitudinal requires a district engineer to exercise order is highly varied along with direction of the stream channel. That is his or her judgment as to whether that determining a stream width. consistent with the definition of ‘‘stream threshold is crossed for particular NWP The Corps acknowledges that the bed’’ in Section F of the NWPs. activity. study by Downing et al. (2012) does not Commenters did not suggest a more Another tool that the Corps added to fully represent the variability in stream accurate method for quantifying impacts this final rule to help ensure that the dimensions. One of the purposes of to small and large streams in their activities authorized by these NWPs will using the information in that study was comments. Establishing different result in no more than minimal to demonstrate how a linear foot limit metrics for small versus large streams individual and cumulative adverse for losses of stream bed results in also presents challenges in terms of environmental effects is the addition of disparate differences in the amount of consistently determining what a 3⁄100-acre threshold for stream stream bed that can be filled or constitutes a small stream versus a large compensatory mitigation in paragraph excavated under an NWP depending on stream, which has the potential for (d) of the mitigation general condition where an affected stream reach is being an arbitrary distinction and would (general condition 23). The 1⁄10-acre located in a tributary network (i.e., a add another layer of complexity to the wetland mitigation threshold in general headwater stream versus a stream NWP program. condition 23 has been effective in segment located further downstream in Many commenters noted that smaller providing incentives for project a watershed). In a study of headwater stream channels provide important proponents to reduce wetland losses streams in North America and New ecological functions and values and well below the 1⁄2-acre limit to avoid the Zealand, using field surveys of they provided numerous references to costs of providing wetland headwater streams instead of the scientific studies that document the compensatory mitigation. As shown in published data and satellite imagery importance of these stream channels as figure 5.1 of the Regulatory Impact used by Downing et al. (2012), Allen et linear systems in the landscape. Some of Analysis for this final rule, more than 80 al. (2018) found a typical width of 1.05 these commenters said impacts to small percent of losses of waters of the United feet for headwater streams. The Corps stream channels were more severe and/ States verified by district engineers in agrees that the hybrid approach or permanent (e.g., complete losses by fiscal year 2018 as qualifying for NWP proposed in the preamble to the 2020 filling entire stream reaches) and noted authorization were less than 1⁄10-acre. Proposal would not be an efficient or that small streams are more susceptible The losses of waters of the United States effective approach to establishing to fragmentation impacts, are harder to in figure 5.1 include losses of stream quantitative limits for these 10 NWPs. restore/mitigate, and have compounding bed, which were quantified in acres. There is not sufficiently accurate effects to downstream waters when The Corps anticipates that the 3⁄100-acre mapping of headwater streams in the impacts are cumulative and more than stream compensatory mitigation United States to implement such a minimal. Many commenters noted that, threshold will also be an effective hybrid approach, and the hybrid in general, disproportionate impacts incentive to permittees to reduce losses approach would not take into account already occur to these smaller order of stream bed to avoid the costs of regional variability in stream stream channels because it is easier providing stream compensatory geomorphology. The Corps does not from an engineering standpoint and mitigation to offset losses of greater than agree that a linear foot metric is easier ultimately less costly to impact them 3⁄100-acre of stream bed. For NWP or more accurate than an acreage-based versus larger order stream channels, and activities that require PCNs, district metric. The area of stream bed filled or that removing the 300 linear foot limit engineers continue to have discretion to excavated as a result of an NWP activity would provide even less incentive to require stream compensatory mitigation is already calculated by the Corps to avoid and minimize impacts to these for losses of stream bed above or below record impacts to aquatic resources, and important resources. the 3⁄100-acre threshold in paragraph (d) it represents the amount of stream bed The ecological functions of smaller of general condition 23. lost as a result the discharges of dredged stream channels are to be considered by Several commenters also questioned or fill material regulated under Section district engineers when they review the Corps’ use of the study by Downing 404 of the Clean Water Act. PCNs for proposed activities involving et al. (2012), which examined stream Many commenters also questioned filling or excavating stream beds. When channels all over the world, stating that how stream width was to be measured evaluating PCNs, district engineers stream channels may be narrower in the (ordinary high water mark to ordinary consider the 10 criteria in paragraph 2

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or Section D, District Engineer’s proposals to fill or excavate several improve administration of the Corps Decision. Those criteria include: The thousand feet of stream bed. Regulatory Program and allow the Corps environmental setting in the vicinity of The Corps will be relying on other, to devote more time and resources to the NWP activity, the type of resource existing protective mechanisms within working with project proponents to that will be affected by the NWP the NWPs to ensure that these NWPs reduce the environmental impacts of activity, the functions provided by the authorize only those activities that have activities that have the potential to aquatic resources that will be affected no more than minimal adverse result in more substantial impacts to by the NWP activity, the degree or environmental effects. The NWP jurisdictional wetlands and waters. magnitude to which the aquatic program has changed over time as new Many commenters said that the 1 resources perform those functions, the information is considered and proposed ⁄10-acre mitigation threshold extent that aquatic resource functions alternative ways of implementing the for losses of stream bed was not an will be lost as a result of the NWP program are identified to further the adequate tool for ensuring no more than activity, and the importance of the program’s objective of regulating, ‘‘with minimal adverse environmental effects little, if any, delay or paperwork certain based on the disproportionately large aquatic resource functions to the region. activities having minimal impacts’’ (33 amount of impacts to smaller headwater Division engineers can add regional CFR 330.1(b)). The removal of the 300 streams that would need to occur before conditions to the NWPs to impose lower linear foot limit, continued application compensatory mitigation was required. acreage limits or other restrictions to of the 1⁄2-acre limit, plus the ability of Many commenters expressed concern address concerns about potential losses division and district engineers to about the potential for increased of smaller stream channels and the exercise their discretionary authority to likelihood for out-of-kind mitigation functions they provide, including modify, suspend, or revoke NWP being provided to offset headwater cumulative impacts to those smaller authorizations on a regional or case-by- stream impacts if mitigation is based on stream channels. The Corps case basis, respectively, will ensure that an acreage or other area-based metric for acknowledges that, because of their size, activities that would cause more than losses of stream bed. These commenters smaller stream channels may be more minimal adverse environmental effects said that out-of-kind mitigation would susceptible to proposed development will be evaluated through the individual likely increase because it would be the activities and other activities involving permit process. only option available to permittees due discharges of dredged or fill material Many commenters expressed concern to fewer stream credits being generated into waters of the United States. Project about other changes within this and available as mitigation bankers and proponents are less likely to fill larger proposal, when combined with the other mitigation providers adapt to this stream channels because of the water removal of the 300 linear feet limit change and the uncertainty in the that flows towards those larger stream would eliminate agency coordination market that this change might create. channels, but other activities such as with federal and state resource agencies The comments received on the bank stabilization, excavation activities under paragraph (d) of general condition proposed 1⁄10-acre threshold for stream in the stream bed, and realigning stream 32. One commenter said that when mitigation are discussed in the section channels may be authorized by these reviewing the number of individual of this preamble that discusses the NWPs. Removing the 300 linear foot permits issued versus activities comments received on general condition limit and relying on the 1⁄2-acre limit authorized under NWPs that even with 23. In response to those comments, the and PCN review process to identify what the commenter considers the more Corps reduced the threshold for stream activities that require individual permits stringent 300-linear foot limit in place mitigation from 1⁄10-acre to 3⁄100-acre. As helps the Corps implement its permit there is no justifiable need for reducing explained in the discussion of general program more effectively, to efficiently regulatory burden since the number of condition 23 below, this change in the authorize activities with no more than individual permits is so small compared stream mitigation threshold aligns with minimal adverse environmental effects to NWP verifications and this change current practice for stream mitigation via NWP, and focusing more of its would likely not result in any requirements in the NWP program, and resources on evaluating individual significant decrease in number of the recommendations for the stream permit applications for activities that individual permits or regulatory burden. mitigation threshold provided by are likely have more substantial For the 10 NWPs that had the 300 commenters. The Corps uses a environmental impacts. linear foot limit for losses of stream bed, watershed approach for compensatory the agency coordination process in mitigation (see 33 CFR 332.3(c)). The Many commenters said that this paragraph (d) of general condition 32 goal of a watershed approach is to change would allow more than minimal was limited to requests for waivers of maintain and improve the quality and impacts because of the disproportionate the 300 linear foot limit for losses of quantity of aquatic resources within length of impacts to headwater streams intermittent and ephemeral stream bed. watersheds through strategic selection that would be allowed now under the Ephemeral streams are not waters of the of compensatory mitigation sites (see 33 NWP program, which is said to be United States (see 33 CFR 328.3(b)(3)) CFR 332.3(c)(1)). A watershed approach counter to and inconsistent with the and therefore not subject to jurisdiction considers how the types and locations goal and purpose of the NWP program. under Section 404 of the Clean Water of compensatory mitigation projects will Many commenters questioned how the Act. In its Regulatory Impact Analyses provide the desired aquatic resource Corps could reconcile and justify this for the proposed and final rules, the functions, and will continue to function change based on the long-standing Corps acknowledges that the removal of over time in a changing landscape (33 history of the 300-linear foot limit for the 300 linear foot limit is likely to CFR 332.3(c)(2)(i)), and may involve the losses of stream bed in the NWP result in a modest increase in NWP use of out-of-kind mitigation. program. Many commenters stated that authorizations (174 per year), and a Under a watershed approach, other individual permits should be required commensurate decrease in the number approaches to stream restoration may be for proposed impacts to more than 300 of activities that require individual used to generate stream credits besides linear feet of stream bed, to allow for the permits. However, a modest reduction headwater stream channel public and federal, state, and local in the number of individual permits that reconfiguration projects. These other resource agencies to comment on must be processed each year can help approaches may include process-based

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stream restoration activities such as dam can jeopardize the larger stream threshold for requiring compensatory removal, culvert replacements, levee restoration project. mitigation for losses of stream bed, so setbacks or removals, riparian area As stated in the previous paragraphs, those commenters were referring to restoration, allowing beavers to the Corps’ regulations do not require use district practices. Corps districts construct dams to aggrade incised of a linear foot metric for stream determined on an activity-specific basis channels, or installing structures that assessment methodologies or for when stream mitigation is necessary for mimic beaver dams to aggrade incised quantifying stream impacts or specific NWP activities. channels (Beechie et al. 2010) to compensatory mitigation credits. The One commenter asserted that based generate compensatory mitigation removal of the 300 linear foot limit for on ORM2 data analyzed for stream credits for activities authorized by these losses of stream bed and the changes to channel impacts, that the proposed 1⁄10- NWPs. The use of beaver dams or general condition 23 are likely to benefit acre stream compensatory mitigation structures to aggrade incised stream the mitigation banking industry by threshold would result in the loss of an channels may result in wetland/stream providing more opportunities for stream additional 130,000 linear feet of complexes for which an area-based restoration projects that can generate headwater streams in which no credit metric may be more appropriate stream credits to offset losses of stream mitigation would be provided. Several than a linear foot-based metric. bed authorized by the NWPs and other commenters expressed concerns about Focusing on restoring stream functions types of DA permits. The Corps how this change would affect current can be more ecologically successful in acknowledges that some efforts will mitigation banks that were in the improving stream functions than form- need to be made to address differences process of being approved and inquired based restoration approaches such as in accounting systems, but mitigation whether all previously executed channel reconfiguration that have had providers including mitigation bank mitigation banking instruments would questionable success in restoring sponsors and in-lieu fee program need modification to continue to degraded streams (Palmer et al. 2014). sponsors should be able to estimate the operate and sell credits to permittees. The stream credits generated by channel amount of stream credits quantified in One commenter said that the proper reconfiguration projects in headwater linear feet that are needed to offset an regulatory tool to rectify the disparity streams can be quantified in linear feet specific acreage of stream bed lost as the between stream impacts versus stream or acres, because the Corps’ result of an NWP activity. The district mitigation would be the 2008 mitigation compensatory mitigation regulations do engineer can assist in these rule and requiring higher mitigation not mandate a specific approach for determinations to ensure that the ratios and not revision of these NWPs. amount of stream mitigation credits is quantifying stream credits. Section The 2017 NWPs and prior NWPs had roughly proportional to the authorized 332.8(o)(1) states that the principal units no threshold for requiring stream for credits and debits are acres, linear losses of stream bed. Several commenters said that mitigation for NWP activities. The feet, functional assessment units, or 1 establishing a stream compensatory proposed addition of the ⁄10-acre stream other suitable metrics of particular mitigation threshold in paragraph (d) of mitigation threshold of 1⁄10-acre would resource types. The preamble to the allow approximately 1,675 linear feet of general condition 23 is a new threshold. 2008 mitigation rule states that ‘‘district a first order stream channel with a 2.6- That threshold has been reduced to engineers retain the discretion to 3 foot wide channel to be impacted under ⁄100-acre in response to many quantify stream impacts and required these NWPs before any compensatory commenters that provided calculations compensatory mitigation in terms of mitigation would be required, which to support the reduction. Many area or other appropriate units of does not meet the Corps’ mandated goal commenters did not take into account measure’’ (73 FR 19633). of no net loss to aquatic resources and the ability of district engineers to The Corps received many comments would cause more than minimal effects require stream compensatory mitigation and questions about how these changes to these aquatic resources. for losses of stream bed less than the would likely negatively affect long- In response to public comment, the acreage threshold specified in paragraph standing stream mitigation accounting Corps has modified paragraph (d) of (d) of general condition 23. This is and the mitigation banking industry in general condition 23 to change the similar in practice to the 1⁄10-acre general. These commenters said that a proposed 1⁄10-acre threshold for stream wetland mitigation threshold in linear foot metric has always been used mitigation to 3⁄100-acre to make the paragraph (c) of general condition 23, for stream assessment methodologies threshold more consistent with current where district engineers also have had and the basis for mitigation accounting practice and the recommendations made the authority to require wetland systems, and many commenters stated by commenters. The reasons for compensatory mitigation for wetland 1 that changing this metric would be changing the proposed 1⁄10-acre stream losses less than ⁄10-acre. unnecessarily burdensome and costly to mitigation threshold to 3⁄100-acre are Several commenters recommended stream restoration professionals and provided in the discussion of general delaying these changes to allow for likely result in fewer stream restoration condition 23 below. There is no more time to study potential effects and projects. One commenter stated that the mandated goal of no net less to aquatic one commenter requested that due to proposed change would not increase resources in any law or regulation that the potential for significant mitigation opportunities in larger or applies to the Corps’ NWP Program. environmental effects, an environmental higher order stream channels as Compensatory mitigation, including impact statement should be prepared for proposed since the restoration of larger stream compensatory mitigation, is this propose change. One commenter streams is more complex than smaller required for NWP activities on a case- said that the Corps already converts streams and is dependent on many by-case basis to ensure that the stream loss/impacts to acreage in their variables to include funding availability, authorized activities result in no more Regulatory Program database (ORM2) site selection, engineering and design than minimal adverse environmental for accounting purposes and asked considerations, mitigation requirements effects. District engineers determine would the change from linear feet to associated with the project, market when compensatory mitigation is acreage even be needed in the first incentives, and the inability to control required for NWP activities. In prior place. Several commenters said that the future impacts in the headwaters which versions of the NWPs, the Corps had no current 300-linear foot threshold was

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too high and should be even further management facilities. Nationwide quality benefits to downstream waters, reduced. permit 51 does not require PCNs for the and said that replacing a linear metric The Corps is only removing a loss of 1⁄10-acre or less of waters of the with an area-based metric will reduce quantitative limit from these 10 NWPs, United States. protection of headwater streams. This and is not changing stream Many commenters said that the commenter stated that most nutrient compensatory mitigation requirements removal of the 300 linear foot limit and hydrologic inputs to streams occur aside from establishing an acreage would result in a loss of critical habitat along the borders of riparian zones and threshold in paragraph (d) of general for many aquatic species listed under streams, so impacts to streams should be condition 23 that is generally consistent the Endangered Species Act which have quantified in linear feet. In addition, with current agency practice. Under the cultural and economic importance to this commenter noted that the longer waiver provision in the 2017 version of tribes. One commenter stated that the total stream length and higher nitrogen these 10 NWPs, district engineers could removal of the 300 linear foot limit removal efficiency of lower order waive the 300 linear foot limit for losses could result in long reaches of streams streams is the main reason stream length of intermittent and ephemeral stream channels upstream of tribal lands being is so important to water quality and why beds, but the loss of stream bed could developed which could cause, without headwater streams are much more not exceed 1⁄2-acre. Therefore, it has any notification to the affected tribes, important to water quality functions in been a long-standing practice in the downstream changes to tribal lands in stream networks than are higher order NWP program to quantify of losses of terms of stream flow, water quality, streams. This commenter said that stream bed in acres. The removal of the subsistence of water use, or cultural headwater streams are being lost at high 300 linear foot limit and the change to water use. Several commenters asked rates, and that more losses of these general condition 23 does not require an how the tools that the Corps mentioned streams will result in increases of environmental impact statement. As one in the proposed rule as safeguards, such eutrophication of downstream waters, commenter recognized, the Corps tracks as the PCN review process, regional more downstream flooding, and more losses of stream bed in its ORM2 conditions, activity-specific permit transportation of pollutants to database in acres. conditions, and use of discretionary downstream waters. This commenter Several commenters seemed to authority, prevent more than minimal stated that using area as a quantitative misunderstand the PCN requirements of adverse environmental effects. Several limit for both headwater streams and these NWPs and believed that the commenters oppose the proposed higher order rivers will decrease proposed changes implied that no removal of the 300 linear foot limit protection and diminish the ecological notification would be required for any because it could essentially be a ‘tipping importance of headwater streams. This losses of waters of the United States less point’ for a headwater stream system, commenter concluded that the current than 1⁄10-acre for any of these NWPs and and that there would be no way to linear foot limit is appropriate for that the 1⁄10-acre mitigation threshold recover the functions and values lost to streams because they are linear systems was the same as the PCN threshold. This that system because of approval of large that interact with their landscapes along misunderstanding resulted in many impacts to streams. linear borders. comments concerned about the Corps The removal of the 300 linear foot The Corps believes that an not even knowing what impacts are limit does not affect how compliance appropriate level of protection can be occurring if PCN thresholds are not with Section 7 of the ESA is conducted provided to headwater streams through triggering activity-specific review of for the NWPs. If the district engineer the 1⁄2-acre limit, the PCN process, and these activities by district engineers, reviews a PCN for a proposed activity the ability of division and district and stated that this change would allow authorized by NWPs 21, 29, 39, 40, 42, engineers to modify, suspend, or revoke activities with more than minimal 43, 44, 50, 51, or 52, and determines NWP authorizations on a regional or adverse environmental effects to occur. that activity may affect listed species or case-by-case basis, respectively. When Several commenters said that the designated critical habitat, she or he reviewing PCNs, district engineers will rulemaking process for the NWPs in will conduct section 7 consultation with apply the 10 criteria identified in cases where the Corps does not review the U.S. FWS or NMFS as appropriate. paragraph 2 of Section D, District PCNs the authorization is automatically Activities authorized by these NWPs Engineer’s Decision. In regions where issued in some cases with no mitigation must also comply with general there are concerns that the use of the proposed. These commenters stated that condition 17, tribal rights. During the NWPs may result in more than minimal not requiring PCNs could cause more rulemaking process for these NWPs, cumulative adverse effects to headwater than minimal impacts. Corps districts have been consulting or streams and the functions they provide, The 1⁄10-acre stream mitigation coordinating with tribes to identify division engineers can add regional threshold proposed in paragraph (d) of regional conditions and coordination conditions to these NWPs to establish general condition 23 is not the same as procedures to help ensure compliance an acreage limit lower than 1⁄2-acre or the 1⁄10-acre PCN threshold in NWP 51. with general condition 17. As discussed revoke one or more of these NWPs. If activities are authorized by NWPs in the proposed rule, the PCN review Headwater streams are not provided any without the requirement to submit process, regional conditions, and special status under the Corps’ PCNs, then compensatory mitigation is activity-specific conditions have been regulations or the U.S. EPA’s Clean not required for those NWP activities, used successfully for years to ensure Water Act Section 404(b)(1) Guidelines. because compensatory mitigation that activities authorized by the NWPs The only streams that are special requirements must be imposed by result in no more than minimal adverse aquatic sites under the 404(b)(1) district engineers by adding conditions environmental effects. Tipping points Guidelines are riffle and pool complexes to the NWP authorization. However, it are difficult to identify, and if they can (see 40 CFR 230.45), and many should be noted that all activities be identified, they are likely to vary headwater streams are not riffle and authorized by these 10 NWPs require from watershed to watershed. pool complexes. PCNs, except for certain activities One commenter said that headwater For the reasons provided above, the authorized by NWPs 43 and 51. streams warrant more protection Corps has removed the 300 linear foot Nationwide permit 43 does not require because of their relative importance in limit from NWPs 21, 29, 39, 40, 42, 43, PCNs for the maintenance of stormwater providing habitat, hydrologic, and water 44, 50, 51, and 52.

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G. Response to Comments on Specific provided by E.O. 13738, which is to quality, as well as other public interest Nationwide Permits revise existing regulations that ‘‘unduly review factors identified in 33 CFR burden the development of domestic 320.4(a)(1). (1) NWP 12. Oil or Natural Gas Pipeline energy resources beyond the degree Activities One commenter said that natural gas necessary to protect the public interest pipeline activities authorized by NWP The Corps proposed to modify this or otherwise comply with the law.’’ In 12 comply with industry standards that NWP to limit it to oil or natural gas this NWP, the Corps has retained the are protective of the environment and pipeline activities, and issue two new terms and conditions that are necessary public safety. One commenter stated NWPs to authorize electric utility line to ensure that the activities authorized that pipelines provide a safe, reliable, and telecommunications activities by this NWP result in no more than efficient, and cost-effective way to move (proposed new NWP C, now designated minimal individual and cumulative bulk liquids, particularly over long as NWP 57) and utility line activities for adverse environmental effects. The distances, and that the U.S. Department water and other substances (proposed Corps acknowledges that the use of the of Transportation’s Pipeline and new NWP D, now designated as NWP NWPs to authorize activities during the Hazardous Materials Safety 58). The Corps also invited public 5-year period the NWP is in effect Administration concurs with that comment on national construction results in some cumulative adverse statement. The Corps acknowledges standards and best management environmental effects, but the limits, these comments. practices that could be incorporated into PCN requirements, general conditions, One commenter said that while oil or the text of NWP 12 to help ensure that and the ability of division and district natural gas pipelines may be regulated this NWP authorizes only those engineers to modify, suspend, and by other agencies, the Corps is not activities (i.e., discharges of dredged or revoke NWP authorizations all help to relieved of its obligation to conduct a fill material into waters of the United ensure that this NWP causes no more NEPA analysis for leaks or spills. A few States and/or structures or work in than minimal cumulative adverse commenters stated that the Corps must navigable waters of the United States) environmental effects at the national, consider in its NEPA review the impacts that result in no more than minimal regional, and site scales. that could result from authorizing a individual and cumulative adverse A few commenters stated that the pipeline that would carry toxic material, environmental effects. proposed NWP 12 would result in including leaks or spills, and that the General Comments reduced opportunities for the Corps and draft decision document doesn’t take for the public to evaluate the impacts of the required ‘‘hard look’’. Some commenters expressed their oil and natural gas pipeline activities on In the national decision document for support for dividing NWP 12 into three water resources and the environment in the issuance of this NWP, the Corps separate NWPs while some commenters general. One of these commenters said discusses leaks or spills that may occur objected to that aspect of the proposed that the Corps should provide during the construction and/or rule. Many commenters stated that the additional opportunities for public Corps should reissue NWP 12 in its involvement. One commenter stated operation of oil or natural gas pipelines. current form. One commenter said that that public participation opportunities The Corps does not have the authority the 2017 NWP 12 contains sufficient during the NWP permitting process are to take actions to prevent or control PCN thresholds and conditions to sufficient; and expanding the existing potential leaks or spills that may occur provide appropriate environmental requirements at the district level would during the construction or operation of protections. One commenter objected to cause unwarranted delays in permitting. oil or natural gas pipelines. Since the the proposed modifications to NWP 12 One commenter suggested that the Corps does not regulate the release of made in response to E.O. 13783, Corps should notify the public of oil, natural gas, or products derived Promoting Energy Independence and proposed NWP 12 activities. A few from oil or natural gas, it is not required Economic Growth, stating that these commenters said that pipelines can to perform a detailed analysis of the changes would make it easier for oil and cause significant direct and indirect effects of those possible future leaks or gas pipeline activities to occur at the impacts to fish and wildlife habitat and spills because those leaks or spills are expense of the environment. Several water quality associated with an not an effect of the Corps’ proposed commenters said that the Corps should increase in watershed runoff. action (see the definition of ‘‘effects or limit the number of activities authorized The public is provided an opportunity impacts’’ at 40 CFR 1508.1(g)). by this NWP because continuing to to comment on the Corps’ proposal to One commenter stated that pipeline authorize these activities contributes to issue, reissue, or modify an NWP when abandonment issues in NWP 12 should cumulative effects to natural resources. Corps Headquarters publishes its be treated consistently across the After reviewing the comments proposed rule in the Federal Register to districts and recommended that the received in response to proposed NWPs start the public comment period. NWP 12 terms should provide this 12, C, and D, the Corps is finalizing and However, after an NWP is issued, there consistency. A few commenters said issuing these NWPs. Nationwide permit is no public comment process for that NWP 12 should continue to 12 authorizes oil or natural gas pipeline specific NWP activities. If, for a authorize emergency installation, activities, NWP 57 authorizes electric proposed oil or natural gas pipeline replacement or repair of utility lines. utility line and telecommunications activity, the district engineer exercises One commenter requested that the activities, and NWP 58 authorizes utility discretionary authority and requires an Corps clarify the types of time-sensitive line activities for water and other individual permit for that activity, the activities, including integrity digs, that substances. These NWPs are issued to public will have an opportunity to are authorized under NWPs 12 and 3. fulfill the objective of the NWP program, provide comments in response to the One commenter requested clarification which is to authorize, with little, if any, public notice issued by the Corps of the scope of maintenance activities delay or paperwork certain activities district. When reviewing PCNs for under NWP 12. One commenter said having no more than minimal impacts proposed oil or natural gas pipeline that the Corps should facilitate the (33 CFR 330.1(b)). The proposed activities, district engineers consider the construction, repair, and/or replacement modifications to NWP 12 were made, in potential direct and indirect impacts on of climate resilient underground linear part, to respond to the direction fish and wildlife habitat and water infrastructure to support climate

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adaptive and resilient energy systems current NEPA regulations the A few commenters said that the terms through the issuance of general permits. cumulative effects analysis for an NWP ‘‘oil’’, ‘‘gas’’, and ‘‘natural gas’’, and Corps districts have discretion to is similar to the approach the Corps uses ‘‘petrochemicals’’ are vague and determine on a case-by-case basis how under 40 CFR 230.7(b)(3): Estimating overbroad for the purposes of to address pipeline abandonment the number of times the NWP is determining compliance with the activities. Nationwide permit 12 can be anticipated to be used during the 5-year proposed NWPs and can have various used to authorize emergency period it will be in effect, the authorized meanings, and that any proposed installation, replacement or repair of impacts to jurisdictional waters and changes should be subjected to notice utility lines. The reduction of the wetlands, and the compensatory and comment procedures. A few number of PCN thresholds for this NWP mitigation required to offset losses of commenters stated that terms associated may facilitate the implementation of jurisdictional waters and wetlands. with the proposed NWP 12 that require these emergency activities by reducing Those impacts, and the compensatory clarification include ‘‘utility lines,’’ delays in securing NWP authorization. mitigation, are evaluated against the since pipeline activities authorized by The Corps does not believe that it is current environmental setting (i.e., the NWP 12 might be both pipelines and necessary add text to the NWP to affected environment), which includes utility lines; ‘‘other substances,’’ specifically address integrity digs, the past and present effects of human because gas and petrochemicals can be because discharges of dredged or fill activities and natural events that have found in many types of infrastructure material into waters of the United States shaped the current environmental and industrial products; and ‘‘gas’’ and for integrity digs can be considered part setting. The Corps does not have the ‘‘natural gas,’’ because liquified of maintenance, which is included in authority to regulate the operation of petroleum gas is not a natural gas. the first sentence of this NWP. The any oil or natural gas pipeline, or the The Corps has made changes to the activities authorized by this NWP can emissions that result from combustion definition of ‘‘oil or natural gas contribute to the construction, repair, of oil or natural gas, or from the pipeline’’ to take into account the wide and/or replacement of climate resilient industrial processes that derive other variety of products that may be derived underground linear infrastructure to products from oil or natural gas. from oil or natural gas and transported support climate adaptive and resilient Therefore, under the current NEPA in these pipelines. In response to energy systems. regulations, the Corps is not required to comments received in response to the One commenter stated that the Corps evaluate those upstream and 2020 Proposal, and to provide should ensure that activities authorized downstream impacts, including additional clarity on the types of by NWP 12 do not commence potential impacts on the planet’s products that may be transported by oil construction in uplands in protected climate. The national decision or natural gas pipelines versus utility critical habitats until the ESA section 7 document for this NWP considers line activities that may be authorized by consultation process has been effects on water supply and NWP 58, the Corps has replaced the completed. A few commenters indicated conservation as part of the public term ‘‘petrochemical products’’ with the concern that cumulative impacts are not interest review. When reviewing PCNs, phrase ‘‘products derived from oil or adequately considered in the decision district engineers will evaluate the natural gas, such as gasoline, jet fuel, document for NWP 12. A few effects of proposed NWP activities on diesel fuel. heating oil, petrochemical commenters asserted that the scope of waterways. feedstocks, waxes, lubricating oils, and the cumulative impacts has proven to be asphalt.’’ The revised definition was more than minimal. One of these Activities Authorized by NWP 12 developed using information from the commenters stated that the draft U.S. Energy Administration.2 decision document for NWP 12 already One commenter said that the first sentence of NWP 12 should be revised A few commenters said that the acknowledges that the cumulative proposed definition of ‘‘oil or natural impacts are more than minimal. A few as follows: ‘‘Activities required for the construction, replacement, gas pipeline’’ for the proposed NWP 12 commenters said that the Corps should is inadequate and inconsistent with the consider the cumulative upstream and maintenance, repair and removal of oil, natural gas and gaseous fuel pipelines definitions in the Oil Pollution Act. One downstream impacts of its actions commenter suggested the Corps add regarding oil and natural gas pipelines, and utility lines and associated facilities in waters of the United States, provided ‘‘and derivatives’’ after ‘petrochemical including climate impacts. A few products’ for clarity. One commenter commenters expressed concern for the activity does not result in the loss 1 suggested removal of the phrase ‘‘for potential effects on drinking water and of greater than ⁄2-acre of waters of the United States for each single and any purpose’’ from the proposed aquifers. One commenter expressed a definition of ‘‘oil or natural gas general concern for waterways affected complete project.’’ The Corps declines to make this change because it is pipeline’’ because it creates uncertainty by NWP 12 activities. about what activities may actually be The Corps does not have the authority covered by the definition of ‘‘oil or natural gas pipeline’’ provided in the authorized by the NWP. to prevent project proponents from The Corps developed its own second paragraph of this NWP. conducting activities in uplands before definition because this NWP also they receive NWP verifications from Oil or natural gas pipelines. One authorizes regulated activities district engineers in response to PCNs. commenter stated that if the Corps associated with natural gas pipelines The national decision documents issued moves forward with limiting NWP 12 to and products derived from oil or natural by Corps Headquarters address oil or natural gas pipeline activities, it gas. The Corps has deleted ‘‘for any cumulative impacts in accordance with should also delete the phrase ‘‘including purpose’’ because NWP 12 is now the Clean Water Act Section 404(b)(1) outfall and intake structures’’ because limited to oil or natural gas pipeline Guidelines at 40 CFR 230.7 for the oil and natural gas pipelines and activities. issuance of general permits. The distribution systems do not contain One commenter stated that the Council on Environmental Quality’s water outfall or water intake pipe existing NWP 12 uses the category NEPA regulation at 40 CFR 1508.1(g)(3) structures. The Corps has made this repealed the 1978 definition of change to the second paragraph of this 2 https://www.eia.gov/energyexplained/oil-and- ‘‘cumulative impact,’’ so under the NWP. petroleum-products/ (accessed November 4, 2020).

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‘‘utility lines’’ which is still used in gas pipeline substation’’ is used in the temporary structures, fills, and work proposed NWPs C and D, but the proposed language for the proposed necessary for the remediation of proposed NWP 12 uses the new term NWP 12 and requested clarification inadvertent returns of drilling fluids to ‘‘oil and natural gas pipelines’’ which regarding how above-ground natural gas waters of the United States through sub- causes conflicting redundancies with facilities including district regulators soil fissures or fractures that might various aspects of the proposed NWPs and gate stations fit into NWP 12. occur during horizontal directional 12, C, and D. One commenter said that The Corps has modified this drilling activities conducted for the many of natural gas pipe construction paragraph to provide examples of purpose of installing or replacing oil or and repair projects that will need NWP substations associated with oil or natural gas pipelines. The purpose of authorization involve pipelines that will natural gas pipelines. This NWP can be this paragraph is to provide be used to transport geologic natural gas used to authorize discharges of dredged authorization for regulated activities as well as other lower carbon gaseous or fill material into waters of the United that are necessary to remediate fuels such as renewable natural gas, States for above-ground natural gas inadvertent returns of drilling fluids to hydrogen, and power-to-gas methanated facilities including district regulators reduce adverse environmental effects hydrogen. This commenter said that to and gate stations. that might be caused by releases of avoid confusion and streamline the Access roads. One commenter said drilling fluids to the surrounding process for these projects, the Corps that only temporary access roads should environment. should not split off any buried pipe- be authorized by NWP 12, and that One commenter expressed support for based utility lines into the proposed permanent access roads are more retaining the clarification that NWP 12 new NWP D. One commenter remarked appropriately authorized under NWP authorizes temporary mats for moving that the Corps should clarify that NWP 14. The Corps disagrees, and is retaining equipment. A few commenters said that 12 is available for underground the NWP authorization for permanent the Corps should stop considering pipelines and utility lines whether they access roads, because access roads are temporary mats/panels as a regulated carry geologic natural gas or a blend associated with utility lines are not activity or clarify that they are not to be with lower-carbon gaseous fuels. usually available for public use. considered as a ‘‘loss of waters’’ for the Nationwide permits 12, 57, 58 One commenter said that the proposal purposes of PCN requirements because authorize activities for different types of to add the word ‘‘over’’ to activities that of their temporary effects. One utility lines, so there will be some are routed in or under navigable waters commenter requested clarification that redundancies because of similarities subject to Section 10 of the Rivers and activities resulting in the loss of greater among these different types of utility Harbors Act of 1899 is unnecessary as than 1⁄10-acre of waters of the United lines, but there are also some structures routed over section 10 waters States require a PCN to the Corps, but differences, which result in different would be considered bridges and be temporary discharges do not count text in each of these NWPs. Nationwide regulated under Section 9 of the Rivers toward that 1⁄10-acre PCN threshold. permit 12 authorizes oil or natural gas and Harbors Act of 1899. The Corps has The determination as to whether the pipeline activities that may carry modified the second sentence of the use of timber mats in waters of the different types of natural gas. seventh paragraph of this NWP by United States for oil or natural gas Nationwide permit 58 can be used to adding the word ‘‘may’’ because there pipeline activities constitutes a authorize pipeline activities that require may be circumstances where section 10 discharge of dredged or fill material into DA authorization and are used to authorization is required for oil or waters of the United States should be convey hydrogen, methanated natural gas pipelines routed over made by district engineers after hydrogen, or carbon dioxide. navigable waters of the United States. evaluating site-specific and activity- Oil or natural gas pipeline A few commenters stated that the specific circumstances. Any discharge substations. One commenter said that Corps does not have jurisdiction over of dredged or fill material into waters of the paragraph on substations in the inadvertent returns, leaks, or spills. One the United States that results in a loss proposed NWP 12 should be revised to commenter said that NWP 12 should of greater than 1⁄10-acre of waters of the state that it authorizes construction, continue to authorize the remediation of United States requires pre-construction maintenance, replacement or expansion inadvertent returns of fluids during notification. As explained in the work in a non-tidal jurisdictional water drilling operations without additional definition of ‘‘loss of waters of the for an oil or natural gas or gaseous fuel changes. A few commenters stated that United States,’’ waters of the United custody transfer station, boosting the Corps has not sufficiently evaluated States temporarily filled, flooded, station, compression station or metering the risks, impacts, and mitigation excavated, or drained, but restored pre- and/or pressure regulating station. One measures associated with inadvertent construction contours and elevations commenter said that if the Corps issues returns of drilling fluid. A few after construction, are not included in proposed new NWP C, then the commenters expressed appreciation for the measurement of loss of waters of the references to ‘‘substations’’ should be the clarification in the decision United States. removed from NWP 12 and replaced document that the Corps’ jurisdiction is One commenter said there is with boosting or compressor stations limited to authorizing temporary inconsistency in the text of NWP 12 and natural gas metering and pressure structures, fills, and work necessary for because it states that there must be no regulating station. This commenter also the remediation of inadvertent returns change in pre-construction contours of recommended revising the fourth of drilling fluids through sub-soil waters of the United States, but NWP 12 paragraph in the proposed NWP 12 to fissures or fractures that might occur also authorizes losses of waters of the state that it authorizes construction, during horizontal directional drilling. United States. This commenter maintenance, replacement or expansion The Corps does not have jurisdiction recommended revising the text of NWP work in a non-tidal jurisdictional water over inadvertent returns, leaks, or spills 12 to state that ‘‘there must be no for an oil or natural gas or gaseous fuel that may occur during horizontal change in pre-construction contours custody transfer station, boosting directional drilling to install or replace which results in permanent loss of station, compression station or metering oil or natural gas pipelines. The eighth waters of the United States.’’ One and/or pressure regulating station. One paragraph of this NWP authorizes, to the commenter stated that the Corps should commenter noted that the term ‘‘natural extent that DA authorization is required, adopt a strict interpretation of the

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amount of ‘‘temporary fill’’ authorized elevations or because they are already activities authorized by NWP 12. One by this NWP for the purposes of addressed by another PCN threshold. If commenter said that the Corps should assessing cumulative impacts and a proposed NWP 12 activity does not encourage the districts to refrain from should also consider the timing and trigger any of the three PCN thresholds adding PCN thresholds to this NWP, duration of temporary fills, including in the text of the NWP, or a PCN specifically through regional conditions. temporary mats. This commenter threshold in the text of one of the NWP A few commenters expressed concern indicated that permitted temporary fills general conditions (e.g., general that the reduction of PCN thresholds generally occur in stages and not all at condition 18, endangered species and will likely be subject to litigation. One the same time. general condition 20, historic commenter suggested that any resulting Some activities authorized by NWP 12 properties), then pre-construction litigation could cause uncertainties for (e.g., the construction of substations and notification is not required for the the industries that rely on the NWP permanent access roads) result in proposed activity unless a division program. permanent fills while other authorized engineer has imposed a regional The NWPs provide incentives for activities, such as the placement of condition to require PCNs in a project proponents to reduce impacts to temporary fills, require restoration to particular geographic region. Division waters of the United States to obtain DA pre-construction elevations. Temporary engineers can add regional conditions to authorization in less time than is fills do not contribute to cumulative add PCN thresholds that were removed required under the individual permit impacts because they are removed upon from the text of NWP 12, if he or she process. Reducing the number of PCNs completion of the work and the determines the PCN threshold is does not violate general condition 23. permittee is required to restore the necessary to ensure that the NWP The NWPs authorize activities that have affected area to pre-construction authorizes only those activities that no more than minimal individual and elevations. The Corps acknowledges have no more than minimal adverse cumulative adverse environmental that temporary fills may occur during environmental effects. Adverse effects to effects, and it is not necessary to require different stages of construction, rivers, streams, and wetlands are compensatory mitigation for every NWP maintenance, repair, or removal of an generally caused by the discharges of activity. The PCN thresholds themselves oil or natural gas pipeline activity. dredged or fill material or structures or do not limit adverse environmental effects; the adverse environmental Pre-Construction Notification work authorized by this NWP, not by effects caused by regulated activities Thresholds the presence or absence of a PCN threshold. authorized by an NWP are limited by Many commenters opposed reducing Many commenters expressed support the constraints in the text of the NWP the number of PCN thresholds in this for proposed reduction in PCN (e.g., the 1⁄2-acre limit, requirements to NWP. Several commenters suggested thresholds for NWP 12 and the restore temporary impacts to pre- that reducing the PCN requirement associated reduced administrative construction elevations) and in the NWP would result in the NWP authorizing burden that reduction would provide. general conditions. Division engineers activities that have more than minimal One commenter voiced support for the have the authority to add regional adverse environmental effects, reduction in PCN requirements as it conditions to replace the PCN including cumulative effects. Many of would reduce the potential for thresholds that were in prior versions of these commenters suggested retaining infrastructure litigation and encourage NWP 12, if those division engineers the existing PCN thresholds. One of private investment. One commenter determine that adding those PCN these commenters requested further stated that PCN thresholds should be thresholds is necessary to ensure that clarification regarding which activities removed when they are duplicative or the NWP only authorizes those activities would no longer require PCNs. A few of burdensome. One commenter said that that result in no more than minimal these commenters stated that if the PCN requirements to be removed individual and cumulative adverse maintaining the status quo creates are truly redundant it would pose no environmental effects. While potential greater regulatory certainty to the additional burden on the regulated litigation risk is a consideration when industry. Many commenters said that public. contemplating changes, other factors reducing the PCN thresholds for this The Corps acknowledges these such as administrative efficiency, NWP undermines the Corps’ ability to comments, and the Corps’ intent with reduction of regulatory burdens, and ensure that authorized activities NWPs these changes is to reduce burdens on other approaches for maintaining will result in no more than minimal the regulated public and focus the PCN environmental protections are other individual and cumulative adverse thresholds on those activities that have considerations that the Corps considers environmental effects, and reduces the some potential to cause more than as well. opportunity for the Corps to require minimal adverse environmental effects. A few commenters stated that the individual permits when adverse For these activities, district engineers proposed reduction in PCN thresholds environmental effects would be more should be given the opportunity to could expedite permit processing time than minimal. One commenter evaluate these activities on a case-by- and preclude a thorough review by the remarked that the proposed reduction in case basis. Corps. One commenter said that PCN thresholds would cause increased Many commenters stated that the PCN reducing the number of PCN thresholds harm to rivers, streams, and wetlands. process incentivizes permittees to avoid, would allow for the potential for spills The Corps proposed to retain those minimize, and compensate for impacts near stream beds. One commenter PCN thresholds associated with NWP 12 to aquatic resources in order to reduce opposed the simplified PCN activities that result in losses of waters permitting delays. Some of these requirements, stating that the proposal of the United States or have potential commenters said that the reduced PCN does not improve inter-agency effects on navigation. To reduce requirements would result in violations coordination or reduce impacts on the regulatory burdens in response to E.O. to general condition 23, mitigation. One environment. One commenter said that 13783, the Corps proposed to remove a commenter stated that the remaining PCNs should be required for all NWP 12 number of PCN thresholds because of PCN thresholds and the other NWP 12 activities. One commenter stated that the requirement in the NWP to restore terms and conditions reasonably limit the Corps fails to show how compliance temporary impacts to pre-construction the adverse environmental effects of the with Clean Water Act Section 404(e)

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would be achieved without a process to This includes maintenance activities documentation includes the district track all NWP activities. that might affect listed species or engineer’s consideration of cumulative The reduction in PCN thresholds designated critical habitat. None of the effects. allows Corps districts to shift their activities authorized by NWP 12 require In the paragraphs below, the Corps resources towards evaluating proposed coordination with state natural resource discusses each of the five PCN activities that require DA authorization agencies, and the PCN thresholds that thresholds it proposed to remove to that have the potential for greater have been removed from NWP 12 did simplify the PCN requirements for this adverse environmental effects. Reducing not require that coordination. NWP. The Corps discusses the the number of PCN thresholds will not General condition 20 addresses comments received and provides alter the potential for spills to occur compliance with section 106 of the responses to those comments. In the near stream beds because spills are NHPA. Under paragraph (c) of general paragraphs that follow, the Corps uses accidents and not planned activities that condition 20, non-federal permittees the term ‘‘utility line’’ because it the Corps would evaluate as part of a must submit a pre-construction proposed the same PCN thresholds for PCN. The reduction in the number of notification to the district engineer if the NWP 12 and proposed new NWPs C and PCN thresholds in NWP 12 does not NWP activity might have the potential D (now designated as NWPs 57 and 58, alter any agency coordination to cause effects to any historic respectively in this final rule). Also procedures because agency coordination properties listed on, determined to be discussed below is the Corps’ proposal is not required for any NWP 12 eligible for listing on, or potentially to add a new PCN threshold to NWP 12 activities. It is not necessary to require eligible for listing on the National for new oil or natural gas pipelines PCNs for all NWP 12 activities, because Register of Historic Places, including greater than 250 miles in length. many of the activities authorized by previously unidentified properties even (i) The activity involves mechanized NWP 12 result in only temporary if a PCN is not otherwise required. The land clearing in a forested wetland for impacts to aquatic resources. The Corps reduction in PCN thresholds for NWP the utility line right-of-way. Many does not have to track all NWP activities 12 does not change the PCN commenters said that allowing to comply with Section 404(e) of the requirement in general condition 20. mechanized land clearing through Clean Water Act. Since the inception of During the process for issuing these forested wetlands without requiring the NWP program in 1977, many of the NWPs, Corps districts have been PCNs will cause more than minimal NWPs have not require pre-construction consulting or coordinating with tribes to adverse environmental effects and notification, thus the changes that are identify regional conditions or recommended that this PCN threshold being finalized are not a departure from coordination procedures to ensure that requirement be retained. Many the Corps practice or procedures. activities authorized by NWP 12 and commenters said that PCNs should be A few commenters said that reducing other NWPs do not have substantial required for mechanized land clearing the PCN requirement does not comply adverse effects on tribal rights and, as associated with NWP 12 to prevent the with the Corps’ mandate under ESA appropriate, treaty reserved resources. loss of wetland resources, functions and section 7 to ensure consultation occurs Division engineers can add PCN services, including water quality, when necessary. One commenter said requirements to address tribal concerns erosion control, and flood mitigation. A that PCN should be required for all as appropriate. few commenters suggested a maximum maintenance activities in waters of the One commenter objected to the lack of acreage for forest clearing activities United States, especially if the waters a PCN threshold based on pipeline without a PCN associated with NWP 12. contain ESA-listed species. A few diameter. One commenter requested One commenter stated that the PCN commenters opposed reducing the that the Corps provide additional threshold should be modified to require number of PCN thresholds for NWP 12 information regarding the outcomes of PCNs for ‘‘loss or permanent because the PCN process allows state PCN reviews under the current NWPs conversion.’’ natural resource agencies to provide and an explanation for how If construction of an oil or natural gas expertise in determining the effect of environmental protection would be pipeline involves mechanized land projects on state resources, affected maintained without the PCN review clearing in a forested wetland for the species, and their habitat. A few process. One commenter stated that the right-of-way for that pipeline, the commenters stated the reduced number Corps should clearly identify the installation of the pipeline must cause of PCN thresholds would not comply information required by all applicants to no change in pre-construction contours with the NHPA. One commenter said support the analysis of temporal and of waters of the United States. Any that the proposed reduction in PCN cumulative impacts and recommended temporary fills must be removed upon thresholds could have potential impacts separate analyses for all impacts to completion of construction, and the to cultural resources and affect the waters of the United States within the affected areas restored to pre- protection of historic properties. Several total impact limitation of 1⁄2-acre. construction elevations. If there are any commenters said that the proposed Pre-construction notification permanent fills associated with the reduction of PCN thresholds poses risks thresholds are established for activities mechanized land clearing of a forested of significant impacts to tribal rights and that have the potential to result in more wetland, and the loss of waters of the treaty-reserved resources. than minimal adverse environmental United States is greater than 1⁄10 acre, a General condition 18 addresses effects, and pipeline diameter has not PCN is required. In areas where compliance with section 7 of the ESA. been demonstrated to have potential to temporary fills occur, the wetlands in Under paragraph (c) of general be a useful PCN threshold. During their the right-of-way will remain, although condition 18, non-federal permittees reviews of PCNs, district engineers there may be a conversion in wetland must submit a pre-construction document their conclusions as to type. Those wetlands will continue to notification to the district engineer if whether the proposed activity will perform wetland functions, including any listed species or designated critical result in no more than minimal adverse hydrologic functions, biogeochemical habitat might be affected or is in the environmental effects, or whether it is cycling, and habitat functions, but there vicinity of the activity, or if the activity necessary to exercise discretionary may be some changes to those functions is located in designated critical habitat authority and require an individual and the degree to which the wetlands even if a PCN is not otherwise required. permit for the proposed activity. This perform those functions. Division

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engineers can impose regional regularly constructed through forested efforts on proposed activities that have conditions to require PCNs for wetlands. the potential to result in more than mechanized land-clearing in a forested The text of this NWP that applies to minimal adverse environmental effects. wetland, and they can add regional the construction of the pipeline requires If mechanized land-clearing causes conditions to impose an acreage limit on that there is no change in pre- irreversible and permanent alteration of impacts resulting from mechanized construction contours of waters of the forested wetland’s functions, it is land-clearing of forested wetlands. United States. If there are permanent because of the physical effects of the Many commenters said that PCNs impacts to certain features of these discharge of dredged or fill material into should be required for mechanized land forested wetlands, those impacts are waters of the United States and the clearing in forested wetlands to allow caused by the activities authorized by periodic maintenance in the pipeline district engineers to consider avoidance, NWP 12, not the presence or absence of right-of-way that causes those changes minimization, and the need for any PCN threshold. Soil compaction can in wetland functions. The Corps compensatory mitigation, as compliance be caused by a variety of activities other regulates the former, but does not with the 404(b)(1) guidelines, and than discharges of dredged or fill regulate the mowing and cutting of further recommended retention of this material. If the activity results in a loss vegetation to maintain the plant PCN threshold. One of these of greater than 1⁄10-acre of waters of the community in the pipeline right-of-way commenters stated that temporary United States, then the project as herbaceous vegetation or scrub-shrub impacts should also be considered. proponent is required to submit a PCN. vegetation. Paragraph (i) of general Many commenters expressed concern For those Corps districts in the Gulf condition 23 is retained in these NWPs, that mechanized land clearing in Coast, division engineers add regional so for those NWP 12 activities that forested wetlands would result in the conditions to require PCNs for require PCNs, district engineers can long-term and/or permanent conversion mechanized land-clearing activities in require compensatory mitigation to of these areas to emergent and scrub- forested wetlands. offset permanent losses of certain shrub wetlands, and further indicated Several commenters said that the wetland functions. that these scrub-shrub and emergent Corps does not cite any sources for One commenter stated that impacts to wetlands do not provide the same stating that mechanized land clearing in forested wetlands are permanent or degree of ecological functions and forested wetlands usually results in only semi-permanent and should not be services or provide the same values. temporary impacts. A few commenters considered temporary. One commenter Several of these commenters asserted stated that the Corps has not provided suggested the cumulative effects of that this conversion in wetland type any scientific rationale demonstrating forested wetland conversion cannot be causes more than minimal adverse that loss of forested wetland would not tracked without a PCN requirement. effects to the environment. result in more than minimal adverse One commenter stated that the removal Paragraph (a) of general condition 23 environmental effects. A few of the PCN for mechanized land clearing requires project proponents to design commenters said that the consensus in in forested wetlands is a change with and construct their NWP activities to the scientific literature contradicts the implications for market growth of the avoid and minimize temporary and Corps’ assertion, with multiple studies ecological restoration industry. One permanent adverse effects to waters of and practices indicating that commenter stated that mechanized land the United States to the maximum mechanized clearing results in clearing can increase non-point source extent practicable at the project site (i.e., irreversible and permanent alteration of pollution in a water of the United States on site). Division engineers can add forested wetland’s functions. One and can increase nutrient loading in regional conditions to this NWP to commenter cited paragraph (i) of general first and second order streams. One require PCNs and compensatory condition 23 which allows district commenter said that mechanized land mitigation for mechanized land-clearing engineers to require mitigation for the clearing in forested wetlands is of forested wetlands. Activities that are permanent conversion of wetland types associated with an increase in the authorized by NWPs do not require to offset losses of specific functions. spread of invasive species. activity-specific evaluation under the One commenter said that the functions Forested wetlands that have been 404(b)(1) Guidelines (see 40 CFR of forested wetlands have been converted to herbaceous or scrub-shrub 230.5(b)). Emergent and scrub-shrub estimated by the Corps to have a value wetlands continue to function as wetlands perform valued wetland of $10,401 per acre per year. A few wetlands. Therefore, from a wetland functions, even though those functions commenters stated that mechanized perspective, the impacts caused by the differ to some degree from the functions land clearing can result in sediment below-ground installation of the performed by forested wetlands. disturbance and potential water quality pipeline are temporary as long as A few commenters stated that clearing impacts in wetland areas. A few temporary fills are removed and the of forested wetlands can impact wetland commenters stated that removing the affected area is restored to pre- hydrology and soils through rutting and PCN requirement for mechanized land construction elevations. Although the soil compaction by machinery. Many clearing in forested wetlands would wetland type has changed as a result of commenters stated that a review of pre- make NWP 12 vulnerable to litigation. the activity, district engineers can and post-construction hydrogeomorphic The text of NWP 12 requires require compensatory mitigation to method assessments demonstrates temporary impacts to be restored after offset losses of specific wetland significant permanent impacts to the pipeline is constructed. If the functions for those NWP 12 activities forested wetlands resulting from construction of the pipeline results in that require PCNs. If the permittee mechanized land clearing and the loss of greater than 1⁄10-acre of wants to conduct mechanized land temporary discharges. Several waters of the United States, then the clearing of a forested wetland for an oil commenters said that forested wetlands project proponent is required to submit or natural gas pipeline right-of-way, he along the Gulf Coast provide vital a PCN to the Corps. The removal of the or she must restore the disturbed soils stopover areas for migratory birds and PCN threshold is an administrative so that there is no change in pre- that the proposed removal of this PCN decision to improve regulatory construction contours of waters of the threshold would be most profound efficiency, reduce redundancy, and United States in that right-of-way. If along the Gulf Coast where pipelines are focus the district engineer’s evaluation there will be permanent changes in pre-

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construction contours in waters of the provide should recover after the The PCN threshold for losses of United States, and the area of those temporary fills are removed and the greater than 1⁄10-acre of waters of the permanent changes will exceed 1⁄10-acre, affected area restored to pre- United States applies to permanent then a PCN is required. Permanent construction elevations. The removal of access roads, and that PCN threshold is adverse effects can be addressed the 500 linear foot PCN threshold sufficient for providing district through the PCN review process. Where improves the Corps’ efficiency in engineers with the opportunity to appropriate to ensure minimal adverse administering the section 404 program. review those activities to determine if effects on the environment in a Further, it is consistent with section 404 they qualify for NWP authorization. The particular region, division engineers can permitting requirements, because the Corps is removing this PCN threshold add regional conditions to require PCNs Corps determines which activities for above-grade permanent access roads for mechanized land clearing in a should require PCNs to trigger review because it is redundant with the 1⁄10- forested wetland right-of-way. on a case-by-case basis. acre PCN threshold. Concerns about (ii) The utility line in waters of the (iii) The utility line is placed within potential impacts to fish passage are United States, excluding overhead lines, a jurisdictional area (i.e., water of the addressed by NWP general condition 2. exceeds 500 feet. One commenter stated United States), and it runs parallel to or General condition 2 states that no NWP that the 500 linear foot PCN threshold along the stream bed that is within that activity may substantially disrupt the 1 should be maintained since the ⁄10-acre jurisdictional area. One commenter necessary life cycle movements of those threshold only covers losses of waters of stated that installing pipelines that run species of aquatic life indigenous to the the United States and retaining it would parallel to a watercourse can have waterbody, including those species that allow the district engineer to evaluate significant impacts on normally migrate through the area, the site-specific conditions and make an hydrogeomorphology of the watercourse unless the activity’s primary purpose is informed decision. One commenter said and lead to substantial erosion and to impound water. Furthermore, general that removal of the 500 linear foot PCN degradation. A few commenters condition 2 requires all permanent and threshold limits the Corps ability to recommended retention of the temporary crossings of waterbodies to review projects that will affect habitat, requirement for a PCN when the be suitably culverted, bridged, or ecosystems, and the environment on proposed activity would run parallel to otherwise designed and constructed to tribal lands and within tribal usual and and within a stream bed, citing the maintain low flows to sustain the accustomed areas that cross state lines potential for those activities to movement of those aquatic species. and international borders and further downgrade aquatic resource functions. (v) Permanent access roads are indicated that this would constitute a constructed in waters of the United As discussed in the 2020 Proposal (85 violation of the United States and trust States with impervious materials. A few FR 57326), the Corps proposed to and responsibility and obligation to commenters suggested a maximum remove this PCN threshold because the protect treaty resources. length for impervious surfaces without text of NWP 12 requires restoration of The 1⁄10-acre PCN threshold for losses a PCN associated with NWP 12. The these temporary impacts. The third of waters of the United States provides current PCN requirement for losses of an opportunity for district engineers to paragraph of NWP 12 addresses the waters of the United States greater than requirements for trenching and evaluate site-specific conditions and 1⁄10-acre is sufficient to trigger activity- determine whether the proposed oil or backfilling underground oil or natural specific review for permanent access natural gas pipeline activities are gas pipelines to ensure those impacts roads constructed with impervious 1 are temporary and do not result in a loss authorized by NWP 12. The ⁄10-acre materials, to allow district engineers to PCN threshold also provides district of waters of the United States. The ninth determine whether a particular engineers with the opportunity to assess paragraph of NWP 12 also addresses the proposed access road will result in no potential effects on habitat, ecosystems, requirements for restoring temporary more than minimal adverse environmental conditions on tribal fills, so that those fills do not result in environmental effects. lands, and tribal usual and accustomed losses of jurisdictional waters and areas. District engineers can work with wetlands. Further, in Corps districts Proposed Addition of a PCN Threshold tribes to develop coordination where the construction of oil or natural for New Oil or Natural Gas Pipeline procedures to help protect treaty gas pipelines in jurisdictional waters Activities Greater Than 250 Miles in resources. In addition, activities and wetlands parallel to a stream Length authorized by NWP 12 must comply channel have the potential to cause Many commenters objected to the with general condition 17, tribal rights. more than minimal individual and proposed PCN threshold for new oil or One commenter said that if this PCN cumulative adverse environmental natural gas pipelines that are greater threshold is removed, the Corps cannot effects, division engineers may add than 250 miles in length, stating that it evaluate the impacts of temporary losses regional conditions to NWP 12 to is arbitrary and capricious, and or determine if specific restoration or require PCNs for these activities. indicated that there is no reasonable mitigation measures are necessary, or if (iv) Permanent access roads are basis for the 250-mile threshold. One an individual permit would be constructed above grade in waters of the commenter expressed support for the necessary. One commenter said that the United States for a distance of more addition of the 250-mile pipeline length proposal to remove the 500 linear foot than 500 linear feet. Several PCN requirement. One of the PCN threshold should be coterminous commenters said that the PCN commenters said that this PCN with other section 404 permitting requirement for permanent access roads threshold is inconsistent with other requirements, but since this justification should be retained to ensure NWP 12 PCN thresholds. Many commenters does not apply in all situations it is activities not authorize more than objected to removing the current PCN inappropriate. An example cited by this minimal adverse effects. One thresholds and replacing them with the commenter is utility lines directionally commenter opposed the removal of the 250-mile PCN threshold. One drilled under wetlands. PCN threshold for associated access commenter expressed support for the Temporary impacts should not roads and culvert-related activities so proposal to require that PCNs include normally require PCNs because the that district engineers can evaluate information on all discharges associated aquatic resources and the functions they potential impacts to fish passage. with a pipeline, including those that

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would not otherwise require a PCN. One and any other NWP(s), regional general of an oil or natural gas pipeline while commenter stated that the phrase permit(s), or individual permit(s) used minimizing the potential for ‘‘associated with an overall project’’ was or intended to be used to authorize any inconsistent implementation of the PCN unclear and undefined. part of the proposed project or any requirement across districts. In addition, As discussed in the 2020 Proposal, related activity, including other separate some oil or natural gas pipeline this PCN threshold is being added for and distant crossings for linear projects crossings may not require DA new oil or natural gas pipelines to that require Department of the Army authorization because they are installed provide district engineers the authorization but do not require pre- through horizontal directional drilling, opportunity to review all crossings of construction notification. The Corps do not involve a waterbody subject to waters of the United States for new finds that a length of 250 miles is both Section 10 of the Rivers and Harbors long-distance oil or natural gas a good indicator of potential cumulative Act, and do not involve discharges of pipelines to ensure that the activities effects of an oil or natural gas pipeline dredged or fill material into waters of authorized by NWP 12 will result in no while minimizing the potential for the United States. The Corps does not more than minimal individual and inconsistent implementation of the PCN believe that this PCN threshold is cumulative adverse environmental requirement across districts. Although necessary for new NWPs 57 and 58 effects (see 85 FR 57327). Given the the Corps agrees that using a threshold because long-distance electric utility concerns expressed by numerous of five or more crossings is based on a lines are often constructed as overhead commenters regarding the potential numerical impact, it could be more utility lines and utility lines for water cumulative adverse environmental challenging to implement since there and other substances (e.g., potable effects that may be caused by NWP 12 may be proposed oil or natural gas water, wastewater, sewage) are often activities, this is not an arbitrary or pipeline activities where there are five constructed to serve local communities capricious addition to the PCN or more crossings and none of those and thus are likely to be shorter in requirements for NWP 12. This new crossings require PCNs. overall length. PCN threshold is not a replacement for One commenter suggested replacing One commenter stated that the Corps’ the PCN thresholds the Corps is the PCN threshold for new oil or natural Regulatory Impact Analysis for the removing from NWP 12. It is a new PCN pipeline activities with lengths of proposed rule is flawed because it threshold to address stakeholder greater than 250 miles with a PCN assumes the new 250-mile PCN concerns about cumulative effects. The requirement for oil or natural gas requirement would result in no phrase ‘‘associated with an overall pipeline activities that cross state or additional PCNs. One commenter said project’’ refers to the entire oil or natural district boundaries. Several commenters that if the Corps does move forward gas pipeline that is greater than 250 objected to the proposed 250-mile PCN with a 250-mile PCN threshold for new miles in length. threshold, but some of these oil or natural gas pipeline activities that Several commenters supported a commenters said that the acreage PCN applicants be allowed to provide the scope or length-based PCN threshold threshold is sufficient to ensure no more PCNs based on desktop data as some but suggested that the Corps adopt more than minimal adverse environmental areas may not be accessible for field protective PCN thresholds in place of effects. A few commenters remarked surveys if the project is in the the proposed 250-mile threshold. One of that the length of a pipeline is not a development stage. One commenter these commenters said that significant predictor of its crossings of waters of the stated that the 250-mile PCN threshold cumulative environmental impacts are United States or environmental impacts would result in the majority of pipeline likely to occur at a much lower length. and that this PCN threshold has no link projects being constructed without One of these commenters suggested to the Corps’ regulatory authority. A few review and would result in damage to changing the distance in this PCN commenters stated that the 250-mile historic properties. One commenter said threshold to 25 miles, while another PCN threshold is inconsistent with the that the 250-mile threshold has no commenter suggested 75 miles, and a other proposed utility line activity scientific or technical basis. third commenter suggested a 5-mile permits as they do not contain that PCN The new 250-mile PCN requirement is threshold. One commenter said that the threshold. One commenter objected to unlikely to require more PCNs for NWP Corps should require PCNs for any the 250-mile PCN threshold because it 12 activities because the likelihood of a proposed oil or natural gas pipeline is limited to new oil or natural gas new oil or natural gas pipeline greater activity resulting in five or more pipelines (i.e., the material to be than 250 miles in length not having any crossings. transported after the pipeline is crossings of waters of the United States The Corps believes that this new PCN constructed). that require PCNs under the other PCN threshold, plus the other two PCN As discussed above, the purpose of thresholds is extremely small. In thresholds in NWP 12 (i.e., activities this new PCN threshold is to provide addition, the requirement to provide in requiring section 10 authorization, and information to district engineers to the PCN the locations and proposed discharges resulting in the loss of facilitate their review of the cumulative impacts for all crossings of waters of the greater than 1⁄10-acre of waters of the effects that may be caused by new long- United States that require DA United States), are sufficiently distance oil or natural gas pipelines that authorization, including those crossings protective of the aquatic environment by have waterbody crossings that require authorized by an NWP would not providing information to district NWP 12 authorization. These new long- otherwise require preconstruction engineers to conduct case-specific distance oil or natural gas pipelines may notification, does not trigger a reviews of proposed NWP 12 activities be constructed within a single state or requirement for the project proponent to that have the potential to result in more Corps district. The Corps agrees that the submit full PCNs for those other non- than minimal individual and number of aquatic resources and their PCN crossings of waters of the United cumulative adverse environmental distribution in the landscape is variable, States. This portion of the new PCN effects. In furtherance of the Corps’ and therefore the number of crossings of requirement is nearly identical to an review of cumulative effects, paragraph waters of the United States is similarly existing requirement in paragraphs (b)(4) of NWP general condition 32 variable. However, the Corps finds that (b)(4)(i) and (ii) of general condition 32. requires PCNs for proposed NWP a length of 250 miles is both a good Paragraph (b)(4)(i) requires the project activities for linear projects to include indicator of potential cumulative effects proponent to include in the PCN any

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other NWP(s), regional general than the construction of new oil or the cumulative adverse environmental permit(s), or individual permit(s) used natural gas pipelines, because those effects of all crossings are or are not or intended to be used to authorize any maintenance activities occur to existing more than minimal. This PCN threshold part of the proposed project or any pipelines for which some degree of also provides the district engineer to related activity, including other separate adverse environmental effects has require an individual permit for the and distant crossings for linear projects already occurred and a current proposed oil or natural gas pipeline that require DA authorization but do not environmental setting that includes the activities when he or she determines the require pre-construction notification. existing pipeline. The 250-mile PCN cumulative adverse environmental Furthermore, paragraph (b)(4)(ii) of threshold does not undermine the effects of the proposed crossings of general condition 32 currently requires Corps’ definition of single and complete waters of the United States are more project proponents to include in PCNs linear project because each separate and than minimal. This may help reduce for linear projects where one or more distant crossing of waters of the United litigation risk. The 250-mile PCN single and complete crossings require States can continue to be authorized by threshold provides information for the pre-construction notification, the an NWP. If one crossing of waters of the district engineer’s review, who also uses quantity of anticipated losses of United States for an oil or natural gas information on current environmental wetlands, other special aquatic sites, pipeline requires an individual permit, conditions and potential impacts of the and other waters for each single and then 33 CFR 330.6(d) applies and the proposed NWP activities to determine complete crossing of those waters and district engineer will determine which whether NWP authorization is wetlands. This quantification also must activities require individual permits and appropriate for these NWP 12 activities. include those single and complete which activities can be authorized by an Division engineers do not have a role in crossings authorized by an NWP not NWP. Section 330.6(d) of the Corps’ reviewing NWP PCNs. requiring PCNs. The only additional NWP regulations, as well as Note 2 of Other Provisions of NWP 12 information required by the 250-mile NWP 12, remain in effect. Section PCN threshold is the location of all non- 330.6(d) and Note 2 maintain the Corps’ One commenter said that Note 2 PCN crossings. The Regulatory Impact long-standing process regarding the use should be reissued with no changes, as Analysis for this final rule has been of NWPs and individual permits to it clarifies concepts such as ‘‘single and updated to identify this new PCN authorize linear projects such as oil or complete project,’’ ‘‘single and complete threshold as a change. The lack of natural gas pipelines. non-linear project,’’ ‘‘independent discussion of the proposed 250-mile One commenter stated that the 250- utility,’’ and the interaction of the NWPs PCN threshold in the Regulatory Impact mile PCN threshold would discourage with individual permits. The Corps has Analysis for the proposed rule was an pipeline developers from avoiding and reissued Note 2 with no changes. Note error. When a project proponent minimizing impacts to waters of the 2 differs from the 250-mile PCN develops a proposal for a new oil or United States, and from planning longer threshold in that an individual permit is natural gas pipeline, some degree of routes to avoid sensitive resources. One required for the proposed oil or natural environmental analysis and review is commenter said that the 250-mile PCN gas pipeline if one or more crossings of needed to determine whether there are threshold will add an unnecessary layer waters of the United States does not any crossings of waters of the United of uncertainty and litigation risk. One qualify for NWP authorization. Under States that require DA authorization, commenter stated that a 250-mile PCN the 250-mile PCN threshold, an and whether any of those crossings threshold would authorize potentially individual permit is required if the require PCNs. The new PCN threshold significant pipeline activities without district engineer determines the should not impose any additional any district or division review. One cumulative adverse environmental burdens on the regulated public. New commenter stated that oil or natural gas effects of all crossings of waters of the oil or natural gas pipelines must comply pipelines greater than 250 miles in United States that require DA with general condition 20 for historic length are so large they are bound to authorization will result in more than properties as do all activities authorized cause more than minimal effects and minimal cumulative adverse by an NWP. should not be approved under an NWP. environmental effects. One commenter objected to the One commenter stated that the length of A few commenters objected to proposed 250-mile PCN threshold, and the utility line should not be used as a authorizing separate and distant limiting it to the installation of new oil PCN threshold; environmental crossings as single and complete or natural gas pipelines (versus conditions and impacts should be used projects. These commenters believe that conducting repair or maintenance instead. the practice causes more than minimal activities) along the majority of the Regardless of the addition of the 250- cumulative adverse effects. A few distance of the overall project length, mile PCN threshold, pipeline commenters expressed opposition to stating that a PCN requirement should developers are still required to comply allowing multiple ‘‘single and be triggered even if short distances of with paragraph (a) of NWP general complete’’ project authorizations of the the pipeline are being replaced. A few condition 23, which requires project same pipeline to be authorized by the commenters stated that the proposed proponents to avoid and minimize NWP 12, stating that it would be more 250-mile PCN threshold is counter to, losses of waters of the United States on appropriate to consider the entire and could undermine, the Corps’ the project site, including permanent pipeline as a single and complete longstanding definition of a single and and temporary losses of those resources. project. One of these commenters said complete linear project, and would The purpose of the new PCN threshold that more individual permits should be allow district engineers to require is to add a mechanism to provide required for these activities. individual permits because of the length information for the district engineer’s The authorization of separate and of pipeline and cumulative impacts cumulative effects determination and distant crossings of waters of the United regardless of the independent utility of the district engineer’s decision on States as single and complete projects the separate and distant crossings. whether to issue NWP verifications for for the purposes of NWP authorization The maintenance of existing oil or the proposed crossings of waters of the is a long-standing practice consistent natural gas pipelines is likely to have United States. The information on all of with the Corps’ regulations at 33 CFR fewer adverse environmental effects the crossings will inform whether or not 330.2(i).

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One commenter expressed concern or on the same waterbody under NWP methods, and have different relative with the cumulative effects analyses for 12. Another commenter said that no impacts to streams and wetlands. One multiple single and complete crossings additional definition of ‘‘separate and commenter said that the proposed and the inability to account for NWP distant’’ is necessary. One commenter division of NWP 12 into three separate activities that do not require PCNs. One stated that the Corps should impose an NWPs ensures that the activities commenter said that the proposed overall limit on cumulative effects authorized by these NWPs are reissuance of NWP 12 is arbitrary and allowed for a project with multiple substantially similar in nature and will capricious and in violation of the Clean ‘‘single and complete’’ crossings. further ensure that each of the NWPs Water Act because it allows unlawful Nationwide permit 12 has a 1⁄2-acre will have no more than minimal adverse piecemealing of large pipelines and limit for each single and complete effects on the environment. One other linear projects to avoid individual project. As discussed above, and in 33 commenter stated that permitting utility permit review. One commenter stated CFR 330.2(i), each separate and distant line activities through three separate that an entire pipeline project should be crossing of waters of the United States NWPs helps reduce litigation risk for subject to NEPA review, including a may qualify for a separate NWP some types of utility line activities. cumulative review of all impacts to authorization. The Corps declines to The Corps acknowledges that issuing waters of the United States. define the phrase ‘‘separate and distant’’ three separate NWPs for different types Paragraph (b)(4) of NWP general because what constitutes separate and of utility lines helps ensure that the condition 32 requires project distant crossings can vary across the categories of activities authorized by proponents to include in PCNs any country because of differences in the these NWP are substantially similar in other NWP(s), regional general distribution of waters and wetlands in nature and that they will result in no permit(s), or individual permit(s) used the landscape, local hydrologic more than minimal individual and or intended to be used to authorize any conditions, local geologic conditions, cumulative adverse environmental part of the proposed project or any and other factors. What constitutes effects. The issuance of three NWPs for related activity, including other separate separate and distant crossings is more different categories of utility line and distant crossings for linear projects appropriately determined by district activities may also help reduce that require DA authorization but do not engineers on a case-by-case basis. When regulatory uncertainty for electric utility require pre-construction notification. reviewing a PCN, the district engineer line operators, telecommunications This information is used by district considers the cumulative effects of all companies, state, tribal, and local water engineers to determine whether the crossings of waters of the United States authorities, and other entities that proposed activity will result in no more for the oil or natural gas pipeline construct, maintain, and operate these than minimal individual and activity, and applies the 10 criteria utility lines. It may also provide cumulative adverse environmental listed in paragraph 2 of Section D, diversity and stability to the NWP effects. District Engineer’s Decision. program and allow Corps districts to Activities authorized by NWP 12 are One commenter said that Note 4 continue to authorize categories of not subject to additional NEPA review, should refer to the General Bridge Act utility line activities by an NWP in the because Corps Headquarters fulfills the of 1946 instead of Section 9 of the event that one of the three NWPs is requirements of NEPA when it finalizes Rivers and Harbors Act of 1899. The invalidated or stayed by a federal court. the national decision document for the Corps has made this change to Note 4. Most of the past litigation on NWP 12 issuance or reissuance of the NWP. The With respect to Note 5 of this NWP, has been for oil or natural gas pipelines, national decision document includes an a few commenters requested that the not electric and telecommunications assessment of effects of the Corps Corps provide clarification and lines or utility lines that convey potable proposed action (i.e., the issuance or examples of exempted utility line water, wastewater, sewage and other reissuance of the NWPs) in accordance activities under Section 404(f) of the such substances. Issuing separate NWPs with the Council on Environmental Clean Water Act. One commenter for electric utility line and Quality’s definition of ‘‘effects or suggested that the Corps provide telecommunications activities and for impacts’’ at 40 CFR 1508.1(g) in their examples of utility line activities that do utility lines for water and other NEPA regulations. This analysis of not qualify for the exemption. In substances will help provide some effects or impacts under NEPA includes accordance with the 1989 Memorandum degree of regulatory certainty for the the projected use of the NWP over the of Agreement Between the Department entities that construct and maintain 5-year period it is expected to be in of the Army and the U.S. EPA those types of utility lines. These effect. For an NWP that authorizes Concerning the Determination of the separate NWPs will also benefit the discharges of dredged or fill material Section 404 Program and the people who rely on electric utility lines into waters of the United States, the Application of the Exemptions under and telecommunication lines and utility national decision document also Section 404(f) of the Clean Water Act, lines for water and other substances to includes a cumulative impact analysis the U.S. EPA has the authority to deliver energy, information, conducted in accordance with 40 CFR determine which activities are eligible entertainment, potable water, and other 230.7(b)(3). for the Clean Water Act section 404(f) goods and services. The public will also One commenter stated that acreage exemptions. benefit from the removal of sewage and limits and thresholds should remain wastewater to protect public health and Comments on Proposal To Issue constant with separate consideration at the environment. each single and complete crossing of Separate NWPs for Different Utility Line A few commenters requested that if waters of the United States authorized Sectors NWP 12 is divided that the Corps be by NWP 12. One commenter said that Many commenters expressed support clear that all provisions relating to each crossing should require a separate for dividing oil and natural gas pipeline substations, foundations, and access permit. One commenter expressed activities from other types of utility line roads, and as well as provisions on concern that the phrase ‘‘separate and activities. Several commenters inadvertent returns of drilling fluids, distant’’ is not defined and would not acknowledged that the three types of temporary structures and fills (including prevent a pipeline from being used utility lines are of varying sizes and use of temporary mats), and multiple times in close proximity and/ lengths, constructed with different accompanying notes, remain with the

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same legal effect and with no additional intrastate natural pipelines and service change is a departure from the NWPs restrictions. The Corps has written these lines. that were first promulgated in 1977. A three NWPs in a consistent manner to The Corps does not have the authority few commenters said that a general provide a similar framework for to address the environmental permit should encompass activities that authorizing regulated activities consequences of leaks from oil or are similar in nature consistent with associated with utility lines, utility line natural gas pipelines. Those Section 404(e) of the Clean Water Act. substations, access roads, actions to environmental consequences are more When proposing to issue new NWPs remediate inadvertent returns, and the appropriately addressed by federal, for activities that were authorized by a authorization of temporary impacts for state, and local government agencies previous NWP, discussing the construction and other activities. that have the legal authority to require differences among those NWPs and the One commenter suggested that the operators of oil or natural gas pipelines associated categories of activities is an Corps issue separate NWPs for utility to take actions in response to leaks. important part of explaining the lines based on the distinction as to Many commenters objected to the proposed action. The changes are being whether they are overhead utility lines, proposed separation of NWP 12 into proposed through the normal such as electric and telecommunication three NWPs and requested that the 2017 rulemaking process, and are being made lines, or underground utility lines. One NWP 12 be retained in its historic form. in response to events that have raised commenter requested that the Corps Many of these commenters said that the concerns about potential increases in change the proposed NWP 12 to Corps should focus its concerns on the regulatory uncertainty for specific authorize ‘‘underground pipeline or environmental impacts of the categories of regulated entities. When utility line related activities.’’ Several authorized activities rather than the the NWPs were first issued in 1977, commenters said that buried linear type of material transported by various there were 15 NWPs. When the NWPs utility lines have substantially similar utility lines. Several commenters were last issued in December 2016, environmental effects on waters of the objected to the proposed division of the there were 52 NWPs. The number of United States. One commenter indicated NWP 12 activities indicating that it NWPs has increased substantially over would cause additional complications there is variability and no reasonable time in response to changes in the Corps to permitting utility line activities rather justification for dividing the NWPs Regulatory Program, litigation, studies, than streamlining the process. One based on above-ground and below- and other factors. The three utility line commenter remarked that there are no ground activity types. A few NWPs being issued in this final rule substantive differences between the commenters said that the construction represent categories that are similar in three proposed NWPs and therefore of oil, natural gas, water, and other nature (i.e., oil/natural gas; electricity, issuing separate NWPs is unnecessary. utilities typically require more ground including communications carried by Several commenters said that issuing electricity; and water, wastewater, and vegetation disturbance than the three separate utility line NWPs will sewage, stormwater, and other construction methods for electrical increase litigation risk and uncertainty substances). Section 404(e) of the Clean utility lines. These commenters also for the regulated public. Water Act does not specify how broad stated that electrical utility lines have As discussed above, the Corps or narrow categories of activities more flexibility to avoid aquatic believes that separating NWP 12 into authorized by NWPs and other general resources, and that discharges of three different NWPs to authorize utility permits must be. The Corps has dredged or fill material associated with line activities for different utility line substantial discretion to identify electric utility lines typically have a sectors will help enhance regulatory categories of activities that are smaller footprint than they do for other certainty for utility line sectors that are appropriate for NWPs and other general in-ground utility lines. One commenter not a frequent target for litigation permits. said that the Corps should keep all because of the lower degree of concern One commenter noted that the Corps’ buried, underground utility lines in about the potential direct and indirect response to public comments for the NWP 12, rather than create a new NWP environmental impacts of the 2017 NWPs rejected the idea that utility for utility line activities for water and substances those utility line sectors line activities are not substantially other substances, because best carry (e.g., electricity, potable water, similar, stating that the Corps explained management practices for protecting wastewater). As with any change in the that the agency interprets the ‘categories waters from trenching or boring for NWP program, prospective permittees of activities that are similar in nature’ pipes are similar in nature regardless of will experience some challenges requirement broadly to keep the NWP the product to be carried in the pipe. associated with those changes, but over program manageable in terms of the After reviewing the public comments, time they will adjust to those changes number of NWPs. A few commenters the Corps determined that issuing and can realize the benefits of those said that the history of the NWPs separate NWPs for oil or natural gas changes. Prior versions of NWP 12 have indicates that there is no prior pipeline activities, electric utility line been subjected to litigation, so the precedent in past NWP rulemaking for and telecommunications activities, and issuance of three separate NWPs for arbitrarily dividing NWPs that are utility line activities for water and other utility line activities is likely to pose no intended to cover categories of activities substances would be the best approach greater litigation risk than prior versions that are similar in nature. One of these for reducing regulatory uncertainty for of NWP 12. commenters further indicated that the different utility line sectors. One commenter said that the Corps mining NWPs (21, 44, 49, and 50) and One commenter suggested that the only analyzed differences but not the development NWPs (29 and 39) are Corps further distinguish between similarities among these different types not analogous as their development natural gas and petroleum liquids in of utility lines. A few commenters said came about differently, indicating that recognition of the differences in that the proposed division of NWP 12 they largely had to do with the end of environmental consequences of activities is an abrupt and unjustified NWP 26. potential leaks. One commenter departure from the long-standing view As discussed above, Section 404(e) of recommended that the Corps further that utility lines are activities that are the Clean Water Act gives the Corps distinguish between large interstate substantially similar. One of these substantial discretion in how broad or natural gas pipelines and smaller commenters said that the proposed narrow to define categories of activities

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for general permit authorization. The Similar to these NWPs, the three Several commenters stated that the proposal to issue three separate NWPs NWPs the Corps is issuing to authorize proposed division of NWP 12 activities for utility line activities instead of various sectors of utility line activities into separate NWPs discourages the reissuing NWP to authorize all utility are differentiated by the substances beneficial and common practice of joint line activities was made, in part, in those utility lines carry, despite the trenching and the use of utility corridors response to concerns about regulatory Corps’ lack of authority to regulate the where various types of utilities are co- uncertainty for various utility line substances being conveyed by those located, and further indicated that these sectors. The proposal is also an utility lines. If Congress had intended features should be permissible under opportunity to tailor the NWPs so that the categories of general permits issued NWP 12 as a single and complete they will authorize activities that have under Section 404(e) of the Clean Water project. Several commenters said that no more than minimal individual and Act to be based on the activity the Corps the proposal to issue three separate cumulative adverse environmental regulates (i.e., discharges of dredged or NWPs would increase costs and delays effects by making targeted changes to fill material into waters of the United associated with energy infrastructure the text of each of these NWPs, as States), it would not have written the projects. A few commenters stated that appropriate. text of section 404(e) to refer to ‘‘any the division of NWP 12 into three NWPs This proposal is consistent with prior category of activity involving discharges would increase the number of permits NWP rulemaking efforts, in which the of dredged or fill material.’’ The text of needed by some applicants. One Corps issued new NWPs to authorize section 404(e) clearly allows the Corps commenter cited NWP general categories of activities with numerous to issue any number of NWPs that condition 28 as a reason not to divide similarities in the text of the NWP, authorize discharges of dredged or fill NWP 12 into three different NWPs for including acreage limits and other material into waters of the United different types of utility lines. limits, PCN thresholds, and categories of States. Furthermore, those categories The issuance of these three NWPs will waters in which those NWPs may be can be based on how the authorized not discourage joint trenching and the used to authorize discharges of dredged activity will be used after the project use of utility corridors for multiple or fill material into waters of the United proponent has completed the utility lines. For example, if a project States. For example, in 2007 the Corps construction activities associated with proponent proposes to construct a water issued two new NWPs to authorize the discharges of dredged or fill material line next to an oil or natural gas discharges of dredged or fill material into waters of the United States, and pipeline, the provisions of NWP general condition 28, use of multiple NWPs, into waters of the United States for coal how people will use the completed would apply. For each crossing of a mining activities (see 72 FR 11092). The activities even though the Corps separate and distant waterbody, both Corps issued NWP 49 for coal remining generally has no authority to regulate NWP 58 and 12 could be used, as long activities and NWP 50 for underground how the constructed facilities are as the loss of waters of the United States coal mining activities. These two coal operated. These principles apply to the at each single and complete project does mining NWPs were issued even though three NWPs the Corps is issuing for not exceed 1⁄2-acre. The issuance of the Corps had issued and reissued NWP these three utility line sectors. these three NWPs will not cause 21 for surface coal mining activities over One commenter said that the increased costs and delays for energy time since NWP 21 was first issued in proposed changes to NWP 12 and the infrastructure projects, except for a 1982 (47 FR 31794). proposed issuance of separate NWPs for relatively brief period of time as the In 2000, the Corps issued five new other types of utility lines are not transition from the 2017 NWPs to the NWPs and modified six existing NWPs consistent with congressional intent to 2021 NWPs occurs. The Corps to replace NWP 26, which authorized reduce administrative burdens and the acknowledges that there will be some discharges of dredged or fill material Administration’s policy on increases in the number of permits that into headwaters and isolated waters (65 infrastructure development and project proponents will need to obtain, FR 12818). Four of the new NWPs (NWP maintenance. This commenter cited but those permits will generally be used 39 for residential, commercial, and Executive Order 13777, ‘‘Enforcing the concurrently, and consistent with institutional developments; NWP 40 for Regulatory Reform Agenda’’ (February general condition 28. The use of agricultural activities; NWP 42 for 24, 2017), Executive Order 13783, multiple NWPs to authorize single and recreational facilities; and NWP 43 for ‘‘Promoting Energy Independence and complete projects is a longstanding stormwater management facilities) Economic Growth’’ (March 28, 2017), practice in the NWP program. authorized discharges of dredged or fill and the 2018 ‘‘Legislative Outline for A few commenters said that the when material into non-tidal waters of the Rebuilding Infrastructure in America.’’ the Corps considers whether to make United States, excluding non-tidal The Corps believes that this issuance changes to an established and well- wetlands adjacent to tidal waters. Each of these three NWPs (NWPs 12, 57, and functioning NWP program, it should be of these NWPs had a 1⁄2-acre limit for 58) are consistent with priorities for conscious of how changes to the losses of non-tidal waters of the United infrastructure development because framework for permitting utility lines States. The categories of activities they will help reduce regulatory will affect the investment community, established for these four NWPs were uncertainty and burdens on the and in turn the country’s ability to based on the operational purposes they regulated public. The issuance of these continue to deliver competitively-priced served, which the Corps does not have NWPs will not cause any increases in energy from diverse sources to U.S. the authority to regulate. Those the number of activities authorized by consumers and other end-users, and to operational purposes included an NWP or the number of activities further domestic energy independence. providing places for people to live, requiring individual permits. The three A few commenters remarked that work, learn, and produce goods and NWPs are consistent in general pipeline and other infrastructure services (NWP 39); agriculture activities, structure, but they have some operators need regulatory certainty to including farm buildings (NWP 40); differences because of the different build, maintain, and upgrade pipelines recreational facilities and associated types of substances those utility lines and other utility infrastructure. One features (NWP 42); and stormwater convey and how those utility lines are commenter expressed support for the management facilities (NWP 43). designed and constructed. Corps’ efforts to improve the NWP

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program, but cautioned the Corps to Corps does not believe it is useful to justification for dividing NWP 12 cannot avoid changes that could introduce engage in speculation about potential be based upon the diameter of the inefficiencies. A few commenters said future trends in the number of oil or pipeline or conduit. One commenter that the proposed division of NWP 12 natural gas pipelines versus the number remarked that the size of the pipe may into three separate NWPs would likely of electric utility lines and determine a minimum width of a trench introduce unnecessary strain on agency telecommunications lines versus the but that some smaller pipelines may resources, delays in the permit reviews, number of utility lines carrying water require larger trenches depending on the regulatory inconsistency in the and other substances. The Corps circumstance and that this is not a valid permitting process. One commenter estimated the potential permitting criterion for separating the NWPs. One objected to dividing the NWP 12 into changes using data on NWP commenter said that the Corps failed to three separate NWPs because they are verifications issued between March 19, make a persuasive case that length of a very similar and can be more easily 2017, and March 19, 2019, which utility line would be a determining tracked and understood as one category. provides a robust sample size. factor when considering ground The Corps acknowledges that there One commenter said that that, disturbances and division of the NWP will be some challenges and according to the Congressional Research activities. One commenter said that with opportunities with these changes to the Service, the Corps does not have a respect to the Corps’ jurisdiction under NWP program, but it should also be centralized database or other Section 10 of the Rivers and Harbors Act noted that the NWP program changes information on the number of of 1899, it is the presence of a pipeline each time the Corps goes through the individual permits it issues for pipeline that affects navigation, not the substance rulemaking process to issue or reissue and utility line projects, nor does it have it contains. the NWPs and that adjustments need to a database on the utility line activities The discussion in the preamble to the be made under the new NWPs. The that are authorized by NWP 12, and that 2020 Proposal regarding the differences issuance of NWP 57 will help support any attempt by the Corps to draw out a among the three utility line sectors that renewable energy generation facilities reasoned, data-driven basis for dividing were the basis for the modified NWP 12 and the transfer of electricity from those NWP 12 into three separate NWPs is and the proposed new NWP C and D generation facilities to residential, premature at this time. was intended to demonstrate that there commercial, industrial, and other users. The Corps does have a centralized are some differences among those The NWPs will continue to provide database that tracks NWP verifications sectors. The final NWPs are based on regulatory certainty for pipelines and issued, regional general permit sectors, not construction techniques or other types of utility lines. None of verifications issued, and individual sizes of the utility lines. The text of the these three NWPs require agency permits issued, including the types of three NWPs makes no references to the coordination, so other federal agencies activities authorized by those general diameters or length of the utility lines. should not be adversely affected by the permits and individual permits. From The Corps agrees that for utility lines splitting of NWP 12 into three separate that data, the Corps was able to estimate that cross navigable waters of the United NWPs. the number of NWP activities that were States and require section 10 One commenter said that if the Corps likely associated with oil or natural gas authorization, the Corps focuses its were to move forward with the division pipelines, electric and evaluation on potential effects on of the NWP 12 activities it must take telecommunications lines, and utility navigation, not the substance being into consideration the differences lines for water and other substances. conveyed by the utility line. between distribution and transmission One commenter stated that dividing A few commenters said that the pipelines as the physical characteristics the NWP 12 would add complexity to Corps’ jurisdiction as related to these of the pipelines inherent in these ESA and NHPA compliance. One NWPs is limited to its statutory different uses may have a larger effect commenter said that the Corps authorities under Section 404 of the on waters of the United States than the appropriately recognizes that the Clean Water Act and Section 10 of the material being transported. A few techniques used to construct water and Rivers and Harbors Act of 1899. One commenters suggested that if NWP 12 electric utility lines have fewer impacts commenter expressed concern that the were reissued without change, over time to waters of the United States than other proposed issuance of separate NWPs the use of NWP 12 would shift from oil uses of NWP 12 involving transport of could lead the Corps to consider factors and gas pipelines to other utility sectors petrochemicals. The issuance of these outside of its statutory authority. A few to account for new investment in more three NWPs will not add complexity to commenters stated that consideration of secure and resilient utility systems, and ESA or NHPA compliance because they the type of substances that can be that a two-year period is an inadequate must comply with the same NWP conveyed by a utility constitutes sampling for this decision making effort. general conditions, including general overreach of the Corps’ statutory The Corps does not agree that is condition 18, endangered species, and jurisdiction. These commenters went on necessary to address differences general condition 20, historic to reference statements from the Corps between distribution and transmission properties. A single compliance process that it does not regulate the operation of pipelines. These NWPs authorize utility under either law can serve multiple oil and natural gas pipelines, but that lines of various sizes, and the Corps NWPs for those activities that may use the Corps regulates discharges of focuses its analysis of potential adverse NWP 12 and 58, for example. dredged or fill material into waters of environmental effects or impacts that A few commenters stated that there is the United States associated with their are caused by the activities that are no logical grouping to be found for construction. directly related to the Corps’ regulatory dividing the proposed NWP activities The Corps recognizes that under these authority (i.e., discharges of dredged or based on pipe diameter, size, and any three NWPs the Corps’ statutory fill material into waters of the United associated ground disturbances. A few authority is limited to Section 404 of the States regulated under Section 404 of commenters said that the Corps’ Clean Water Act and Section 10 of the the Clean Water Act and structures and information on diameter and pipeline Rivers and Harbors Act. However, for work in navigable waters of the United lengths are based upon incomplete these three NWPs and many of the other States regulated under Section 10 of the generalizations that do not withstand NWPs, the categories of activities Rivers and Harbors Act of 1899). The scrutiny. One commenter stated that authorized by those NWPs relate to how

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the constructed activities will be used protecting water features during to waters of the United States as noted (e.g., residences for NWP 29, trenching, boring, or sleeving in several NWPs. recreational facilities for NWP 42, land- construction methods for installing, The Corps has decided not to add any based renewable energy generation for replacing, or maintaining pipes at best management practices to NWPs 12, NWP 51), even though the Corps does stream or wetland crossings are similar 57, and 58. After reviewing the BMPs not have the authority to regulate the in nature, regardless of what product suggested by commenters, the Corps operation of the constructed structure or will travel in the pipeline once determined that the text of these NWPs fill. As discussed above, the text of construction is completed. One already include some common BMPs, section 404(e) recognizes that the commenter stated that the three such as requiring the top 6 to 12 inches Secretary could issue any number of categories of utility lines under of the trench to normally be backfilled general permits, including NWPs, for proposed NWPs 12, C, and D, would with topsoil from the trench, any number of categories of activities authorize sufficiently similar activities constructing the trench so that it does involving discharges of dredged or fill and require the same or similar not drain waters of the United States material into waters of the United environmental provisions in order to through a French drain effect, or States. meet the no more than minimal impacts stabilizing exposed slopes and stream A few commenters said that the terms requirement under section 404(e) of the banks immediately after completion of used to describe the applicability of Clean Water Act. One commenter said construction of the stream crossing. NWP 12 cause ambiguous situations that because of the overarching federal with respect to which substances would regulatory regime, NWP 12 and its Comments on Best Management qualify as oil, gas, or petrochemicals general conditions, regional conditions Practices for NWP 12 and to which NWP would apply. These added by division engineers, and One commenter said that impacts commenters also indicated confusion applicable state requirements there are from work on natural gas pipelines and associated with common situations no additional BMPs that could be gas utility lines are minimal and where petrochemical products are practically or lawfully added to NWP temporary, and BMPs under the existing added to non-petroleum products prior 12. NWP 12 protect waters of the United to transport and generally suggested the The Corps agrees that there are no States. One commenter stated that if the source of the material to be transported national best management practices to Corps decides to impose any BMPs on has little or no bearing on the methods add to NWPs 12, 57, and 58. As interstate natural gas pipelines they for construction, maintenance, repair or discussed below, a few commenters must not conflict with the FERC’s Plan replacement of the pipeline on the best submitted suggestions for best and Procedures. Several commenters management practices needed to protect management practices. The Corps has stated that The U.S. Department of waters of the United States. considered those best management Transportation (DOT) Pipeline and The Corps has attempted to provide practices, and has concluded that best Hazardous Materials Safety more clarity regarding the management practices are more Administration (PHMSA) Office of differentiation of utility line sectors that appropriately addressed as regional Pipeline Safety imposes stringent would fall under NWPs 12, 57, or 58. conditions added to the NWPs by pipeline safety regulations under 49 The Corps recognizes that there may be division engineers or activity-specific CFR part 192 on natural gas interstate situations where a prospective permittee conditions added NWP authorizations transmission pipelines and gas utility may be unsure which NWP applies. The by district engineers. prospective permittee could coordinate A few commenters said that imposing intra-state natural gas transmission and with the appropriate Corps district to additional best management practice distribution utility lines. One get assistance in identify which NWP requirements would risk conflict or commenter stated that the 2017 NWP 12 would be most appropriate for a redundancy with other applicable provides adequate environmental particular project. If the project regulations. A few commenters protections under Section 404 of the proponent is contemplating suggested that the if the Corps were to Clean Water Act and Section 10 of the constructing different types of utility become aware of best management Rivers and Harbors Act of 1899, and that lines for a particular project, multiple practices to add to NWP 12 then it no additional industry-specific NWPs could be used as long as the should conduct a subsequent notice and standards or BMPs should be added to project proponent complies with NWP comment procedure for these BMPs as the NWPs as national enforceable terms. general condition 28, which addresses none were specifically proposed. A few One commenter stated that pipeline use of multiple NWPs for a single and commenters indicated that a 60-day rights-of-way should be maintained in complete project. notice is inadequate for stakeholders herbaceous condition within 10-feet and agencies to compile BMPs and best centered on the pipeline. One General Comments on Best Management available science for the invitation to commenter stated that applicants Practices comment. One commenter should have to produce containment A few commenters supported the recommended that the Corps maintain and clean up contingency plans as incorporation of specific best the existing NWPs and instead conduct BMPs for all of the utility line permits. management practices (BMPs) for the an extensive outreach campaign to One commenter said that a trench utility line NWPs. A few commenters stakeholders to determine BMPs for the should not be constructed or backfilled said that adding additional BMPs or utility line NWPs. One commenter said in a matter that would redirect shallow standards to this NWP would result in that when developing industry specific groundwater flow paths, to avoid redundant requirements to manage on standards and BMPs, the duration and altering vegetative communities or flow these projects without providing location of temporary fill impacts across in streams downslope of the trenches. additional benefits. A few commenters a project site should be taken into One commenter said that appropriate said that division engineers can tailor consideration. One commenter measures should be taken to maintain standards to meet region-specific needs requested that the Corps provide water quality conditions downstream of and issue additional regional conditions examples the types of construction the site. with their discretionary authority. One methods for access roads that are As discussed above, the Corps is not commenter stated that the BMPs for considered to minimize adverse effects adding any BMPs to the text of NWPs

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12, 57, and 58 that were not in the circumstances. This commenter used to streamline the authorization of proposed texts of these NWPs. provided the following list of BMPs: major infrastructure projects and that Best management practices • Requiring, where appropriate, a each water crossing for major pipeline recommendations. One commenter said plan to address the prevention, projects that transport highly toxic and that a list of BMP manuals that support containment, and cleanup of sediment dangerous materials should require oil and gas pipeline development and or other materials caused by inadvertent individual permit reviews. A few maintenance activities in Appendix G of returns of drilling fluids. commenters stated that environmental the document titled ‘‘Considering Best • Requiring notification to the Corps impact statements should be required Practices for Managing Pipeline and implementation of a remediation for oil or natural gas pipelines. One Permitting.’’ Several of these documents plan in the event of an inadvertent commenter said that a programmatic are excellent resources for best return of drilling fluids. ESA consultation should be completed management practices related to • Siting poles and tower foundations for this NWP. One commenter stated impacts to wetlands and streams. One outside of surface waters where that the construction and operation of commenter recommended the following practicable. oil and gas pipelines pose significant • BMPs for NWP 12: Visually marking waters of the risk to protected species and should • All excavations should be United States near work areas. require individual permits. Another • backfilled with the excavated material Using techniques that minimize commenter said that the Corps must after installation of the appropriate rutting and damage to wetlands, such as determine the environmental safety of structures. installing mats prior to placing or HDD at a particular location and • Side-cast spoil material from trench driving equipment over wetlands or associated mitigation measures. One excavation should be placed on the side streams for temporary access or using commenter suggested a definition for of the trench opposite streams and wide-track equipment. ‘‘stand-alone project’’ to require that all • wetlands. Establishing stockpiling/work areas the crossings within major watersheds • Spoil material from trench outside of surface waters. • are evaluated together as single and excavation should be placed on the side Construction monitoring during complete since the cumulative impacts of the trench to be reused as backfill routine inspection and maintenance would be to one system. with the A-horizon placed back in its activities to avoid unauthorized Section 404(e) of the Clean Water Act original position. discharges into surface waters. provides the Corps with the authority to • Excess spoil material must be A few commenters suggested issue NWPs to authorize categories of removed to an approved upland modifying the text of NWP 12 to activities involving discharges of disposal site. encourage the use of directional drilling. dredged or fill material into waters of • Stream banks at crossings must be One commenter said that when the United States to streamline the restored after construction has been horizontal directional drilling (HDD) is authorization process for these completed. not possible, the flume method should activities, as long as they result in no • Disturbed stream banks can be be the required method for use of the more than minimal individual and restored by planting woody vegetation NWP 12 over the dam-and-pump or cumulative adverse environmental and by using bioengineering techniques open-cut stream crossing methods in effects. Section 404(e) does not prohibit for stream bank stabilization. order to minimize impacts to aquatic the issuance of general permits for • Right-of-ways through and adjacent resources. One commenter suggested utility lines and other infrastructure to streams and through forested when HDD is used the permittee should projects. As many commenters wetlands should be maintained in low erect sediment control measures recognized, the Corps does not have the growing, woody vegetation to minimize between the drill site and nearby discretion to control the types of erosion and sedimentation. sensitive resources to prevent drilling substances conveyed by oil or natural Maintenance of this right-of-way should mud releases from reaching sensitive gas pipelines or other types of utility be conducted with mowing rather than resources, conduct regular on-site lines. Compliance with the Endangered with chemicals to reduce the potential briefings for personnel to identify and Species Act is discussed in Section III.D for contamination and negative impacts locate sensitive resources, and maintain of this final rule: Compliance with on aquatic resources. response equipment on-site or in an Relevant Statutes. The Corps declines to • If chemicals are used, a 50-foot accessible location and in good add a definition of ‘‘stand-alone project’’ buffer on either side of the stream working-order. One commenter because cumulative impacts are already crossing should be established in order suggested that HDD contractors should evaluated by district engineers over to retain the riparian vegetation while be required to employ a full-time, appropriate geographic regions, such as reducing the amount of chemical runoff qualified on-site mud engineer to watersheds, Corps districts, states, etc. into the aquatic environment. continuously monitor the drilling fluid A few commenters stated that NWP • Any open trench must be circulation and returns as a preventative 12 should be revised to consider the temporarily fenced to reduce the measure. protection of tribal treaty rights. One likelihood of wildlife becoming trapped The Corps declines to add text to commenter said that the Corps should and must include a ramped section NWPs 12, 57, and 58 to encourage conduct tribal consultation for the which would allow wildlife to escape. horizontal directional drilling. The use reissuance of the NWP 12. One • A full visual inspection of every of horizontal directional drilling is more commenter suggested the Corps adopt a open trench section must be made daily appropriately determined on a case-by- policy of early consultation with Indian to identify any trapped wildlife in need case basis. The Corps lacks the authority Tribes and other actors on these types of rescue. to require HDD contractors to employ a of projects, above the timeline required One commenter provided an example full-time, qualified on-site mud engineer by the NHPA section 106 process to list of industry BMPs, but indicated that to monitor drilling fluid circulation and allow the Corps to preemptively address should the Corps chose to incorporate potential inadvertent returns of drilling concerns and avoid delays, litigation, them in the text of NWP 12 and the fluid. and other increased costs. One other utility NWPs, it must understand One commenter said that Congress commenter said that the draft NWP 12 that all BMPs are not appropriate to all did not intend the NWP program to be decision document fails to address the

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high correlation of pipeline construction respond to the PCN within 45 days. individual and cumulative adverse projects with rates of missing and Many commenters opposed removal of environmental effects. murdered Indigenous women and the PCN requirements from this NWP. Several commenters said that NWP 21 children and indicated that the Corps One commenter said that in order to should be revoked because the adverse had not consulted the tribes on the further expedite permitting for a coal effects of surface coal mining on the matter. One commenter stated that there mining project, no PCNs should be environment are significant. One are a variety of utility lines that have required. commenter objected to the removal of direct, indirect, and cumulative impacts The Corps removed the requirement stream mitigation requirements. One on treaty reserved resources and that the for the permittee to obtain written commenter said that the applicant proposed changes require additional authorization before commencing the should be required to ensure that toxic review to fully understand the extent of activity to be consistent with the other substances are not released back into the potential resource impacts. One NWPs that have a 1⁄2-acre limit for water column through re-exposure from commenter requested the Corps discharges of dredged or fill material dredge activities. Several commenters continue to require PCNs in Washington into non-tidal waters of the United said that the proposed changes to this State to adequately protect treaty States (e.g., NWPs 29, 39, 40, 42, 43, 44, NWP unlawfully put the interests of the resources. 51, and 52). The Corps did not propose regulated public above the Corps Tribal treaty rights are addressed to remove any PCN requirements from statutory mandate to protect the through NWP general condition 17 for this NWP. All activities authorized by environment. all NWPs, including NWP 12. this NWP require PCNs. The activities authorized by this NWP cannot result in the loss of greater than Consultation with tribes on the One commenter stated support for the 1⁄2-acre of non-tidal waters of the United proposed NWPs is discussed in Section language regarding integrated permitting States, excluding non-tidal wetlands V of this final rule (Administrative processing procedure language. One adjacent to tidal waters. In addition, all Requirements), in the section for E.O. commenter requested addition of text to activities authorized by this NWP 13175. The draft decision document the NWP stating that no work can begin require PCNs. The 1⁄2-acre limit, the does not discuss pipeline construction until formally approved by the U.S. projects and missing and murdered PCN requirements, and the ability of Department of Interior or the state, and people because that issue is more division and district engineers to final approval is not necessary before appropriately addressed by local, state, modify, suspend, or revoke this NWP on submitting a PCN to the district tribal, and federal law enforcement a regional or activity-specific basis engineer. One commenter said that officials. Concerns about potential ensure that the activities authorized by NWP 21 should be expanded to include impacts to treaty resources in this NWP result in no more than a requirement for federal and state Washington State are more minimal adverse environmental effects. agency coordination when pitcher plant appropriately addressed through The Corps did not propose to remove bog wetlands, bald cypress, and/or regional conditions, which can add PCN any stream mitigation requirements tupelo swamps are impacted. This requirements to this NWP, where from this NWP. Despite the changes to appropriate. commenter also stated that this NWP this NWP, these activities are reviewed This NWP is reissued with the should not authorize discharges of by district engineers on a case-by-case modifications discussed above. dredged or fill material into these types basis since all activities require PCNs. of wetlands. This NWP is reissued as proposed. (2) NWP 21. Surface Coal Mining The Corps removed the language Activities referencing integrated permit processing (3) NWP 29. Residential Developments The Corps proposed to modify this procedures, since those procedures have The Corps proposed to modify this NWP to remove the 300 linear foot limit never been developed for this NWP NWP to remove the 300 linear foot limit for losses of stream bed (discussed since that text was added to the NWP in for losses of stream bed. The Corps also above in Section II.F), remove the 2007 (see 72 FR 11184). Project proposed to remove the ability for reference to integrated permit proponents may be required to obtain district engineers to waive the 300 processing procedures, and remove the separate authorizations from the linear foot limit for losses of requirement for the permittee to obtain Department of Interior’s Office of intermittent and ephemeral stream bed. written verification from the district Surface mining or the state, but those Comments received on the proposed engineer so that the 45-day PCN review authorizations are a separate process removal of the 300 linear foot limit for period would apply to this NWP as it from the Corps’ NWP authorization losses of stream bed are summarized in does to other NWPs with 1⁄2-acre limits process. Authorization by an NWP does Section II.F of this final rule, and in that for losses of waters of the United States. not obviate the need to obtain other section the Corps provided responses to Comments received on the proposed federal, state, or local permits, those comments. removal of the 300 linear foot limit for approvals, or authorizations required by One commenter said that this NWP losses of stream bed are summarized in law. (See item 2 in Section E, Further should clarify that the acreage limits are Section II.F of this final rule, and in that Information.) Division engineers can applied cumulatively for both the section the Corps provided responses to add regional conditions to this NWP to original construction and any those comments. restrict or prohibit discharges of subsequent expansion of the Many commenters opposed removing dredged or fill material into certain development. One commenter stated the provision that requires a written wetland types if those discharges are that this NWP should not be issued to verification from the district engineer likely to result in more than minimal developments proposed in channel before commencing the authorized individual and cumulative adverse migration zones and floodplains where activity, instead of allowing a default environmental effects. District engineers projects can directly and indirectly authorization to occur if the Corps does can also exercise discretionary authority impact essential fish habitat, critical not respond to a complete PCN within to modify, suspend, or revoke an NWP habitat, and habitats occupied by 45 days. Several commenters expressed after reviewing the PCN, to ensure that federally threatened or endangered support for the default authorization to the NWP authorizes only those activities species. One commenter said that as a occur if the district engineer does not that result in no more than minimal result of climate change, residential

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developments have increased the public The Corps regulates discharges of the district engineer conducts ESA safety risk. One commenter asked if dredged or fill material into waters of section 7 consultation with the U.S. projects occurring in floodplains and the United States, and this NWP limits FWS or NMFS, as appropriate. authorized by this NWP are consistent those discharges to non-tidal waters of Nationwide permit 29 authorizations are with the 2008 biological opinion on the the United States. If the proposed NWP not coordinated with local agencies. As Federal Emergency Management 29 activity includes the construction of stated in Section E, Further Information, Agency’s National Flood Insurance a golf course, the district engineer will the NWPs do not obviate the need to Program. review the PCN and determine whether obtain other federal, state, or local This NWP includes a subdivision the proposed activity qualifies for NWP permits, approvals, or authorizations provision, which states that for authorization. The Corps does not have required by law. residential subdivisions, the aggregate the authority to regulate the use of This NWP is reissued as proposed. total loss of waters of the United States pesticides or herbicides, and therefore is (4) NWP 39. Commercial and authorized by this NWP cannot exceed not required to consider the potential Institutional Developments 1⁄2-acre, including any loss of waters of use of pesticides or herbicides when the United States associated with the reviewing PCNs for proposed activities. The Corps proposed to modify this development of individual subdivision Nutrient loading can be the result of NWP to remove the 300 linear foot limit lots. Activities authorized by this NWP non-point source pollution. Nutrient for losses of stream bed. The Corps also must comply with general condition 10, loading may also result from discharges proposed to remove the ability for fills within 100-year floodplains. If the of certain substances from point sources district engineers to waive the 300 district engineer reviews the PCN and regulated under Section 402 of the linear foot limit for losses of determines that the proposed activity Clean Water Act, which is administered intermittent and ephemeral stream bed. may adversely affect essential fish by states with approved programs or the Comments received on the proposed habitat, he or she will initiate essential U.S. EPA. General condition 23 requires removal of the 300 linear foot limit for fish habitat consultation with the compensatory mitigation for all wetland losses of stream bed are summarized in NMFS. If the district engineer reviews losses greater than 1⁄10-acre that require Section II.F of this final rule, and in that the PCN and determines the proposed PCNs, unless the district engineer section the Corps provided responses to activity may affect ESA-listed species or determines that some other form of those comments. designated critical habitat, she or he mitigation would be more Several commenters recommended will initiate section 7 consultation with environmentally appropriate. Wetland establishing tailored PCN thresholds for the U.S. FWS and/or NMFS as compensatory mitigation projects NWP that are similar to the PCN appropriate (see general condition 18). required for activities authorized by the thresholds in NWP 12, NWP 14, and Potential public safety risks associated NWPs must comply with the Corps’ NWP 51, which only require PCN for with residential developments are more regulations at 33 CFR part 332, which losses of waters of the United States 1 appropriately addressed by local or state require monitoring and other actions to greater than ⁄10-acre. Due to the current land use planning and zoning agencies. ensure that the required compensatory requirement for PCNs for all NWP 39 The 2008 biological opinion on the mitigation offsets the permitted wetland activities, this NWP is underutilized 1 Federal Emergency Management losses. and increasing the PCN threshold to ⁄10- Agency’s National Flood Insurance One commenter said the array of acre would incentivize project Program only applies to that program. It wetland and water types that authorized proponents to reduce impacts. A couple does not directly apply to the Corps’ under NWP 29 and lost are varied and of commenters said that compensatory NWP program. that the Corps cannot determine mitigation should be required for all One commenter said that authorizing environmental effects are minimal when unavoidable impacts to streams, residential developments with golf they are speculative and unquantifiable. wetlands, and special aquatic sites courses results in devastating impacts One commenter stated that the authorized by NWP 39. One commenter on the environment through habitat loss cumulative impacts of authorizing large stated that commercial developments and fragmentation, nutrient loading that residential driveways in waters of the have the potential to cause significant causes algal blooms, and the use of United States threatens nearshore environmental harm through habitat pesticides/herbicides, which must be benthic habitat that is important to loss and fragmentation and should be considered under an environmental salmonids. One commenter said that it assessed in environmental impact impact statement, and therefore, should is unclear how permit authorizations are statements and through programmatic require an individual permit. One coordinated with local agencies to ESA section 7 consultations. One commenter stated that a 1⁄2-acre loss of ensure the appropriate use of NWP 29 commenter said that commercial waters of the United States is not and that local protections should apply developments constructed in channel minimal and that any loss over 1⁄10-acre to the permit. migration zones and floodplains, areas should require compensatory All activities authorized by this NWP occupied or critical to salmon mitigation. One commenter said that require PCNs. Therefore, district populations, should be required to compensatory mitigation should be engineers review all proposed activities obtain individual permits. required for all unavoidable impacts to and determine whether those activities The Corps believes that this NWP wetlands and streams authorized by this qualify for NWP authorization. When should continue to require PCNs for all NWP. One commenter said that if the reviewing PCNs, district engineers activities, so that district engineers can Corps does not require compensatory consider cumulative adverse review all proposed commercial and mitigation under NWP 29, the adverse environmental effects caused by institutional developments involving environmental effects are more than activities authorized by an NWP and discharges of dredged or fill material minimal. One commenter said that the whether those cumulative adverse into waters of the United States and reliance on compensatory wetland effects are no more than minimal (see determine which proposed activities mitigation often leads to a net loss of paragraph 2 of Section D, District can be authorized by NWP 39 and wetland functions and values and that Engineer’s Decision). If the proposed which proposed activities should NWPs like NWP 29 could lead to the NWP activity may affect ESA-listed require individual permits. The loss of thousands of acres of wetlands. species, including list salmon species, streamlined authorization process

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provided by NWP 39 continues to point source pollution associated with removal of the 300 linear foot limit for incentivize project proponents to reduce agricultural activities. One commenter losses of stream bed are summarized in losses of waters of the United States to said that all agricultural activities Section II.F of this final rule, and in that qualify for NWP authorization instead of authorized by this NWP should go section the Corps provided responses to having to obtain individual permits for through an alternatives analysis for those comments. those activities, and the increased time channelization or dam construction to One commenter said that large and paperwork needed to secure those support fish passage and healthy stream recreational facilities (golf courses) or individual permits. When evaluating systems. One commenter stated that the non-passive recreational facilities PCNs, district engineers determine authorization of some activities under should require individual permits in whether proposed NWP 39 activities this NWP, such as levees, is inconsistent non-tidal waters and stream channels, should require compensatory mitigation with Federal Emergency Management in channel migration zones, and waters or other forms of mitigation to ensure Agency flood requirements or policies. used or in the historic range of listed that those activities result in no more One commenter said that allowing these species, or that directly or indirectly than minimal adverse environmental impacts under current watershed impact critical or essential fish habitat. effects. Compensatory mitigation conditions and salmon population Allowing these impacts under current requirements are determined on a case- status is excessive. watershed conditions and salmon by-case basis by district engineers. If the All activities authorized by this NWP population status is excessive. district engineer determines a proposed require PCNs. District engineers will This NWP requires PCNs for all NWP 39 activity will result in more than review each proposed activity and proposed activities. District engineers minimal adverse environmental effects determine which activities will result in will review all PCNs to determine after considering mitigation proposed by no more than minimal individual and whether the discharges of dredged or fill the permit applicant, he or she will cumulative adverse environmental material into waters of the United States exercise discretionary authority and effects and are authorized by this NWP to construct or expand recreational require an individual permit for the and which activities do not qualify for facilities will result in no more than proposed activity. During the individual NWP authorization and should require minimal adverse environmental effects. permit process, the district engineer will individual permits. During their reviews If the district engineer determines a determine whether NEPA compliance of PCNs, district engineers consider proposed activity may affect ESA-listed will be achieved through the cumulative impacts caused by activities species or designated critical habitat, preparation of an environmental impact authorized by this NWP (see paragraph she or he will conduct ESA section 7 statement or environmental assessment, 2 of Section D, District Engineer’s consultation with the U.S. FWS or unless the proposed activity qualifies Decision). The Corps lacks the authority NMFS, as appropriate, prior to issuing for a categorical exclusion. The district to require agricultural producers to the NWP verification or deciding engineer will also evaluate the PCN to implement best management practices whether to exercise discretionary determine if the proposed activity may to control non-point source pollution. authority to require an individual affect listed species or designated The NWPs do not require alternatives permit. If the district engineer reviews critical habitat, and thus require ESA analyses since they can only authorize the PCN and determines the proposed section 7 consultation with the U.S. activities that have no more than activity may adversely affect essential FWS or NMFS, as appropriate. minimal adverse environmental effects. fish habitat, he or she will conduct Activities authorized by this NWP must If a project proponent is considering essential fish habitat consultation with comply with general condition 10, fills channelizing a stream or constructing a the NMFS. in 100-year floodplains. dam, the district engineer will review This NWP is reissued as proposed. This NWP is reissued as proposed. the PCN and determine whether the (7) NWP 43. Stormwater Management proposed activity will result in no more (5) NWP 40. Agricultural Activities Facilities than minimal adverse environmental The Corps proposed to modify this effects. Activities authorized by this The Corps proposed to modify this NWP to remove the 300 linear foot limit NWP must comply with general NWP to remove the 300 linear foot limit for losses of stream bed. The Corps also condition 10, fills in 100-year for losses of stream bed. The Corps also proposed to remove the ability for floodplains. The Corps does not have proposed to remove the ability for district engineers to waive the 300 the discretion to enforce flood district engineers to waive the 300 linear foot limit for losses of requirements or policies adopted by the linear foot limit for losses of intermittent and ephemeral stream bed. Federal Emergency Management intermittent and ephemeral stream bed. Comments received on the proposed Agency. If the district engineer Comments received on the proposed removal of the 300 linear foot limit for determines that a proposed NWP 40 removal of the 300 linear foot limit for losses of stream bed are summarized in activity may affect salmon listed under losses of stream bed are summarized in Section II.F of this final rule, and in that the ESA, he or she will conduct ESA Section II.F of this final rule, and in that section the Corps provided responses to section 7 consultation with the U.S. section the Corps provided responses to those comments. FWS or NMFS, as appropriate, before those comments. In the first paragraph One commenter stated that losses of issuing an NWP verification letter. of this NWP, the Corps also proposed to waters and wetlands up to 1⁄2-acre are This NWP is reissued as proposed. add the phrase ‘‘such as features not minimal. One commenter said that needed’’ before ‘‘to meet reduction 1 (6) NWP 42. Recreational Facilities any impacts greater than ⁄10-acre should targets established under Total require compensatory mitigation. The Corps proposed to modify this Maximum Daily Loads set under the Another commenter said that this NWP NWP to remove the 300 linear foot limit Clean Water Act.’’ and other NWPs does not adequately for losses of stream bed. The Corps also One commenter supported adding the address cumulative impacts and these proposed to remove the ability for phrase ‘‘such as features needed’’ to the activities should require individual district engineers to waive the 300 first paragraph to clarify that green permits. One commenter requested that linear foot limit for losses of infrastructure type of features are not the Corps require best management intermittent and ephemeral stream bed. just to reduce total maximum daily practices to prevent and reduce non- Comments received on the proposed loads. Several commenters said that this

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NWP should be reissued with no a PCN, the district engineer determines The Corps is retaining the proposed changes except for a clarifying provision the proposed activity may adversely clarification in paragraph (b) of this related to green infrastructure as states affect essential fish habitat, she or he NWP, with respect to the NWP and municipalities may require or allow will initiate essential fish habitat authorizing work in non-tidal navigable green infrastructure projects to meet consultation with the NMFS. waters of the United States (i.e., section water quality criteria, designated uses, This NWP is reissued as proposed. 10 waters). The clarification regarding and compliance with post-construction (8) NWP 44. Mining Activities work in section 10 waters was added stormwater requirements regardless of because the Corps’ definition of ‘‘work’’ whether a total maximum daily load The Corps proposed to modify this at 33 CFR 322.2(c) for the purposes of applies to the receiving water. NWP to remove the 300 linear foot limit Section 10 of the Rivers and Harbors Act The Corps has added the phrase for losses of stream bed. The Corps also of 1899 includes ‘‘without limitation, ‘‘such as features needed’’ to this NWP. proposed to remove the ability for any dredging or disposal of dredged The Corps agrees that states and district engineers to waive the 300 material, excavation, filling, or other municipalities may require, under their linear foot limit for losses of modification of a navigable water of the authorities, the construction and intermittent and ephemeral stream bed. United States.’’ implementation of green infrastructure Comments received on the proposed One commenter said that this NWP projects to meet water quality criteria, removal of the 300 linear foot limit for should not authorize activities in waters designated uses, and compliance with losses of stream bed are summarized in inhabited by salmon. A few commenters post-construction stormwater Section II.F of this final rule, and in that stated that the Corps must consider the requirements. If the construction and section the Corps provided responses to numerous proposals for sulfide-ore maintenance of those green those comments. In addition, the Corps copper mining in Minnesota and infrastructure projects involves proposed to modify paragraph (b) of this Wisconsin in light of unique lake-land discharges of dredged or fill material NWP to apply the 1⁄2-acre limit to work system that is highly susceptible to into waters of the United States, this in non-tidal navigable waters of the mining caused pollution and NWP can be used to authorize those United States (i.e., section 10 waters). degradation. activities. One commenter said the Corps should All activities authorized by this NWP One commenter said that for new not reissue NWP 44 because it is in require pre-construction notification. stormwater management facilities, best violation of Section 404(e) of the Clean District engineers will review PCNs for management practices are required as a Water Act. A few commenters stated proposed activities and determine general matter to prevent non-point that NWP 44 poses a risk of significant whether they may affect ESA-listed source pollution during and after direct and cumulative harm and these species or designated critical habitat. If construction activities. One commenter activities should be authorized by the district engineer determines a stated that allowing the loss of 1⁄2-acre individual permits, not an NWP. One proposed NWP 44 activity may affect of non-tidal waters under current commenter recommended requiring listed species or designated critical watershed conditions and salmon applicants ensure that toxic substances habitat, he or she will conduct ESA population status is excessive. This are not released back into waters section 7 consultation with the U.S. commenter said that these facilities through re-exposure from dredging. FWS or NMFS as appropriate. Proposals should not be located in wetlands or All activities authorized by this NWP for mining activities in Minnesota and intermittent or ephemeral streams require PCNs. District engineers will Wisconsin are evaluated by the Corps’ adjacent to perennial streams that are review PCNs for proposed activities to St. Paul District. occupied by salmon, especially ESA- ensure that those activities will result in This NWP is reissued as proposed. no more than minimal individual and listed species. This commenter asserted (9) NWP 48. Commercial Shellfish cumulative adverse environmental that these actions should require Mariculture Activities individual permits when located in effects, and therefore comply with channel migration zones, or floodplains, section 404(e) of the Clean Water Act. The Corps proposed a number of wetlands, and essential fish habitat. One commenter said that the Corps modifications to this NWP. The Corps Measures undertaken to prevent non- should allow use NWP 44 in tidal proposed to change the title of this NWP point source pollution during and after waters to reduce cost and time from ‘‘Commercial Shellfish construction activities may be required associated with obtaining individual Aquaculture Activities’’ to ‘‘Commercial by state or local governments, or by permits. One commenter expressed Shellfish Mariculture Activities’’ to other federal agencies. The Corps does support for including activities in non- more accurately reflect where these not have the authority to regulate non- tidal section 10 waters. One commenter activities are conducted (i.e., coastal point source pollution that may reach stated that the addition of activities in waters). The Corps also proposed to waters and wetlands. Except for certain non-tidal section 10 waters needs remove the 1⁄2-acre limit for new maintenance activities, all activities clarification. This commenter said this activities that have direct effects on authorized by this NWP require pre- may be a new requirement that is not submerged aquatic vegetation in project construction notification to the district currently regulated and thus may areas that that have not been used for engineer. For those activities that impact industrial mineral mining. commercial shellfish aquaculture require PCNs, the district engineer will Mining activities in tidal waters have activities during the past 100 years. In evaluate potential impacts to salmon, potential for causing more than minimal addition to the proposed removal of that and if the salmon include ESA-listed individual and cumulative effects, and 1⁄2-acre limit, the Corps proposed to species, the district engineer will from a national perspective should be remove the definition of ‘‘new determine if the proposed activity may evaluated under the individual permit commercial shellfish aquaculture affect listed salmon, and engage in ESA process. However, district engineers can operation’’ that was adopted in 2017. section 7 consultation with the U.S. develop and issue regional general Also, the Corps proposed to remove FWS or NMFS as appropriate. Activities permits to authorize mining activities in both PCN thresholds for this NWP, as authorized by this NWP must comply tidal waters in areas where these well as the paragraph that identifies the with general condition 10, fills in 100- activities usually result in no more than additional information that permittees year floodplains. If, during the review of minimal adverse environmental effects. must submit with their NWP 48 PCNs.

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The Corps changed the title of this Section 10 of the Rivers and Harbors Act activities usually involve structures NWP to ‘‘Commercial Shellfish of 1899 and Section 404 of the Clean such as cages, racks, nets, pilings, lines, Mariculture Activities’’ because the Water Act). It discusses the types of trays, tubes, ropes, and bouchots (i.e., NWP only authorizes activities in activities regulated under those piles wrapped in rope for cultivating coastal waters. Mariculture is the authorities and their potential mussels) placed in navigable waters to cultivation of organisms in marine and environmental consequences. In cultivate bivalves. estuarine open water environments addition, the national decision Oysters may be cultivated using (NRC 2010). The term ‘‘aquaculture’’ document provides a more rigorous structures such as cages, trays, racks, refers to a broad spectrum of production analysis to support a finding, at a bags, and lines. Oyster mariculture may of aquatic organisms. In the United national level, that the NWP would be conducted through on-bottom or off- States aquaculture activities encompass authorize only those commercial bottom techniques (NRC 2010). Clams the production of marine and freshwater shellfish mariculture activities that have are generally cultivated through on- finfish, as well as shellfish (bivalve no more than minimal individual and bottom techniques because the molluscs and crustaceans). Oysters, cumulative adverse environmental commercially produced species are clams, mussels, and scallops are effects. The national decision document infaunal organisms that grow in the examples of bivalve molluscs (bivalves). explains that division engineers retain substrate of waterbodies (NRC 2010). Since aquaculture activities in the the authority to modify, suspend, or Clam mariculture may involve the use United States include both water-based revoke NWP 48 on a regional basis (see of structures such as tubes and anti- and land-based activities, we use the 33 CFR 330.5(c)). It further discusses the predator netting. Mussels may be term ‘‘mariculture’’ in NWPs 48, 55 authority of district engineers to modify, cultivated by attaching mussel brood (seaweed mariculture activities), and 56 suspend, or revoke NWP 48 on a case- stock or seed to ropes, which are (finfish mariculture activities) to make it by-case basis (see 33 CFR 330.5(d)) if suspended in the water column from a clear that these NWPs only authorize impacts of an activity proposed for floating raft. Mussels may also be grown activities in marine and estuarine authorization using NWP 48 has more on ropes attached to pilings (bouchots) waters. than a minimal adverse effect on the (McKindsey et al. 2011), or in cages, In response to the October 10, 2019 environment. A copy of the national trays, or racks. Mussels may also be decision of the United States District decision document for the 2021 NWP 48 cultivated through on-bottom or off- Court, Western District of Washington at is available in the www.regulations.gov bottom culture methods (NRC 2010). For Seattle in the Coalition to Protect Puget docket for this rulemaking action example, mussels may be grown on Sound Habitat v. U.S. Army Corps of (docket number COE–2020–0002). ropes suspended in the water column Engineers et al. (Case No. C16–0950RSL) Commercial shellfish mariculture from a raft, or via bottom culture. and Center for Food Safety v. U.S. Army activities involve the production of Scallops may be attached to ropes via Corps of Engineers et al. (Case No. C17– bivalves such as oysters, mussels, clams, monofilament lines tied through a small 1209RSL), the Corps has made and scallops. These activities occur in hole drilled into the shell (Robinson et substantial revisions to the national marine and estuarine coastal waters of al. 2016), a technique called ‘‘ear decision document for NWP 48. The the United States. As discussed above, hanging.’’ revisions addressed, to the extent the Corps regulates commercial shellfish The installation and use of structures appropriate, issues identified in the mariculture activities under two of its such as racks, cages, bags, lines, nets, district court’s decision. A copy of the permitting authorities: Section 10 of the and tubes, in navigable waters for final national decision document is Rivers and Harbors Act of 1899 and commercial bivalve shellfish available in the docket at Section 404 of the Clean Water Act. mariculture activities in navigable www.regulations.gov (COE–2020–0002). Under Section 10 of the Rivers and waters requires DA authorization under The national decision document for Harbors Act of 1899, the Corps regulates Section 10 of the Rivers and Harbors Act the 2021 NWP 48 provides a more structures and work in navigable waters of 1899. Department of the Army thorough discussion of the direct and of the United States. Under Section 404 authorization is required under Section indirect impacts caused by commercial of the Clean Water Act, the Corps 10 of the Rivers and Harbors Act of 1899 shellfish mariculture activities. The regulates discharges of dredged or fill for all structures and/or work in or national decision document also uses a material into waters of the United affecting navigable waters of the United broader set of scientific literature to States. States, except for activities identified in support that discussion of potential Nationwide permit 48 authorizes section 322.4 of the Corps’ section 10 effects to various resources and the structures or work in navigable waters regulations (see 33 CFR 322.3). The human environment. The national of the United States for commercial exceptions in section 322.4 are limited decision document does not focus solely shellfish mariculture activities when DA to: (a) Activities that were commenced on oyster mariculture; rather, it also permits are required by Section 10 the or completed shoreward of established discusses mariculture activities for other Rivers and Harbors Act of 1899. The federal harbor lines before May 27, bivalve species, such as clams, mussels, Corps’ regulations for Section 10 of the 1970; and (b) wharves and piers and scallops. The national decision Rivers and Harbors Act of 1899 in 33 construct in any waterbody, located document presents a more detailed CFR part 322 define the term entirely within one state where the discussion of the potential impacts of ‘‘structure’’ as including, ‘‘without waterbody is a navigable water of the commercial shellfish mariculture limitation, any pier, boat dock, boat United States solely on the basis of its activities on aquatic vegetation other ramp, wharf, dolphin, weir, boom, historical use to transport interstate than seagrasses, benthic communities, breakwater, bulkhead, revetment, commerce. None of these exceptions fish, birds, water quality, and substrate riprap, jetty, artificial island, artificial apply to structures or work for characteristics. reef, permanent mooring structure, commercial shellfish mariculture The national decision document power transmission line, permanently activities. In the Corps’ section 10 provides a more thorough discussion of moored floating vessel, piling, aid to regulations, there is no de minimis how the Corps applies its two navigation, or any other obstacle or exception from the requirement to permitting authorities to commercial obstruction.’’ [33 CFR 322.2(b)] obtain DA authorization for structures shellfish mariculture activities (i.e., Commercial shellfish mariculture and work in navigable waters of the

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United States. Any structure or work activities authorized by the Corps under Association to Protect Hammersley, Eld, that alters or obstructs navigable waters its section 10 authority because those and Totten Inlets v. Taylor Res., Inc., of the United States requires section 10 guidelines only apply to activities that 299 F.3d 1007 (9th Cir. 2002), the court authorization from the Corps. With require authorization under Section 404 concluded that Congress did not intend respect to structures used for shellfish of the Clean Water Act. The 404(b)(1) that living bivalves and the natural mariculture activities, those structures Guidelines do not apply to section 10 chemicals and particulate biological require section 10 authorization because activities that may directly or indirectly matter they release through normal they alter navigable waters of the United impact special aquatic sites such as physiological processes, or the shells States even though there might be vegetated shallows (i.e., submerged that might be separated from living circumstances where they might not aquatic vegetation). bivalves from time to time, be obstruct navigation. Section 101(a)(2) of the Clean Water considered pollutants under the Clean Commercial shellfish mariculture Act states that ‘‘it is the national goal Water Act. In other words, bivalve structures may be floating or suspended that wherever attainable, an interim goal shells and natural waste products in navigable waters, placed on the of water quality which provides for the excreted by living bivalves are not bottom of the waterbody, or installed in protection and propagation of fish, ‘‘biological materials’’ under the Clean the substrate of the waterbody. The shellfish, and wildlife and provides for Water Act’s definition of ‘‘pollutant’’ placement of mariculture structures in recreation in and on the water be because shells and natural waste the water column or on the bottom of a achieved by July 1, 1983.’’ [33 U.S.C. products come from the natural growth waterbody does not result in a discharge 1251(a)(2)] In other words, one of the and development of bivalves and not of dredged or fill material that is goals of the Clean Water Act is to from a transformative human process. regulated under section 404 of the Clean promote water quality that supports the The EPA’s National Summary of State Water Act. While the presence of these propagation of fish and shellfish, in Information, water quality assessment structures in a waterbody may alter addition to other uses of waters of the and total maximum daily load (TMDL) water movement and cause sediment to United States. information,3 provides information on fall out of suspension onto the bottom The Clean Water Act regulates the causes of impairment and probable of the waterbody, that sediment discharges of pollutants into waters of sources of impairment for the Nation’s deposition is not considered a discharge the United States. See 33 U.S.C. 1311(a). waters, including bays, estuaries, coastal of dredged or fill material because those Section 502(6) of the Clean Water Act shorelines, ocean waters, and near sediments were not discharged from a defines the term ‘‘pollutant’’ as meaning coastal waters where commercial point source. In general, the placement ‘‘dredged spoil, solid waste, incinerator shellfish mariculture activities may of bivalve shellfish mariculture residue, sewage, garbage, sewage sludge, occur. Twenty-eight causes of structures on the bottom of a navigable munitions, chemical wastes, biological impairment were identified for bays and waterbody, or into the substrate of a materials, radioactive materials, heat, estuaries. The top 10 causes of navigable waterbody does not result in wrecked or discarded equipment, rock, impairment for bays and estuaries are: discharges of dredged or fill material sand, cellar dirt and industrial, Polychlorinated biphenyls, nutrients, into waters of the United States that are municipal, and agricultural waste mercury, turbidity, dioxins, toxic regulated under Section 404 of the discharged into water.’’ Section 502(12) organics, metals (other than mercury), Clean Water Act. of the Clean Water Act defines the terms pesticides, pathogens, and organic The Corps’ section 10 regulations ‘‘discharge of a pollutant’’ and enrichment/oxygen depletion. For bays define the term ‘‘work’’ as including, ‘‘discharge of pollutants’’ as meaning: and estuaries, the top 10 sources of ‘‘without limitation, any dredging or Any addition of any pollutant to impairment for bay and estuaries are: disposal of dredged material, navigable waters from any point source, Legacy/historic pollutants, urban- excavation, filling, or other modification or any addition of any pollutant to the related runoff/stormwater, unknown of a navigable water of the United waters of the contiguous zone or the sources, atmospheric deposition, States.’’ [33 CFR 322.2(c)] Under this ocean from any point source other than municipal discharges/sewage, NWP, the section 10 authorization a vessel or other floating craft. unspecific non-point sources, other applies to discharges of dredged or fill Point source discharges of pollutants sources, natural/wildlife, agriculture, material into waters of the United States are regulated under Sections 402 and and industrial. that are also navigable waters under 404 of the Clean Water Act. Under Coastal shorelines were impaired by Section 10 of the Rivers and Harbors Act Section 402 of the Clean Water Act, the 16 identified causes, the top 10 of which of 1899. Commercial shellfish U.S. EPA authorized state agencies to are: Mercury, pathogens, turbidity, mariculture activities often involve regulate a variety of pollutants that may organic enrichment/oxygen depletion, work that requires authorization under be discharged into waters of the United pH/acidity/caustic conditions, Section 10 of the Rivers and Harbors States via a point source. Under Section nutrients, oil and grease, temperature, Act, such as harvesting and bed 404 of the Clean Water Act, the Corps cause unknown—impaired biota, and preparation activities. Bed preparation regulates discharges of dredged or fill algal growth. The top 10 sources of activities may include tilling or material into waters of the United impairment of coastal shorelines are harrowing activities, or the placement of States. Discharges of dredged or fill municipal discharges/sewage, urban- shell or gravel to provide substrate material into waters of the United States related runoff/stormwater, ‘‘unknown,’’ suitable for the establishment and that require section 404 permits must recreational boating and marinas, growth of bivalves via bottom culture. comply with the Clean Water Act hydromodification, industrial, Commercial shellfish mariculture section 404(b)(1) Guidelines issued by unspecified non-point source, activities that only require authorization the U.S. EPA at 40 CFR part 230. agriculture, legacy/historic pollutants, under Section 10 of the Rivers and The term ‘‘pollutant’’ does not and land application/waste sites/tanks. Harbors Act of 1899 are evaluated under include the placement of shellfish seed Ocean and near coastal waters were the Corps’ public interest review or bivalves at various stages of growth impaired by 17 identified causes, the process at 33 CFR 320.4. The Clean into jurisdictional waters, or the waste Water Act Section 404(b)(1) Guidelines products (e.g., feces or pseudofeces, 3 https://iaspub.epa.gov/waters10/attains_nation_ issued by the U.S. EPA do not apply to ammonium) excreted by bivalves. In cy.control (accessed November 27, 2020).

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top 10 of which are: Mercury, organic States.’’ [33 CFR 323.2(c)] The term meaning ‘‘material placed in waters of enrichment/oxygen depletion, ‘‘discharge of dredged material’’ is the United States where the material has pathogens, metals (other than mercury), defined at 33 CFR 323.2(d)(1) as the effect of: (1) Replacing any portion pesticides, turbidity, nuisance exotic meaning ‘‘any addition of dredged of a water of the United States with dry species, total toxics, pH/acidity/caustic material into, including redeposit of land; or (2) changing the bottom conditions, and polychlorinated dredged material other than incidental elevation of any portion of a water of the biphenyls. The top 10 sources of fallback within, the waters of the United United States. Examples of fill material impairment of ocean and near coastal States.’’ The term ‘‘discharge of dredged include: ‘‘rock, sand, soil, clay, plastics, waters are: Atmospheric deposition, material’’ includes, but is not limited to: construction debris, wood chips, unknown sources, unspecified non- (1) The addition of dredged material to overburden from mining or other point sources, other sources, recreation a specified discharge site located in excavation activities, and materials used and tourism (non-boating), recreational waters of the United States; (2) the to create any structure or infrastructure boating and marinas, urban-related runoff or overflow from a contained in the waters of the United States.’’ [33 runoff/stormwater, hydromodification, land or water disposal area; and (3) any CFR 323.2(e)(2)] ‘‘Fill material’’ does not municipal discharges/sewage, and addition, including redeposit other than include trash or garbage (see 33 CFR construction. incidental fallback, of dredged material, 323.2(e)(3)). Discharges of trash or None of the top 10 sources of including excavated material, into garbage may be regulated under other impairment of these categories of waters waters of the United States which is federal, state, or local laws and are directly related to commercial incidental to any activity, including regulations. Fill material does not shellfish mariculture activities. mechanized landclearing, ditching, include the placement or release of Commercial shellfish mariculture channelization, or other excavation. [33 living organisms, such as bivalve larvae activities require clean water to produce CFR 323.2(d)(1)] Some activities and juvenile bivalves, into waters of the bivalve shellfish for human associated with commercial shellfish United States. consumption. Further, the ability of mariculture may result in a discharge of The term ‘‘shellfish seeding’’ is bivalves to improve water quality is dredged material under the third defined in Section E of the NWPs as the well understood and their presence in instance identified above (i.e., redeposit ‘‘placement of shellfish seed and/or an aquatic ecosystem is considered to be of dredged material other than suitable substrate to increase shellfish beneficial (e.g., NRC 2010). incidental fallback). production. Bivalve shellfish seed Mariculture activities can be Some commercial shellfish consists of immature individual classified as extensive or intensive. For mariculture activities involve shellfish or individual shellfish attached extensive mariculture, young organisms mechanical or hydraulic harvesting to shells or shell fragments (i.e., spat on are allowed to grow naturally using techniques that may or may not result shell). Suitable substrate may consist of resources (food, inorganic nutrients) in discharges of dredged material that shellfish shells, shell fragments, or other available in marine and estuarine waters require authorization under Section 404 appropriate materials placed into waters until they are harvested (Diana et al. of the Clean Water Act. If the bivalve for shellfish habitat.’’ This definition 2009). In intensive mariculture, the harvesting activity would result in only was adopted in the NWPs in 2007 (see young organisms are provided feed to incidental fallback of dredged material 72 FR 11197). Other materials may be promote their growth before they are into the waterbody, a section 404 permit used for bivalve shellfish seeding such harvested. Bivalve shellfish mariculture would not be required. (However, a as nets, bags, and ropes. Shellfish seed and seaweed mariculture are examples section 10 permit would be required as can be produced in a hatchery. Shellfish of extensive mariculture, and for such ‘‘work’’ in navigable waters). A section seed can also be produced in activities there is no addition of 404 permit would be required for a waterbodies where bivalve larvae can materials (e.g., nutrients) through a mechanical or hydraulic harvesting attach to appropriate materials, such as point source that might trigger a permit activity if that activity results in a shell pieces, bags, or ropes. requirement. However, in some cases a regulated discharge of dredged material Placing shellfish seed on the bottom pesticide might be applied in waters by having more than incidental fallback. of a waterbody is not a ‘‘discharge of fill where bivalve shellfish mariculture Some harvesting activities associated material’’ and thus does not require a occurs (NRC 2010, Simenstad and Fresh with commercial shellfish mariculture section 404 permit. Placing gravel or 1995). The application of pesticides is operations may result in the redeposit of shell on the bottom of a waterbody to not regulated by the Corps under dredged material other than incidental provide suitable substrate for bivalve Section 404 of the Clean Water Act, but fallback within the waters of the United larvae to attach to is considered to be a it may be regulated by EPA or approved States. For example, dredge harvesting ‘‘discharge of fill material’’ and would states under Section 402 of the Clean activities may remove sediment along require section 404 authorization. The Water Act. As discussed in the previous with the bivalves. If the removed shellfish themselves, either growing on paragraph, the bivalves themselves that sediment is deposited back into the the bottom of a waterbody or in nets, are seeded in the waterbody, or are waterbody in a different location, and is bags, or on ropes, are not considered to added to the waterbody after a limited more than incidental fallback, then the be ‘‘fill material’’ and do not require a grow out period in a nursery facility harvesting activity may be determined section 404 permit to be emplaced, located on-shore or elsewhere, does not by the district engineer to result in a remain in place, or to be removed from trigger a permit requirement the Clean discharge of dredged material that a waterbody. Water Act because those living requires section 404 authorization. On On-bottom bivalve shellfish organisms are not considered to be the other hand, if the sediment removed mariculture activities may involve pollutants under the Act. while harvesting the bivalves is placing fill material such as shell or Nationwide permit 48 also authorizes redeposited in the same location, then it gravel to provide suitable substrate for discharges of dredged or fill material may be considered to be incidental bivalve larvae to attach to and grow on into waters of the United States. The fallback, and not require section 404 the bottom of the waterbody. These fill Corps’ regulations define ‘‘dredged authorization. activities may require section 404 material’’ as ‘‘material that is excavated The Corps’ regulations at 33 CFR authorization. The placement of or dredged from waters of the United 323.2(e)(1) define ‘‘fill material’’ as structures that are used for commercial

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shellfish mariculture activities, such as 1⁄2-acre of submerged aquatic vegetation. essential fish habitat, which may cages, bags, racks, tubes, and netting, In response to a PCN, the district include submerged aquatic vegetation does not result in discharges of dredged engineer can add conditions to the NWP beds. or fill material into waters of the United authorization to require mitigation, such Several commenters recommended States and therefore do not require as best management practices or other that the Corps propose a revised authorization under Section 404 of the mitigation measures, to ensure that the threshold for seagrass impacts based on Clean Water Act. As discussed above, individual and cumulative adverse biological reference points. These the placement of cages, bags, racks, environmental effects are no more than commenters said that this is particularly tubes, lines, and netting and other minimal. important in regions where additional structures in navigable waters of the Under the 2017 NWP 48, the 1⁄2-acre provisions to protect seagrasses are not United States for the purposes of limit only applied to new commercial in place and state laws do not impose commercial shellfish mariculture shellfish mariculture activities. After a additional restrictions on eelgrass. One activities is regulated under Section 10 new commercial shellfish mariculture commenter stated that the Corps seeks of the Rivers and Harbors Act of 1899 activities was authorized by the Corps, to remove an impact limitation that because they can be potential the 1⁄2-acre limit no longer applied to would otherwise incentivize responsible obstructions to navigation. the existing commercial shellfish siting of mariculture operations and In the 2020 Proposal, the Corps mariculture activity. In this regard, it minimization of impacts to submerged proposed to remove the 1⁄2-acre limit for was less protective than the NWP 48 in aquatic vegetation. new commercial shellfish mariculture this final rule, which would apply a The Corps declines to impose an activities that directly affect submerged PCN requirement to existing operations additional threshold for seagrass aquatic vegetation. The Corps also seeking reauthorization. The removal of impacts based on biological reference proposed to remove the definition of the 1⁄2-acre limit in this final rule does points because it would be impractical ‘‘new commercial shellfish mariculture not affect the authority of other federal to establish such biological reference activities.’’ agencies or tribal, state, or local points at a national level for activities Many commenters said that the 1⁄2- governments to adopt and implement requiring authorization under section 10 acre limit for direct impacts to protection programs for submerged of the Rivers and Harbors Act of 1899 submerged aquatic vegetation for new aquatic vegetation under their and section 404 of the Clean Water Act. commercial shellfish mariculture authorities. The threshold to require a PCN for new activities should be retained because Submerged aquatic vegetation does and existing commercial mariculture removal of the 1⁄2-acre could cause not have any special status under the operations that impact more than 1⁄2- significant and permanent losses of Corps’ regulations for implementing acre of submerged aquatic vegetation is submerged aquatic vegetation. One Section 10 of the Rivers and Harbors Act sufficient for the purposes of ensuring commenter said that allowing new of 1899, which is the statute that applies that a project will have no more than a commercial shellfish mariculture to most commercial shellfish minimal individual or cumulative activities to directly affect more than 1⁄2- mariculture activities. Submerged adverse environmental impact. If a state acre of submerged aquatic vegetation aquatic vegetation is covered by a decides not to take measures to regulate would result in more than minimal number of the Corps’ public interest activities in submerged aquatic adverse environmental effects. A couple review factors such as conservation, vegetation within its own waters, it does of commenters stated that the removal general environmental conditions, fish not create a legal or regulatory of the 1⁄2-acre limit for impacts to and wildlife values, and wetlands. requirement for the Corps to address submerged aquatic vegetation conflicts While vegetated shallows are special such situations. The requirements of with submerged aquatic vegetation goals aquatic sites under the Clean Water Act NWP 48 will continue to provide and restoration efforts in different states. Section 404(b)(1) Guidelines, the incentives for commercial shellfish These commenters said that many Guidelines do not prohibit discharges of mariculture operators to plan and federal, state, and local agencies are dredged or fill material into vegetated design their activities to qualify for working throughout the country to shallows. A smaller proportion of NWP authorization. As discussed above recover lost submerged aquatic commercial shellfish mariculture there are other applicable laws that can vegetation habitat in support of water activities trigger the permit address impacts to submerged aquatic quality and ecosystem goals. Removal of requirements of Section 404 of the Clean vegetation in conjunction with the the 1⁄2-acre limit would undermine the Water Act because many commercial Corps’ NWP authorization. In addition, investments and progress made to date shellfish mariculture activities do not where necessary based on the to recover these important habitats. involve discharges of dredged or fill characteristics of the regional The Corps is removing the 1⁄2-acre material into waters of the United ecosystem, division engineers can add limit for new commercial shellfish States. Impacts to submerged aquatic regional conditions to NWP 48 to help mariculture activities that directly affect vegetation caused by commercial ensure that activities authorized by this submerged aquatic vegetation in the shellfish mariculture activities may also NWP result in no more than minimal project area. In place of the 1⁄2-acre be addressed through Endangered individual and cumulative adverse limit, the Corps is substituting a PCN Species Act Section 7 consultations for environmental effects. requirement for new and existing proposed NWP 48 activities that district Several commenters supported commercial shellfish mariculture engineers determine ‘‘may affect’’ listed removing the 2017 definition of ‘‘new activities that directly affect more than species or designated critical habitat, operation’’ as it is not relevant to a 1⁄2-acre of submerged aquatic vegetation. including critical habitat for which specific date or timeline. One This new PCN requirement submerged aquatic vegetation is a commenter stated that the Corps has not accompanies the removal of the physical or biological feature. Impacts to been able to justify why one set of rules definition of ‘‘new commercial shellfish submerged aquatic vegetation may also should apply to existing commercial aquaculture operation’’ and will provide be addressed through the essential fish shellfish mariculture operators and activity-specific review of all habitat consultation process when the another set of rules should apply to commercial shellfish mariculture district engineer determines a proposed everyone else, including new activities that directly affect more than NWP 48 activity may adversely affect commercial shellfish mariculture

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operators. This commenter said that if legally binding agreement establishes an enrichment at individual cultivation there is a conservation justification for enforceable property interest for the sites. protecting eelgrass and other submerged operator. This commenter After evaluating the comments aquatic vegetation, then limitations on recommended revising the term ‘‘project received in response to the proposed impacts to submerged aquatic vegetation area’’ to read as follows: ‘‘The project changes to the notification requirements should apply to everyone. One area is an area in which the operator of this NWP, the Corps determined that commenter said that removal of this conducts commercial shellfish pre-construction notification should be definition failed to identify what it aquaculture activities, as authorized by required for proposed activities that would be replaced with and stated that a lease or permit or other legally binding directly affect more than 1⁄2-acre of there needs a definition for new agreement.’’ submerged aquatic vegetation. The commercial shellfish mariculture The geographic scope for an NWP 48 Corps has added a new PCN activities but it must not conflict with activity is the project area, and the term requirement to NWP 48 to require pre- tribal treaty reserved rights to take project area is defined in the text of the construction notification for all NWP 48 shellfish. NWP. The Corps did not change the activities that directly affect more than The Corps has removed the definition definition of project area, and it covers 1⁄2-acre of submerged aquatic vegetation. of ‘‘new commercial shellfish both situations identified by the The new PCN threshold will provide aquaculture operation’’ from this NWP. commenter. It is not necessary to and district engineers the opportunity to 1 The new ⁄2-acre PCN threshold will the Corps declines to define, at a review all new and existing commercial apply to both new and existing national level, what constitutes a shellfish mariculture activities that commercial shellfish mariculture waterbody for the purposes of NWP 48. directly affect more than 1⁄2-acre of activities. All activities authorized by District engineers can identify the submerged aquatic vegetation. The NWP 48 must comply with general geographic extent of waterbodies for the Corps does not agree that PCNs should condition 17, tribal rights. purposes of NWP 48 activities. be required for all shellfish mariculture One commenter said that the In the 2020 Proposal, the Corps activities because of potential impacts removing the distinction for new proposed to remove the pre- caused by temporary suspension of operations, with the 1⁄2-acre limit, will construction notification thresholds for sediment during harvesting activities or result in more impacts. This commenter this NWP because most of the direct and discharges of dredged material that may asserted that the Corps does little to indirect impacts caused by the activities occur during dredge harvesting justify the proposed removal of the 1⁄2- authorized by this NWP under its activities utilizing hydraulic dredging acre limit, given that it added this limit permitting authorities (i.e., Section 10 of equipment. The impacts caused by the three years ago to ensure impacts from the Rivers and Harbors Act of 1899 and, suspended sediment or discharged NWP 48 would be no more than when applicable, Section of the Clean minimal. One commenter recommended Water Act) are temporary impacts. As sediment are temporary because the adding the following definition for an discussed in the proposed rule, NWP 48 sediment will settle to the bottom of the ongoing or existing activity: Existing activities may require PCNs because of waterbody after a period of time. That commercial shellfish aquaculture the requirements of paragraph (c) of period of time may depend on local should be defined as the area under NWP general condition 18, endangered currents and other factors but is cultivation when NWP 48 was first species. Under paragraph (c) of general generally understood to be relatively issued in 2007 or where an operator can condition 18, pre-construction short (Newell et al. 1998) and not document that an area is part of a notification is required for non-federal ecologically relevant, especially in regular rotation of cultivation. permittees when any listed species or shallow waters where wave actions 1 frequently cause sediment to be The ⁄2-acre limit for new commercial designated critical habitat might be shellfish mariculture activities was affected by the proposed NWP activity suspended in the water column. added to NWP 48 in 2012 (see 77 FR or is in the vicinity of the proposed Direct effects of commercial shellfish 10280). The 1⁄2-acre limit only applied NWP activity, or if the proposed NWP mariculture activities on submerged to new commercial shellfish activities, activity is located in designated critical aquatic vegetation include the and does not apply when those on-going habitat. In some areas of the country, placement of structures such as racks, activities are authorized when NWP 48 commercial shellfish mariculture bags, and cages on the bottom of a is reissued after the current NWP activities are located in waters inhabited waterbody inhabited by submerged expires. There is no need to add a by listed species and designated critical aquatic vegetation. Direct effects of definition of on-going commercial habitat. Division engineers may also add commercial shellfish mariculture shellfish mariculture activities, because regional conditions to this NWP to activities also include harvesting both new and existing activities are require PCNs for some or all proposed activities, including mechanical and treated the same under this reissued NWP 48 activities. hydraulic dredging and harvesting by NWP. Several commenters expressed hand. Shading of submerged aquatic One commenter stated that the Corps concern of the removal of the PCN vegetation by off-bottom bivalve should identify a clear spatial thresholds for new or existing shellfish mariculture structures, such as floating delineation of what constitutes a mariculture activities. These racks, bags, and cages, is an indirect waterbody to aid in decision-making commenters said the removal of the effect that would not trigger this PCN and allow the public to determine the PCN thresholds will result in fewer requirement. Changes in water flows scope of this action. One commenter chances to account for regional caused by the use of long lines for noted that the provision for ‘‘project differences in submerged aquatic bivalve mariculture cultivation, where area’’ could be subject to two differing vegetation communities and it will slowed water flows cause sediment to interpretations. First, it could refer to make tracking of individual and fall out of suspension and accumulate that area where some entity or cumulative environmental impacts more on the bottom of the waterbody is agreement specifically authorizes the difficult. One commenter said that the another example of a potential indirect operator to conduct commercial Corps should require PCNs for all effect that would not trigger this PCN shellfish aquaculture. Second, it could shellfish cultivation operations across requirement. These direct and indirect be read as being that area where a the country and evaluate sediment effects would be caused by structures or

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work regulated under Section 10 of the populations have been overharvested or During the process for issuing and Rivers and Harbors Act of 1899. in some cases attacked by diseases or reissuing these NWPs, Corps districts Direct effects also include discharges poor water quality. This commenter said have been consulting and coordinating of dredged or fill material on the bottom that regulation of these activities should with tribes. Corps districts and tribes of a waterbody inhabited by submerged not impede the ability to reinvigorate can establish coordination procedures to aquatic vegetation for on-bottom culture these species and growing them for food help ensure that NWP 48 activities methods, such as the placement of shell production. One commenter supported comply with general condition 17, tribal or gravel to provide substrate for the of removal of the PCN threshold for rights. Division engineers can also add bivalves to attach to and grow. commercial shellfish mariculture for regional conditions to this NWP, where Discharges of dredged or fill material activities that include a species that has appropriate based on the characteristics into waters of the United States may never been cultivated in the waterbody of the regional ecosystem, to ensure that smother submerged aquatic vegetation, as long as the NWP continues to the activities authorized by this NWP which is a direct effect of those prohibit the cultivation of a cause no more than minimal adverse activities. During harvesting activities nonindigenous species unless that environmental effects to specific that include regulated discharges of species has been previously cultivated resources, including tribal trust dredged or fill material, there are likely in the waterbody, and prohibit the resources. to be direct effects to submerged aquatic cultivation of an aquatic nuisance One commenter expressed support for vegetation if those activities occur in species as defined in the Nonindigenous the proposed reissuance of NWP 48. seagrass beds. These direct effects Aquatic Nuisance Prevention and One commenter expressed support for would trigger the PCN requirement if Control Act of 1990. One commenter the reissuance of NWP 48 because this 1 they directly affect more than ⁄2-acre of said that state natural resource agencies NWP could significantly reduce the submerged aquatic vegetation An should be notified for NWP 48 activities barriers to entry for emerging example of an indirect effect that might that seek to stock a species that has mariculture industries, and reduce the be caused by a discharge of dredged or never been cultivated in a waterbody, timeframes and costs associated with fill material into waters of the United and applicable state permits be obtained obtaining DA authorization for such States for commercial shellfish before the NWP 48 authorization activities. One commenter said that the mariculture activities might be a becomes effective for a particular conditions in the text of NWP 48 and turbidity plume that reaches areas commercial shellfish mariculture NWP A should be consistent and beyond the discharge site, as suspended activity. preferably combined into one NWP for sediment is transported by water The addition of the PCN requirement cultivating shellfish and seaweeds. One currents away from that discharge site. for commercial shellfish mariculture commenter stated that small businesses This indirect effect would not trigger the activities that directly affect more than are supportive of the proposed changes PCN requirement. 1 This pre-construction notification ⁄2-acre of submerged aquatic vegetation to NWP 48, but acknowledged that there requirement will provide district should not pose impediments on food may be unfavorable litigation outcomes engineers the opportunity to evaluate production or efforts to reinvigorate if the changes are finalized. However, each proposed activity that will directly these species in waters whether they these businesses are concerned that have been overharvested. The Corps has small businesses nationwide could be affect more than 1⁄2-acre of submerged aquatic vegetation and determine also removed the PCN threshold for subject to unfavorable litigation whether that activity qualifies for NWP indigenous species that have never been outcomes where the environmental 48 authorization. In response to a pre- cultivated in the waterbody. While the analysis and justification for this construction notification, the district Corps has removed the PCN threshold, rulemaking is not sound. engineer may require mitigation (e.g., it has modified the NWP to prohibit the Nationwide permit 48 provides a on-site avoidance and minimization) to cultivation of a nonindigenous species streamlined authorization process for ensure that the authorized activity unless that species has been previously commercial shellfish mariculture complies with the no more than cultivated in the waterbody. State activities that result in no more than minimal adverse environmental effects natural resources agencies can reach out minimal adverse environmental effects, requirement for the NWPs (see to Corps districts to request and should help reduce regulatory paragraph (a) of NWP general condition coordination on proposals to cultivate burdens for the mariculture industry. 23, mitigation). indigenous species that have never been The text of NWPs 48 and A (now The Corps has removed the additional cultivated in the waterbody. designated as NWP 55) has some information requirements for PCNs from Several commenters stated the PCN similarities, as well as some differences. the text of NWP 48 because the requirements should not be removed Some of those differences are due to information requirements of NWP because tribes require notice and NWP 55 activities potentially occurring general condition 32 cover the collaboration with the Corps in order to in a broader range of waters, including information needed for this new PCN protect their treaty fishing rights. These deeper coastal waters more distance requirement. The information commenters said that even temporary from the shoreline and federal waters requirements for NWP PCNs are listed impacts to eelgrass could result in over the outer continental shelf. in paragraph (b) of NWP general consequences to tribe’s treaty-reserved Commercial shellfish mariculture condition 32, pre-construction fish populations and the habitat they activities typically occur in coastal notification. Paragraph (b)(5) of NWP rely on. In addition, these commenters waters new the shoreline. The national general condition 32 requires the PCN to stated that removal of the PCN decision document for this NWP has include a delineation of wetlands, other thresholds poses significant problems to been revised to address the 2019 special aquatic sites (including assuring protection of salmon, nearshore decision of the United States District vegetated shallows, or submerged habitat, and treaty shellfish gathering Court, Western District of Washington at aquatic vegetation), and other waters. rights. One commenter recommended Seattle in the Coalition to Protect Puget One commenter supported the adding a PCN requirement for all Sound Habitat v. U.S. Army Corps of removal of the PCN requirements activities within the U.S. v. Washington Engineers et al. (Case No. C16–0950RSL) because in many instances bivalve (Boldt) case area. and Center for Food Safety v. U.S. Army

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Corps of Engineers et al. (Case No. C17– The reissued NWP 48 will provide a ‘‘aquaculture’’ to ‘‘mariculture’’ in the 1209RSL), streamlined authorization process for title and text of NWP 48. They suggested Several commenters stated that the commercial shellfish mariculture using the term ‘‘marine aquaculture’’ to Corps should not reissue NWP 48, and activities that cause no more than more closely align with the terms used if the Corps decides to reissue NWP 48 minimal individual and cumulative by industry. One said that using the it should improve its review of PCNs adverse environmental effects. term ‘‘mariculture’’ may result in an and require documentation of Commercial shellfish mariculture unintended consequence of confusing or compliance with specific design and activities may also be regulated by invalidating local and regional policy operational standards. A few tribal, state, and local governments. The and regulations. One commenter stated commenters said that the Corps should consultation documents issued by the the term ‘‘commercial shellfish not reissue NWP 48 as proposed for the U.S. FWS and NMFS in Washington aquaculture’’ is not defined and same reasons that NWP was found by State are applicable only to Washington recommended defining that term in a the United States District Court, State, and this NWP authorizes manner that does not conflict with Western District of Washington at commercial shellfish mariculture tribes’ treaty-secured rights to take Seattle to be in non-compliance with activities across the country. shellfish. One commenter stated that National Environmental Policy Act and One commenter observed that at the term ‘‘shellfish’’ is not explicitly the Clean Water Act. One commenter national level, Congress passed the defined, and recommended adding a said that regional general permits National Aquaculture Act of 1980 in definition to clarify whether that term should be issued in Washington State, response to findings that the nation has includes lobsters and conches or only for specific water bodies and for potential for significant aquaculture bivalves. particular types of shellfish aquaculture. growth, but that this growth is inhibited The Corps is retaining the use of the Nationwide permit 48 authorizes a by many scientific, economic, legal, and term ‘‘mariculture’’ in this NWP. Use of variety of commercial shellfish production factors. In support of the the term ‘‘mariculture’’ in NWP 48, as mariculture activities under Section 10 proposed reissuance of NWP 48, one well as NWPs 55 and 56, will not of the Rivers and Harbors Act of 1899 commenter cited the National Shellfish invalidate any local or regional policies and Section 404 of the Clean Water Act, Initiative’s goal of increasing or regulations. The use of the term and a number of different structures can populations of bivalve shellfish in our mariculture is intended to provide be used to cultivate bivalve molluscs. nation’s coastal waters—including clarity, to ensure that project Project proponents are responsible for oysters, clams, and mussels—through proponents do not attempt to use NWP designing their projects and for those commercial production and 48 to authorize the production of other activities that require pre-construction conservation activities. One commenter species considered to be ‘‘shellfish’’ notification, district engineers evaluate stated that the NWP 48 should require (e.g., shrimp, crawfish) in land-based the direct, indirect, and cumulative notification to the U.S. Coast Guard. facilities and ponds. The term adverse environmental effects caused by The reissuance of NWP 48 helps ‘‘mariculture’’ refers to the cultivation of the proposed NWP activity. In the support the growth of the aquaculture species for food production, and should national decision document, the Corps industry in the United States by not interfere with a tribe’s taking of has revised its NEPA analysis and its reducing regulatory burdens on growers shellfish from coastal waters. The Corps Clean Water Act Section 404(b)(1) and providing a streamlined has modified the first paragraph of this Guidelines analysis. Regional general authorization process under Section 10 NWP to clarify that the term ‘‘shellfish’’ permits can be issued by district of the Rivers and Harbors Act of 1899 refers to bivalve molluscs such as engineers to authorize these activities. and Section 404 of the Clean Water Act. oysters, clams, mussels, and scallops. Regional general permits can be The activities authorized by this NWP Several commenters said that the effective in addressing regional will also help increase the numbers of Corps’ proposal fails to properly approaches to commercial shellfish bivalves in the Nation’s coastal waters, consider that the impacts authorized by mariculture activities and the potential and the ecological functions and NWP 48 violate the Clean Water Act and adverse environmental effects those services those bivalve molluscs provide, the Endangered Species Act. These activities may cause. especially in coast waters where bivalve commenters stated that the impacts of One commenter noted that a lack of shellfish populations have significantly commercial shellfish mariculture clarity in the proposed rule may lead to declined as a result of overharvesting. activities should be evaluated through permitting delays and uncertainty, both The project proponent is responsible for environmental impact statements and of which have negative effects on small securing any licenses or permits from through formal programmatic ESA businesses. A couple commenters said the U.S. Coast Guard, and complying consultations. One commenter stated that with regards to shellfish with U.S. Coast Guard requirements that that the Corps has failed to provide mariculture there needs to be more may apply to structures used for adequate documentary support or support from all levels of government to commercial shellfish mariculture substantive evidence for its conclusions consider first and foremost a food activities. that permit terms and conditions would production activity now and in the Several commenters supported be sufficient to ensure that future to address our seafood deficit and changing the name of NWP 48 from environmental effects would be minimal food security for our nation. One ‘‘commercial shellfish aquaculture and not significant. One commenter commenter recommended that the activities’’ to ‘‘commercial shellfish asserted that the proposed NWP 48 Corps utilize information in Endangered mariculture activities.’’ One commenter violates the Section 404(e) of the Clean Species Act and essential fish habitat suggested adding modifying terms to Water Act because it allows unlimited consultation documents issued in ‘‘aquaculture’’ such as ‘‘marine,’’ impacts. Washington State to support the ‘‘coastal marine,’’ or ‘‘offshore’’ to Activities authorized by NWP 48 must reissuance of NWP and address improve specificity and clarity. One comply with general condition 18, environmental issues of concern under commenter suggested clarifying that the endangered species. Some Corps the Clean Water Act, the Rivers and terms ‘‘mariculture’’ and ‘‘aquaculture’’ districts have developed programmatic Harbors Act of 1899, and the National can be used interchangeably. A couple ESA section 7 consultations that cover Environmental Policy Act. of commenters objected to changing commercial shellfish mariculture

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activities. Activities authorized by NWP commercial shellfish mariculture mariculture activities directly affecting 48 do not require additional NEPA activities, but other acknowledge the more than 1⁄2-acre of submerged aquatic compliance, since the Corps fulfills the studies and observations that identify vegetation to ensure the effects noted by requirements of NEPA when it issues its beneficial environmental effects caused the commenter are evaluated by district national decision document for the by commercial shellfish mariculture engineers. reissuance of that NWP, because that activities. If a proposed commercial One commenter said that commercial decision document includes and shellfish mariculture activity may shellfish mariculture activities have environmental assessment with a adversely affect essential fish habitat as minimal adverse impacts, and they can finding of no significant impact. Section a result of activity subject to the Corps’ have beneficial effects on habitat and 404(e) of the Clean Water Act does not legal authority, the district engineer will water quality, and there is an extensive require NWPs to have quantified acreage conduct essential fish habitat scientific literature that supports the or other limits to ensure that authorized consultation with the NMFS, and identification of these benefits. This activities result in no more than incorporate as appropriate, essential fish commenter discussed the structured minimal individual and cumulative habitat conservation recommendations habitat provided by commercial adverse effects. Commenters have not into the NWP authorization as permit shellfish mariculture activities that is provided any substantive evidence to conditions. used by numerous species for refuge, support their opinions that all activities The Corps does not have the legal foraging, and predator avoidance, authorized by NWP 48 result in more authority to regulate the use of thereby increasing species richness, than minimal adverse environmental pesticides, herbicides, or abundance, and biodiversity. This effects and should not be authorized by pharmaceuticals that may be associated commenter also said that bivalves ingest an NWP. The Corps has issued a with commercial shellfish mariculture and filter suspended materials in the number of NWPs that do not have activities. General condition 6 requires water column, sequestering excess quantitative limits, such as NWP 27 the use of suitable material for activities nutrients as protein in their tissue. This (Aquatic Habitat Restoration, authorized by NWPs. Plastics materials commenter also remarked that upon Enhancement, and Establishment may be used for commercial shellfish harvesting these bivalve molluscs, Activities), NWP 31 (Maintenance of mariculture activities and it is the nutrients are removed from the marine Existing Flood Control Facilities), and responsibility of the permittee to ensure ecosystem, which improves water NWP 38 (Cleanup of Hazardous and that structures that may be made with quality. This commenter also noted that Toxic Waste). plastics (e.g., tubes for geoducks, anti- commercial shellfish mariculture Several commenters said that NWP 48 predator netting) are properly activities can also help to transfer the activities contribute to degradation of maintained (see general condition 14). load of suspended materials from the waters of the United States by adversely The Corps has no authority to regulate water column to the benthos through a affecting water quality, eelgrass, salmon, plastics that may wash away from a phenomenon known as benthic-pelagic birds, herring, and flatfish and causing commercial shellfish mariculture coupling. In addition, this commenter adverse effects from the introduction of activity. The Corps does not regulate the said that by providing structured plastics. One commenter recommended placement of trash or garbage into habitat, improving water quality, and prohibiting commercial shellfish waters of the United States (see 33 CFR helping to transfer the load of mariculture activities in or near marine 323.2(e)(3)). Section 13 of the Rivers and suspended materials from the water protected areas or sensitive areas, such Harbors Act of 1899 (i.e., the Refuse Act) column to the benthos, shellfish can as essential fish habitat. This has been superseded by Section 402 of help mitigate adverse impacts caused by commenter said that the NWP should the Clean Water Act (see 33 CFR several different types of human prohibit the use of plastic equipment or 320.2(d)). activities and developments. This inputs such as pesticides, herbicides, or One commenter requested that the commenter stated that for these reasons, pharmaceuticals. This commenter also Corps change NWP 48 to remove any shellfish are increasingly being utilized said that NWP 48 activities should unintended competitive edge for wild in environmental restoration projects require extensive documentation of harvest fisheries, both in terms of across the United States. The Corps compliance with design and operation allowable gear and harvesting acknowledges these comments on the standards, with routine reporting. In requirements. One commenter stated beneficial effects of commercial addition, this commenter stated that that they investigated direct and shellfish mariculture activities on permitted activities should incorporate indirect effects of individual bottom coastal waters. These beneficial effects more rigorous operation, emergency cages on eelgrass, and found that at the have informed the Corps’ decision to response, and pollution standards, with current level of mariculture activity, reissue NWP 48 as discussed because it swift and severe consequences for non- short-term cultivation of oysters has a will have no more than a minimal compliance, including revocation of minimal effect on eelgrass growth, water individual or cumulative adverse permits. quality, and sediment characteristics. environmental effects. The potential environmental effects However, if the cultivation activity One commenter said that impacts caused by commercial shellfish expands in terms of gear and/or from geoduck farms are insignificant (no mariculture activities are discussed in individual operations, it may result in more than minimal) for: Forage fish the national decision document for measurable effects. spawning areas; consumption of forage NWP 48. The Corps acknowledges that The Corps lacks the authority to fish larvae; juvenile salmon; waves, commercial shellfish mariculture prevent competition between currents, and sediment transport; activities may have negative, positive, commercial shellfish mariculture microplastics; marine debris; impact to and neutral effects on various operators and fishers that harvest wild the benthic community; cumulative environmental components, including populations of bivalves. The Corps impacts; recreation and navigation; various species. It is generally appreciates the information regarding marine mammals; birds; farm understood that the presence of bivalves the direct and indirect effects of bottom preparation; predator protection netting; in an aquatic ecosystem is beneficial. cages for oyster mariculture on eelgrass. harvest activities; density, genetics, Some commenters point out various The Corps is finalizing a new PCN diseases, and parasites; and property adverse environmental effects caused by threshold for commercial shellfish values. This commenter remarked that

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the disturbances caused by commercial shellfish farmers frequently need to have positive impacts to water quality. shellfish mariculture activities are place gravel or shell in the same area This method is unlike a restoration within the range of natural variation from time to time. According to this project where oyster shell is deposited experienced by benthic communities in commenter, this temporary change has in large enough quantities to create reefs Puget Sound. This commenter also beneficial impacts to species presence and foster a permanent non-transient stated that differences in the structure of and diversity, according to a population. This commenter requested mobile macrofauna communities programmatic biological opinion issued that the Corps make a distinction between planted areas with geoduck by the NMFS for commercial shellfish between two different activities: tubes and nets and nearby reference mariculture activities in Washington Sparsely placing shell on the bottom of beaches do not persist after the geoduck State. This commenter said that the waterbody to catch larvae and tubes and nets removed during the placement of shell or gravel on the hummock building and restoration grow-out culture phase. In addition, this bottom of the waterbody shifts the efforts. commenter said that nutrients released benthic community from polychaetes to In the 2020 Proposal, the Corps did from a typical commercial geoduck amphipods and copepods, which are not state that shellfish seeding activities operation are low and localized effects important prey items for juvenile require authorization under Section 404 are likely to be negligible. Finally, this salmon. This commenter requested that of the Clean Water Act. In addition, the commenter stated that geoduck the Corps correct or clarify this Corps did not state that shellfish aquaculture practices do not make statement to recognize that the seeding requires authorization under culture sites unsuitable for later placement of shell or gravel causes Section 10 of the Rivers and Harbors Act colonization by eelgrass. The Corps temporary, localized changes to the of 1899. The placement of shell in a acknowledges these comments on the marine environment, and these changes waterbody to construct reefs or beneficial effects of geoduck mariculture are beneficial. hummocks for bivalves to settle on and activities on coastal waters. These If the commercial shellfish grow requires Clean Water Act section beneficial effects have informed the mariculture operator places shell or 404 authorization because it raises the Corps’ decision to reissue NWP 48 as gravel on the bottom of the waterbody, bottom elevation of the waterbody and discussed because it will have no more and does not remove the shell or gravel, is a discharge of fill material, as that than a minimal individual or then it is a permanent impact. When an term is defined at 33 CFR 323.2(e). That cumulative adverse environmental NWP authorizes a temporary impact, the activity also requires authorization effects. structure or fill has to be removed after under Section 10 of the Rivers and One commenter said that commercial that structure or fill is no longer needed. Harbors Act of 1899 as a structure (e.g., shellfish mariculture activities have For a temporarily filled area, after the a reef) under 33 CFR 322.2(b) or work minimal impacts on birds, including fill is removed several NWPs require the under 33 CFR 322.2(c). foraging, noise, and the potential for net project proponent to restore the affected One commenter said that placing entanglement. This commenter noted area to pre-construction elevations. The single shellfish seeds on beds without that birds forage within mariculture Corps acknowledges that a permanent containment structures is not regulated operations, and feed on organisms fill may have positive, negative, or under Section 10 of the Rivers and growing on mariculture equipment, and neutral environmental effects. For Harbors Act of 1899. This commenter the shellfish being produced. This example, the permanent fill may be asserted that this activity is not subject commenter stated that noise associated dispersed by flowing water and to regulation under section 10 because with commercial shellfish mariculture transported in the waterbody so that it it does not involve the use of structures, activities could result in temporary becomes part of the benthic habitat in nor does it constitute work that alters or displacement of birds from the that waterbody. That permanent fill may modifies the navigable capacity of the immediate area, but this is a temporary provide habitat for certain aquatic waters. Juvenile clams bury a few inches impact to overall bird populations. organisms. into the sediment and are essentially Lastly, this commenter asserted that Several commenters said they agreed imperceptible, and single-set oysters lie while predator exclusion net that placing shellfish seed on the bottom on the bottom of the substrate without entanglement is a possibility for birds, of a waterbody is not a ‘‘discharge of fill meaningfully altering the elevation of it is likely to be rare and unlikely to material’’ and thus does not require a the seabed. This commenter said that result in significant effects to marine section 404 permit. Regardless of that the placement and grow-out of single set bird and bald eagle populations whether the placement of shellfish seed clams and oysters therefore does not utilizing these areas. The Corps is done for commercial aquaculture, require approval under Section 10 of the acknowledges these comments on the habitat restoration, or fisheries Rivers and Harbors Act of 1899. This effects of commercial shellfish enhancement, it should not require a commenter noted that section 10 mariculture activities on birds, which section 404 permit unless there is authorization is required for activities have informed the Corps’ decision to significant placement of materials for that alter the bottom elevation of waters reissue NWP 48 as discussed because it reefs/hummocks in quantities adequate in a manner to impact their navigable will have no more than a minimal to alter the depth profile and alter the capacity, and that shellfish seeding does individual or cumulative adverse bottom topography. Several commenters not alter the bottom elevation. environmental effects. noted that while depositing shell with In the proposed rule at 85 FR 57334, One commenter objected to a spat already attached is considered seed the Corps stated that on-bottom bivalve statement in the proposed rule regarding and regulated ‘‘work’’ under Section 10 shellfish mariculture activities may the placement of shell or gravel on the of the Rivers and Harbors Act of 1899, involve placing fill material such as bottom of the waterbody for on-bottom the proposed NWP 48 is also defining shell or gravel to provide suitable cultivation of bivalves. The proposed this as fill regulated under Section 404 substrate for bivalve shellfish larvae to rule stated that this is a permanent of the Clean Water Act. They stated that attach to and grow on the bottom of the impact. This commenter said that the requiring section 404 authorization is an waterbody and that these activities may placement of gravel or shell on the additional unnecessary burden and require section 404 authorization. The bottom of the waterbody causes these activities do not result in adverse proposed rule did not state that temporary changes, which is why environmental impacts and in actuality depositing shell with spat attached to

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the shell is considered fill material for CFR 322.2(b) and may be obstructions to section 404 permit requirement even if the purposes of NWP 48. Discharging navigation. The Corps maintains its the bags themselves do not qualify as fill shell without bivalve larvae (i.e., spat) views that most commercial shellfish material. Even for activities that do not into a waterbody for the purposes of mariculture activities are regulated directly result in discharge of dredge or enhancing benthic habitat to attract solely under Section 10 of the Rivers fill material, the Corps must document bivalve shellfish larvae may require and Harbors Act of 1899, and a secondary effects, and has the authority section 404 authorization if it meets the relatively small percentage are also to impose conditions reasonably related Corps’ definition of ‘‘fill material’’ and regulated under Section 404 of the to the purpose of section 404 permits. ‘‘discharge of fill material’’ at 33 CFR Clean Water Act because they involve Another commenter stated that 323.2(e) and (f). Under 33 CFR 323.2(f), discharges of dredged or fill material established shellfish farms are exempt the term ‘‘discharge of fill material’’ into waters of the United States. The from regulation under the Clean Water means the addition of fill material into Corps agrees that the placement of Act’s farming exemption, and that the waters of the United States. The term living bivalves into waters of the United reissued NWP 48 should state that ‘‘discharge of fill material’’ does not States does not result in a discharge of established commercial shellfish include plowing, cultivating, seeding a pollutant that requires authorization farming activities do not require CWA and harvesting for the production of under Section 404 of the Clean Water Section 404 permits. This commenter food, fiber, and forest products (33 CFR Act. said that even if some shellfish farming 323.2(f)), so shellfish seeding is not One commenter said that bivalve activities include discharges of dredged considered a ‘‘discharge of fill shellfish harvesting activities do not or fill material, established shellfish material.’’ If the placement of gravel or bring commercial shellfish farming farms are exempt from regulation under shell on the bottom of the waterbody to within the regulatory reach of Clean section 404(f), which exempts normal enhance the substrate of the waterbody Water Act Section 404. In order for there farming activities from the requirement to attract shellfish larvae is not removed to be a discharge regulated under to obtain permits under Section 402 and upon completion of the shellfish Section 404 of the Clean Water Act, 404 of the Act. cultivation activity, it is considered a there must be an addition of a pollutant Whether shellfish mariculture permanent fill even though it may to a water of the United States, and that qualifies for a section 404(f) exemption increase the habitat value for bivalves, the harvesting commercial shellfish is beyond the scope of this rulemaking. crustaceans, and other aquatic does not involve an ‘‘addition’’ for The authority for determining whether a organisms. purposes of the Clean Water Act section particular activity, such as commercial A few commenters said that predator 404. This commenter also stated that shellfish mariculture activities, is nets, and low-profile cages to protect harvesting shellfish constitutes a ‘‘net eligible for the Clean Water Act Section bottom planted seeds should not be withdrawal’’ of material from the water, 404(f) exemptions lies with the U.S. considered navigation hazards subject to not an ‘‘addition.’’ This commenter EPA. See the 1989 Memorandum of permitting requirements unless they requested that the Corps clarify in the Agreement Between the Department of create a vertical profile of greater than final rule that these commercial the Army and the U.S. EPA Concerning 25% of the water depth. One commenter shellfish farming activities do not the Determination of the Section 404 agreed with the Corps’ statements in the involve discharges of dredged or fill Program and the Application of the proposed rule that most commercial material and hence do not require Clean Exemptions under Section 404(f) of the shellfish mariculture activities do not Water Act Section 404 authorization. Clean Water Act. involve discharges of dredged or fill The Corps does not agree that all One commenter stated that advanced material that require Clean Water Act bivalve shellfish harvesting activities do authorization of the broad suite of section 404 authorization. This not require authorization under Section commercial shellfish mariculture commenter noted that placing living 404 of the Clean Water Act. There may activities afforded by the NWP 48 is bivalve shellfish (e.g., clam seed and be circumstances where a bivalve impracticable because the blanket oyster cultch) in the intertidal zone shellfish harvesting activity results in a authorization cannot take into account during bottom-culture activities and regulable discharge that requires section important details regarding local their natural by-products are not 404 authorization. Those circumstances ecological conditions at the growing site pollutants, citing the Association to depend on how the harvesting activity and specific information about the Protect Hammersley, Eld, and Totten is conducted, and whether a particular shellfish cultivation techniques. This Inlets v. Taylor Res., Inc., 299 F.3d 1007 harvesting activity results in an addition commenter recommended that initial (9th Cir. 2002). One commenter stated of dredged material into, including authorization should be made on a case- that the proposal accurately states that redeposit of dredged material other than by-case basis and should be subject to some commercial bivalve shellfish incidental fallback within, the waters of ongoing monitoring and periodic mariculture activities are regulated the United States. District engineers review. under section 10 because they include apply the definitions of ‘‘dredged Section 404(e) of the Clean Water Act structures such as racks, cages, bags, material’’ and ‘‘discharge of dredged does not specify how broadly or lines, nets, and tubes, when those material’’ at 33 CFR 323.2(c) and (d), narrowly the Corps has to identify any structures are placed in navigable respectively to determine whether a category of activities for the issuance of waters. This commenter also said that discharge requiring section 404 a general permit, including the NWPs. dredging, excavation, and filling authorization has occurred. The Corps Section 404(e) only requires that the activities would also require section 10 agrees that bivalve shellfish harvesting activities in that category are similar in authorization, although these activities activities do not normally involve nature. Likewise, under the Corps’ are relatively rare. discharges of fill material, as that term definition of general permit in its The placement of predator nets and is defined at 33 CFR 323.2(f). section 10 regulations at 33 CFR low-profile cages in navigable waters of One commenter said that aquaculture 322.2(f), there are no standards the United States requires authorization is not exempt from CWA permitting regarding how broad or narrow the under Section 10 of the Rivers and under Section 404(f) of the Clean Water category has to be. Therefore, the Corps Harbors Act because those nets and Act. This commenter said that adding has substantial discretion to determine cages are considered structures under 33 gravel or shell to bags also triggers a the categories of activities to be

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authorized by the NWPs. Nationwide and shellfish are combined, and the similar to seagrasses and other benthic permits are issued by Corps seascape matrix of habitats are communities, there is no meaningful Headquarters to authorize categories of considered, it is possible that a broader effort to discuss the numerous studies activities across the country, and there ecosystem perspective would find regarding impacts of a variety of is substantial variation in aquatic benefits from the presence of aquaculture practices on submerged resources and the functions they aquaculture. This commenter also stated aquatic vegetation. Allowing provide, as well as the degree to which that commercial shellfish farming commercial shellfish activities in new they perform those functions. activities have minimal negative to areas that have extensive beds of Nationwide permits require pre- beneficial impacts on eelgrass and submerged aquatic vegetation could construction notification for certain supports the Corps’ proposal to reissue impact critical habitat for ESA-listed activities so that district engineers can NWP 48. One commenter remarked that species. A couple commenters stated assess proposed activities in the context interactions between seagrasses and that tribes in the Puget Sound region of local ecological conditions and make shellfish mariculture must separately be have a unique interest in assuring that a case-by-case determination as to addressed during Endangered Species both salmon and shellfish are allowed to whether proposed activities qualify for Act and Essential Fish Habitat flourish. Consultation between Corps NWP authorization. consultations for authorizations for districts, tribes, federal, and state Some commenters mentioned that the shellfish farming activities in agencies are the appropriate entities to scientific literature cited in the Washington State. determine how best to protect proposed rule concerned studies of Compensatory mitigation submerged aquatic vegetation. A couple eelgrass located in Washington State. requirements for activities authorized by of commenters said that submerged These commenters stated that despite its the NWPs are more appropriately aquatic vegetation is a critical resource broad distribution along the Pacific and determined by district engineers on a requiring protection and removal of that Atlantic coasts, eelgrass is a poor choice case-by-case basis after reviewing PCNs. protection from NWP 48 could create for a model species to develop a If the district engineer reviews a PCN conflicts with other federal or state national standard from a regional and determines the proposed activity agencies such as NOAA Fisheries. These dataset. One genus should not dictate will result in more than minimal commenters asserted that some states, policy on an entire suite of functionally, adverse environmental effects, he or she recognizing the need to protect these taxonomically, and geographically will notify the applicant and provide an high-quality habitats have prohibited distinct species. These commenters opportunity to the applicant to submit the siting of new mariculture leases in went on to say that while the individual a mitigation proposal (see 33 CFR areas where surveys indicate the and cumulative impacts to eelgrass 330.1(e)(3)). If, after reviewing the presence submerged aquatic vegetation meadows in Washington may be mitigation proposal, the district in any one of the past five years. temporary, it could be irreversible in engineer determines the adverse areas where environmental conditions environmental effects of the proposed In the 2020 proposal and the draft are more impaired and submerged activity will be no more than minimal, decision document for NWP 48, the aquatic vegetation meadows are she or he will issue an NWP verification Corps provided a substantial discussion declining in areas such as New England, with permit conditions that require of the positive and negative impacts that the mid-Atlantic coast, the East coast of implementation of the mitigation. The commercial shellfish mariculture Florida, the Gulf of Mexico, and Corps acknowledges that, when viewed activities may have on seagrasses and California. from a seascape perspective, a district other benthic organisms. Some of these For the 2020 Proposal, the Corps engineer may determine that the impacts may be a result of activities considered scientific literature in proposed shellfish mariculture will under the Corps’ legal authorities; coastal ecosystems located nationwide. provide ecological benefits that should however, bivalve shellfish mariculture The Corps also discussed submerged be factored in the district engineer’s activities may have impacts that are aquatic vegetation in general terms, and decision regarding whether the beyond the scope of the Corps’ legal only made specific references to eelgrass proposed activity will result in no more authorities. Under general condition 18, when a particular study examined than minimal adverse environmental non-federal permittees must submit a eelgrass. After the reissuance of NWP 48 effects. If the district engineer reviews a pre-construction notification to the in 2017, the Corps reviewed a broader PCN for a proposed NWP 48 activity district engineer if any listed species or range of scientific literature on the and determines the proposed activity designated critical habitat (or species interactions between commercial may affect listed species or designated proposed for listing) might be affected bivalve shellfish mariculture activities critical habitat, he or she will conduct or is in the vicinity of the activity, or if and submerged aquatic vegetation, and ESA section 7 consultation with the the activity is located in designated or found that while some permanent U.S. FWS and/or NMFS and that section proposed critical habitat, and shall not impacts to submerged aquatic vegetation 7 consultation may address potential begin work on the activity until notified may occur, the impacts are often impacts to seagrasses. If the district by the district engineer that the temporary and submerged aquatic engineer reviews a PCN for a proposed requirements of the ESA have been vegetation co-exists with bivalve NWP 48 activity and determines the satisfied and that the activity is mariculture activities. The Corps proposed activity may adversely affect authorized (see paragraph (c) of general examined scientific literature from essential fish habitat, he or she will condition 18, endangered species). studies that occurred in other areas of conduct essential fish habitat During the rulemaking process, district the United States (e.g., Chesapeake Bay), consultation with the NMFS and the engineers have conducted consultation not just Washington State. NMFS may provide the district engineer or coordination with tribes to identify One commenter recommended that with essential fish habitat conservation regional conditions or coordination the Corps require mitigation for impacts recommendations that may address procedures that could be used to protect to submerged aquatic vegetation at a potential impacts to seagrasses. tribal trust resources and comply with ratio of at least 1.2:1 (mitigation area to Several commenters stated while general condition 17. Other federal impact area). One commenter said that shellfish mariculture can provide agencies, as well as states, can develop when the functional value of eelgrass ecosystem services, some of which are regulations and policies to protect

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submerged aquatic vegetation under One commenter noted that the propagation tends to focus on the their authorities. argument that shellfish aquaculture cultivation of larger older shellfish with A couple of commenters stated that activities only temporarily impact large time intervals between harvests, the Corps thinks it is important to submerged aquatic vegetation is not which results in short term impacts at protect submerged aquatic vegetation in accurate because leases issued for harvest with long periods for recovery other contexts, but not under NWP 48. shellfish aquaculture vary in duration and result in no permanent losses of These commenters said that the Clean but are generally 5–20 years to ensure submerged aquatic vegetation. This Water Act regulations provide for any investment in the enterprise is commenter said that the persistence of protection of special aquatic sites, worthwhile. This commenter said that eelgrass along the coast demonstrates which include ‘‘vegetated shallows’’ the word ‘‘temporary’’ is a highly that shellfish mariculture and eelgrass and that submerged aquatic vegetation relative and generally misleading can coexist and have for over a century. beds are considered vegetated shallows. descriptor. Furthermore, commercial shellfish One commenter said that while the It is not the duration of the lease for mariculture operators have long Corps states that all activities and shellfish mariculture activities that understood the best way to propagate structures must avoid submerged determines whether commercial eelgrass is to plant oysters, which aquatic vegetation, but it doesn’t apply shellfish mariculture activities have creates optimal habitat allowing eelgrass that principle to commercial shellfish temporary impacts on submerged to expand due to decreased current over mariculture activities. aquatic vegetation. Commercial shellfish the tide flats. This commenter also said While the Clean Water Act Section mariculture operators might not that the bivalve shellfish, as filter 404(b)(1) Guidelines provide a greater cultivate bivalve shellfish continuously feeders, remove large amounts of degree of protection to vegetated during the period the lease is in effect. waterborne nutrients resulting in shallows (submersed aquatic vegetation) The operator may let some areas within cleaner water which facilitates as special aquatic sites compared to a leased area to go fallow for a period photosynthesis, expanding habitable aquatic resources that are not special of time, to reduce adverse effects to the ranges of eelgrass. The Corps aquatic sites, the Guidelines do not benthic community. The Corps agrees acknowledges these comments. These prohibit discharges of dredged or fill that the term ‘‘temporary’’ is a relative beneficial effects have informed the material into vegetated shallows (i.e., term, but disagrees that it is misleading. Corps’ decision to reissue NWP 48 as submerged aquatic vegetation beds). The What constitutes a temporary impact discussed because it will have no more depends in part on how much time it 404(b)(1) Guidelines only apply to than a minimal individual or takes an organism or an ecosystem to discharges of dredged or fill material. cumulative adverse environmental recover from a disturbance, and how They do not apply to activities effects. resilient and resistant the species or Several commenters recommended authorized under Section 10 of the ecosystems are to disturbances. Coastal revising the definition of mechanical Rivers and Harbors Act of 1899. waters are highly dynamic harvest so that they are not classified as One commenter stated that submerged environments subjected to periodic ‘‘dredge or fill’’ activities because it is aquatic vegetation beds provide disturbances, both natural and man- too broad and lumps many methods numerous ecosystem services including made. together and lacks clarity. These improving water quality, providing Several commenters concurred with commenters said that mechanical nursery habitat for commercial and the Corps’ view that commercial harvesting by dragging a metal basket recreationally significant fish and shellfish mariculture activities typically along the tide flats to gently tumble invertebrates, buffering shorelines from only has temporary impacts on harvestable oysters does not result in a erosion, and sequestering carbon. submerged aquatic vegetation and these discharge of dredge or fill material and Because of these additional functions plants can sustain a healthy coexistence. should be exempt from section 404 performed by submerged aquatic A few commenters noted that jurisdiction. Furthermore, these vegetation, this commenter said that mechanical harvesting has been found commenters said that these activities do bivalve shellfish mariculture cages do to not negatively impact native eelgrass not create ditches, channels, or not do any of these things and cannot and may even enhance it. One substantially redeposit excavated soil be considered functionally equivalent commenter stated that the positive material and none of the harvest tools habitat to submerged aquatic vegetation. ecosystem services (e.g., better water are designed to remove large quantities As discussed in the 2020 Proposal quality, habitat creation, and ecosystem of material to improve the navigability and the national decision document for studies) provided by bivalve shellfish of waters. These commenters said that NWP 48, it is the bivalves that perform mariculture activities outweigh the the sediment that may be disturbed a number of the same ecological temporary nature of any perceived during harvest should be considered as functions as submerged aquatic negative impacts. The habitat created by incidental fallback under 33 CFR vegetation, not the structures in which shellfish aquaculture increases species 323.2(d)(1). these bivalves are grown. However, richness and diversity of both benthic Mechanical harvesting activities commercial shellfish mariculture and epibenthic organisms. This three- generally do not result in discharges of structures do provide structural habitat dimensional habitat is utilized by many fill material, as that term is defined at for a wide variety of aquatic organisms, commercially valuable species, such as 33 CFR 323.2(f). However, mechanical including substrate for organisms to Dungeness crab and flatfishes. The harvesting activities may result in attach to, and some aquatic organisms Corps acknowledges these comments. discharges of dredged material, feed on the attached organisms. These beneficial effects have informed depending on how they are conducted. Structures used for commercial shellfish the Corps’ decision to reissue NWP 48 The term ‘‘discharge of dredged mariculture activities can slow the as discussed because it will have no material’’ is defined at 33 CFR 323.2(d) movement of water, and help reduce more than a minimal individual or to include the ‘‘addition of dredged erosion of nearby shorelines. These cumulative adverse environmental material into, including redeposit of impacts would be considered during the effects. dredged material other than incidental review of a PCN for a new or existing One commenter noted that farming fallback within, the waters of the United shellfish mariculture activity. methods such as bottom culture States.’’ Some mechanical harvesting

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activities may result in incidental environments, as well as provision of of this final rule, the Corps has prepared fallback and not require section 404 year-round durable, structured three- a biological assessment for this authorization while other mechanical dimensional habitat. The Corps declines rulemaking activity and determined that harvesting activities may result in to add the requested statement because the issuance of the NWPs has no effect additions of dredged material into the potential benefits would need to be on listed threatened and endangered waters of the United States that are not determined on a case-by-case basis, and species and designated critical habitat, incidental fallback, and therefore the durability of those sediment as well as species proposed for listing require section 404 authorization. accumulations is influenced because and proposed designated critical Mechanical and hydraulic harvesting water movements that could cause that habitat. activities that redeposit sediment in a sediment to be re-suspended in the One commenter stated that significant different area of the bottom of the water column. changes to NWP 48 are not appropriate waterbody that the area from which the One commenter said that the Corps until the national decision document is sediment was removed is considered a must comply with ESA Section 7 and finalized and deemed sufficient. This ‘‘discharge of dredged material’’ and the Magnuson-Stevens Act prior to commenter said the draft decision therefore requires section 404 issuing NWP 48. A few commenters document fails to satisfy the authorization. These discharges of stated that in all areas where submerged requirements of the National dredged material into waters of the aquatic vegetation exists, it is Environmental Policy Act and the Clean United States are authorized by NWP designated essential fish habitat under Water Act, and that it fails to properly 48. the Magnuson-Stevens Fishery acknowledge the impacts of mariculture A commenter noted that in the Conservation and Management Act. on benthic habitat, fish communities, statement ‘‘mechanical harvesting can These commenters said that removal of birds, water quality and substrate include grading, tilling, and dredging the 1⁄2-acre limit for direct impacts to characteristics. Several commenters the substrate of the waterbody’’ that the submerged aquatic vegetation fails to stated that the proposed revisions to the term ‘‘grading’’ does not describe acknowledge submerged aquatic national decision document for NWP 48 shellfish culture methods. A couple of vegetation as essential fish habitat and do not fairly represent the conclusions commenters suggested that shellfish the need for consultation with NMFS for of authors of the cited literature, in mariculture harvest activities should be activities that may adversely affect some cases omitting relevant regulated like wild-harvest essential fish habitat. These commenters information and in others shellfisheries (e.g., as they are regulated asserted that the Corps must consult on misrepresenting study results and in NWP 4). This commenter said that a nationwide programmatic basis conclusions. both wild and cultured shellfish are because essential fish habitat is The purpose of the national decision state-managed resources, with the adversely affected by shellfish document is to provide information for exception of many tidelands in mariculture activities. the decision on whether to reissue NWP Washington, and should not require The NWP program’s compliance with 48. The national decision document additional oversight and regulation by the essential fish habitat (EFH) discusses the positive and negative federal authorities. This commenter also consultation requirements of the impacts of commercial shellfish stated that harvesting activities do not Magnuson-Stevens Fishery mariculture activities on benthic involve structures and do not impact Conservation and Management Act is habitat, fish communities, birds, water navigation in a way that should trigger achieved through EFH consultations quality and substrate characteristics. regulation under the Section 10 of the between Corps districts and NMFS The Corps has considered this Rivers and Harbors Act of 1899. regional offices. This approach information and determined that NWP Mechanical harvesting activities may continues the EFH Conservation 48 will not have more than a minimal move sediment in a waterbody in a Recommendations provided by NMFS individual or cumulative adverse manner that is not considered incidental Headquarters to Corps Headquarters in environmental effects. fallback. These activities would require 1999 for the NWP program. Corps One commenter said that the Corps section 404 authorization under the districts that have EFH designated describes no studies in its decision Corps’ definition of ‘‘discharge of within their geographic areas of document to verify its claim that dredged material.’’ Nationwide permit 4 responsibility coordinate with NMFS commercially-raised shellfish help authorizes discharges of dredged or fill regional offices, to the extent necessary, improve water quality. One commenter material associated with fish and to develop NWP regional conditions noted that the Corps acknowledges wildlife harvesting, enhancement, and that conserve EFH and are consistent throughout the environmental attraction devices and activities, the NMFS regional EFH Conservation consequences, public interest, and including clam and oyster digging. The Recommendations. If a district engineer 404(b)(1) Guidelines Analysis, some Corps has jurisdictional authority in determines a proposed NWP 48 activity negative impacts, but then fails to assess Washington State for activities regulated may adversely affect essential fish them and instead focuses only on under Section 10 of the Rivers and habitat, he or she will conduct EFH positive impacts. This commenter said Harbors Act of 1899 and Section 404 of consultation with NMFS. Where there is that the impacts from mechanical and the Clean Water Act. Mechanical a requirement to consult on EFH, hydraulic dredging are barely harvesting activities generally meet the consideration of direct impacts to mentioned, with no assessment of their definition of ‘‘work’’ at 33 CFR 322.2(c) submerged aquatic vegetation caused by harmful impacts to the same degree as for the purposes of Section 10 of the new and existing commercial shellfish the supposed benefits from shellfish Rivers and Harbors Act of 1899, and are mariculture activities would occur aquaculture. authorized by NWP 48. regardless of the PCN threshold of 1⁄2- The Corps discusses, in numerous One commenter requested that the acre. In response to an EFH assessment places, the water quality benefits of Corps add a statement in the final rule prepared by the Corps, the NMFS may filter-feeding bivalves that are cultivated that acknowledges that the provide EFH conservation by commercial shellfish mariculture accumulation of sediment around recommendations to address potential activities. The Corps acknowledges that shellfish farming gear may be impacts to submerged aquatic commercial shellfish mariculture considered beneficial in certain vegetation. As discussed in Section III.D activities cause adverse and beneficial

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environmental effects. Throughout the years, and it is the current unknown mitigation measures will draft and final national decision environmental baseline against which actually avoid more than minimal documents, the Corps discusses the the degree of severity of adverse adverse impacts. Any individual negative and positive effects of environmental effects is assessed to mitigation measures will only be harvesting activities. determine eligibility for NWP attached if a permittee is required to One commenter identified errors in authorization (i.e., whether the submit a pre-construction notification, projected use and acreage impacted over individual and cumulative adverse which will likely be few and far the 5-year period NWP 48 is anticipated environmental effects caused by between. to be in effect. This commenter notes commercial shellfish mariculture For commercial shellfish mariculture that the draft NWP 48 decision activities during the 5-year period the activities, the Corps generally does not document states that the Corps NWP is in effect are no more than require compensatory mitigation estimates this permit will be used minimal). because these activities do not cause approximately 336 times per year on a The Corps has revised the national losses of waters of the United States. national basis, resulting in impacts to decision document to correct the errors Paragraph (a) of general condition 23 approximately 13,360 acres of waters of in its estimates of potential use of this requires permittees to design their the United States. It then states the NWP and authorized impacts. However, projects to avoid and minimize adverse Corps estimates that approximately it should be noted that these are effects, both temporary and permanent, 1,680 activities could be authorized over estimates of projected use over the 5- to waters of the United State to the a five-year period until the NWP year period the NWP is anticipated to be maximum extent practicable on the expires, resulting in impacts to in effect. With respect to the removal of project site. Many of the NWP general approximately 40,080 acres. While the 1⁄2-acre limit for direct impacts to conditions consist of mitigation 1,680 is five times the annual use figure submerged aquatic vegetation caused by measures to avoid and minimize (336), five times the annual acreage new commercial shellfish mariculture impacts. When determining whether to figure (13,360) is 66,800. One activities, the Corps is only required to require mitigation to ensure that a commenter requested that the Corps provide an estimate of the number of particular NWP activity results in no provide documentation on the number activities that might occur during the more than minimal individual and of permit request over the last 10 years period this NWP is in effect. It is not cumulative adverse environmental that exceeded the 1⁄2-acre limit, and of necessary to provide data on how many effects, the district engineer will those activities, how many ultimately commercial shellfish mariculture consider the direct, indirect, and received a permit through regional or activities were authorized by regional cumulative effects, as required by individual permit process, and what general permits or individual permits. paragraph 2 of Section D, District conditions were applied to those The Council on Environmental Engineer’s Decision. If the district applications. One commenter stated that Quality’s NEPA regulations at 40 CFR engineer requires mitigation for an NWP the Corps claims to have no duty to use parts 1500–1508 do not require activity, he or she will add conditions any quantitative data, but has issued quantitative analyses of potential to the NWP authorization (see 33 CFR NWP 48 since 2007 and should be able environmental impacts. With respect to 330.1(e)(3)) that are directly related to after all these years to provide some the 404(b)(1) Guidelines, 40 CFR the impacts of the proposal, appropriate quantitative data about loss of 230.7(b)(3) requires cumulative effects to the scope and degree of those seagrasses, natural habitats, etc. One to be analyzed by estimating the number impacts, and reasonably enforceable commenter recommended that the of discharges expected to occur under (see 33 CFR 325.4(a)). Corps pursue a quantitative analysis of the NWP while it is in effect. The One commenter stated that the Corps the environmental effects of shellfish environmental impacts of authorized said that ‘‘standard and best mariculture for habitat alterations, activities during the period the NWP is management practices’’ can reduce climate change, invasive species, in effect is dependent on the current impacts but fails to explain what these overharvesting and exploitation, and environmental settings in which these are and how they will mitigate impacts. pollution. activities will occur, and quantitative One commenter said that the Corps Nationwide permit 48 authorizes data on those current environmental claims commercially-reared bivalves structures and work in navigable waters settings is not available. It should also improve water quality but fails to assess of the United States and discharges of be noted that context is important, water quality impacts by deferring to dredged or fill material into waters of because these activities are occurring in district engineers and water quality the United States for both existing (on- coastal waters that have been altered by certifications under Clean Water Act going) and new commercial shellfish human activities and natural processes section 401, but impacts to water quality mariculture activities. Many of the for thousands of years, and continue to must be assessed before granting NWPs. activities authorized by NWP 48 are on- be impacted by coastal watershed land One commenter said that the Corps fails going activities that require use, point source pollution, non-point to discuss the context and intensity reauthorization each time the current source pollution, fishing activities, factors that might indicate that this NWP 48 expires and is replaced by a recreation, and other disturbances, not proposed NWP will have a ‘‘significant reissued NWP 48. Nationwide permits just commercial shellfish mariculture impact to the human environment’’ and can be issued for period of no more than activities. thus requires an environmental impact 5 years (see Section 404(e) of the Clean Several commenters stated it is statement. Water Act). The acreage of projected unclear how mitigation can both be As stated in the 2020 Proposal, impacts in the national decision unnecessary and something the Corps is species-specific or regional standards document for NWP 48 includes many relying on to avoid cumulative impacts. and best management practices for on-going commercial shellfish Further, several commenters stated that commercial shellfish mariculture mariculture activities, many of which the Corps relies heavily on mitigation at activities may be appropriate as regional have been in operation for decades. a district level, but fails to actually conditions approved by division These on-going commercial shellfish describe the possible effects (direct, engineers (see 85 FR 57331). In the mariculture activities have been part of indirect and cumulative) from shellfish national decision document, the Corps the current environmental setting for aquaculture activities or how these has discussed potential impacts to water

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quality as well as potential benefits to to control fouling organisms is incorrect proceeding with the authorized water quality that may result from because chemical use or the potential activities. commercial shellfish mariculture introduction of toxic materials is Many commenters stated they are activities. In addition, the Corps has regulated by the Interstate Shellfish opposed to the default authorization if explained that cultivated bivalves are Sanitation Conference. One commenter the Corps does not respond to the PCN not considered a pollutant under the said that commercial shellfish submittal within 45 days. Numerous Clean Water Act. After considering the mariculture operators may use commenters said they support the information in the national decision herbicides to control invasive, noxious automatic authorization if the Corps document for this NWP, including the weeds on commercial clam beds. project manager does not respond to the potential benefits and detriments caused The Corps does not have the authority complete PCN within 45 days. One by commercial shellfish mariculture to control the use of pesticides, commenter objected to the removal of activities, there is no evidence that these herbicides, and antifouling agents in PCN requirements. A few commenters activities cause a significant impact to commercial shellfish mariculture said that in order to further expedite the human environmental and thus no activities. Use of some of these permitting for mining project, no PCN environmental impact statement is chemicals may be regulated under other should be required for activities required. federal or state laws and regulations authorized by this NWP. One commenter stated the alternatives administered by other agencies. The Corps removed the requirement analysis is inadequate. The commenter One commenter said that while gear for the permittee to obtain written asserts that the Corps lists the ‘‘no sometimes escapes from commercial authorization before commencing the action’’ alternative but barely analyzes shellfish farms despite growers’ best activity to be consistent with the other it, strangely concluding that it would efforts to ensure it remains secured, NWPs that have a 1⁄2-acre limit for somehow have more substantial adverse shellfish farmers do not discard discharges of dredged or fill material environmental consequences. The equipment into the marine into non-tidal waters of the United ‘‘national modification’’ alternative is environment. This commenter requested States (e.g., NWPs 29, 39, 40, 42, 43, 44, not an alternative, but the proposed that the Corps revise the national 51, and 52). The Corps did not propose NWP 48 and the ‘‘regional decision document to make it clear that to remove any PCN requirements from modification’’ is also not an alternative growers are not discarding equipment, this NWP. All activities authorized by because it includes no conditions or but equipment may wash away from the this NWP require PCNs. The Corps is changes from the proposed NWP 48. project site or move by other retaining the PCN requirements for this The national decision document mechanisms. This commenter also said NWP to provide activity-specific review discusses alternatives. In the Council on that NWP general condition 6 addresses by district engineers to ensure that the Environmental Quality’s NEPA the use of trash in the NWP program. activities authorized by this NWP result regulations that were published in the One commenter said that the use of in no more than minimal individual and Federal Register on July 16, 2020, the plastics gear for commercial shellfish cumulative adverse environmental preamble to the final rule at 85 FR mariculture activities adds plastic effects. 43323 states that an agency does not pollution to the ocean and beaches A few commenters said that the need to include a detailed discussion of through plastic debris and this plastic applicability of this NWP would be each alternative in an environmental can break down further into reduced if the applicant must now assessment. In the national decision microplastics, which can impact include coal preparation and processing document, the Corps briefly discussed wildlife, aesthetics, and food safety. activities outside of the underground the environmental consequences of each The Corps has revised the national mine site as a single and complete alternative. decision document to clarify that some project under NWP 50. One commenter One commenter said that the Corps materials used for commercial shellfish stated the Corps provided no should impose monitoring requirements mariculture activities may wash away justification for the deletion of the Note that would ensure that NWP terms and from the project area. General condition regarding the use of NWP 21, coupled conditions, including those resulting 6 does not address trash or garbage that with NWP 50, for coal preparation and from subsequent exercises in may be associated with commercial processing activities outside of the discretionary authority, would be shellfish mariculture activities. General underground mine. One commenter adequately policed. In response, Corps condition 6 prohibits the use of trash as expressed support for the removal of the districts can conduct compliance fill material. Trash and garbage are not integrated permitting process language. inspections for authorized activities, to considered fill material for the purposes One commenter stated that NWP should ensure that those activities are of section 404 of the Clean Water Act state that the project proponent cannot conducted in accordance with any (see 33 CFR 323.2(e)(3)). begin the authorized activity until the conditions added to the NWP This NWP is reissued with the activity is formally approved by the authorization. The Corps district will modifications discussed above. Department of Interior’s Office of take appropriate actions to address non- Surface Mining or the state. Several compliance with permit conditions. (10) NWP 50. Underground Coal Mining commenters asserted the NWP 50 Several commenters approved of the Activities should be revoked because the effects of reiteration and clarification that the The Corps proposed to modify this coal mining are significant to the discharge of pesticides is regulated NWP to remove the 300 linear foot limit environment and should be evaluated under Section 402 of the CWA and not for losses of stream bed, which is under an individual permit. Section 404. They suggested that the discussed above in Section II.F. The Even if the Note were not removed, final rule clearly state that operators responses to comments on the proposal single and complete underground coal may be permitted to use pesticides to to remove the 300 linear foot limit are mining activities with coal preparation control agricultural pests and predators provided in Section II.F. In addition, the and processing activities outside the instead of just predators. One Corps proposed to the reference to underground mine site are subject to commenter said that the statement integrated permit processing procedures general condition 28, use of multiple regarding commercial shellfish and the requirement for written NWPs. If NWP 50 and 21 are combined mariculture operations using chemicals verification from the Corps before to authorize a single and complete

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project, the activity would be subject to engineer determines a proposed activity reissued with the modifications the 1⁄2-acre limit. The Corps removed may adversely affect essential fish discussed above. the language referencing integrated habitat, he or she will conduct essential (12) NWP 52. Water-Based Renewable permit processing procedures, since fish habitat consultation with NMFS. If Energy Generation Pilot Projects those procedures have never been the district engineer determines the developed for this NWP since that text proposed activity may affect listed The Corps proposed to modify this was added to the NWP in 2007 (see 72 species or designated critical habitat, NWP to remove the 300 linear foot limit FR 11184). she or he will conduct ESA section 7 for losses of stream bed, which is Project proponents may be required to consultation with the U.S. FWS and/or discussed above in Section II.F. The obtain separate authorizations from the NMFS. In accordance with general responses to comments on the proposal Department of Interior’s Office of condition 23 and 33 CFR 330.1(e)(3), to remove the 300 linear foot limit are Surface mining or the state, but those district engineers determine on a case- provided in Section II.F. authorizations are a separate process by-case basis whether specific activities Many commenters said that the Corps from the Corps’ NWP authorization authorized by this NWP should require should modify NWP 52 so that it is not process. Authorization by an NWP does compensatory mitigation or other forms limited to pilot projects, because this not obviate the need to obtain other of mitigation to ensure the authorized restriction limits project proponent’s federal, state, or local permits, activities result in no more than ability to utilize the NWP to facilitate approvals, or authorizations required by minimal individual and cumulative the development of off-shore wind law. (See item 2 in Section E, Further adverse environmental effects. generation projects. These commenters said that the impacts are the same Information.) Division engineers can One commenter recommended adding regardless of whether a water-based add regional conditions to this NWP to roads constructed to develop, maintain, restrict or prohibit discharges of renewable energy generation project is a and repair land-based renewable pilot project or a full-scale development dredged or fill material into certain generation facilities to Note 1. One wetland types if those discharges are project, and that the adverse commenter stated that the NWP 51 environmental effects caused by these likely to result in more than minimal makes reference to a distribution system individual and cumulative adverse activities will be no more than minimal. as utility lines constructed to transfer A couple of commenters noted that as environmental effects. District engineers the energy produced by a land-based can also exercise discretionary authority off-shore wind energy generation renewable energy generation facility, continues to grow it will become more to modify, suspend, or revoke an NWP but elsewhere in the proposed rule it after reviewing the PCN, to ensure that crucial that these projects are able to refers to electrical lines as ‘‘transmission the NWP authorizes only those activities obtain Corps authorization in a timely lines’’ which is an undefined term. Two that result in no more than minimal and efficient manner. A couple of commenters suggested revising Note 2 individual and cumulative adverse commenters said that these projects to state that NWPs C and 14 may be environmental effects. should require individual permits and used to provide DA authorization for the This NWP is reissued as proposed. should not be authorized by an NWP. construction, maintenance, repair, and The Corps believes that the (11) NWP 51. Land-Based Renewable removal or utility lines and/or road construction of permanent water-based Energy Generation Facilities crossings. This commenter also said that renewable energy generation facilities The Corps proposed to modify this the Corps should clarify that the should be authorized by individual NWP to remove the 300 linear foot limit applicant can specify which NWP it permits instead of an NWP because of for losses of stream bed, which is wants to use for utility lines and/or road the potential for permanent activities to discussed above in Section II.F. The crossings. result in more than minimal adverse responses to comments on the proposal Note 1 only addresses electric utility environmental effects. District engineers to remove the 300 linear foot limit are lines used to transfer the electrical can develop regional general permits to provided in Section II.F. energy generated by these facilities to a authorized permanent water-based One commenter expressed support for distribution system, regional grid, or renewable energy generation facilities. the PCN threshold for losses of greater other facility. Transmission lines are One commenter stated that the 1⁄2-acre than 1⁄10-acre of waters of the United part of electrical energy distribution limit and the requirement for PCNs for States and does not support requiring systems to move the electricity from all proposed activities should be PCNs for all activities authorized by this generation facilities to end users. Note retained. One commenter recommended NWP. One commenter said that these 1 has been modified to specifically refer changing the PCN threshold to require activities should be prohibited from to electric utility lines because these PCNs for losses of greater than 1⁄10-acre channel migration zones and land-based renewable energy generation of waters of the United States. A couple floodplains because they are likely to facilities generate electrical energy. The of commenters said that Note 1 should directly or indirectly affect critical Corps has revised Note 1 to reference be revised to reflect authorization of habitat, essential fish habitat, and NWP 57, which authorizes electric transmission lines by NWP C rather habitats occupied by listed species. This utility line and telecommunications than NWP 12. commenter stated that structures built activities. Activities authorized by NWP The Corps is retaining the 1⁄2-acre in these zones are at heightened risk to 51 are non-linear projects, while electric limit and the requirement that all flooding and future flood dynamics utility lines used to transport the authorized activities require PCNs. The associated with climate change. This generated electrical energy to end users Corps has revised Note 1 to reference commenter also said that any impacts and others are linear projects that are electric utility lines and NWP 57, which over 1⁄10-acre should require mitigation. more appropriately authorized by NWP authorizes electric utility line and The Corps did not propose to change 57. Roads that extend to and from the telecommunications activities. the 1⁄10-acre PCN threshold for this NWP land-based renewable energy generation Several commenters stated that these that was adopted in the 2017 NWP 51. facility are also linear projects, and activities should not be authorized Activities authorized by this NWP must crossings of waters of the United States western Washington State without tribal comply with general condition 10, fills for these roads are more appropriately consent in areas with tribal treaty in 100-year floodplains. If the district authorized by NWP 14. This NWP is fishing rights. These commenters said

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that allowing floating solar panels up to of a navigable water of the United predictable outcomes and should not be 1⁄2-acre in size in navigable waters adds States.’’ After the seaweed mariculture used for experimental industries. additional obstructions to tribal structure is installed, subsequent The Corps has retained multi-tropic fisherman trying to exercise their fishing operations to produce seaweed do not mariculture activities in this NWP, to rights. One commenter stated that physically modify navigable waters of provide authorization for mariculturists floating solar panels, if installed, need the United States in a manner that that want to grow seaweeds and proper monitoring requirements with would be considered ‘‘work’’ under the bivalves on the same structures. the ability to have the projects removed Act. Conducting multi-tropic mariculture if the injuries to fish reach a certain Several commenters expressed activities is optional, and a grower can threshold. One commenter said that support for the issuance of new NWP A. choose to only cultivate seaweeds. pilot projects for experimental purposes One commenter suggested combining District engineers will review PCNs for should include a requirement for robust NWPs 48 and A into one NWP instead proposed NWP A activities to ensure information gathering to inform of issuing separate NWPs. One that those activities will result in no decision makers of ecological impacts of commenter said that issuing NWP A more than minimal individual and these energy generating structures. would reduce barriers to entry for cumulative adverse environmental Division engineers can add regional seaweed mariculture activities. Another effects. If the district engineer reviews a conditions to this NWP to help ensure commenter supported the issuance of PCN and determines that the adverse compliance with general condition 17, NWP A because kelp and seaweed are environmental effects will be more than tribal rights. During this rulemaking winter crops and would help provide minimal after considering any process, Corps districts have been year-round revenue sources for coastal mitigation proposed by the applicant, he consulting and coordinating with tribes commercial communities. A few or she will exercise discretionary to identify regional conditions and commenters expressed support for NWP authority and require an individual coordination procedures to help ensure A because growth of marine plants permit. The Corps does not believe it is compliance with general condition 17. improves water quality and provides necessary to require coordination of The Corps disagrees with imposing ecosystem services. proposed multi-tropic mariculture long-term information gathering activities with states, but district The Corps is keeping NWPs 48 and requirements to monitor the ecological engineers can informally coordinate proposed new NWP A separate because impacts that might be caused by these PCNs with states if they believe it is NWP 48 activities occur primarily in activities. The information in PCNs appropriate to do so. If a mariculturist nearshore waters and NWP A can be should be sufficient for district wants to grow finfish as part of a multi- used to authorize activities in both engineers to determine whether the trophic mariculture operation, she or he nearshore waters and federal waters on adverse environmental effects caused by should use NWP B (which, as discussed the outer continental shelf. The Corps the authorized activities are no more below, is issued in this final rule as acknowledges the economic benefits of than minimal. NWP 56), which authorizes multi- This NWP is reissued with the providing an NWP to authorize seaweed trophic mariculture activities involving modifications discussed above. mariculture activities that result in no finfish, seaweeds, and/or bivalves. more than minimal adverse There may be some risk of entanglement (13) NWP 55. Seaweed Mariculture environmental effects, as well as the Activities or other forms of adverse impact in lines ecological benefits that may be provided used for seaweed mariculture activities, The Corps proposed this new NWP as by the cultivated seaweeds, such as and that risk will be evaluated by NWP A, to authorize structures in water quality benefits through the district engineers during the PCN navigable waters of the United States, assimilation of nutrients and habitat review process. If the risk of including federal waters over the outer benefits for some aquatic species. entanglement applies to ESA-listed continental shelf, for seaweed Several commenters said they support species, the district engineer will mariculture activities. In the first the inclusion of multi-trophic species conduct ESA section 7 consultation sentence of this NWP, the Corps added production in NWP A. One commenter with the U.S. FWS and/or NMFS as ‘‘and estuarine’’ to make this NWP supported including multi-trophic appropriate. Multi-trophic mariculture consistent with proposed new NWP B species production as long as it is activities have been conducted for a for finfish mariculture activities with voluntary and not a requirement of the number of years in other countries respect to the waters in which these two NWP. One commenter said that multi- (Largo et al. 2016, Troell et al. 2009). NWPs may be used to authorize trophic activities should not be Several commenters said NWP A activities under Section 10 of the Rivers authorized under an NWP until an should not be issued because these and Harbors Act of 1899. The omission industry standard has been established. activities will result in more than of ‘‘and estuarine’’ in the proposed NWP A few commenters stated multi-trophic minimal individual or cumulative A was a drafting error. activities should be authorized under by adverse environmental effects. Several The Corps removed the phrase ‘‘and individual permits to provide an commenters stated NWP A should not work’’ from this NWP because this NWP appropriate level of environmental be issued because the long-term only authorizes structures, and this review. One commenter said PCNs cumulative impacts are unknown. Many NWP does not authorize any of the including that multi-trophic activities commenters expressed concern with the operational aspects of seaweed should be coordinated with states. A issuance of an NWP authorizing mariculture activities. The operation of few commenters asserted that the text of seaweed mariculture activities because a seaweed mariculture facility does not NWP A should clarify that multi-trophic of the relative unknown impacts and constitute ‘‘work’’ as that term is activities do not include finfish risks associated with these activities. defined at 33 CFR 322.2(c) for the cultivation. One commenter stated that One commenter said that the social, purposes of Section 10 of the Rivers and multi-trophic species mariculture could economic, and environmental impacts Harbors Act of 1899. Section 322.2(c) attract protected species and result in from seaweed mariculture are unknown. defines ‘‘work’’ as ‘‘any dredging or greater risk of entanglement. A few One commenter said that the disposal of dredged material, commenters said that the NWPs are cumulative impact from the varying excavation, filling, or other modification appropriate only for activities with more scale of aquaculture systems cannot

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sufficiently be addressed under an minimal individual and cumulative harvesting times. If the project NWP. Many commenters stated that adverse environmental effects. During proponent wants to modify the seaweed there is not sufficient information the development of this NWP, the Corps mariculture structures that are regulated available to inform whether NWP A did not identify any mitigation under Section 10 of the Rivers and would cause no more than minimal measures that should be added to this Harbors Act of 1899, he or she must impacts. A few commenters said that NWP, other than the general conditions notify the district engineer to request a the Corps has not demonstrated that that apply to all NWPs. Mitigation modification of the NWP verification. NWP A complies with the Clean Water measures for ESA-listed species are Corps district regulatory staff do not Act Section 404(b)(1) guidelines. more appropriately identified during the have the legal authority or technical The Corps has issued this NWP after ESA section 7 consultation process. If expertise to evaluate design or considering information on its relatively states have developed mitigation operational standards, or the structural small, if not beneficial, impact on measures for seaweed mariculture integrity of the seaweed mariculture marine ecosystems and including activities, division engineers can structures. It is the responsibility of the mechanisms (e.g., PCNs required for all consider adding those mitigation permittee to properly design the proposed activities) to ensure that it measures as regional conditions to this seaweed mariculture structures and authorizes only those seaweed NWP. ensure that they are properly mariculture activities that result in Several commenters said that NWP A maintained in accordance with general minimal individual and cumulative should include a PCN requirement. One condition 14, proper maintenance. The adverse environmental effects. In commenter expressed support for Corps declines to require the PCN to response to a PCN, district engineers requiring PCNs for new seaweed identify which commercial fisheries will apply the 10 criteria listed in mariculture operations. One commenter species might be affected by the paragraph 2 of Section D, District said that PCNs should not be required proposed seaweed mariculture activity Engineer’s Decision to determine if existing permitted bivalve shellfish because impacts to EFH are already whether the proposed activity can be farms want to add seaweed into their considered when district engineers authorized by NWP 55, with or without operations. One commenter stated that review PCNs and conduct EFH additional permit conditions. Division the U.S. Coast Guard be notified before consultation with NMFS when they engineers may modify, suspend, or issuing an NWP A verification. One determine proposed NWP activities may revoke this NWP on a regional basis in commenter recommended requiring the adversely affect EFH. accordance with the procedures at 33 PCN to include information identifying Many commenters said that seaweed CFR 330.5(c). The Clean Water Act the proposed location of operations to mariculture activities should require Section 404(b)(1) Guidelines do not review competing stakeholder uses. One individual permits. Several of these apply to activities authorized by this commenter said that all PCNs for these commenters stated that individual NWP because it only authorizes activities must identify all gear permits for these activities are structures or work in navigable waters specifications, production duration, appropriate because the public notice of the United States under Section 10 of stocking and harvesting times, and gear process would allow ample the Rivers and Harbors Act of 1899. It modifications related to avoiding or coordination with the affected public. A does not authorize activities under mitigating protected species few commenters said that there is Section 404 of the Clean Water Act. interactions. Many commenters stated insufficient industry standardization Several commenters said that NWP A that PCNs for NWP A activities should within mariculture systems to issue an would impact tribal rights and treaty require documentation of compliance NWP for these activities and these protected fishing grounds. One with specific design and operational activities should require individual commenter requested additional standards. One commenter said PCNs permits. A few commenters said that information and formal government-to- required for these activities should individual permits should be required government consultation on proposed include information the performance of for these activities to allow proper new NWP A. One commenter objected anchoring systems during severe environmental review and coordination to the issuance of NWP A because it weather events to minimize damage or with state natural resource agencies. does not include required mitigation loss. One commenter said that PCNs for The Corps believes that there are measures. One commenter stated that these activities should state which seaweed mariculture activities requiring mitigation measures should be commercial fisheries activities (wild or authorization under Section 10 of the considered for ESA-listed species and mariculture) might have the potential to Rivers and Harbors Act of 1899 that will tribal cultural and fishing issues. One be affected by the proposed activity or cause only minimal individual and commenter suggested adding include a vicinity map indicating the cumulative environmental effects (see minimization measures to NWP A that location of the proposed activities. 33 CFR 322.2(f)) and are appropriate for are currently in place in states that are Proposed new NWP A requires PCNs authorization by NWP. If a district already practicing seaweed mariculture for all proposed activities. Project engineer reviews a PCN for a proposed operations. proponents may be required to notify seaweed mariculture activity and Activities authorized by NWP A must the U.S. Coast Guard or comply with determines that the adverse comply with general condition 17, tribal U.S. Coast Guard requirements for environmental effects will be more than rights. During the rulemaking process marking or lighting these structures. It is minimal after considering mitigation for the issuance of this NWP, district not the responsibility of the Corps to proposed by the applicant, he or she engineers have been conducting notify the U.S. Coast Guard of these will exercise discretionary authority and consultation and coordination with activities. Some Corps districts have require and individual permit for the tribes to identify regional conditions developed local coordination proposed activity. In addition, division and coordination procedures to procedures with the U.S. Coast Guard. engineers have the authority to modify, facilitate compliance with general Paragraph (b)(2) of general condition 32 suspend, or revoke this NWP on a condition 17. In response to a PCN, a requires the PCN to include the location regional basis in response to concerns district engineer can require mitigation of the proposed activity. The Corps does for the aquatic environment or for any measures to help ensure that the not have the authority to regulate factor of the public interest (see 33 CFR authorized activity results in only production duration and stocking and 330.1(d)). The development of industry

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standards is not a prerequisite for NWP evaluate potential conflicts in resource that operations of seaweed mariculture authorization, and many activities that uses, in accordance with the public activities could result in aesthetic have long been authorized NWP do not interest review factors identified in 33 impacts to the region. One commenter have any industry standards. CFR 320.4(a). expressed concerns with potential A few commenters stated that NWP A Many commenters stated that the impacts on navigation and public uses should require agency coordination seaweed species to be grown should be of the waterbody that may be caused by under paragraph (d) of NWP general the same indigenous genetic stock as seaweed mariculture activities. One condition 32. One commenter said that found in the waters of the proposed commenter stated that seaweed NWP A PCNs should be coordinated seaweed mariculture activity. One mariculture facilities should be distant with federal and state natural resource commenter said that the terms and from areas used by the public. One agencies of adjacent states and that conditions of the proposed NWP commenter said that NWP A should be applicable state permits must be address the introduction of non-native revised to recognize that some state obtained prior to the Corps issuing an species but not the role that mariculture boundaries may extend beyond three NWP verification for seaweed may play in the role of further spreading nautical miles from shore. mariculture activities. Many invasive or aquatic nuisance species. Based on the characteristics of commenters said that seaweed One commenter stated that NWP A regional ecosystems, division engineers mariculture activities should be should impose rigorous operation can add regional conditions to this NWP coordinated with state resource agencies emergency response standards. One to site NWP A activities specific and the public. commenter stated that NWP A should distances from aquatic resources or The activities authorized by this NWP have clear requirements for removing areas that may warrant additional may require consultation or derelict structures. protection, such as corals, seagrass beds, coordination with the U.S. FWS or The Corps has modified this NWP to mangroves, critical habitat, and NMFS. Consultation with the U.S. FWS state that it prohibits the cultivation of migration pathways. Seaweed and/or NMFS is required for proposed an aquatic nuisance species as defined mariculture activities cultivate activities that the district engineer in the Nonindigenous Aquatic Nuisance macroalgae that take up nitrogen and determines ‘‘may affect’’ listed species Prevention and Control Act of 1990 or phosphorous and other nutrients from or designated critical habitat. Essential the cultivation of a nonindigenous the water column and generally are fish habitat consultation with the NMFS species unless that species has been understood to improve water quality. is required for any proposed activity previously cultivated in the waterbody. Organic matter may be sloughed off of that the district engineer determines Invasive or aquatic nuisance species can the cultivated seaweeds, which can ‘‘may adversely affect’’ essential fish spread or be introduced into new areas provide nutrients for benthic habitat. Corps districts may develop through a variety of mechanisms, and communities. The seaweed grown at informal coordination procedures with the Corps does not have the authority to seaweed mariculture facilities can state resource agencies. Activities prevent the spread or introduction of provide economic benefits such as authorized by NWPs do not involve those species through those other biofuels, food ingredients, and coordination with the public. mechanisms. General condition 13 pharmaceuticals. When reviewing Coordination with the public is only requires, to the maximum extent PCNs, district engineers will evaluate require for activities authorized by practicable, the removal of temporary potential conflicts in use of navigable standard individual permits. structures from navigable waters after waters, such as fishing, recreational, and One commenter said that seaweed their use has been discontinued. For military uses, as well as potential mariculture activities authorized by permanent structures, the Corps has impacts to aesthetics in the project area. NWP A should be limited to small scale added a provision to this NWP to Activities authorized by this NWP must projects. One commenter recommended require the permittee to remove these comply with general condition 1, adding a 1⁄2-acre limit to this NWP. One structures from navigable waters of the navigation. Navigable waters are commenter stated that seaweed United States when those structures will available for a variety of public uses, as mariculture facilities for biofuels no longer be used for finfish mariculture well as various types of activities production are in the range of over activities or multi-trophic mariculture authorized for private use. Activities 1,000 hectares and issuing an NWP to activities. authorized for private use often involve authorize seaweed mariculture activities One commenter recommended structures that require DA authorization at that scale would not sufficiently requiring the siting of NWP A activities under Section 10 of the Rivers and consider the environmental risks. One at least 200 meters away from corals, Harbors Act of 1899, which may include commenter said that the necessary seagrass beds, mangroves, critical structures for seaweed mariculture spatial arrays required for seaweed habitat, and migration pathways. A few activities. The variability in state mariculture would cause conflicts from commenters asserted that seaweed boundaries for the purposes of multiple existing offshore uses. mariculture activities are known to identifying the territorial seas does not The Corps does not agree that this impair water quality, and special warrant any specific changes to NWP NWP should be limited to small-scale aquatic sites such as coral, seagrass, and 55. project or activities less than 1⁄2-acre in mangroves are especially susceptible to One commenter stated that shellfish size. If a project proponent submits a water quality impacts. A few farming activities are known to spread PCN for a large-scale seaweed commenters said that seaweed pathogens and the proposed NWP mariculture activity, and the district mariculture facilities should not be would not sufficiently address engineer determines the proposed permitted near sensitive habitat areas or environmental concerns for offshore activity will result in more than near marine protected areas. One systems. A few commenters said minimal individual and cumulative Commenter remarked that seaweed seaweed mariculture facilities should adverse environmental effects, he or she mariculture activities could result in not be permitted to use pesticides, will exercise discretionary authority and economic impacts to the region where herbicides, or pharmaceuticals. One require an individual permit for the these activities are located by interfering commenter said that existing shellfish proposed activity. During the evaluation with commercial and recreational mariculture facilities permitted under of the PCN, the district engineer will fishing activities. One commenter said NWP 48 should continue to be

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authorized under NWP 48 rather than The Corps removed the phrase ‘‘and environmental effects. Division authorized by NWP A. One commenter work’’ from this NWP because this NWP engineers have the authority to modify, stated it would be more appropriate if only authorizes structures, and this suspend, or revoke an NWP on a seaweed was included under NWP 48 NWP does not authorize any of the regional basis (see 33 CFR 330.5(c)). because bivalves are typically the operational aspects of finfish District engineers have the authority to primary cultivated species. mariculture activities. The operation of modify, suspend, or revoke an NWP The Corps does not have the authority a finfish mariculture facility does not authorization on a case-by-case basis to take actions to control the spread of constitute ‘‘work’’ as that term is (see 33 CFR 330.5(d)). The potential pathogens. Pathogens can spread defined at 33 CFR 322.2(c) for the individual and cumulative adverse through a variety of mechanisms in purposes of Section 10 of the Rivers and environmental effects caused by finfish open systems such as oceans and Harbors Act of 1899. Section 322.2(c) mariculture activities will be assessed estuaries. In addition, the Corps does defines ‘‘work’’ as ‘‘any dredging or by district engineers when they review not have the authority to regulate the disposal of dredged material, PCNs for proposed activities. For some use of pesticides, herbicides, and excavation, filling, or other modification of the adverse environmental effects pharmaceuticals that might be used in of a navigable water of the United identified by commenters, the Corps seaweed mariculture activities. In this States.’’ After the finfish mariculture lacks the authority to regulate the final rule, the Corps has issued separate structure is installed, subsequent particular activities that are the cause of NWPs for commercial shellfish operations to produce finfish do not those effects. mariculture activities and seaweed physically modify navigable waters of Several commenters recommended mariculture activities. Under NWP A the United States in a manner that the development and implementation of bivalves can be grown with seaweeds would be considered ‘‘work’’ under the project-specific permit conditions to are part of a multi-tropic mariculture Act. ensure that authorized activities will activity. Some commenters supported the have no more than minimal individual A few commenters said that proposed issuance of this NWP and some or cumulative adverse environmental new NWP A would have impacts on commenters opposed issuance of this effects. Several commenters requested ESA-listed species and designated NWP. A couple of commenters said that that NWP B include conditions limiting this NWP does not authorize activities the amount of feed, pesticides, critical habitat. One commenter stated that are similar in nature. Many herbicides, pharmaceuticals that can be that ESA Section 7 consultation should commenters said that finfish released in project waters. A couple of be mandatory for all seaweed mariculture activities should require commenters suggested NWP B require mariculture projects. One commenter individual permits to give the public an specific design and operation standards, said that incidental take permits under opportunity to review proposed including depth and current velocity the ESA should be obtained before activities. One commenter stated that guidelines for net pen siting class size. district engineers issue NWP finfish mariculture activities could A commenter said that the geographic verifications for these activities. A few result in significant cumulative impacts variability of aquatic environments and commenters said that NWP A activities on marine wildlife and the their ecological functions would be should have severe consequences for environment, which cannot be properly problematic when characterizing project non-compliance, including revocation assessed and mitigated. One said that impacts of finfish mariculture activities of the NWP authorization. finfish mariculture activities in on a national scale. Activities authorized by this NWP estuarine waters should require Project-specific conditions are more must comply with general condition 18, individual permits because of the high appropriately identified by district endangered species. District engineers risk of water quality impacts, animal engineers when they review PCNs for will review PCNs for proposed seaweed escapes, and habitat damage. proposed NWP B activities. If a mariculture activities and if the district This NWP authorizes structures in proposed activity is authorized by NWP engineer determines the proposed navigable waters of the United States for B, the district engineer will add activity may affect listed species or finfish mariculture activities. A category appropriate conditions to the NWP designated critical habitat, he or she of activities for an NWP is based on the authorization to help ensure that the will conduct ESA section 7 consultation general characteristics and uses of the adverse environmental effects are no with the U.S. FWS or NMFS as permitted activity. A category of more than minimal, individually and appropriate. If the district engineer activities is not based on potential cumulatively. Permit conditions must initiates section 7 consultation with the configurations of the regulated be directly related to the impacts of the U.S. FWS or NMFS, the NWP activities, or the size of those activities. proposal, appropriate to the scope and verification cannot be issued until that Concerns about the size of authorized degree of those impacts, and reasonably consultation is completed. District activities and potential adverse enforceable (see 33 CFR 325.4(a)). engineers will also take appropriate environmental effects can be addressed Potential permit conditions addressing actions to address non-compliance with in part by addition quantitative limits finfish mariculture operations, such as the conditions in NWP A. on the NWP. The Corps believes there amount of feed, pesticides, herbicides, Proposed new NWP A is issued as are finfish mariculture activities that pharmaceuticals that can be released in NWP 55, with the modifications can result in no more than minimal project waters are beyond the scope of discussed above. individual and cumulative adverse the Corps’ legal authority, because the environmental effects and are Corps does not have the authority (14) NWP 56. Finfish Mariculture appropriate for NWP authorization. In regulate discharges of feed, pesticides, Activities addition, the NWP regulations at 33 CFR herbicides, and pharmaceuticals into The Corps proposed this new NWP as part 330 include numerous provisions navigable waters, including federal NWP B, to authorize structures and that allow district engineers to exercise waters on the outer continental shelf. work in navigable waters of the United discretionary authority to require District engineers will review PCNs for States, including federal waters over the individual permits for activities when proposed NWP B activities, which will outer continental shelf, for finfish the determine those activities will cause include information on the design and mariculture activities. more than minimal adverse size of the proposed structures. During

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the evaluation of PCNs, district authorization under a NWP which commenters said the PCN should engineers consider the current should only be utilized for projects with include a site analysis incorporating environmental setting and the ecological predictable outcomes. The Corps available spatial information including functions currently being provided by understands that multi-trophic depth, wave climate, current velocity, aquatic resources in the vicinity of the mariculture activities have been substrate type, and proximity to any proposed activity. practiced in other countries (Largo et al. hard-bottom habitats. A couple of A couple of commenters said that 2016, Troell et al. 2009), so it is not an commenters stated that applicants notification to the U.S. Coast Guard experimental approach. It is intended to should be required to provide detailed should be required for all proposed cultivate different tropic levels to help site maps, indicating the project finfish mariculture projects to ensure reduce nutrient loads to surrounding location in relation to ecologically that structures are not placed within waters. important marine/estuarine areas. One restricted zones, shipping safety Many commenters stated that commenter said that applicants should fairways, federal channels, traffic applicants should be required to clarify be required to disclose the proposed separation schemes or within U.S. EPA- the species to be farmed as well as activity’s proximity to other mariculture or Corps-designated open water dredged provide information on broodstock or commercial fishing operations. material disposal areas. The Corps source and quantity. Several All activities authorized by this NWP believes it is the project proponent’s commenters said that PCNs should require PCNs. The Corps does not have responsibility to notify the U.S. Coast include project-specific details the authority to regulate the use of Guard of the proposed activity, if such regarding configuration, structures, acoustic deterrent devices, so it would notification is required by law or techniques, proposed production be inappropriate to require disclosure of regulations. quantities, densities, spacing, and the use of such devices in PCNs for One commenter stated that the containment systems. One commenter proposed NWP B activities. The availability of an NWP for finfish recommended that the PCN include a information requirements for PCNs in mariculture activities could be decommissioning plan. paragraph (b) of general condition 32 are beneficial in promoting the business of The Corps has added text to this NWP intended to provide the information finfish mariculture in areas where it is to prohibit the cultivation of aquatic necessary for the district engineer to currently difficult to gain approval. The nuisance species as defined in the determine whether a proposed activity commenter added that growing seasons Nonindigenous Aquatic Nuisance qualifies for NWP authorization without should be extended to allow for more Prevention and Control Act of 1990 and an excessive amount of paperwork. The jobs and tax revenue. One commenter the cultivation of nonindigenous species Corps declines to require the suggested suggested adopting location specific unless that species has been previously information for NWP B PCNs because it terms (freshwater, marine, offshore) and cultivated in the waterbody. The Corps is not needed to assist the district dropping the term ‘‘activity’’ and only regulates the structures used for engineer in the determination of NWP instead use ‘‘practice’’ finfish mariculture activities, and their eligibility. The Corps proposed this NWP to configuration in the waterbody. The A few commenters said that the PCN provide authorization under Section 10 Corps does not have the authority to should include a detailed statement on of the Rivers and Harbors Act of 1899 regulate the techniques used to produce avoidance and minimization measures for structures used for finfish finfish, or how many finfish are regarding the following impacts: mariculture activities. Project produced over a specific period of time. Attraction and entanglement of wild proponents may be required to obtain If the project proponent wants to cease fish, sharks, mammals, and seabirds; other federal, state, and local using the authorized structures for effects of chemicals, antifoulants, feed, authorizations required by law or finfish mariculture activities, those and waste on water quality, habitat, and regulation. This NWP does not have any structures must be removed. General marine life; physical effects of all limitations related to growing seasons. condition 13 requires, to the maximum structures on habitat and marine life; The Corps believes it has provided extent practicable, the removal of displacement, disruption and risks to sufficient specificity regarding which temporary structures from navigable existing fishing activities; economic types of waters this NWP can be used waters after their use has been impacts to fishing industries; and in (i.e., marine and estuarine waters), discontinued. For permanent structures, spatial conflicts with other ocean users. including the use of term ‘‘mariculture’’ the Corps has added a provision to this A few commenters said that the instead of the broader term NWP to require the permittee to remove applicant should be required to provide ‘‘aquaculture.’’ The Corps’ authorization these structures from navigable waters prevention, monitoring, and response is limited to the installation of of the United States when those plans that address escapement of structures in navigable waters of the structures will no longer be used for cultured adults, progeny, and gametes; United States, which is why the term finfish mariculture activities or multi- release of antimicrobials; disease ‘‘activity’’ is used. The Corps does not trophic mariculture activities. transmission to wild stocks; release of regulate the operation of the finfish A few commenters said that all finfish nutrients; chemical pollution; structural mariculture facility during the mariculture activities should require failures; entanglement of fishing gear production of finfish, and the activities PCNs so that district engineers can and marine species; small vessel strikes; associated with production activities evaluate consistency with and marine debris. such as feeding, handling, and environmental standards, impacts to The Corps does not agree that the administering antibiotics, therapeutics, navigation, commerce, fishing, and suggested information is necessary for and other chemicals. other resource use conflicts. One PCNs for proposed NWP B activities to Regarding multi-trophic mariculture commenter suggested that the applicant assist in the district engineer’s projects, one commenter stated that the should be required to disclose in the determination regarding whether the activity is still considered experimental, PCN the intended use of acoustic proposed activity regulated by the Corps with potential for adverse deterrent devices. Many commenters (i.e., the placement of structures in environmental impacts and a lack of suggested that a higher level of detail navigable waters of the United States for proven success at commercial sales, and should be required for finfish finfish mariculture activities) is would therefore not be suitable for mariculture activity PCNs. A few expected to result in no more than

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minimal individual and cumulative coastal erosion and deposition navigable waters as other users such as adverse environmental effects. Much of processes. District engineers will review fishers, recreational users, researchers, the suggested information relates to proposed NWP B activities and and commercial users as long as they operational aspects of finfish determine whether it minimizes the obtain all required federal, state, and mariculture operations, which the Corps impacts where practicable pursuant to local authorizations. In addition to the does not have the authority to regulate general condition 23. Division and authorization under Section 10 of the or control. district engineers have discretionary Rivers and Harbors Act of 1899, finfish One commenter stated that under authority to modify, suspend, or revoke mariculture operators may be required NWP review, there is potential for an NWP authorizations to further condition to obtain other federal, state, or local applicant to begin work within 45-days or restrict the applicability of an NWP authorizations. The Corps does not have of submitting a PCN, even if the when they have concerns for any factor the authority to conduct spatial permittee has not received a written of the public interest (see 33 CFR planning for finfish mariculture response from the district engineer. The 330.1(d)). activities. If the district engineer commenter said that the 45-day default Many commenters said that determines a proposed NWP B activity authorization should not occur and that construction of finfish mariculture may adversely affect essential fish the proposed activity cannot proceed operations should be prohibited within habitat, he or she will conduct essential until the district engineer issues a a specific proximity to marine protected fish habitat consultation with NMFS. written verification. areas, submerged aquatic vegetation, Activities in marine protected areas may After the Corps district receives a reef communities, habitats with be require authorizations from the PCN, the prospective permittee cannot significant important to existing aquatic federal or state agency that has begin the activity until either: (1) He or communities, migration pathways, at management responsibilities for those she is notified in writing by the district specific water depths, and those areas areas. engineer that the activity may proceed subject to chronic oxygen and nitrogen A couple of commenters stated that under the NWP with any special depletion. A few commenters stated that structures could cause interference with conditions imposed by the district or finfish mariculture activities should be access to treaty protected fishing division engineer; or (2) 45 calendar prohibited from areas identified as being grounds for tribal fisherman. Several days have passed from the district prone to hypoxia or otherwise commenters said that these activities engineer’s receipt of the complete PCN ecologically sensitive. Several could impact recreational activities by and the prospective permittee has not commenters said that increases in closing off areas of navigable waters that received written notice from the district finfish mariculture projects would have would otherwise be used for boating, or division engineer (see paragraph (a) the potential to damage the commercial fishing, tourism, and other water-related of general condition 32). If the permittee fishing industry by either decreasing the activities. A few commenters stated that was required to notify the Corps need for wild fishing or by causing finfish mariculture activities would pursuant to general condition 18 that adverse impacts to the health and close off or privatize areas currently listed species or designated critical habitat of wild fished species. One used by the commercial fishing habitat (or species proposed for listing) commenter stated that finfish industry. One commenter stated that might be affected or are in the vicinity mariculture could have the potential to finfish mariculture activities could have of the activity, the permittee cannot adversely impact local economies by the potential to adversely impact local begin the activity until receiving written pushing out responsible, small-scale economies by pushing out responsible, notification from the Corps that there is seafood producers and crop growers. small-scale seafood producers and crop ‘‘no effect’’ on listed species or that any Several commenters expressed growers. consultation required under Section 7 of concern with spatial conflicts, Activities authorized by NWP B must the Endangered Species Act has been specifically with fishing, fishery comply with general condition 17, tribal completed. The Corps declines to add a research cruises, and long-term ocean rights. District engineers will review provision to NWP B to require the monitoring stations which occupy much PCNs for proposed NWP B activities and project proponent to receive written of state and federal waters. Additional assess potential impacts to navigation, authorization from the Corps prior to potential conflicts identified by including boating, fishing, tourism, and commencing the authorized activity. commenters included gear other water-related activities that use A couple of commenters expressed entanglement, displacement from those navigable waters. There are a concern that structure placement within traditional fishing areas, navigational variety of activities (e.g., piers, port estuarine habitats may result in reduced safety, and income loss. Many facilities, marine hydrokinetic devices) current, velocity, altering circulation commenters raised concerns about authorized by the Corps in navigable patterns, and consequently changing project siting requirements, with one waters under its section 10 authorities substrate characteristics. One commenter suggesting that the Corps that preclude or restrict use by others. commenter stated that the addition of should be required to perform a spatial The potential economic impacts of artificial structures and moorings, and siting analysis prior to issuance of an finfish mariculture activities on local changes to seabed alter topography and NWP verification to ensure the businesses and residents is outside the hydrodynamics. Some commenters proposed activity does not interfere Corps’ control and responsibility. voiced concerns regarding the use of with existing fisheries operations, A couple of commenters said that NWPs for emerging finfish mariculture research projects, or affect federal finfish mariculture activities should activities, due to potential impacts on marine protected areas, and essential raise farmed species that live in or water quality, habitat, and wild species, fish habitat. adjacent to the body of water, to requesting that activities in the area be Impacts regarding navigation are minimize the introduction of disease reviewed through the individual permit localized and therefore it is more from species relocated from other process. efficient for district engineers to regions. Another commenter suggested The Corps acknowledges that evaluate potential impacts in their using only species native to the structures placed in navigable waters review of PCNs. Finfish mariculture ecosystem where the finfish mariculture may reduce water velocities to some operators have, absent any potential activity is located. One commenter degree and alter sediment transport and exceptions, the same rights to use requested the establishment of

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exclusion zones, using assessments that entanglement of wild fish and marine escapements by individual species consider not just the immediate area, mammal species, stating that NWP because the introduction of non-native but potential impacts to nearby waters review would not allow for adequate species may spread pathogens and as well. One commenter said that by evaluation for potential impacts. One parasites to wild species, increase requiring siting of finfish mariculture commenter discussed the potential for competition to at-risk communities, and outside of known migratory pathways, illegal extermination of predator species cause genetic degradation among predation from wild species may be such as sea lions by operators of finfish existing fish populations. Several minimized, entanglements may be mariculture facilities. A few commenters discussed the 2017 escape reduced, and potential fish spills from commenters raised concerns regarding of over 200,000 non-native Atlantic net/cage damage by predatory species the use of acoustic deterrent devices, salmon in the Puget Sound as a result may also be reduced. One commenter which they said are not consistently of finfish mariculture operations, with suggested siting finfish mariculture useful and have been known to cause some commenters requesting that these activities in deep, open waters to deleterious impacts to non-target activities require individual permits, minimize the effects of nutrient and species. Other commenters stated that and other commenters stating that sediment dispersal from the project site, these activities would have the potential regional conditions should be which may cause increases in nitrogen to attract and concentrate predators, implemented to ensure structural and phosphorous levels, as well as which may lead to entanglements or integrity of facility structure and increases in phytoplankton and algae. vessel strikes. One commenter said that prevent escape recurrences. One Several commenters said that finfish risks and impacts to protected species commenter said that although the Corps mariculture activities should not be are minimized by existing federal lacks the authority to regulate finfish authorized in estuarine waters to requirements for operations, including escapes, it can require structures minimize adverse effects to water the use of improved technologies and installed in navigable waters to be quality. A few commenters stated that regular maintenance, such as line- constructed to a standard where escape the PCN review process does not tightening, which has been shown to risks can be mitigated. One commenter provide for adequate planning and prevent accidental entanglement. A few stated that applicants should be would eliminate project-specific public commenters stated that this NWP must required to report escape events to the notice and comment period that would prohibit gear types known to cause Corps and that the Corps should facilitate responsible site selection. harm to marine species. One commenter maintain a database to monitor events The Corps does not have the authority said that finfish mariculture structures and better prevent them in the future. A to specify which species are cultivated should be removed from waters during few commenters said that a universal at a finfish mariculture structure peak seasons for protected species. standard should be developed that authorized by the Corps under section If the district engineer determines that specifies requirements for the proposed 10 of the Rivers and Harbors Act of a proposed finfish mariculture activities finfish mariculture facilities and related 1899. In addition, the Corps does not may affect listed species or designated features that would meet challenges have the authority to establish critical habitat, he or she will conduct posed by severe weather, and prevent mariculture exclusion zones in ESA section 7 consultation with the potential escapements. navigable waters. Siting requirements U.S. FWS and/or NMFS. The operator of The Corps does not have legal on finfish mariculture activities may be the finfish mariculture facility may also authority to regulate the potential imposed by other federal, state, or local need to obtain authorization under the escapement of cultivated finfish. The government agencies. Marine Mammal Protection Act. The Corps acknowledges that finfish Many commenters expressed ESA section 7 consultation may result mariculture activities have the potential concerns regarding potential impacts to in permit conditions added to the NWP to facilitate the spread of pathogens and existing habitat, specifically coral reef authorization to minimize the risk of parasites, but the Corps does not have systems, mangroves, and submerged entanglement of listed species. The the authority to regulate or control those aquatic vegetation that could be caused Corps does not have the authority to occurrences. General condition 14 by increases in nutrient and sediment regulate the management of predator requires proper maintenance of dispersal from the finfish mariculture species at a finfish mariculture facility, authorized structures and fills. The operation. One commenter said that net or the use of acoustic deterrent devices. project proponent is responsible for pen structures and their associated The use of acoustic deterrent devices designing and constructing the finfish anchoring systems have the potential to would be addressed through the ESA mariculture structures so that they have increase available habitat, supporting section 7 consultation process and/or an appropriate degree of structural biodiversity, similar to engineered the Marine Mammal Protection Act integrity. Since the Corps does not have artificial reefs. In addition, this authorization process, if applicable. the authority to address potential fish commenter said that the structures One commenter said that finfish escapes, there would be no useful would prevent trawling of the benthic mariculture operations should only be purpose served by requiring the ecosystem within the footprint of the stocked with eggs, larvae, or juveniles operator to report escapes to the Corps, facility, further protecting species. from pen-raised lineages, in order to or for the Corps to maintain a database When reviewing PCNs for proposed avoid the need for wild capture. to track escape events. NWP B activities, district engineers will Another commenter stated that the One commenter said that all evaluate potential impacts on habitats in cultivated species should have the same mariculture operations should be the vicinity of the proposed finfish indigenous genetic stock as individuals considered point sources under the mariculture structures. The Corps of the species in the waters where the Clean Water Act and be required to acknowledges that finfish mariculture proposed finfish mariculture activity is obtain discharge permits. This structures can provide structural habitat located. The Corps does not have the commenter also said that routine that benefits some aquatic species, as authority to impose requirements on the disease testing and other water quality well as providing some refuge from stocking of finfish mariculture facilities, monitoring should also be mandated. predators and fishers. or which genetic stocks are cultivated. One stated that effects to water quality Several commenters expressed Many commenters stated concerns within the local environment from other concerned with the potential with the potential for accidental fish sources would have the potential to

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cause impacts to cultured species and species could accumulate in fish tissues appropriate methods. One commenter subsequently economic returns of the to be consumed by the public. One recommended requiring agency finfish farm, suggesting that commenter stated that these issues have coordination for proposed NWP B maintenance of the facility would be in influenced other countries like Canada, activities under paragraph (d) of general the best interest of the operation and Argentina and Denmark, to move away condition 32. thus encourages management operations from industrial finfish mariculture. General condition 23 provides the that support the local environment. The Corps does not have the authority mitigation requirements for the NWPs. Some commenters said that finfish to regulate the use of antimicrobials, District engineers can require the project mariculture activities can cause changes antibiotics, pesticides, anti-foulants and proponent to submit a mitigation plan to benthic community composition other chemicals, how feed is provided if, after reviewing a PCN, the district beneath and adjacent to structures to the cultivated finfish, or the engineer determines that mitigation is because of excess feed, feces, and composition of that feed and its necessary to ensure the authorized antifoulant accumulation. A couple of potential effects on water quality. Water activity will cause no more than commenters stated that finfish quality concerns may be addressed minimal individual and cumulative mariculture projects should be held to through state or federal water quality adverse environmental effects. The the same regional water quality standard standards under the Clean Water Act, or project proponent is responsible for as offshore seafood processors. Several state laws. designing and constructing the finfish commenters expressed concern with the A couple of commenters said that mariculture facility so that it complies ingredients utilized in fish feed, which ESA section 7 consultation should be with applicable engineering standards, one commenter said often contains toxic mandatory for all proposed finfish and will maintain structural integrity heavy metals like cadmium and zinc activities and that all applicants should within the appropriate parameters of sea and recommended that feed formulation be required to obtain an incidental take and weather conditions, and potential and efficiencies be standardized and permits for potential effects to listed predatory behavior by large vertebrates. managed in order to lessen adverse species. One commenter stated that The Corps does not believe that agency environmental impacts. Another NOAA would be the appropriate agency coordination under paragraph (d) of this commenter suggested that finfish to provide expertise in reviewing and NWP is necessary for these activities. mariculture operators should be assigning specific permit terms in regard One commenter asserted that the draft required to publish reports with the to site selection, conflicts between decision document for NWP B did not complete traceability of all mariculture aquaculture projects, marine resources, meet NEPA requirements, stated that it feed products. One commenter asserted other ocean users, and wild-capture lacked adequate discussion on purpose that permittees be required to provide fisheries. A couple of commenters said and need, which the public needs for proof that the finfish mariculture that individual finfish mariculture consideration of the scope of reasonable operations would not contribute to projects should be coordinated with alternatives. One commenter said that hypoxia in receiving waters. state natural resource agencies to an environmental impact statement Some finfish mariculture operations identify regional and site-specific should be required for approval of NWP may require authorization under Section concerns, needs analyses, and project- B, claiming that the Corps failed to 402 of the Clean Water Act for specific conditions. adequately discuss how potentially discharges from finfish mariculture All activities authorized by this NWP significant impacts will be mitigated operations. Section 402 of the Clean require PCNs. If the district engineer below the level of significance in the Water Act is administered by the U.S. reviews a PCNs and determines that any draft decision document. One EPA or states with approved programs. proposed activity may affect listed commenter stated the Corps failed to The Corps lacks the authority to require species or designated critical habitat, he address potential adverse cumulative disease testing and water quality or she will conduct ESA section 7 with impacts at a regional level where monitoring. Water quality monitoring the U.S. FWS and/or NMFS as specific locations recently identified by may be required by states in estuaries appropriate. Incidental take permits are NOAA are more likely to be impacted. and the territorial seas. The Corps issued under Section 10(a)(1)(B) of the The national decision document for acknowledges that finfish mariculture ESA, not section 7(a)(2). The Corps this NWP was revised to address the activities can have effects on benthic declines to add a provision to this NWP requirements for environmental communities. The Corps does not have requiring coordination with state assessments in the Council on the authority to regulate the production natural resource agency, whose legal Environmental Quality’s NEPA of finfish after the mariculture facility is authorities are highly variable and regulations that were published in the constructed. generally do not apply in federal waters. Federal Register as a final rule on July Several commenters expressed One commenter questioned the Corps’ 16, 2020 (85 FR 43304). A section on concerns about the potential effects of reliance on general condition 23 to purpose and need was added to the the use of antimicrobials, pesticides, minimize project impacts. Another national decision document. The Corps and anti-foulants, and the introduction commenter said that all NWP B made a finding of no significant impact. of excess feed and fish waste in project applicants should be required to Therefore, an environmental impact waters. These commenters stated that provide a mitigation plan. Several statement is not required for the use of these materials could lead to commenters voiced concern over the issuance of this NWP. The national degradation of water quality, risking risk for breakage of anchored mooring decision document considers the public health, and increase organic systems for finfish mariculture cumulative effects expected to occur as nutrient loads leading to eutrophication, structures during significant weather this NWP is used during the 5-year causing widespread damage to wildlife. events, which increases risks to period it is anticipated to be in effect, A few commenters said that industrial navigational safety and marine debris. and it is a national analysis since the finfish mariculture operations may Additional concerns regarding marine geographic scope of the national cause adverse impacts to public health, debris were voiced by another decision document is the United States. as the antibiotics, pesticides, and other commenter, who suggested that Division engineers consider cumulative chemicals that are heavily used to operators may dispose of solid waste effects of NWP activities on a regional prevent disease and parasites in farmed into waters rather than through basis.

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One commenter stated that the remediation of drilling fluid returns stated that proposed NWP C will satisfy minimal effect determination is from horizontal directional drilling, and Section 404(e) of the Clean Water Act by conclusory, as no quantitative impact temporary structures, fill, and work authorizing activities that have no more limits, general conditions, or regional including temporary mats for utility line than minimal adverse environmental conditions have been specified and the and telecommunications activities. effects, while continuing to allow for impact section did not provide The Corps is issuing NWP C to timely and efficient authorization of discussion on any foreseeable or authorize discharges of dredged or fill these activities. These commenters said unknown impacts. One commenter said material into waters of the United States that the techniques used to construct, that the Corps’ minimal effects and structures and work in navigable maintain, and repair most electric determination should provide estimates waters of the United States for electric transmission lines generally result in for the anticipated size of mariculture utility line and telecommunications fewer impacts to waters of the United operations to be permitted under NWP activities. For the text of NWP C, the States compared to the techniques used B and potential impacts of those Corps has retained a structure similar to to construct other types of utility lines. operations based on known impacts of the structure of NWPs 12 and D, and Several commenters requested that the net pen finfish mariculture. there are some differences in the Corps not issue proposed NWP C, The Corps did not provide a minimal specific text of NWPs 12, C, and D to stating that the activities authorized by effects determination in the draft address differences in utility line this NWP would cause significant national decision document, so the sectors. The Corps is also retaining the adverse impacts in violation of Section commenter cannot say that it is regulatory approach for authorizing 404(e) of the Clean Water Act. These conclusory. The NWPs are not required single and complete linear projects, commenters said individual permits to have quantitative impact limits, and where each separate and distant should be required for these activities. the proposed NWP general conditions crossing of waters of the United States The Corps also appreciates the were provided in the proposed rule. The may be covered by its own NWP potential for new NWP C to support regional conditions have not been authorization. The corps is also electric energy generation from finalized by division engineers. The retaining the 1⁄2-acre limit for each renewable energy generation facilities, draft decision document discusses separate and distant crossing of waters including activities authorized by NWPs reasonably foreseeable impacts. The of the United States and for the 51 and 52. The Corps believes that the Corps is not required to consider construction, maintenance, or conditions for NWP C, including the speculative impacts. The Corps did expansion of substations for electric reviews of PCNs for certain activities provide estimates of the impacts that utility and telecommunications lines. authorized by NWP C and the ability of may occur during the 5-year period this The Corps is also including the division and district engineers to NWP is anticipated to be in effect. authorization of temporary structures modify, suspend, and revoke NWP C Proposed NWP B is issued as NWP and fills, as well as DA authorization for authorizations, will help ensure that 56, with the modifications discussed remediation activities requiring DA activities authorized by NWP C result in above. authorization that may be needed to no more than minimal individual and (15) NWP 57. Electric Utility Line and address inadvertent returns of drilling cumulative adverse environmental Telecommunications Activities fluids, consistent with NWPs 12 and D. effects. Many commenters stated that they A few commenters noted that the The Corps proposed this new NWP as expect court challenges to oil and gas issuance of NWP C would allow the NWP C, to authorize discharges of pipeline activities to continue, and Corps to incorporate industry-specific dredged or fill material into waters of therefore support the issuance of a standards, appropriate regional the United States, and structures and separate NWP for electric utility line conditions, and best management work in navigable waters of the United and telecommunications activities. By practices tailored to each utility line States, for electric utility line and creating a separate NWP for these NWP. A few commenters said that telecommunications activities. activities, it is the hope of these proposed NWP C is important because Many commenters expressed support commenters that these electric the process of applying for and for the proposal to issue a separate NWP infrastructure activities will not be obtaining an individual permit is time for electric utility line and disrupted by future NWP 12 litigation. consuming, expensive, and subject to telecommunications activities. They The Corps acknowledges that the regulatory uncertainty. These said that the creation of this new NWP issuance of NWP C can help reduce commenters said that increased costs for electric utilities represents a tailored regulatory uncertainty for entities that and burdens that result from the approach to regulated industries and construct and maintain electric utility individual permitting process can affect effectively addresses differences in how lines and telecommunications lines. not only the members, but the amount the various types of utilities are Past litigation on NWP 12, especially for of costs that are passed on to consumers constructed, installed, maintained, and oil or natural gas pipelines, has caused and indirectly borne by the rural public. removed. Many commenters supported concerns about the availability of NWP One commenter stated that the retaining the basic structure of the 2017 authorization for electric utility lines availability of NWPs authorizing the NWP 12 for proposed new NWP C, as and telecommunication lines and their construction, maintenance, repair, and well as continuing the longstanding ability to serve people living in the removal of utility lines and associated definition of ‘‘single and complete’’ United States. facilities is essential to the expansion of project, providing authorization for Several commenters noted that necessary infrastructure to remote areas temporary structures, fills, and work, proposed NWP C is important as the in the United States. and imposing the same acreage limits. scale of electrical energy generation In this final rule, the Corps discusses One commenter supports the Corps’ from renewable energy sources suggestions for best management proposal to include the list of structures increases. These commenters said there practices and national standards that and fills in NWP C, including utility will be a need for additional electric commenters provided in response to the lines, substations, foundations for transmission facilities to convey the 2020 Proposal. The Corps acknowledges towers poles and anchors, access roads, electricity from the generation facilities that the issuance of NWP C will further temporary structures, fill, and work for to the end users. Several commenters the objective of the NWP program,

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which is to regulate with little, if any, greater than 27 inches in diameter. electric utility line or delay or paperwork certain activities Lastly, these commenters said that telecommunication line towers, poles, having minimal impacts (33 CFR treated wood utility poles can be and anchors, the Corps is retaining the 330.1(d)). provided not only as ‘‘round poles’’, but text of the NWP as proposed. One commenter stated that fiber optic also as ‘‘laminated rectangular poles.’’ One commenter supports the Corps’ lines should be specifically added to the These commenters recommended proposal to use the 1⁄2-acre limit in definition of electric utility line and adding the following sentence to the proposed NWP C. One commenter telecommunication line. One final rule: ‘‘The wooden poles used for stated that it remains unclear when commenter recommended retaining the overhead electric transmission lines can associated facilities are authorized by following provision in proposed NWP be up to 40 inches in diameter or up to multiple NWPs, whether the 1⁄2-acre C: ‘‘there must be no change in pre- 90 inches on any side for rectangular limit will be applied to multiple NWPs construction contours of waters of the poles.’’ or if only one NWP will be selected to United States.’’ One commenter said The Corps cannot remove sentences authorize the associated facilities. that the integrity of power lines in their from documents that have already been The Corps has retained the 1⁄2-acre service area could be severely published in the Federal Register, and limit for losses of waters of the United compromised if vegetation management it sees no need to remove this text States for each single and complete must be stopped while they obtain because it only served as background project authorized by NWP C. General individual permits for this necessary information for the proposed rule, condition 28 addresses the use of and routine activity. Vegetation along including the proposal to issue three multiple NWPs to authorize a single and electric utility rights of way must be separate NWPs for different sectors of complete project and that general maintained to prevent trees or other utility line activities. The Corps condition applies to utility line vegetation from bringing down power acknowledges that this sentence is crossings that may involve different lines and, during dry conditions, incomplete, and appreciates the types of utility lines authorized by preventing power lines from additional clarification provided by the NWPs 12, C, and/or D, where the contributing to wildfires. commenter. acreage limit for each single and The Corps has added fiber optic lines A few commenters noted that, complete project continues to be 1⁄2- to the definition of electric utility line although the preamble recognizes the acre. and telecommunication line. The wide array of structure types for utility One commenter objected to the requirement that NWP C activities lines, the language of proposed NWP C inclusion of substation facilities in this associated with the construction, appears to assume a limited design NWP, because substations can usually maintenance, repair, and removal of configuration for structures to support be constructed in uplands. One electric utility lines and aerial transmission lines. These commenter said the proposed text for telecommunications lines result in no commenters said that the requirement foundations for overhead electric utility change in pre-construction contours in for separate footings for each tower leg line or telecommunications lines waters of the United States do not incorrectly suggests that such lines only towers, poles, and anchors should be compromise vegetation management utilize lattice tower type structures with revised. because most vegetation management is multiple legs per structure, which is not The Corps is retaining substations in conducted above the soil surface. In the case. Therefore, these commenters this NWP because there are likely situations where vegetation recommended that the Corps eliminate circumstances where it is not feasible or management involves the removal of this language from the final NWP C to practicable to site a substation in plants and their roots, the project accurately reflect the wide array of uplands. This NWP provides DA proponent can regrade the soil surface structure types that are used to support authorization for discharges of dredged so that there are no changes in pre- aerial utility and telecommunication or fill material into waters of the United construction contours of waters of the lines. One commenter recommended States for the construction, United States, including jurisdictional revising the text as follows: ‘‘This NWP maintenance, or expansion of electric wetlands. The Corps acknowledges that authorizes the construction or utility line and telecommunications vegetation management is important for maintenance of foundations for substations as long as the loss of waters safe, reliable operation of electric utility overhead electric utility line or of the United States does not exceed 1⁄2- lines and telecommunications lines, and telecommunication line structures, acre. for managing fire risks. However, the towers, poles, and anchors in all waters One commenter stated that the Corps Corps does not have the legal authority of the United States, provided the should end the practice of considering to require vegetation management foundations are the minimum size timber and other mats used for activities to manage fire risks. State and necessary.’’ temporary access and construction as local governments may possess that The text of NWP C provides resulting in discharges of dredged or fill authority. substantial flexibility in authorizing material into waters of the United States A few commenters recommended discharges of dredged or fill material and as part of the filled area for the PCN removal of the following sentence from into waters of the United States thresholds. Some Corps districts count the preamble to the proposed rule: ‘‘The associated with the installation of matting toward the PCN threshold for wooden poles used for overhead electric structures used to support aerial permittees, requiring permittees to transmission lines can be up to 27 transmission lines. The text of the NWP submit a PCN if the discharge will result inches in diameter, and these poles are acknowledges that single poles may be in the loss of greater than 1⁄10-acre of usually inserted into the soil surface by used for overhead transmission lines, waters of the United States. digging a hole, with some soil and there is flexibility for authorizing The Corps believes that the decision disturbance in the vicinity of the discharges of dredged or fill material on whether timber mats or mats installed pole.’’ These commenters said into waters of the United States for constructed of other materials that are that utility poles are specified based on footings that support other types of used during construction, maintenance, class and height, not diameter. In structures used for aerial transmission repair, or removal of electric utility lines addition, these commenters noted that lines, including lattice tower types and telecommunication lines result in round treated wood utility poles can be structures. For foundations for overhead discharges of dredged or fill material

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into waters of the United States and the comments on the five PCN Section 404(e) of the Clean Water Act, thus require DA authorization is more thresholds that were in the 2017 NWP the National Environmental Policy Act, appropriately made by district engineers 12 but removed from the 2021 NWP 12, the Endangered Species Act, and other on a case-by-case basis. Such decisions and the Corps’ responses to those legal requirements for rigorous and should be made by district engineers comments, interested persons should transparent environmental reviews and after considering the definitions of read the section in this final rule on the safeguards. A few commenters noted ‘‘discharge of dredged material’’ and reissuance of NWP 12. that while electric and ‘‘discharge of fill material’’ at 33 CFR One commenter supported the telecommunication lines do not pose 323.2(d) and (f). The use of temporary proposal to require PCNs for losses of the same risks of spills and leaks as oil matting does not constitute a ‘‘loss of greater than 1⁄10-acre of waters of the and gas pipelines, they still allow for waters of the United States’’ or count United States. One commenter greater than minimal impacts by towards the 1⁄10-acre PCN threshold for recommended requiring PCNs for authorizing large electric lines and losses of waters of the United States as mechanized land clearing of forested telecommunications lines under the long as the timber matting is removed wetlands in the electric utility line guise of ‘‘single and complete projects.’’ after completion of the authorized work right-of-way where greater than 1⁄10-acre Considering separate and distant and the affected area restored to pre- of forested wetland is subjected to crossings of waters of the United States construction elevations. mechanized land clearing, instead of to be linear projects that can be A few commenters stated that requiring PCNs for any amount of authorized by separate NWPs is a long- applicants should have to produce mechanized land clearing in forested standing practice that has been codified containment and clean up contingency wetlands. One commenter asked why in the Corps regulations at 33 CFR plans as a best management practice to activities that result in changes in pre- 330.2(i) since 1991 (see 56 FR 59110). address inadvertent returns of drilling construction contours, but do not result This practice does not violate Section fluids during horizontal directional in permanent losses of waters of the 404(e) of the Clean Water Act, NEPA, or drilling activities. The Corps does not United States cannot be permitted by the ESA. The Corps complies with have the authority to require project NWP C while activities that do not NEPA when it issues the national proponents to develop containment and result in a change to pre-construction decision document for the issuance of contingency plans for horizontal contours, but result in up to 1⁄10-acre of an NWP, because that decision directional drilling activities that do not permanent loss of waters of the United document includes an environmental involve discharges of dredged or fill States can be permitted by this NWP. assessment. Activities authorized by material into waters of the United State The Corps did not propose to require NWP C and other NWPs must comply or cross navigable waters and require PCNs for discharges of dredged or fill with general condition 18, endangered section 10 authorization. The NWP material into waters of the United States species. The Corps acknowledges that authorizes regulated activities that may associated with mechanized land some spills or leaks may occur from be necessary to remediate inadvertent clearing of forested wetlands in the equipment associated with electric returns of drilling fluids to provide utility line right of way. If, for a utility lines and telecommunications timely responses to such events and proposed electric utility line or lines, including equipment at help reduce potential adverse effects to telecommunications line, the applicant substations, but the Corps does not have the aquatic environment that may occur proposes to conduct mechanized land the authority to regulate such spills or as a result of these inadvertent returns. clearing of forested wetlands in the leaks. Several commenters supported the right-of-way for the electric utility line A few commenters stated that is that two PCN thresholds for proposed NWP or telecommunications line, a PCN is it is unclear how the Corps will evaluate C. They stated that limiting the PCN required if the project proponent will be what constitutes a ‘‘project’’ under these requirements for this NWP to these two unable to restore the disturbed wetlands NWPs for the purposes of determining PCN thresholds will reduce burdens on to pre-construction elevations and the whether a project exceeds the 1⁄2-acre the regulated public, simplify NWP C, activity involves a discharge of dredged limit or results in a loss of more than eliminate redundancy, and focus the or fill material that results in the loss of 1⁄10-acre in order to trigger the PCN requirements on activities that greater than 1⁄10-acre of waters of the requirement for an individual permit. A have a substantive potential to result in United States. Nationwide permit C few commenters requested additional more than minimal adverse authorizes discharges of dredged or fill details regarding what measures will be environmental effects. One commenter material into waters of the United States used to ensure that projects under these stated that the proposed PCN that result in permanent losses of waters NWPs are not improperly divided into requirements add an administrative the United States, as long as that loss smaller sections to avoid an individual burden to the Corps and reduce does not exceed 1⁄2-acre for each single permit requirement. Several certainty for projects. Many commenters and complete project. commenters state that the ‘‘single and opposed having only two PCN One commenter opposed the complete project’’ concept should not thresholds and requested that NWP C requirement to submit a PCN for apply to the installation of new electric have the same seven PCN thresholds as activities that require authorization utility line and telecommunication the 2017 NWP 12. under Section 10 of the Rivers and activities. Some commenters said a new In the 2020 Proposal the Corps Harbors Act, regardless of the amount of electric utility line or proposed two PCN thresholds for this loss. The Corps has retained this PCN telecommunications line should be NWP: (1) For activities that require threshold so that district engineers have subject to analysis under NEPA for the section 10 authorization, and (2) for the opportunity to review these entire project, including a cumulative discharges that result in the loss of activities and ensure that the authorized review of all temporary and permanent greater than 1⁄10-acre of waters of the activities cause no more than minimal impacts to waters of the United States United States. In response to the adverse effects to navigation. from the utility line crossings, access proposed rule, the Corps received Several commenters objected to roads, substations, temporary work comments recommending the addition allowing multiple segments of the same pads, etc. of other PCN thresholds that were pipeline to qualify for NWP The Corps has long-standing practice removed from NWP. For summaries of authorization, stating it is a violation of and experience evaluating single and

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complete projects when applying the 1⁄2- ‘‘loss of waters of the United States’’ to commenter said that proposed Note 2 acre limit and the 1⁄10-acre PCN include permanent conversion of would explicitly allow the cobbling threshold for losses of waters of the wetland types. together of multiple NWPs to authorize United States. District engineers have The Corps does not agree that PCNs high impact pipelines and associated the discretion to determine which should be required for any expansion of infrastructure that have greater potential regulated activities constitute ‘‘single electric utility line projects. The for harmful spills, leaks, and the and complete linear projects’’ and information required by paragraphs discharges that accompany them. As ‘‘single and complete non-linear (b)(4)(i) and (ii) of general condition 32 discussed above in response to projects’’ in accordance with the Corps’ provides the Corps with information comments on the Corps’ definition of regulations and the definitions in similar to the 250-mile PCN threshold ‘‘single and complete project’’ at 33 CFR Section F of these NWPs. When an NWP that was added to NWP 12, but the 330.2(i), Note 2 is consist with that C activity requires a PCN, paragraph Corps does not believe that the 250-mile regulation and this long-standing (b)(4)(i) of general condition 32 requires PCN threshold is necessary for NWP C practice. the applicant to include in the PCN and because it authorizes projects with One commenter recommended any other NWP(s), regional general typically smaller footprints of clarifying and rephrasing the following permit(s), or individual permit(s) used discharges of dredged or fill material. sentence found in Note 3: ‘‘Aerial or intended to be used to authorize any Activities authorized by NWP C must electric utility lines or part of the proposed project or any comply with general condition 18, telecommunication lines crossing related activity, including other separate endangered species, and general navigable waters of the United States and distant crossings for linear projects condition 20, historic properties. (which are defined at 33 CFR part 329) that require Department of the Army Temporary impacts are not considered a must comply with the applicable authorization but do not require pre- ‘‘loss of waters of the United States.’’ A minimum clearances specified in 33 construction notification. Furthermore, permanent conversion of wetland type CFR 322.5(i). The Corps believes that no paragraph (b)(4)(ii) of general condition is generally not considered a ‘‘loss of additional clarification is necessary for 32 requires the applicant to include in waters of the United States’’ because the Note 3 because it only points to a the PCN the quantity of anticipated affected area is still a wetland, and specific provision of the Corps’ losses of wetlands, other special aquatic vegetation management activities such regulations to serve as a reminder to sites, and other waters for each single as cutting and mowing vegetation or project proponents that want to and complete crossing of those using herbicides are not regulated by the construct electric utility lines or wetlands, other special aquatic sites, Corps under its permitting authorities. telecommunications lines over and other waters (including those single One commenter stated that Corps navigable waters of the United States. A few commenters recommended and complete crossings authorized by districts should maintain consistency with the number of thresholds that including the term ‘‘and other NWPs but do not require PCNs). The trigger the need for a PCNs expressed in temporary structures’’ in the text of Note district engineer uses this information to the proposed rule. This commenter 4. These commenters suggested evaluate the cumulative adverse noted that some Corps districts have changing Note 4 to state that access environmental effects of the proposed already proposed regional conditions roads and other temporary structures linear project. Activities authorized by that will undercut the changes in the such as work pads, temporary utility NWP do not require additional NEPA proposed rule. This commenter said that poles, and pulling and tension pads, compliance, because the Corps satisfies differences in PCN thresholds across used for both construction and the requirements of NEPA when it Corps districts could complicate NWP C maintenance may be authorized, issues the national decision documents by increasing confusion and provided they meet the terms and for the NWPs. inefficiencies. conditions of this NWP. Note 4 One commenter stated that a PCN Division engineers have the authority specifically addresses access roads, and should be required for any new or to approve regional conditions for this the Corps believes it would be expanded electric utility line project, NWP based on the characteristics and inappropriate to address other and there needs to be an overall limit in other factors regarding the ecosystems temporary structures in this note. acreage of waters of the United States in their respective regions, including Temporary structures are addressed in a lost as a result of activities authorized regional conditions that add PCN separate paragraph in the text of NWP by this NWP. A few commenters said thresholds. Division engineers can add C. that proposed NWP C should include regional conditions to replace PCN A few commenters recommended that the 250-mile PCN threshold proposed thresholds that were removed from an if the Corps includes specific best for NWP 12. These commenters asserted NWP, if the division engineer management practices (BMPs) in the that not adding the 250-mile PCN determines that PCN threshold is final NWP C, it should indicate that the threshold allows for very large projects necessary to ensure that the activity has BMPs should be implemented ‘‘where to be built without a PCN and, therefore, no more than minimal or cumulative appropriate and practical’’ and bypass other federal requirements that adverse environmental effects. Regional recognize that implementation of certain are triggered by the section 404 process conditions are an important mechanism BMPs may not be required in all such as the requirements of Section 7 of for tailoring the NWP program to circumstances. These commenters noted the Endangered Species Act and Section address specific resource concerns in a that there are a wide range of 106 of the National Historic particular geographic area. minimization, avoidance, and Preservation Act. One commenter asked Several commenters opposed management measures deployed to whether temporary impacts and impacts including Note 2 in NWP C. These reduce impacts to aquatic environments, that involve conversion from one commenters said that Note 2 is some are unique to the electric and wetland type to another (e.g., forested inconsistent with the requirements of telecommunication utility lines. wetland to herbaceous) are counted as Section 404(e) of the Clean Water Act However, it would be difficult to part of the 1⁄10-acre PCN notification and that it would allow activities that include many of these BMPs as national threshold. These commenters have more than minimal adverse requirements for all uses of NWP C recommended revising the definition of environmental effects to proceed. One because their implementation, while

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frequent, is site-specific and may not be improvement and development of adaptation strategy to address wildfire feasible or useful for minimizing construction practices that could better impacts, such activities should be impacts in all scenarios. A few protect aquatic resources. One undertaken in an ecologically commenters stated that the Corps commenter recommended adding a responsible fashion, and recommended should not adopt additional national requirement that directional drilling prohibiting NWP C activities within or BMPs or other restrictions, and said that under waters of the United States under coastal zone waters and wetlands. such practices should be addressed at should be a national standard. One The Corps does not agree that NWP C the regional level and tailored to local commenter suggested the addition of a activities should be prohibited in environments, which will allow for BMP to require district engineers to coastal zone waters and wetlands. greater flexibility. A few commenters distribute relevant PCNs to state A few commenters provided the said that adding additional BMPs or agencies involved in the regulatory following list of various practices its standards to this NWP would result in oversight or environmental review of members implement to help ensure that redundant requirements to manage on projects authorized by the new NWP C. electric utility line construction and these projects without providing With this NWP, the Corps outlines maintenance activities will have no additional benefits. certain performance criteria (e.g., more than minimal adverse The Corps agrees that BMPs should be removal of temporary fills, uses of environmental impacts: implemented where appropriate and temporary mats) within jurisdictional • Avoiding surface waters when practical, and that it would be more waters. The Corps believes the embedding structures (footings, poles, appropriate and efficient to add BMPs to recommended BMPs are applied more etc.), stockpiling materials, and setting this NWP either through regional appropriately and effectively on a case- up work areas. Locating poles and tower conditions added to the NWP by by-case or regional basis instead of a foundations outside of surface waters to division engineers or activity-specific national basis. the extent practicable. Where conditions added to the NWP by district One commenter suggested a BMP practicable, poles or structures are sited engineers. During its review of the where the project proponent tries to cut in uplands so that the infrastructure suggested BMPs, the Corps determined only vegetation that exceeds a height of ‘‘spans’’ and thereby avoids the aquatic that many of these BMPs that are 12 feet and allows all low-growing trees environment. appropriate to apply nationwide would and shrubs to remain in place. This • When it is not possible to span an not be appropriate for the NWP at a commenter said that a benefit of this aquatic environment, poles or structures national level, but they may be BMP is that it allows roots to remain in are installed in a manner to maintain appropriate on a region level. The place providing soil stabilization in and conductor clearance consistent with proposed text of NWP includes some around jurisdictional waters. One North American Electric Reliability BMPs (e.g., requiring no changes in commenter noted that non-mechanized Corporation (‘‘NERC’’) and other preconstruction contours of waters of clearing is preferred consistent with the guidelines to ensure safe and reliable the United States, requiring the top 6 to Corps’ regulations at 33 CFR 323.2(d) operation. 12 inches of the trench in wetlands to along with hand clearing, low ground • Installing mats before placing or normally be backfilled with topsoil from pressure equipment and mats, to driving equipment over wetlands or the trench, removal of temporary fills minimize and avoid additional impacts streams. upon completion of the work). to the jurisdictional water or wetland • Constructing roads with pervious Many commenters said that the beyond conversion are significantly placement of temporary matting in minimized or avoided. The Corps materials and limiting width and elevation, so long as access is safe. jurisdictional wetlands should continue believes the recommended BMPs are • to be a BMP for proposed NWP C applied more appropriately and Relying on low water crossings and activities to minimize adverse appropriately sized culverts. effectively on a case-by-case or regional • environmental effects. Several basis instead of a national basis. Designing site plans to address the commenters recommend requiring the One commenter said that vibratory prevention, containment, and cleanup use of low-ground pressure equipment, plowing is preferred over trenching of sediment or other materials caused by such as heavy equipment that has been methods for burying both distribution the inadvertent returns of drilling fluids specially designed to spread the weight and fiber optic lines because vibratory when installing electric utility lines of the equipment over a larger area, plowing under most conditions does not under streams or other waters via which helps avoid permanent impacts create incidental addition of material. directional drilling. by reducing compaction of wetland One commenter recommended requiring • Locating stockpile and work areas soils. One commenter said that use of that material resulting from trench outside of surface waters. wattles (i.e., erosion and sediment excavation may be temporarily side cast • Performing frequent inspections of control devices used to minimize into waters of the United States for very environmental and safety measures and erosion on construction sites) is a short periods of time well within the construction activities. general accepted practice to reduce limitation of three months, and is not • Marking waters of the United States water flow velocities and prevent placed in such a manner that it is near work areas with flagging or sediment from flowing into dispersed by currents or other forces. In perimeter fencing jurisdictional waters. The Corps addition, this commenter suggested • Deploying mats prior to driving believes these BMPs are more requiring side-cast material to be over or placing heavy equipment on appropriately applied on a case-by-case protected so it does not discharge offsite wetlands. or regional basis, in consideration of the or into jurisdictional waters during • Installing stormwater BMPs to characteristics of the affected rainfall events. The Corps believes the prevent erosion of hillsides adjacent to ecosystems, instead of a national basis. recommended BMPs are applied more construction areas. One commenter stated that the Corps appropriately and effectively on a case- • Where practicable, trench material should continue to clearly outline by-case or regional basis instead of a is side casted onto uplands or onto filter performance criteria within national basis. cloth, mats, or some other semi- jurisdictional areas because it provides One commenter remarked that while permeable surface in vegetated the flexibility needed to facilitate the burying utilities is an important climate wetlands.

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• Site plans are designed to address increased impacts to rivers and Migratory Bird Treaty Act and the Bald the prevention, containment, and wetlands. One commenter said that and Golden Eagle Protection Act. That cleanup of sediment or other materials mechanized land clearing in forested general condition states that the caused by the inadvertent returns of and scrub-shrub wetlands for utility line permittee is responsible for ensuring drilling fluids when installing electric installation should not be authorized that the activity authorized by an NWP utility lines under streams or other under NWP C and that individual complies with both of these acts, and waters via directional drilling. In the permits should be required for those that the permittee is responsible for event of an inadvertent return of drilling activities. One commenter said that contacting the appropriate office of the fluids, the agency is notified, and the individual permits should be used to U.S. FWS to determine whether any remediation plan is implemented. authorize the entire electric utility line incidental take permits are necessary • Where permanent access is not project when one crossing does not meet and available under the Migratory Bird required, avoidance measures are the limits for NWP C. One commenters Treaty Act or Bald and Golden Eagle deployed to minimize impacts to states that it is not clear how temporal Protection Act. Compliance with the jurisdictional waters to the maximum and cumulative impacts will be ESA for this rulemaking is discussed in extent possible. considered when evaluating facilities Section III.D of this final rule. • Where permanent roads are proposed to be authorized by NWP C or One commenter emphasized that required, they are typically limited in by multiple NWPs. A few commenters safety must remain paramount when width and elevation to the minimum recommend that the Corps adopt a constructing, maintaining, repairing, necessary for safe access and policy of early consultation with Indian and replacing above-ground and below- constructed with pervious materials. tribes and other actors on these types of ground electrical utility lines. The • Stockpiles and work areas are projects, above the timeline required by commenter suggested that the Corps generally established outside of surface the NHPA section 106 process. One reference safety standards as a means of waters. commenter recommended that the ensuring that electric utility activities • Timber mats are typically installed Corps require prior consent on projects are conducted safely. One commenter prior to placing or driving equipment impacting tribes. said that the proposal also describes the over wetlands or streams. The proposed NWP C will not result two methods by which underground • Frequent inspections of in increased impacts to rivers and electric transmission cables are environmental and safety measures and wetlands because it has the same limits installed: Trenching and backfilling or construction activities are performed. as the NWP 12 that was issued in 2017 horizontal directional drilling. This Monitoring during and after and in several prior reissuances of the commenter remarked that members may construction to avoid unauthorized NWPs. The activities authorized by this also utilize conventional boring to discharges to surface waters. NWP must comply with 33 CFR install electric utility lines, and asked • Construction personnel, 330.6(d), which addresses the use of that the Corps acknowledge that contractors, and personnel who operate NWPs with individual permits. During conventional boring is another method and maintain the electric utility and the PCN review process, district used for installation of underground telecommunication lines are trained to engineers evaluate the individual and electric transmission cables. understand and comply with permit cumulative effects of the activities The Corps does not have the authority requirements and conditions. authorized by an NWP (see paragraph 2 to require and enforce safety standards Several commenters suggested the of Section D, District Engineer’s that apply to the construction, following BMPs for proposed NWP C Decision). For Corps districts consult maintenance, repair, and replacement of based on Avian Powerline Interaction with tribes when necessary for activities above-ground and below-ground Committee documents. Their authorized by this NWP and other electrical utility lines. Safety standards recommended BMPs include: NWPs. Issuance of an NWP verification and requirements may be imposed by • Avian Protection Plan (APP) by a district engineer does not require other federal agencies, or state and local Guidelines. prior consent from tribes. government agencies. This NWP • Suggested Practices for Avian Several commenters expressed authorizes activities that may involve Protection on Power Lines. concern about the impacts that electric directional boring, as long as those • Reducing Avian Collisions with utility lines may have on migratory activities involve discharges of dredged Power Lines: State of the Art in 2012. avian populations from collisions with or fill material into waters of the United • Region 6 Guidance for Minimizing power lines. These commenters said States or cross navigable waters of the Effects from Power Line Projects Within that the Corps needs to analyze the United States. the Whooping Crane Migration Corridor potential harm to bird populations from Proposed new NWP C is issued as (available at https://puc.sd.gov/ its permitting of utility lines pursuant to NWP 57, with the modifications commission/dockets/electric/2019/el19- this proposed NWP. These commenters discussed above. 003/memo.pdf.) said that national programmatic ESA The Corps believes the recommended section 7 consultation should be (16) NWP 58. Utility Line Activities for BMPs are applied more appropriately initiated for the issuance of this NWP, Water and Other Substances and effectively on a case-by-case or to allow the Services to work with the The Corps proposed this new NWP as regional basis instead of a national Corps to establish national BMPs. NWP D, to discharges of dredged or fill basis. The Corps has been administering Another commenter stated that the material into waters of the United NWP 12 since it was first issued in 1977 Corps should consider voluntarily States, and structures and work in without extensive BMPs at the national performing ESA Section 7 consultation navigable waters of the United States, level and has found that the current on the issuance of this NWP to provide for utility line activities for water and approach with the BMPs that are regulatory certainty. other substances, such as potable water, already in the text of the utility line The national decision document has sewage, stormwater, and wastewater. NWPs (i.e., NWPs 12, 57, and 58) is been revised to discuss potential Several commenters stated that they effective. impacts of electric utility lines on support the issuance of new NWP D for A few commenters stated that the migratory birds. General condition 19 water, wastewater, and stormwater proposed NWP C will allow for addresses compliance with the utility lines because of the national legal

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uncertainty of oil and gas pipeline procedural statute that does not prohibit commenter stated that the Corps needs projects. Many commenters said they any specific regulatory approaches or to provide sound, scientific evidence support the issuance of NWP D because mandate specific outcomes. Activities that the removal or omission of any of it streamlines the permitting process, authorized by NWP D must comply with the PCN thresholds from the 2017 NWP clarifies the PCN requirements, general condition 18, endangered 12 would not harm river, stream, or separates activities based on the utility species. The requirements of paragraph wetland hydrologic functions. types, and ensures the activities will (b)(4) of general 32 help ensure that The activities authorized by this NWP cause no more than minimal adverse district engineers have information are subject to a 1⁄2-acre limit for each environmental effects. Several regarding the crossings of waters of the single and complete project. There was commenters stated they were opposed United States that require PCNs or do no PCN requirement for temporary to the issuance of NWP D and not require PCNs, so that the cumulative access roads in the 2017 NWP 12 and recommend withdrawing NWP D adverse environmental effects can be the Corps continues to believe that it is because it authorizes activities that assessed during the review process. not necessary to ensure no more than a cause significant adverse impacts, and Several commenters stated opposition minimal individual or cumulative these activities should require to the removal of the five PCN adverse environmental effects. Pre- individual permits. These commenters requirements from the 2017 NWP 12 construction notification thresholds are stated, that at a minimum, additional because they believe the Corps will no established for proposed activities PCN requirements should be added to longer receive notice of activities that requiring DA authorization that have the the proposed NWP. cause more than minimal adverse potential to cause more than minimal The activities authorized by NWP D effects, nor will other federal and state adverse environmental effects. Pre- will generally result in no more than natural resource agencies be able to construction notifications are informed minimal individual and cumulative review and provide comments. Many by science and the Corps experience in adverse environmental impacts, and commenters opposed the removal of the administering the NWP program. In this certain activities require pre- non-PCN requirements for right-of-way instance, the Corps has determined it construction notification to the district mechanized land clearing through can remove the respective PCN engineer. District engineers will review forested wetlands because this activity requirements without risking more than PCNs for proposed NWP D activities, causes fragmentation and a loss/ a minimal individual or cumulative and may add permit conditions, conversion of wetland type and adverse environmental effects. including mitigation requirements, to associated functions. The commenters Some commenters said that the the NWP authorization to help ensure requested addition of a requirement for reduction of the PCN thresholds will that the authorized activities cause no the submittal of a PCN for land clearing simplify NWP D and would not cause a more than minimal adverse associated with utility line rights-of-way negative impact on the environment. environmental effects. District engineers within wetlands so that the Corps and One commenter asserted that permanent can also exercise discretionary authority interested stakeholders can ensure access roads should be authorized under and suspend or revoke the NWP impacts are appropriately avoided and NWP 14, not NWP D. One commenter authorization for proposed activities mitigated. A few commenters stated that recommended adding a requirement for that will result in more than minimal the 500 linear foot PCN threshold from horizontal directional drilling under adverse environmental effects. The the 2017 NWP 12 should be added to waters of the United States, as a national Corps believes that the two PCN NWP D. One commenter said that the standard under NWP D. One commenter thresholds in proposed NWP D will PCN requirement for temporary access recommended adding a provision to provide district engineers with the roads should be retained. One NWP D requiring containment and clean opportunity to review utility line commenter stated that a PCN should be up contingency plans. activities for water and other substances required when the proposed activities The Corps declines to add a that have the potential to cause more would run parallel with a stream bed. requirement for the use of horizontal than minimal adverse environmental The removal of the five PCN directional drilling because that effects. thresholds from NWP 12 are discussed technique is not always practical or Several commenters expressed in the preamble discussion of NWP 12 feasible for utility lines that convey opposition to allowing multiple and the same reasoning applies to the water and other substances. The use of segments as ‘‘single and complete removal of these PCNs from NWP 58. horizontal directional drilling is more projects’’ of the same pipeline qualify That preamble discussion includes appropriately determined on a case-by- for NWP authorization because it responses to comments, and that case basis after considering the violates the Clean Water Act’s minimal discussion will not be repeated in this characteristics of the proposed utility impact limitation, the National section of the preamble. The Corps line activity, including site Environmental Policy Act, the declines to add the suggested PCN characteristics. The Corps does not have Endangered Species Act, and other legal thresholds because this NWP requires the authority to require containment requirements for rigorous and restoration of temporary fills to pre- and cleanup contingency plans for the transparent environmental reviews and construction elevations. If utility line construction, expansion, maintenance, safeguards. In addition, several of these activities associated with the suggested or repair of utility line activities for commenters stated the authorizing PCN thresholds result in a permanent water and other substances. multiple segments as single and impact that causes the loss of greater One commenter stated that the Corps complete projects does not capture than 1⁄10-acre of waters of the United should define a ‘‘stand-alone project’’ as cumulative effects. States, then PCNs are required. a utility line project that includes all The use of NWPs to authorize A few commenters said there needs to crossing within a major watershed as separate and distant crossings of waters be an overall acreage limit on evaluated together as single and of the United States for utility lines and authorized impacts for this NWP, complete, since the cumulative impacts roads as single and complete has been including a maximum acreage for non- are to one system. The commenter said in the Corps’ NWP regulations at 33 CFR PCN forest clearing activities, and a that an alternative approach would be to 330.2(i) since 1991. The National maximum length of impervious surface require a cumulative analysis for all Environmental Policy Act is a roads before a PCN is required. One proposed NWP D activities. Several

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commenters requested clarification of authorized by NWP 12. In general, conflicting requirements between the the status of ongoing, non-oil and gas ‘‘other substances’’ includes substances NWP and Clean Water Act Section 401. utility projects verified under the 2017 not conveyed by utility lines authorized The Corps agrees that most BMPs are NWP 12, specifically whether they will by NWPs 12 and 57. The Corps has site-specific and should be identified for continue to be authorized under the added ‘‘products derived from oil or specific utility line activities. Best 2017 NWP 12 until the March 18, 2022 natural gas’’ to be consistent with the management practices may also vary by expiration date, or if they will need to definition of ‘‘oil or natural gas region and by aquatic resource type. be reverified. pipeline’’ in NWP 12, and to clarify that Best management practices that are The Corps declines to add a definition regulated activities associated with necessary to ensure that activities of ‘‘stand-alone project’’ to this NWP. pipelines that carry substances derived authorized by NWP D have no more When reviewing PCNs for proposed from oil or natural gas should be than minimal adverse environmental NWP activities, district engineers authorized by NWP 12, not NWP D. effects are more appropriately identified evaluate the crossings of waters of the One commenter said that Note 4 by district engineers and required United States that require PCNs and the should refer to the General Bridge Act through activity-specific conditions information provided on other crossings of 1946 instead of Section 9 of the added to the NWP authorization or in accordance with paragraph (b)(4) of Rivers and Harbors Act of 1899. The through the section 401 water quality general condition 32. They will Corps has made this change to Note 4. certification process. determine whether the proposed utility One commenter requested One commenter said that the Corps line for water and other substances will clarification on how temporal and should adopt a policy of early result in no more than minimal cumulative impacts will be considered consultation with the tribes and other individual and cumulative adverse when evaluating activities authorized by interested parties for these types of environmental effects. The NWP D. This commenter recommended projects over and above the NHPA grandfathering provisions for these conducting a separate analysis for section 106 process to avoid litigation, NWPs, including the transition from temporal and cumulative impacts on and other costly delays. This commenter 2017 NWP 12 to the 2021 NWP 12 and streams, wetlands, and other waters. A also requested the Corps require consent new NWPs 57 and 58, is discussed in few commenters recommended on projects impacting tribes. One Section I.D. of this final rule. changing the provision condition that commenter recommended evaluating A few commenters requested that the states ‘‘there must be no change in pre- the direct, indirect, and cumulative Corps broaden the definition of the term construction contours of waters of the effects on treaty reserved resources, ‘‘utility line’’ so that it includes other United States’’ to ‘‘there must be no including anadromous salmonids and types of man-made conveyances, such change in pre-construction contours their habitat to fully understand the as canals and other linear conveyances which results in permanent losses of potential extent of resource impacts. that are subject to Clean Water Act waters of the United States.’’ One The Corps consults with tribes when section 404 jurisdiction and can commenter requested clarification on necessary to ensure that activities transport water. One commenter the measures the Corps will take to authorized by an NWP comply with requested the addition of specific ensure that the activities authorized by general condition 17, tribal rights. As waterline ancillary facilities including, NWP D are not improperly divided into part of this rulemaking, Corps districts but not limited to pump plants, siphons, smaller sections to avoid an individual have consulted and coordinated with and tunnels to the text of this NWP. One permit. tribes to identify regional conditions commenter said that the Corps should Temporal and cumulative impacts and coordination processes to ensure clarify whether this NWP authorizes will be evaluated using the 10 criteria protect tribal rights, as well as tribal utility line activities that convey identified in paragraph 2 of Section D, trust resources. Activities authorized by substances that are unclear as to District Engineer’s Decision. The Corps NWPs do not require prior consent from whether they included in the definition declines to change the text regarding the tribes. of ‘‘oil or natural gas pipeline’’ in NWP requirement for no changes in pre- One commenter said that the Corps 12, such as hydrogen and power-to-gas construction contours, because that has should end the practice of counting (i.e., hydrogen combined with carbon been a BMP that has helped ensure that temporary impacts associated with dioxide to create methane, or renewable most utility line activities result in matting for moving heavy machinery natural gas). One commenter temporary impacts. The Corps applies over a wetland, as a loss of greater than recommended further defining the term the definitions of ‘‘single and complete 1⁄10-acre, which triggers a requirement to ‘‘other substances’’ in this NWP. linear project’’ to NWP D activities and submit a PCN. One commenter stated The Corps declines to add canals and to other NWPs that authorize utility the Corps districts should maintain ditches to the activities authorized by lines to determine which activities can consistency with the PCN thresholds this NWP. Canals and ditches can be be authorized by an NWP and which and should not be allowed to add authorized by other NWPs, if the activities require individual permits. regional conditions to this NWP that construction of those ditches involves The Corps also implements 33 CFR undercuts the reduction in PCN discharges of dredged or fill material 330.6(d), which addresses the use of thresholds in this NWP. This into waters of the United States or individual permits with NWPs. commenter said that regional conditions structures or work under Section 10 of Several commenters stated that BMPs cause confusion and inefficiencies, the Rivers and Harbors Act of 1899. should be site-specific and imposed as especially if the linear infrastructure Substations for utility lines for water special conditions, if necessary, and not crosses into multiple Corps districts. and other substances can include pump standardized in the text of NWP D. One The determination regarding whether plants and siphons. Tunnels may be commenter said that the inclusion of the use of matting during utility line authorized if they a considered utility standards and BMPs would likely activities authorized by NWP D causes lines. Utility lines constructed to convey impede the objective of the NWP a loss of waters of the United States that hydrogen or carbon dioxide can program by causing delays and may require a PCN is more authorized by NWP D, but utility line increasing paperwork. This commenter appropriately made by district engineers activities constructed to convey asserted that attempting to establish on a case-by-case basis. Division renewable natural gas should be national standards could cause engineers can add regional conditions to

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this NWP that replace PCN thresholds access roads to be built in accordance in which NWP activities are conducted. that were removed, if they determine with local or state standards. The preference for bottomless culverts is those PCN thresholds are necessary to Prior versions of NWP 12 have based on the ability of bottomless ensure that this NWP authorizes only authorized utility line activities that culverts to facilitate the continuity of those activities that have no more than carry wastewater, so this is not a new aquatic life movements, including minimal adverse environmental effects. issue for the NWP program. General during low-flow conditions. The general Regional conditions are intended to condition 14 requires proper condition does not mandate the use of address regional differences in aquatic maintenance of activities authorized by bottomless culverts. Bottomless culverts resource functions, so there may be NWPs, so utility lines carrying can be beneficial to a wide variety of some inconsistency that must be dealt wastewater should minimize the aquatic species, not just endangered or with, especially for utility lines that run potential for leaks and spills. The Corps threatened species. Bottomless culverts through multiple states or Corps does not have the authority to regulate can provide connectivity for a wide districts. leaks or spills from utility lines. Leaks variety of species, including aquatic One commenter said that water mains and spills are more appropriately species that provide important are known to exceed the non-oil and gas addressed through federal, state, and ecosystem functions and services, and pipeline diameters, identified in the local laws that are administered by aquatic species that have economic and preamble as 3 to 24 inches, as they may other federal agencies, or state or local recreational value. District engineers be 6 feet or wider. This commenter government agencies. This NWP can be retain the authority to conduct stated the Corps did not provide a used to authorize utility line activities compliance inspections to ensure that robust analysis of the lengths of the for water and other substances in coastal permittees comply with this general various utility line, nor did they provide zones. Local and state governments are condition. In most circumstances, the total national mileage for these lines, responsible for ensuring that access compliance monitoring is sufficient to as they could be quite long and have roads are constructed in accordance determine compliance with this general similar types of impacts as oil or gas with their standards. condition, instead of requiring pipelines. A few commenters Proposed NWP D is issued as NWP 58 monitoring and data collection over a recommended removing natural gas with the modification discussed above. period of time. pipelines (i.e. residential lines), H. Responses to Comments on the The general condition is adopted as hydrogen transport lines for clean Nationwide Permit General Conditions proposed. energy solutions, and local, intrastate GC 3. Spawning Areas. The Corps did utility lines operated as an independent GC 1. Navigation. The Corps did not not propose any changes to this general municipally-owned distribution system propose any changes to this general condition. One commenter expressed from NWP 12, because they are typically condition. The Corps did not receive support for the Corps’ reissuance of this similar or smaller in size with respect to any comments on this general general condition without changes. The materials, location, installation condition. The general condition is Corps appreciates the support for the footprint, and constructed along with adopted as proposed. reissuance of this general condition. The water and wastewater pipelines. GC 2. Aquatic Life Movements. The general condition is adopted as The intent of the preamble discussion Corps did not propose any changes to proposed. in the 2020 Proposal regarding the this general condition. One commenter GC 4. Migratory Bird Breeding Areas. proposal to issue separate NWPs for oil noted that some project proponents bury The Corps did not propose any changes or natural gas pipelines, electric utility the bottom portion of larger culverts to to this general condition. The Corps did lines and telecommunications lines, and allow fish passage and create a natural not receive any comments on this utility lines for water and other bottom for habitat. One commenter general condition. The general substances was to illustrate some of the expressed support for the Corps’ condition is adopted as proposed. differences among those utility line retention of the existing definition given GC 5. Shellfish Beds. The Corps did sectors. The discussion of pipeline the wide variability of geomorphic and not propose any changes to this general diameters has no relevance to the text of hydrologic settings in which NWP condition. The Corps did not receive these NWPs, or to the conditions that activities are conducted. One any comments on this general apply to those NWPs. Utility line commenter stated that the Corps’ condition. The general condition is activities authorized by NWP D can be preference for bottomless culverts, one- adopted as proposed. used to convey hydrogen, and for local barrel culverts, or bridges should be GC 6. Suitable Material. The Corps distribution of water, sewage, explained. Another commenter said that did not propose any changes to this wastewater, and other substances. in the absence of special concerns, such general condition. One commenter One commenter expressed concerns as endangered species, there should not stated that the condition should be regarding the proposed issuance of NWP be a preference for bottomless culverts. refined to align with state water quality D to authorize utility line activities that One commenter remarked that the text standards, specifically relative to carry wastewater. This commenter of this general condition is insufficient nutrients and nutrient loading. stated that distribution systems for without specific monitoring and Concerns about compliance with wastewater reuse applications should be enforcement protocols to ensure that applicable state water quality standards assumed to carry highly toxic and effects of NWP activities on aquatic life or requirements are more appropriately potentially hazardous substances that movements are no more than minimal. addressed through the water quality would degrade soils and groundwater if The Corps acknowledges that burying certification requirements for proposed leaked or spilled. One commenter said the bottom portion of a larger culvert discharges of dredged or fill material that allowing activities under NWP D and creating a natural bottom for habitat into waters of the United States. The within or under coastal zone waters and is an acceptable approach for complying general condition is adopted as wetlands will impermissibly degrade with this general condition. The Corps proposed. water quality, which is inconsistent appreciates the commenter’s support for GC 7. Water Supply Intakes. The with Section 404(e) of the Clean Water providing flexibility in this general Corps did not propose any changes to Act. One commenter stated that the condition for addressing variations in this general condition. One commenter NWP should be modified to require the geomorphic and hydrologic settings expressed support with reissuance of

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the GC without change. The Corps federal, state, or local permits, specifications that must be followed, acknowledges this commenters support approvals, or authorizations required by particularly for projects that exceed an for the reissuance of this general law. State and local governments are the acre of land disturbance. Specific soil condition. The general condition is entities that have primary responsibility erosion and sediment control adopted as proposed. for regulating land uses within requirements vary among state and local GC 8. Adverse Effects from floodplains and other areas. governments and other entities, and are Impoundments. The Corps did not Under the discretionary authority more appropriately determined on a propose any changes to this general provision at 33 CFR 330.1(d) and other case-by-case basis for specific NWP condition. The Corps did not receive provisions of the NWP regulations at 33 activities. Therefore, it would be any comments on this general CFR part 330, division and district inappropriate to establish national condition. The general condition is engineers can further condition or standards for erosion control. adopted as proposed. restrict the applicability of an NWP for The general condition is adopted as GC 9. Management of Water Flows. cases where they have concerns for the proposed. The Corps did not propose any changes aquatic environment under the Clean GC 13. Removal of Temporary to this general condition. The Corps did Water Act section 404(b)(1) Guidelines Structures and Fills. The Corps not receive any comments on this or for any factor of the public interest. proposed to modify this general general condition. The general There are two public interest review condition to apply to temporary condition is adopted as proposed. factors related to floodplains in the structures. A few commenters expressed GC 10. Fills Within 100-Year Corps’ public interest review regulations support for the addition of temporary Floodplains. The Corps did not propose at 33 CFR 320.4(a)(1) that could be used structures to this general condition. A any changes to this general condition. as a basis for exercising discretionary few commenters objected to the A few commenters stated that the authority: Floodplain values and flood addition of temporary structures to this Corps should prohibit the use of NWPs hazards. general condition, stating that their and many other activities in 100-year Nationwide permit activities, removal may cause more harm than floodplains and high-risk hurricane including discharges of dredged or fill leaving them in place because evacuation zones because of increasing material into waters of the United States temporary structures are not all alike. risks of climate change and sea level within floodplains, comply with the One commenter requested a definition rise. One commenter stated that the Endangered Species Act through the of ‘‘temporary.’’ In contrast, another Corps’ requirement in the condition to requirements of NWP general condition commenter supported leaving the comply with FEMA-approved state or 18. The National Environmental Policy definition of ‘‘temporary’’ to the district local floodplain management Act is a procedural statute, and does not engineer’s discretion. One commenter requirements is insufficient to ensure mandate any substantive floodplain requested that the Corps add preamble that authorized activities have no more management requirements. The Corps language to the final rule that states that than minimal adverse environmental complies with NEPA requirements the removal of structures should occur effects and comply with the Clean Water when it prepares the national decision after they have fulfilled their intended Act, the Endangered Species Act, and documents for the issuance, reissuance, purpose. This commenter further stated the National Environmental Policy Act. or modification of NWPs, and discusses that the project proponent should One commenter said that ‘‘high impact’’ potential impacts to flood hazards and determine when the structure has NWPs should be prohibited from use in floodplain values in its public interest fulfilled its intended purpose. floodplains and that individual permits review evaluation. The proposed NWPs, What constitutes a temporary should be required for those activities. including general condition 10, are structure should be determined on a this commenter also stated that this consistent with E.O. 11988, Floodplain case-by-case basis. Therefore, the Corps general condition should be revised to Management, with respect to the Corps’ declines to define ‘‘temporary’’ for the prohibit the use of certain NWPs to authority to regulate specific activities purposes of this general condition. The authorize discharges of dredged or fill that may occur in floodplains (i.e., Corps has changed the text of this material into waters of the United States discharges of dredged or fill material general condition as it relates to that result in permanent above-grade into waters of the United State). In each temporary structures. The general fills in mapped 100-year floodplains or national decision document for the final condition now states that temporary floodways, in order to comply with NWPs, the Corps considered potential structures must be removed, to the Executive Order 11988, Floodplain impacts to floodplain values and flood maximum extent practicable, after their Management. hazards. use has been discontinued. The Corps The Corps does not have the authority The general condition is adopted as recognizes that it might not be feasible to regulate activities in 100-year proposed. to completely remove the structure after floodplains or high-risk hurricane GC 11. Equipment. The Corps did not its use has been discontinued. For evacuation zones, except for discharges propose any changes to this general example, it might not be feasible to of dredged or fill material into waters of condition. One commenter expressed remove an entire piling from navigable the United States that may be located support for reissuance of the general waters after it is no longer needed, but within those floodplains or evacuation condition with no change. The Corps the project proponent could remove that zones. The primary responsibility for appreciates this commenter’s support portion of the piling that extends above determining zoning and land use for the reissuance of this general the bottom of the waterbody so that it matters, including development condition without change. no longer is an obstruction at the water activities in 100-year floodplains and The general condition is adopted as surface. The Corps also acknowledges high-risk hurricane evacuation zones, proposed. that attempting to remove a temporary lies with state, local and tribal GC 12. Soil Erosion and Sediment structure in its entirety has the potential governments (see 33 CFR 320.4(j)(2)). Controls. The Corps did not propose any to cause more substantial adverse This general condition is consistent changes to this general condition. One environmental effects than leaving a with the item 2 of Section E, Further commenter stated that the condition portion of the structure in place. Information, which states that the NWPs should be modified to reference specific The general condition is adopted with do not obviate the need to obtain other erosion control standards or the modifications discussed above.

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GC 14. Proper Maintenance. The eliminate any confusion about the commenters suggested that the Corps did not propose any changes to applicable standards that apply when definition of tribal rights be moved to this general condition. No comments considering potential impacts to tribal the text of general condition 17. One were received. The general condition is treaty rights when consulting with commenter said that the change in adopted as proposed. tribes, and when determining the general condition 17 would not affect GC 15. Single and Complete Project. applicability of an NWP for a proposed the Corps’ tribal trust responsibilities. The Corps did not propose any changes activity. By using the word ‘‘impair’’ One commenter recommended that the to this general condition. One instead of ‘‘no more than minimal Corps delete unnecessary definitions commenter expressed support for adverse effects on’’ the general and should only retain definitions for reissuance of this general condition condition will be clearer that the NWPs ‘‘tribal rights’’ and ‘‘tribal lands’’ as they with no change. The general condition do not change existing tribal trust duties pertain to general condition 17. is adopted as proposed. of the Corps, or the rights of tribes. Protection of tribal lands will GC 16. Wild and Scenic Rivers. The Rather, the proposed changes to the continue through the implementation of Corps did not propose any changes to general condition will serve as a guide the 1998 Department of Defense this general condition. No comments to users when undertaking tribal American Indian and Alaska Native were received on this general condition. consultations regarding the application Policy. ‘‘Protected tribal resources’’ is an The general condition is adopted as of an NWP to a particular activity, and ambiguous term and removal of that proposed. when developing protocols regarding term from the general condition will GC 17. Tribal Rights. The Corps tribal notification that build upon the result in a clearer, more enforceable proposed to modify this general existing Department of Defense, Army, general condition with less risk of condition to restore the text that was in and Corps tribal consultation policies. disputes and litigation concerning the general condition for the 2012 NWPs The Clean Water Act section 404(e) whether particular resources are and prior NWPs to eliminate any requirement that no activity authorized protected tribal resources. The Corps is confusion about the applicable by an NWP may cause more than retaining the definition of ‘‘tribal rights’’ standards that apply when considering minimal adverse effects remains in the ‘‘Definitions’’ section of these potential impacts to tribal treaty rights applicable in the context of potential NWPs (Section F). The Corps is also when consulting with tribes, and when effects to tribal rights, resources, or retaining the definition of ‘‘tribal lands’’ determining the applicability of an NWP lands. in Section F of the NWPs. for a proposed activity. The proposed Many commenters said that the Many commenters said that changes to this general condition are change in language would result in less ‘‘identification of a potential effect to a also intended to clarify that the protection for tribal rights and resources tribal right does not mean that a district identification of a potential effect to a and is inconsistent with the Corps’ trust engineer must exercise his or her tribal right does not mean that a district obligations. Many commenters stated discretionary authority to require an engineer must exercise his or her that the Corps provides no rationale for individual permit for a proposed discretionary authority to require an the proposed change considering its activity,’’ is contrary to statutory individual permit for a proposed rationale for changing the language in authority and the Corps’ trust activity. The proposed changes to this 2017. A few commenters stated that obligations. One commenter encouraged general condition were also intended to tribes should receive copies of PCNs for the Corps to engage prospective avoid any confusion between tribal all activities that occur on tribal lands applicants for projects that have a consultation policies, tribal rights, and or off-reservation areas where treaty greater potential to affect tribal rights in the requirements of the Corps’ rights are exercised. One commenter an optional pre-application meeting permitting authorities. stated that the tribes should be allowed with the tribes prior to submittal of an Many commenters objected to the to make the ‘‘no more than minimal NWP verification request. One proposed changes to general condition effect’’ determination. commenter said that the general 17 and many commenters expressed The change in the text of this general condition should include a statement support for the proposed change. Many condition will not result in less requiring the Corps to conduct commenters stated that the 2017 general protection for tribal rights and meaningful consultation with condition’s use of the ‘‘no more than resources. The rationale for the potentially impacted tribes in minimal effects on’’ standard is clearer proposed change was provided in the accordance with tribal protocols. than the ‘‘impair’’ standard the Corps preamble to the 2020 Proposal (see 85 District engineers have the final proposes to revert to because the ‘‘no FR 57350). The 1998 Department of decision-making authority as to whether more than minimal adverse effects’’ Defense American Indian and Alaska a proposed NWP activity that requires standard used throughout the NWPs. Native Policy continues to apply to the DA authorization qualifies for NWP One commenter stated that ‘‘impair’’ is NWPs and other DA permits. The authorization. District engineers can a clearer standard. Many commenters district engineer is authorized to coordinate with tribes to help make asserted that use of ‘‘no more than determine whether a proposed NWP these decisions, including whether a minimal effect’’ threshold in the general activity will result in no more than proposed NWP activity complies with condition is consistent with Section minimal individual and cumulative general condition 17. If a district 404(e) of the Clean Water Act and adverse environmental effects. engineer holds a pre-application would not be confusing to retain in the Many commenters said they are meeting with a project proponent, he or general condition. Several commenters opposed to removing ‘‘tribal lands’’ and she has the discretion to invite tribal remarked that a minimal effect its definition from the suite of protected representatives to attend the meeting. determination is well established in resources. Many commenters expressed When conducting government-to- guidance and regulation and use of the opposition to removing ‘‘protected tribal government consultation with tribes, word ‘‘impair’’ provides no additional resources’’ and its definition from the district engineers endeavor to conduct clarity. suite of protected resources. Many meaningful consultation with tribes. The Corps is returning the text of this commenters stated that the proposed One commenter suggested revising general condition to the text that was in wording would only protect tribal treaty general condition 17 to read as follows: the 2012 NWPs and prior NWPs to rights and not all tribal rights. A few ‘‘No NWP activity may cause more than

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minimal adverse effects to tribal rights, consistent with the U.S. Fish and The ESA section 7 consultation including treaty rights, protected tribal Wildlife Service’s (FWS) and National handbook issued by the U.S. FWS and resources such as ceded territory, any Marine Fisheries Service’s (NMFS) NMFS in 1998 states that a federal sacred/cultural site/landscape or tribal Endangered Species Act (ESA) section 7 agency is not required to obtain written lands, as determined by any concerned consultation regulations that were concurrence from the U.S. FWS or tribe(s).’’ Another commenter published in the Federal Register on NMFS for its ‘‘no effect’’ recommended revising this general August 27, 2019 (84 FR 44976). Those determinations. condition to read as follows: ‘‘No regulations amended the definition of One commenter stated that activity or its operation may cause ‘‘effects of the action’’ at 50 CFR 402.02 clarification is needed as to what is adverse effects on tribal rights by removing the term ‘‘indirect effects.’’ meant by non-Federal permittees that (including, but not limited to, reserved Several commenters supported the require pre-construction notification water rights and treaty rights), protected proposed changes to ensure that general under paragraph (c) of this general tribal resources, or tribal lands.’’ As condition 18 aligns with the current condition. A few commenters said that discussed above, the Corps is adopting ESA implementing regulations at 50 the general condition only requires the proposed text of general condition CFR part 402. A few commenters project proponents to submit a PCN if a 17. suggested that the Corps incorporate the proposed activity might affect a species Several commenters said that the new ESA section 7 regulation or its critical habitat, which ignores the change in language does not support the definitions directly into the general Corps responsibility to conference on Corps’ rationale for the NWPs in light condition rather than by referencing species proposed for listing. These E.O. 13783, ‘‘Promoting Energy provisions in the Code of Federal commenters suggested revising this Independence and Economic Growth.’’ Regulations. These commenters also general condition to include proposed A few commenters stated that the suggested adding a definition for species. Several commenters requested change in language would violate E.O. ‘‘action area’’ to the text of the general clarification of the term ‘‘in the 13175. One commenter suggested that condition. vicinity’’ in paragraph (c) of this general the condition should include a The Corps believes that it is more condition. One commenter said that the statement requiring the project appropriate to reference the current ESA Corps inappropriately relies on proponent to obtain consent from section 7 regulations in the general information contained in the PCN to potentially impacted tribes for the NWP condition rather than copying the text of make its effect determinations and must activity. One commenter requested a the applicable provisions into the independently verify the potential for a definition of ‘‘impair.’’ One commenter general condition itself. During the listed species to be affected. suggested that the Corps provide an process of determining whether a Generally speaking, a non-federal approved list of tribal entities. One proposed NWP activity ‘‘may affect’’ permittee is a permittee that is not a commenter suggested that the Corps listed species or critical habitat, the federal agency. There may be limited provide guidance and processes relative Corps will utilize the definition of circumstances where a non-federal to consultation and timelines. ‘‘action area’’ at 50 CFR 402.02 and agency might be considered as having General condition 17 was not there is no need to provide the ESA section 7 obligations similar to discussed in the report issued by the definition of that term in the text of those of a federal agency. For example, Office of the Assistant Secretary of the general condition 18. the Federal Highway Administration Army (Civil Works) in response to E.O. Several commenters objected to the may assign a state Department of 13783. This change in the text of general removal of ‘‘direct effects’’ and ‘‘indirect Transportation the responsibility for condition 17 does not violate E.O. effects’’ definitions from the general complying with non-NEPA 13175. The Corps continues to consult condition and asserted that ESA section environmental statutes such as the ESA. with tribes on proposed NWP activities 7 consultation compliance will not be The Corps has modified paragraph (c) when such consultation is warranted. achieved without the analysis of the of this general condition to be consistent The district engineer determines effects and/or would cause significant with 33 CFR 330.4(f)(2), which states whether a proposed activity requiring adverse impacts to endangered species. non-federal permittees shall notify the DA authorization qualifies for NWP One commenter expressed opposition to district engineer if any Federally listed authorization, and consent from the proposed change to general (or proposed for listing) endangered or potentially impacted tribes is not condition 18 because he or she is threatened species or critical habitat required for that determination. The opposed to the 2019 amendments to the might be affected or is in the vicinity of Corps does not believe it is necessary to U.S. FWS’s and NMFS’s ESA section 7 the project. The Corps also added develop an approved list of tribal regulations. One commenter stated that ‘‘critical habitat proposed for such entities. Corps districts are aware of the the Corps must seek concurrence from designation’’ to paragraph (c). These tribes they may need to consult with. the U.S. FWS or NMFS for any ‘‘no changes are necessary for species The Bureau of Indian Affairs may be the effect’’ determination. proposed for listing and critical habitat appropriate entity to develop and The terms ‘‘direct effect’’ and proposed for such designation because maintain such a list. The Corps ‘‘indirect effect’’ are no longer used in section 7(a)(4) of the ESA requires Regulatory Program follows a number of 50 CFR part 402. When the district agencies to confer with the U.S. FWS or existing Department of Defense, Army, engineer evaluates a PCN for a proposed NMFS on any agency action which is and Corps tribal consultation policies. NWP activity to determine whether the likely to jeopardize the continued Information on these tribal consultation proposed activity ‘‘may affect’’ listed existence of any species proposed to be policies are available at: https:// species or critical habitat, he or she listed under section 4 of the ESA or www.usace.army.mil/Missions/Civil- applies the definition of ‘‘effects of the result in the destruction or adverse Works/Tribal-Nations/. action’’ at 50 CFR 402.02, as well as the modification of critical habitat proposed This general condition is adopted as U.S. FWS’s and NMFS’s regulations for to be designated for such species. The proposed. identifying activities that are reasonably Corps has modified the first sentence of GC 18. Endangered Species. The certain to occur (50 CFR 402.17(a)) and paragraph (c) as follows: ‘‘Non-federal Corps proposed to modify this general identifying the consequences caused by permittees must submit a pre- condition to make changes to be the proposed action (50 CFR 402.17(b)). construction notification to the district

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engineer if any listed species or exclusion of proposed critical habitat One commenter recommended that designated critical habitat (or species was an administrative oversight. the Corps adhere to the 45-day review proposed for listing or critical habitat The term ‘‘in the vicinity’’ for the time to determine whether a proposed proposed for such designation) might be purposes of paragraph (c) of this general NWP activity ‘‘may affect’’ or will have affected or is in the vicinity of the condition cannot be defined at a ‘‘no effect’’ on listed species. activity, or if the activity is located in national level. What constitutes ‘‘in the Alternatively, this commenter suggested designated critical habitat or critical vicinity’’ can vary substantially by that the review period not exceed 90 habitat proposed for such designation, species, environmental setting, the days under any circumstances. One and shall not begin work on the activity medium in which the species lives (e.g., commenter expressed support for the until notified by the district engineer water, air, or in the ground), and other use of regional programmatic ESA that the requirements of the ESA have factors. When reviewing a PCN, the section 7 consultations to satisfy the been satisfied and that the activity is district engineer makes an independent requirements of general condition 18. authorized.’’ The Corps has added determination of whether the proposed Paragraph (c) of general condition 18 ‘‘species proposed for listing’’ and activity ‘‘may affect’’ listed species or already requires the district engineer to ‘‘critical habitat proposed for such designated critical habitat and thus notify the non-federal applicant within designation’’ where appropriate in other requires ESA section 7 consultation. 45 days of receipt of a complete PCN sentences in this paragraph. The district engineer relies in part on whether the proposed activity will have When reviewing a PCN for a proposed information in the PCN, but he or she ‘‘no effect’’ in listed species or NWP activity that might affect species will also utilize other information, designated critical habitat or where it proposed for listing or critical habitat including local knowledge of the area, ‘‘may affect’’ listed species or proposed for such designation, or is and the species and the habitats in designated critical habitat and require located in critical habitat proposed for which the listed species lives in. section 7 consultation with the U.S. One commenter said general such designation, the district engineer FWS and/or NMFS. If the district condition 18 should require PCNs for will evaluate the effects of the proposed engineer has to conduct section 7 activities authorized by NWPs 3, 12, 13, NWP activity on the species proposed consultation with the U.S. FWS or 14, 21, 39, 44 and 48. One commenter for listing or the critical habitat NMFS, the consultation process may stated that the Corps must not rely proposed for designation. If the district take longer than 90 days. Formal section solely on permittees submitting PCNs to engineer determines that the proposed 7 consultations conclude within 90 days comply with its ESA obligations. One NWP activity is likely to jeopardize the after initiation unless the timeframe is continued existence of any proposed commenter suggested revising the extended in accordance with the section species or result in the destruction or general condition to state that the ESA 7 regulations at 50 CFR 402.14(e). For adverse modification of proposed section 7 consultation for an NWP informal consultations, the U.S. FWS critical habitat, he or she will initiate a activity will cover the entire project, to and NMFS are required to provide conference with the U.S. FWS and/or clarify that the entire action area must written concurrence or non-concurrence NMFS in accordance with 50 CFR be examined and not just the activities with the federal agency’s ‘‘may affect, 402.10. If the district engineer on lands under the Corps’ jurisdiction. not likely to adversely affect’’ determines that a conference is All activities authorized by NWPs 21, determination within 60 days, unless an necessary, he or she will notify the non- 39, and 44 require PCNs to district extension occurs (see 50 CFR federal applicant within 45 days of engineers. The district engineers will receipt of a complete PCN. The activity review those proposed activities and 402.13(c)(2)). The Corps cannot issue is not authorized by NWP until the determine whether ESA section 7 the NWP verification until the section 7 district engineer has notified the project consultation is required. Activities consultation is completed and the proponent that the requirements of ESA authorized by NWPs 3, 12, 13, 14, and applicant cannot proceed without section 7 have been satisfied 48 require PCNs under specific receiving a verification from the Corps The Corps added ‘‘or conference’’ to circumstances, and district engineers as provided for in paragraph (a)(2) of the second to last sentence of paragraph will review those PCNs to identify general condition 32 because (c) to address situations where the proposed activities that ‘‘may affect’’ compliance with ESA cannot be waived. district engineer conducts an ESA listed species or designated critical The Corps will continue to utilize section 7 conference with the U.S. FWS habitat. For those activities that do not regional programmatic consultations for or NMFS for a proposed NWP activity require PCNs under the text of those the NWPs, and work with the U.S. FWS that may affect a species proposed for general permits, paragraph (c) applies and NMFS to develop new regional listing or proposed critical habitat. The when the project proponent is a non- programmatic consultations. Corps also modified paragraph (d) of federal permittee. If any listed species or One commenter suggested changing this general condition to state that as a designated critical habitat might be paragraph (g) of general condition 18 to result of a conference with the U.S. FWS affected or is in the vicinity of the advise project proponents to only use or NMFS the district engineer may add proposed NWP activity, or if the the U.S. FWS’s IPaC website at (http:// species-specific permit conditions to the proposed NWP activity is located in ww.fws.gov/ipac) because other websites NWPs. designated critical habitat, then the are usually outdated. This commenter The Corps is adding ‘‘or critical project proponent is required to submit also recommended requiring project habitat proposed for such designation’’ a PCN so that the district engineer can proponents to append the IPaC output to this general condition to ensure that determine whether the proposed document to their consultation package. these NWPs do not authorize any activity ‘‘may affect’’ listed species or One commenter requested that the text activities that are likely to result in the designated critical habitat. When of the general condition be modified to destruction or adverse modification of determining the scope of the ESA include specific instructions on the proposed critical habitat. The general section 7 consultation, the district process for ESA Section 7 consultation condition already prohibits the use of engineer applies the U.S. FWS’s and where the Corps has limited regulatory NWPs for any activity that is likely to NMFS’s regulations at 50 CFR part 402, authority, such linear projects where the jeopardize the continued existence of including the definitions of ‘‘action Corps’ jurisdiction is limited to species proposed for listing. The prior area’’ and ‘‘effects of the action.’’ crossings of jurisdictional waters and

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the crossings are separated by upland incidental take statement to the Corps, general condition. One commenter areas. the applicant, or both taking into noted that even though the Solicitor’s Project proponents should be allowed account their respective roles, Opinion has been vacated, the Corps to use whatever information that can authorities, and responsibilities (see 84 should move text from the preamble to help them determine whether the PCN FR 44977). the general condition if reforms to the threshold in paragraph (c) of general A few commenters said that it is Migratory Bird Treaty Act are finalized condition 18 is triggered. The U.S. likely activities are occurring that are by the administration before the final FWS’s IPaC tool is just one tool that not in compliance with general NWPs are issued. One commenter said might provide useful information to condition 18 because the Corps does not that applicants should be encouraged to prospective permittees. There may be require PCNs for all activities. One coordinate with wildlife agencies. other tools, such as databases and commenter stated, with regard to ESA- Several commenters stated that websites managed by state and local listed species, PCNs should not only reference to the Solicitor’s Opinion in governments and non-governmental include the immediate area, rather the the preamble should be stricken because organizations that may be helpful in entire area impacted by NWP activities, it was recently vacated by a federal determining whether a proposed NWP which must be consulted on district court. activity might affect listed species, if programmatically with the U.S. FWS. The text of the general condition is listed species are in the vicinity of a This commenter provided an example of sufficient to address the Migratory Bird proposed activity, or if the activity is studies have shown that pollutants and Treaty Act and the Bald and Golden located in designated critical habitat. sediments can impact critically Eagle Protection Act without moving This includes listed species under the imperiled mussels up to 10 river miles text from the preamble of the proposed jurisdiction of the NMFS, which are not from the impact location and said that rule to the general condition. Project included in IPaC. The Corps does not ESA section 7 consultations should proponents can coordinate their believe that there should be a include the evaluation of 10 river miles proposed projects with federal and state requirement to the output from IPaC in of potential effects from the NWP wildlife agencies. There is no need to the PCN because not all listed species impact location and analyses of strike the text that was in the preamble are included in that information system. cumulative effects as well. to the 2020 Proposal because it was For linear projects, such as various In order to obtain NWP background used to solicit public types of utility line activities authorized authorizations, project proponents must comment, and it was current at the time by NWPs 12, 57, and 58, the Corps comply with all terms and conditions of the proposal was published in the applies the ESA section 7 regulations at the NWPs (see 33 CFR 330.1(c)), Federal Register. 50 CFR part 402, including the including general condition 18. If a This general condition is adopted as definition of ‘‘effects of the action’’ and project proponent does not comply with other provisions in determining whether the requirements of general condition proposed. a proposed NWP activity ‘‘may affect’’ 18, including the PCN requirements in GC 20. Historic Properties. The Corps listed species or designated critical paragraph (c) of that general condition, proposed to modify paragraph (c) of this habitat, and for initiating ESA section 7 the activity is not authorized by an general condition to state that the consultation for those proposed NWP. When determining whether a district engineer’s identification efforts activities where the district engineer proposed NWP activity may affect listed for historic properties shall be makes a ‘‘may affect’’ determination. If species or designated critical habitat, commensurate with potential impacts. ESA section 7 consultation is required the district engineer applies the The Corps also proposed to modify for activities authorized by NWPs 12, regulations issued by the U.S. FWS and paragraph (d) of this general condition 57, and 58, the Corps and U.S. FWS NMFS at 50 CFR part 402, including the to inform non-federal permittees that if and/or NMFS work together on a definition of ‘‘effects of the action’’ and pre-construction notification is required comprehensive review of the overall other provisions the determine the under paragraph (c) of this general project in accordance with the scope of the ESA section 7 consultation condition, then he or she shall not begin definition of ‘‘effects of the action’’ and and analysis of effects or consequences the NWP activity until the district other provisions of 50 CFR part 402, This general condition is adopted engineer has determined the proposed including the 2019 amendments the U.S with the modifications discussed above. activity has no potential to cause effects FWS and NMFS made to those GC 19. Migratory Birds and Bald and to historic properties or has completed regulations (see 84 FR 44976). For ESA Golden Eagles. The Corps proposed to NHPA section 106 consultation. section 7 purposes where the Corps has revise the wording of this general Paragraph (d) requires the district a limited regulatory role under the condition to clarify that members of the engineer to notify the non-federal Clean Water Act and/or Section 10 of regulated public should determine for applicant within 45 days of receipt of a the Rivers and Harbors Act of 1899, the themselves, with the assistance of the complete PCN whether NHPA section Corps, with the assistance of the permit U.S. Fish and Wildlife Service, what 106 consultation is required. applicant, can provide the U.S. FWS or ‘‘take’’ permits, if any, they might Several commenters expressed NMFS with a biological assessment that require under the Migratory Bird Treaty support for the proposed changes to this evaluates the larger project as a whole Act or the Bald and Golden Eagle general condition. A few commenters but that clearly distinguishes between Protection Act. This General Condition suggested adding language to the areas and effects subject to the Corps’ makes clear that Project Proponents are general condition to require disclosure jurisdiction and areas and effects responsible for complying with the of the qualifications of the person who outside of its jurisdiction. If the Migratory Bird Treaty Act and the Bald would make an effect determination for proposed activity requires formal ESA and Golden Eagle Protection Act, the purposes of Section 106 of the section 7 consultation, the U.S. FWS including obtaining any ‘‘take’’ permits National Historic Preservation Act and NMFS can issue an incidental take that may be required under the U.S. (NHPA). That individual would need to statement for a biological opinion Fish and Wildlife Service’s regulations satisfy the Secretary of the Interior’s where, in accordance with ESA section issued under those statutes. Standards for Professional 7(b)(4)(iv) they can assign responsibility Several commenters expressed Qualifications in Archaeology and of specific terms and conditions of the support for making no changes to this Historic Preservation.

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The Corps does not believe it would equivalent to conducting consultation. the PCN does not exceed 90 days. One be appropriate to add text to this general Section 106 consultation remains the commenter stated that language condition to require disclosure of the responsibility of the Corps. The requiring an applicant to continue to qualifications of people making effects requirements of general condition 20, wait beyond 45 days if they have not determinations for the purposes of plus the changes being made in this heard back from the Corps creates the section 106 of the NHPA. Effect final rule, will ensure that section 106 potential for an indefinite delay. This determinations may be made by a consultation occurs for NWP activities commenter suggested adding a variety of agency officials, including that have potential to cause effects to requirement for the district to establish Corps district staff. Native American cultural resources that a deadline for notifying the applicant on Many commenters stated that this meet the definition of ‘‘historic whether NHPA section 106 consultation general condition does not comply with property’’ in Section F, Definitions. is required. the NHPA and does not satisfy the Several commenters said that the Paragraph (d) of general condition 20 Corps Section 106 obligations with proposed change to paragraph (c), states that for non-federal permittees, regards to the NWPs as it unlawfully which states that the district engineer’s the district engineer will notify the delegates its Section 106 responsibilities identification efforts for historic prospective permittee within 45 days of to non-federal permittees and properties shall be commensurate with receipt of a complete PCN whether establishes a review process that is not potential impacts, should be further NHPA section 106 consultation is consistent with the Advisory Council on revised for clarity. A few commenters required. The section 106 consultation Historic Preservation’s (ACHP’s) expressed opposition to this proposed process may take longer than 45 days. regulations at 36 CFR part 800. A few change to paragraph (c) and requested The NWP verification cannot be issued commenters said that this general that it be removed in the final rule. and the project applicant cannot condition should not reference Several commenters stated that the text proceed with the proposed activities Appendix C to 33 CFR part 325, because in paragraph (c) should make clear that under Corps jurisdiction until the Appendix C has been determined by the the evaluation is only associated with section 106 consultation process has federal courts, the ACHP, and other the extent of the Corps’ jurisdiction. been completed. federal agencies to be unlawful. One One commenter said that the proposed A few commenters said that Corps commenter expressed support for the change gives the Corps justification to districts often override the permittees’ Corps’ reliance on Appendix C and its decline to identify certain historic determination as to whether a PCN is interim guidance, stating that they are properties if the district engineer required for a proposed activity under generally consistent with the ACHP’s determines that the property or paragraph (c). One commenter regulations. properties will not be impacted by the recommended modifying or revising This general condition does not proposed activity. A few commenters paragraph (a) of general condition 20 in delegate the Corps’ section 106 opined that the Corps fails to evaluate a manner consistent with paragraph (a) responsibilities to permit applicants. areas outside its jurisdiction, of general condition 18 to focus on the The responsibility for making effect particularly with linear projects, with is threshold that triggers the requirement determinations under section 106 of the contrary to current regulations. for section 106 consultation, rather than NHPA for NWP activities falls to the The change to paragraph (c) regarding determinations made by district district engineer. For non-federal the district engineer’s identification engineers once a PCN is submitted. One permittees, paragraph (c) of general efforts for historic properties is commenter recommended timely review condition 20 requires the submission of consistent with the ACHP’s regulations of scopes of work and requested that the a PCN for a proposed activity that might at 36 CFR 800.4(b)(1) regarding the level Corps make final determinations have the potential to cause effects to of identification efforts. Section regarding scopes of review and not historic properties. The Corps’ 800.4(b)(1) states that the federal agency allow any revisions to those regulations for complying with section should take into account the determinations. 106 of the NHPA are found at Appendix ‘‘magnitude and nature of the For an NWP activity, it is ultimately C to 33 CFR part 325. Appendix C undertaking and the degree of federal the district engineer’s responsibility to remains in effect as a counterpart involvement, the nature and extent of determine compliance with section 106 regulation to 36 CFR part 800, and no potential effects on historic properties, of the NHPA. As additional information federal court has invalidated Appendix and the likely nature and location of is revealed during the review of a PCN C. historic properties within the area of or during section 106 consultation, it A few commenters objected to this potential effects.’’ When evaluating an may be necessary to change the scope of general condition, saying that it NWP PCN, the district engineer will review to ensure compliance with the encourages applicants to consult with identify the permit area in accordance requirements of section 106 of the State Historic Preservation Officers with the criteria in paragraph 1(d) of NHPA. The Corps has modified (SHPOs), Tribal Historic Preservation Appendix C to 33 CFR part 325. The paragraph (a) of this general condition Officers (THPOs) and tribes. These Corps will evaluate direct and indirect to state that ‘‘no activity is authorized commenters said that the Corps cannot effects caused by the proposed NWP under any NWP which may have the delegate its tribal consultation activity. If an historic property is not potential to cause effects to properties obligations to applicants. One directly or indirectly affected by the listed, or eligible for listing, in the commenter stated that the proposed proposed NWP activity, the Corps does National Register of Historic Places until changes to general condition 20 will not have the authority to prevent effects the requirements of Section 106 of the impact Native American cultural to historic properties caused by National Historic Preservation Act resources. activities outside of its control and (NHPA) have been satisfied.’’ Paragraph (c) of this general condition responsibility. One commenter said that clarification encourages permit applicants to seek One commenter recommended that is needed on who are the non-federal assistance from SHPOs, THPOs, and the Corps adhere to the 45-day review permittees that need to submit PCNs designated tribal representatives to help time or as an alternative change under paragraph (c). One commenter ensure compliance with this general paragraph (c) of this general condition remarked that the terms ‘‘might have the condition. Seeking assistance is not so that the district engineer’s review of potential to cause’’ and ‘‘potentially

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eligible’’ are vague terms and that Corps Corps did not propose any changes to mitigation should not be required districts are applying these this general condition. One commenter because other forms of mitigation would requirements inconsistently and more recommended reissuance of the general be more environmentally appropriate expansively than appropriate. One condition with no additional restrictive and issues an activity-specific waiver of commenter said that the ‘‘might have provisions. this requirement. the potential’’ standard is a higher This general condition is adopted as A few commenters expressed support threshold than the threshold set forth in proposed. for the changes to this general the ACHP’s regulations at 36 CFR part GC 22. Designated Critical Resource condition. One commenter objected to 800. Waters. The Corps did not propose any the proposed changes and As a general matter, a non-federal changes to this general condition. One recommended that this general permittee is a permittee that is not a commenter recommended revising this condition be reissued with no changes. federal agency. There may be limited general condition to include state One commenter stated that circumstances where a non-federal designated critical resource waters compensatory mitigation should not be agency might be considered as having rather than deferring to Corps district required when compensatory mitigation NHPA section 106 obligations similar to engineers to designate certain waters at is required by other federal or state those of a federal agency. For example, a later date. One commenter laws, rules, or regulations. Another the Federal Highway Administration recommended adding proposed new commenter said that the Corps should may assign a state Department of NWPs C and D to the list of NWPs in focus on improving consistency Transportation the responsibility for paragraph (a) of this general condition. between districts on when complying with non-NEPA This commenter also suggested adding compensatory mitigation is required for environmental statutes such as the proposed new NWPs A and B to the list NWP activities. NHPA. The purpose of the ‘‘might have of NWPs in paragraph (b) of this general Changes to this general condition are the potential to cause effects’’ threshold condition. Two commenters said that if necessary to address the removal of the in paragraph (c) of this general the Corps removes the PCN 300 linear foot limit for losses of stream condition is to require submittal of requirements for federal permittees, bed under NWPs 21, 29, 39, 40, 42, 43, PCNs for proposed NWP activities that federal agencies should still be required 44, 50, 51, and 52. District engineers might have a possibility of causing to submit PCNs for proposed activities impose compensatory mitigation effects to historic properties, so that the in designated critical resource waters. requirements on specific activities district engineer can determine whether After providing notice and an authorized by NWPs to ensure that section 106 consultation is required for opportunity for public comment, the those activities result in no more than a proposed NWP activity. ‘‘Potentially Corps is continuing to require the long- minimal individual and cumulative eligible’’ is another threshold that is standing practice of allowing district adverse environmental effects. If a intended to provide an opportunity for engineers to add specific waters to this proposed NWP activity is regulated by further review to determine whether a general condition. States that want another federal agency or a state, tribal, historic property is present. These waters of particular environmental or or local agency, and that agency requires thresholds cannot be precisely defined, ecological significance to be subjected to compensatory mitigation for that and involve some degree of subjectivity. this general condition should provide proposed activity, the district engineer One commenter stated that paragraph their recommendations to the may consider those compensatory (b) of this general condition improperly appropriate district engineer for mitigation requirements before designates other federal agencies as the consideration. Since NWP 12 has been determining whether additional lead with respect to Section 106 without in paragraph (a) of this general compensatory mitigation is required for their agreement. This commenter further condition since it was first adopted in that activity. The Corps should not be noted that this might be problematic 2000 (65 FR 12872), for consistency the imposing duplicative compensatory given the proposal not to require PCNs Corps has added new NWPs 57 and 58 mitigation requirements when the from federal permittees for proposed to this general condition. New NWPs 55 resource concerns are already being activities that might have the potential (seaweed mariculture activities) and 56 addressed by another federal, tribal, to cause effects to historic properties. (finfish mariculture activities) require state, or local agency. The Corps Other federal agencies have their own PCNs for all activities, so it is believes that federal and state regulatory obligations to comply with section 106 unnecessary to add these NWPs to the programs should complement rather of the NHPA. If a proposed NWP list of NWPs in paragraph (b) of this than duplicate one another (see 33 CFR activity being undertaken by another general condition. In addition, the Corps 320.1(a)(5). Since aquatic resources can federal agency requires a PCN, is retaining PCN requirements for vary substantially across the country, paragraph (b) of this general condition federal permittees. different Corps districts may establish requires the federal permittee to submit This general condition is adopted different compensatory mitigation appropriate documentation with the modifications discussed above. requirements. demonstrating compliance with the GC 23. Mitigation. The Corps One commenter disagreed that project requirements of section 106. After proposed to modify paragraph (d) of this proponents design projects to minimize reviewing that documentation, the general condition to establish a losses of waters of the United States to district engineer may notify the federal threshold for requiring compensatory qualify for NWP authorizations to avoid permittee that additional section 106 mitigation for losses of stream bed that the cost of providing compensatory consultation may be necessary. Non- is similar to the threshold for wetlands mitigation to offset the authorized federal and federal permittees have in paragraph (c) of this general losses. One commenter said that other different thresholds under this general condition. The Corps proposed to add a forms of mitigation used for NWP condition because their responsibilities 1⁄10-acre threshold for requiring activities should include best under section 106 are different. compensatory mitigation for losses of management practices, minimization This general condition is adopted stream beds that require pre- measures, activities that result in with the modifications discussed above. construction notification, unless the improvement of wetland and stream GC 21. Discovery of Previously district engineer determines on a case- habitat, and actions that improve water Unknown Remains and Artifacts. The by-case basis that compensatory quality. Another commenter disagreed

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that best management practices and said they do not support the use of accrual or attainment of aquatic other forms of mitigation are more mitigation as a means to allow more functions at a compensatory mitigation environmentally preferable forms of impacts and justify findings of no more site (see 33 CFR 332.2). Compensatory mitigation, and that best management than minimal adverse environmental mitigation required for NWP activities practices should be implemented during effects. can help improve aquatic resources that the design, construction, and operations The use of compensatory mitigation may assist in the successful recovery of stages of a project. and other forms of mitigation to ensure salmon. The data the Corps collects on the that activities authorized by an NWP One commenter said the Corps relies impacts to waters of the United States result in no more than minimal too heavily on mitigation banks and in- authorized by the NWPs shows that 82 individual and cumulative adverse lieu fee programs to provide percent of verified impacts authorized environmental effects is codified in the compensatory mitigation despite a large by NWPs in 2018 are less than 1⁄10-acre Corps’ NWP regulations at 33 CFR body of scientific evidence that (see Figure 5.1 of the Regulatory Impact 330.1(e)(3). Section 404(e) of the Clean concluded that wetland banks are Analysis for this final rule). During Water Act does not prescribe how the ineffective and poorly monitored. A 2018, only 5% of the verified impacts Corps is to ensure that the categories of couple of commenters stated that authorized by NWPs resulted in impacts activities authorized by general permits mitigation banks and in-lieu fee to 0.25 acre to 0.5 acre. For those NWPs such as the NWPs will cause only programs do not replace lost functions that have a qualitative limit in acres, a minimal adverse environmental effects and values at impact sites. One 1⁄2-acre limit is the most common when performed separately, and will commenter said that the Corps relies on acreage limit. The small percentage of have only minimal cumulative adverse unrealized mitigation requirements to verified NWP activities that impact effect on the environment. Therefore, allow significant environmental harm to between 0.25 and 0.5 acre compared to the Corps has discretion on how to occur under the NWP program and that the much larger percentage of verified comply with the requirement in the previous reports from the National NWP activities that impact less than statute. Wetlands can be restored to Research Council and the Government 1⁄10-acre demonstrates the reduction of improve the degree of ecological Accountability Office have shown that impacts (i.e., minimization) that is functions they provide (e.g., NRC 2001), mitigation under the NWP program has incentivized by general condition 23. to offset wetland losses authorized by not proven successful and therefore, District engineers determine the the NWPs and other types of DA does not compensate for lost wetlands. compensatory mitigation requirements permits. Streams can also be restored to Regulations for the establishment and for specific NWP activities, and can increase the degree of ecological use of mitigation banks and in-lieu fee require forms of mitigation other than functions they provide (e.g., Wohl et al. programs to provide compensatory compensatory mitigation to ensure that 2015), which can also be used to offset mitigation for activities authorized by the authorized NWP activity results in losses of stream functions caused by the NWPs and other forms of DA no more than minimal individual and activities authorized by NWPs and other authorization were issued by the Corps cumulative adverse environmental types of DA permits. in 2008 (see 73 FR 19594). The 2008 effects. The use of other forms of One commenter stated that this rule establishes establish performance mitigation is consistent with the general condition should require standards and criteria for the use of watershed approach to compensatory compensatory mitigation for all losses of permittee-responsible compensatory mitigation described in the Corps’ wetlands, special aquatic sites, and mitigation, mitigation banks, and in-lieu regulations at 33 CFR 332.3(c). The use stream beds authorized by an NWP, not programs to improve the quality and of best management practices and other just those losses exceeding 1⁄10-acre that success of compensatory mitigation forms of mitigation may be effective at require PCNs. One commenter said that projects for activities authorized by reducing adverse environmental effects current compensatory mitigation Department of the Army permits. The so that compensatory mitigation is not requirements only replace, not improve, 2008 mitigation rule incorporated many necessary to ensure that an NWP aquatic resources, and to protect tribal of the recommendations made by the activity results in only minimal treaty rights, the Corps should require National Research Council in its 2001 individual and cumulative adverse improvements of aquatic resources to titled ‘‘Compensating for Wetland environmental effects. ensure the successful recovery of Losses Under the Clean Water Act’’ to A couple of commenters said that salmon. improve the ecological outcomes of compensatory mitigation cannot legally Compensatory mitigation and other wetland compensatory mitigation be used to make minimal adverse effects forms of mitigation are only required by projects. The 2005 Government determinations and that Section 404(e) district engineers when it is necessary to Accountability Office report titled of the Clean Water Act does not state ensure that NWP activities result in no ‘‘Wetlands Protection: Corps of that mitigation will be considered to more than minimal individual and Engineers Does Not Have an Effective ensure activities would cause only cumulative adverse environmental Oversight Approach to Ensure That minimal adverse environmental effects. effects (see 33 CFR 330.1(e)(3)), and the Compensatory Mitigation Is Occurring’’ These commenters objected to the use of Corps has determined that 1⁄10-acre is an also included recommendations for compensatory mitigation to allow more appropriate threshold with respect to improving the Corps’ oversight and impacts to waters and wetlands. One wetland mitigation. Compensatory outcomes of compensatory mitigation commenter stated that the Corps has not mitigation can be provided through the projects performed by permittees, provided any scientific or factual restoration, enhancement, mitigation banks, and in-lieu-fee evidence to conclude that compensatory establishment, and protection of aquatic program sponsors, and the Corps mitigation helps ensure that NWP resources to offset losses of those incorporated those recommendations in activities do not result in more than functions caused by activities the 2008 mitigation rule. minimal adverse environmental effects. authorized by the NWPs and other types One commenter said the NWP A couple of commenters said that of DA permits. A compensatory program should not be used to authorize compensatory mitigation does not mitigation credit is a unit of measure activities that requiring compensatory adequately or fully replace wetland or (e.g., a functional or areal measure or mitigation and that project proponents stream bed losses. Several commenters other suitable metric) representing the should have to apply for individual

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permits for activities requiring quantified in linear feet or other linear proposed activity qualifies for NWP compensatory mitigation. One metrics, the permittee and mitigation authorization. commenter stated that using mitigation provider can engage in discussions to One commenter expressed support for to reduce impacts below a threshold of determine how many linear feet of allowing the district engineer to waive significance violates the National stream credits are roughly proportional compensatory mitigation requirements Environmental Policy Act. to the area of stream bed filled or for wetland losses if she or he makes an The use of compensatory mitigation excavated as a result of an activity activity-specific determination that for NWP activities is an important tool authorized by an NWP. Each mitigation other forms of mitigation would be for authorizing activities that have no bank and in-lieu fee project has an environmentally preferable. One more than minimal individual and approved mitigation plan, and that commenter requested the Corps cumulative adverse environmental mitigation plan can be used to estimate identify, at a national level, the effects by NWP. Requiring individual how many linear feet of stream credits minimum amount of compensatory permits for any NWP activity that might be used to offset a specified mitigation required to offset resource requires compensatory mitigation would number of acres or square feet filled or losses. Several commenters said that not provide any additional excavated as a result of an NWP activity. compensatory mitigation should be environmental protection because the Over the years, there have been required consistently for all NWPs with ecological outcomes of compensatory numerous changes to the Corps areal and linear thresholds. mitigation projects is more dependent Regulatory Program, and each of those The Corps has retained the ability of on site selection, planning, and changes require some adjustment by district engineers to waive implementation, as well as monitoring Corps personnel, permit applicants, compensatory mitigation requirements and adaptive management to address consultants, contractors, mitigation for wetland losses when they determine deficiencies in the compensatory providers, and other people. that the proposed activity, without mitigation project that impede the One commenter recommended NWPs wetland compensatory mitigation, will ecological success of that project. The and/or regional conditions authorizing result in no more than minimal type of DA authorization used to the use of compensatory mitigation, individual and cumulative adverse authorize a regulated activity is not mitigation banks, and/or in-lieu fee environmental effect. Compensatory linked to the ecological outcomes of programs be withdrawn. One mitigation decisions are made on a case- compensatory mitigation projects. commenter said that this general by-case basis by district engineers, so it Under the Council on Environmental condition should be modified to state would be inappropriate to establish Quality’s regulations for implementing that out-of-kind mitigation is prohibited national minimums for compensatory the National Environmental Policy Act, for losses of designated critical resource mitigation requirements, or for all NWPs mitigation can be used to reduce project waters identified in general condition that have quantitative limits. impacts so that they are not significant 22. One commenter stated that paragraph (see 40 CFR 1501.6(c)). Division engineers can add regional (c) should be modified to allow for A couple commenters recommended conditions to the NWPs to establish protection, restoration, or enhancement that an economic analysis be performed lower thresholds for stream of areas next to wetlands as to evaluate the economic effects of the compensatory mitigation, and for the compensatory mitigation, similar to the proposed changes to this general use of mitigation banks, in-lieu fee proposed language in paragraph (d). A condition, to assess the costs of the programs, and permittee-responsible couple of commenters said that a one- additional time and resources needed to mitigation for activities authorized by for-one impact-to-compensation ratio overhaul stream credit programs, NWPs. Out-of-kind mitigation may be only works if all compensatory evaluate losses to mitigation providers beneficial to designated critical resource mitigation efforts are successfully and contractors, and the capacity to waters. Therefore, the Corps declines to implemented and the Corps monitors determine if the Corps can reasonably make the recommended change to and enforces compensatory mitigation implement the proposed changes. general conditions 22 or 23. requirements. These commenters The changes to this general condition Several commenters said that this recommended modifying this general do not require an overhaul of stream general condition should be modified to condition to clarify how the ecological credit programs. Compensatory require applicants to take all practicable outcomes of compensatory mitigation mitigation credits, including stream steps to avoid and minimize effects to projects would be improved and how credits, can be quantified in acres, linear waters of the United States. One the Corps would ensure that no-net-loss feet, functional assessment units, or commenter stated that avoidance and of aquatic resources is achieved. other suitable metrics of particular minimization of waters of the United The Corps’ compensatory mitigation resource types (see 33 CFR 332.8(o)(1)). States during the planning and siting regulations at 33 CFR 332.3(i) allow The preamble to the 2008 mitigation phases of project development are not district engineers to require the rule states that district engineers retain appreciated or considered by regulatory restoration, establishment, the discretion to quantify stream agencies. enhancement, and preservation, as well impacts and required compensatory Paragraph (a) of general condition 23 as the maintenance, of riparian areas mitigation in terms of area or other already requires the NWP activity to be and/or buffers around aquatic resources appropriate units of measure (see 73 FR designed and constructed to avoid and where necessary to ensure the long-term 19633). This discretion also applies to minimize adverse effects, both viability of those resources. This the issuance of the NWPs by Corps temporary and permanent, to waters of provision also applies to all types of DA Headquarters, to determine appropriate the United States to the maximum permits, including the NWPs. There is units of measure for efficient extent practicable at the project site (i.e., no need to explicitly state this administration of the NWP program. on site). A description of the mitigation information in the text of the general Existing inventories of stream credits measures being undertaken by the condition. The Corps’ compensatory can be used to provide compensatory project proponent, including avoidance mitigation regulations requires mitigation for losses of stream bed and minimization on the project site, in monitoring of compensatory mitigation authorized by these NWPs. For those the PCN can assist the district engineer projects, and for district engineers to current inventories of stream credits in his or her decision whether the take action to ensure that compensatory

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mitigation projects achieve their minimal adverse environmental effects cumulative adverse environmental objectives and offset the losses of waters for certain NWP activities. Another effects. For an NWP activity that of the United States. Adaptive commenter suggested the applicant be requires compensatory mitigation, the management may be required to ensure required to provide documentation of district engineer will determine whether that those compensatory mitigation credit availability or credit reservation if on-site or off-site compensatory objectives are met. The ecological proposing to satisfy compensatory mitigation is required, and the outcomes of compensatory mitigation mitigation requirements with credits appropriate geographic scale for projects are more appropriately from a mitigation bank. One commenter consideration of off-site compensatory addressed on a case-by-case basis, said that this general condition should mitigation options. through compliance efforts by district be modified to state that mitigation bank One commenter said that general engineers. credits are preferred where practicable, condition 23 should clearly state A couple commenters supported the and to elucidate that mitigation banks whether compensatory mitigation continued use of a 1⁄10-acre threshold for are not practicable in the State of would or would not be required for requiring compensatory mitigation and Alaska. wetland and stream bed losses for NWP said that the threshold has been Paragraph (c) of this general condition activities that do not require PCNs. One effective in encouraging avoidance and does not require the use of a functional commenter recommended that minimization of adverse effects to analysis to determine whether compensatory mitigation be provided wetlands. Several commenters said that mitigation bank credits can be used to for all losses of wetland or stream bed a one-for-one impact-to-compensation provide compensatory mitigation for an that exceed 1⁄10-acre, not just those ratio should be required to compensate NWP activity. District engineers have losses requiring PCNs. A few for all wetland losses to ensure no-net- the discretion to waive the commenters stated that compensatory loss, not just those losses that exceed compensatory mitigation requirement mitigation for wetland and stream bed 1⁄10-acre. Several commenters remarked for losses of greater than 1⁄10-acre of losses should be required at ratios that the proposed 1⁄10-acre threshold to wetlands, or to require another form of greater than one-for-one to account for require compensatory mitigation for mitigation to ensure that the NWP temporal loss and the difficulty of losses of wetlands and stream bed does activity results in no more than minimal replacing wetlands and stream bed, and not achieve a goal of no-net-loss of individual and cumulative adverse to ensure that habitat is recovered at a aquatic resources. One commenter said environmental effects. If the district greater degree than it is being lost. One no-net-loss should not be applied to engineer determines that compensatory commenter said that there is no basis for areas that have been previously and mitigation is required for a proposed wetlands and streams to have the same heavily modified. NWP activity, the applicant can propose 1⁄10-acre compensatory mitigation The Corps is retaining the 1⁄10-acre to use mitigation bank credits or in-lieu threshold. threshold for wetland compensatory fee program credits to fulfill the For those NWP activities that do not mitigation in paragraph (c) of this compensatory mitigation requirement. require PCNs, compensatory mitigation general condition based on its The district engineer can require the is not required because the district experience administering the program. applicant to provide a statement of engineer is not notified of those There is no requirement in Section 404 credit availability, so that the applicant activities and cannot add permit or the Clean Water Act, the Corps’ does not have to prepare a mitigation conditions to the NWP authorization in regulations at 33 CFR parts 320 to 332, proposal for a permittee-responsible accordance with 33 CFR 332.3(k). The or the U.S. EPA’s 404(b)(1) Guidelines mitigation project. The framework for district engineer determines the for no net loss of wetlands or other evaluating compensatory mitigation appropriate amount of compensatory types of aquatic resources. For all DA options, that is the use of mitigation mitigation in accordance with the permits, including the NWPs, bank credits, in-lieu fee program credits, Corps’ regulations at 33 CFR 332.3(f). As compensatory mitigation requirements or permittee-responsible mitigation, is discussed below, in response to are determined on a case-by-case basis. provided in the Corps’ regulations at 33 comments received on the proposed Compensatory mitigation may be CFR 332.3(b). Mitigation banks can be rule, the Corps is changing the threshold required by district engineers to ensure practicable in the State of Alaska. in paragraph (d) of this general that an activity that requires One commenter requested condition from 1⁄10-acre to 3⁄100-acre. authorization under section 404 of the clarification on PCN and compensatory A few commenters stated that Clean Water Act and/or sections 9 or 10 mitigation requirements for NWP compensatory mitigation should only be of the Rivers and Harbors Act of 1899 activities involving mechanized land required for the losses of jurisdictional is not contrary to the public interest (see clearing in forested wetlands for utility wetlands and streams and compensatory 33 CFR 332.1(d)). Compensatory line rights-of-way since paragraph (i) of mitigation should not be required for mitigation for unavoidable impacts may general condition 23 states that losses of ephemeral stream bed or losses be required to ensure that an activity compensatory mitigation may be of other non-jurisdictional waters. requiring a section 404 permit complies required for activities that convert a Several commenters said that with the Section 404(b)(1) Guidelines forested or scrub-shrub wetland to an compensatory mitigation should only be (see 33 CFR 332.1(c)(3)). herbaceous wetland. A commenter said required for permanent impacts and that One commenter said that paragraph that compensatory mitigation should be temporary impacts should not be (c) of this general condition should be provided on-site or in the sub-basin counted in the 1⁄10-acre threshold. One modified to allow mitigation bank where impacts occur. commenter suggested that this general credits to be used at a one-for-one ratio Consistent with paragraph (i) of this condition should be modified to clarify rather than performing a functional general condition, if a proposed NWP if the 1⁄10-acre threshold would be analysis. A commenter stated that 1⁄10th- activity involves mechanized land applied individually or cumulatively in acre may be too restrictive of a clearing in a forested wetland, and it cases where both stream bed and compensatory mitigation threshold in requires a PCN, the district engineer can wetlands would be lost. Several some Corps districts or watersheds and require compensatory mitigation to commenters said the 1⁄10-acre threshold compensatory mitigation may not be ensure the proposed activity result in no in paragraphs (c) and (d) should be required to achieve no more than more than minimal individual and applied cumulatively so that any

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combination of wetland and stream One commenter stated that threshold is too broad to apply losses exceeding 1⁄10-acre would require compensatory mitigation for stream bed nationally. One commenter compensatory mitigation. losses should result in net gains in area recommended establishing thresholds Since ephemeral streams are excluded or functions. A few commenters said for requiring compensatory mitigation from Clean Water Act jurisdiction, (see that headwater streams are for stream bed losses through regional 33 CFR 328.3(b)(3)), NWP authorization fundamentally different and offer conditions instead of general condition is not applicable to ephemeral streams. different services than non-tidal 23 to account for the regional variability Compensatory mitigation is not required wetlands and therefore should not be of streams across the United States. for losses of ephemeral stream bed, or regulated the same. Additionally, Several commenters stated that for losses of any other non-jurisdictional minimal adverse environmental effects implementation of a 1⁄10-acre threshold waters. The 1⁄10-acre and 3⁄100-acre are different for distinct aquatic for stream compensatory mitigation thresholds in paragraphs (c) and (d) of resources. One commenter opposed the does not achieve a goal of no-net-loss of this general condition apply to losses of elimination of ‘‘other open waters’’ from aquatic resources. A couple commenters waters of the United States, as that term paragraph (d) and said it would create said that paragraph (d) allows for is defined in Section F of the NWPs uncertainty for when compensatory incremental losses of stream bed, which (Definitions). These thresholds apply to mitigation would be required for losses is contrary to the Corps’ no-net-loss single and complete projects authorized of other open waters. A couple objective and is inconsistent with by the NWPs. commenters said that reducing restoring habitat necessary to provide Several commenters said it is compensatory mitigation requirements sustainable fish populations. One important to maintain the Corps’ also reduces the incentive to minimize commenter stated that reductions in the flexibility as proposed to allow district impacts. amount of required mitigation to engineers to determine that other forms Stream compensatory mitigation compensate for headwater stream losses of mitigation are appropriate or to waive projects are expected to result in would have large impacts on mitigation requirements for specific increases in stream functions, since the downstream waters, including large NWP activities. Several commenters purpose of compensatory mitigation is rivers. One commenter said that objected to allowing district engineers to to offset unavoidable adverse impacts 1 implementing a ⁄10-acre threshold for waive compensatory mitigation which remain after all appropriate and requiring compensatory mitigation for requirements. One commenter said that practicable avoidance and minimization stream bed losses would increase the if federal agencies are not required to has been achieved. Stream regulatory burden on downstream submit PCNs, those agencies would not compensatory mitigation projects applicants due to declining water have to provide compensatory produce credits that represent the quality. mitigation for wetland or stream bed accrual or attainment of stream Since the NWPs authorize activities losses that exceed 1⁄10-acre because the functions at a compensatory mitigation 1 across the country, paragraph (d) of this ⁄10-acre threshold proposed in site, consistent with the definition of paragraphs (c) and (d) only applies to ‘‘credit’’ in the Corps’ regulations at 33 general condition establishes a national NWP activities that require PCNs. CFR 332.2. While headwater streams threshold for stream compensatory Several commenters said that exhibit some differences in structure mitigation, but there is flexibility in the paragraphs (c) and (d) should be and function than downstream streams general condition to allow district modified to state that advanced in a tributary network, when those engineers to make activity-specific mitigation is preferred. headwater streams are considered determinations on whether stream The general condition retains waters of the United States, they are compensatory mitigation should be flexibility for district engineers to subjected to the same regulatory required for activities that result in the determine the appropriate mitigation for requirements as other waters of the loss of stream bed. Division engineers a particular NWP activity to ensure that United States. Headwater streams have can add regional conditions to the the activity causes no more than no special status under the Clean Water NWPs to establish a lower threshold for minimal individual and cumulative Act or its implementing regulations, requiring stream compensatory adverse environmental effects. After the including the 404(b)(1) Guidelines mitigation. As discussed above, there is district engineer reviews a PCN, he or issued by the U.S. EPA. The only no requirement for no net loss of stream she may determine that no mitigation is streams that are special aquatic sites bed in the Clean Water Act or the Corps’ necessary for the proposed activity to be under the 404(b)(1) Guidelines are riffle regulations for implementing the Clean authorized by an NWP. For these 16 and pool complexes (see subpart E of 40 Water Act. Previous versions of this final NWPs, federal agencies are CFR part 230). When reviewing a PCN general condition in prior NWP subjected to the same PCN requirements for a proposed activity that may cause rulemakings did not have a threshold as non-federal permittees. They are also the loss of headwater stream bed, the for compensatory mitigation for losses subject to the mitigation requirements in district engineer will consider the of stream bed. A stream compensatory this general condition. Advance functions being performed by the mitigation threshold was added to this compensatory mitigation can be used to headwater streams. The Corps proposed general condition to provide an satisfy compensatory mitigation to redesignate paragraph (d) of the 2017 additional mechanism to help ensure requirements added to NWP general condition 23 as paragraph (e) of that activities authorized by the 10 authorizations by district engineers. the 2021 general condition 23, so it did NWPs from which the 300 linear foot One commenter voiced support for not propose to remove ‘‘other open limit for losses of stream bed was the addition of a 1⁄10-acre threshold for waters’’ from the paragraph that removed result in no more than minimal requiring compensatory mitigation for discusses the use of riparian areas next individual and cumulative adverse losses of stream beds that require pre- to open waters as compensatory environmental effects. Similar to the construction notification. Another mitigation for NWP activities. The Corps 1⁄10-acre wetland compensatory commenter expressed support for the did not propose to reduce any mitigation threshold, this compensatory addition of a compensatory mitigation compensatory mitigation requirements. mitigation threshold for stream bed threshold for stream bed losses Several commenters stated the 1⁄10- losses is expected to provide incentives represented in either linear feet or acres. acre stream compensatory mitigation for project proponents to design their

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projects to minimize losses of stream regulated public. If the district engineer March 19, 2019, for those NWP bed, and help sustain downstream determines, after reviewing a PCN, that verifications where the average width of functions and water quality. stream compensatory mitigation is not the stream fill or excavation was One commenter said that stream necessary to ensure that the NWP recorded by Corps district staff. The compensatory mitigation should only be activity result in no more than minimal 3⁄100-acre threshold is anticipated to required for new impacts associated adverse environmental effects, he or she result in similar stream compensatory with the maintenance or replacement of will not require stream compensatory mitigation requirements for the NWPs in previously authorized structures. mitigation for that activity. this final rule compared to the 2017 Another commenter stated that given Many commenters suggested NWPs, and therefore is generally the difficulties to achieve successful requiring compensatory mitigation for consistent with current agency practice. stream mitigation, requiring stream bed losses of 300 linear feet or A scaled approach for establishing a compensatory mitigation for stream bed more instead of the proposed 1⁄10-acre stream compensatory mitigation losses greater than 1⁄10-acre will be threshold. One commenter said that a threshold would add another level of unrealistic in areas where permittee- linear foot threshold is more appropriate complexity to a permit program that is responsible mitigation is the only option than acreage and recommended revising intended to regulate, with little delay or available. A few commenters suggested paragraph (d) to require compensatory paperwork, activities that result in that thresholds reflect what would be mitigation for stream bed losses greater minimal adverse environmental effects. required to ensure activities result in than 100 linear feet. One commenter A few commenters said the 1⁄10-acre only minimal adverse environmental recommended revising paragraph (d) to threshold for stream losses requiring effects. Many commenters said that the require compensatory mitigation for compensatory mitigation is not 1⁄10-acre threshold for requiring stream bed losses greater than 150 linear scientifically supported or lacks compensatory mitigation for stream bed feet. One commenter recommended supporting analysis. A couple losses is too large for headwater streams. changing paragraph (d) to require commenters said they do not agree with District engineers will determine on a compensatory mitigation for stream bed the change in threshold from linear feet case-by-case basis whether to require losses of 1⁄10-acre or 300 linear feet. of impact to acres for requiring compensatory mitigation for losses of Many commenters said that the compensatory mitigation for losses of stream bed authorized by NWPs. When proposed 1⁄10-acre stream mitigation stream beds that require PCNs. A few determining whether to require threshold would result in more impacts commenters stated that the use of compensatory mitigation, the district with less compensatory mitigation being stream length rather than acreage has engineer will also consider required. One commenter suggested been used in many programs as a basis practicability, including whether using a scaled approach for establishing for determining mitigation credits to permittee-responsible mitigation is a stream compensatory mitigation compensate for the loss of stream bed, likely to be ecologically successful in threshold, such as a length threshold of and that the 1⁄10-acre threshold would offsetting the permitted impacts. As five times the bankfull width or five create uncertainty and additional costs discussed below, the Corps has changed times the width between ordinary high for applicants, the public, mitigation the 1⁄10-acre threshold to 3⁄100-acre to water marks. This commenter said a banks, and in-lieu fee programs. One account for stream size. scaled approach would better account commenter said that if the threshold for One commenter said the for variations in headwater streams and requiring stream compensatory compensatory mitigation requirement large rivers, compared to a 1⁄10-acre mitigation is going to be changed from for losses of stream bed greater than 1⁄10- threshold. linear feet to acres, the acreage should acre reduces the flexibility of the district After evaluating the comments include all of the affected area on the engineer in making compensatory received in response to the proposed valley bottom, not just the area between mitigation decisions. A few commenters modification of general condition 23, ordinary high water marks of a river or objected to including a threshold for the Corps is changing the threshold for stream. compensatory mitigation for the loss of stream compensatory mitigation in The establishment of the 3⁄100-acre stream bed, stating that it may result in paragraph (d) from 1⁄10-acre to 3⁄100-acre. threshold for stream compensatory unnecessary additional mitigation This is consistent with the stream mitigation for NWP activities is an requirements and would not reduce compensatory mitigation threshold administrative decision to facilitate burdens on the regulated public. Several established in some Corps districts consistent implementation across commenters said the 1⁄10-acre threshold under the 2017 NWPs and the districts. It is intended to be a for compensatory mitigation for stream compensatory mitigation threshold conservative threshold based on the bed losses or the district engineer’s recommended by several commenters. complexities of riverine systems, the determination to waive compensatory For the 2017 NWPs, a number of Corps substantial variation in riverine systems mitigation requirements would districts have regional conditions across the country, and the subjectivity individually and cumulatively would requiring compensatory mitigation for inherent in the threshold for the NWPs directly or indirectly result in more than losses of greater than 300 linear feet of (i.e., no more than minimal individual minimal adverse environmental effects. stream bed. This is consistent with the and cumulative adverse environmental The text of this general condition is recommendation for a 300 linear foot effects). The use of acres to quantify written to provide district engineers threshold made by many commenters in stream compensatory mitigation is with substantial flexibility in response to this proposed rule. The consistent with the Corps’ determining whether compensatory 3⁄100-acre threshold in paragraph (d) was compensatory mitigation regulations at mitigation is required for NWP activities calculated by estimating the average 33 CFR 332.8(o)(1), which does not and what the required compensatory width of stream fills (4 feet) authorized mandate the use of a particular metric mitigation should be for a particular by the 2017 NWPs under the 10 NWPs for quantifying stream compensatory NWP activity. Corps districts have been and multiplying that figure by 300 mitigation credits. It would be requiring stream compensatory linear feet. The average width of stream inappropriate to use the area of a valley mitigation for a number of years, so the filling or excavation was calculated bottom, since the Corps only has changes to this general condition will from ORM2 data for NWP verifications jurisdiction over certain categories of not impose additional burdens on the issued between March 19, 2017, and waters and wetlands, and valley

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bottoms may consist of a substantial activity. It is important to note that the determined appropriate and to waive proportion of upland area or other mitigation industry provides a service to compensatory mitigation requirements features that are outside of the Corps’ permittees, as an option to fulfill the after an activity specific determination jurisdiction. compensatory mitigation requirements that other forms of mitigation would be Several commenters said the change in NWP authorization and other forms environmentally preferable. Several to an area-based approach would not of DA authorizations. The Corps is commenters said that increased impacts provide accounting consistency and making these changes for administrative and allowing the district engineer to would result in dual accounting systems efficiency, to provide NWP waive compensatory mitigation for credits and debits generated under authorization for more activities that requirements would be both linear feet and acreage-based result in no more than minimal counterproductive to the success of scenarios and it would create individual and cumulative adverse salmon recovery efforts, and therefore inconsistencies, and would create effects. The 300 linear foot limit for would not be protective of tribal treaty confusion over how to handle sold losses of stream bed in the 2017 NWPs rights. Several commenters said the versus proposed credits. One and prior NWPs required the Corps to district engineer should be able to commenter expressed concern that process individual permits for activities consider other site-specific activities ecological values of mitigation credits that likely would have otherwise required by other regulatory programs, would not carry over in the conversion qualified for NWP authorization. In the such as mine site reclamation to from linear feet to acres, creating the 2007 NWPs, general condition 23 was considered as mitigation for activities potential for activities to result in more modified to state that district engineers affecting stream beds. One commenter than minimal individual and could require stream compensatory stated that requiring a compensatory cumulative adverse environmental mitigation for losses of stream bed, but mitigation decision by the district effects. there was no acreage threshold as there engineer could delay issuance of a There is no requirement in the Corps’ was for wetland losses. In paragraph (d) permit and to modify paragraph (d) to regulations to quantify stream of this general condition, the Corps has allow the district engineer or designee compensatory mitigation credits in established a 3⁄100-acre threshold for to waive the compensatory mitigation linear feet. Compensatory mitigation stream compensatory mitigation. requirement. One commenter expressed credits, including stream credits, can be District engineers can require concern that allowing the district quantified in acres, linear feet, compensatory mitigation for losses of engineer to waive compensatory functional assessment units, or other less than 3⁄100-acre of stream bed, and mitigation requirements could allow for suitable metrics of particular resource they can require compensatory up to 1⁄2-acre of stream bed loss which types (33 CFR 332.8(o)(1)). This final mitigation for losses of up to 1⁄2-acre of would result in adverse environmental rule does not affect prior credit stream bed. impacts. transactions for previously authorized One commenter said mitigation banks The removal of the 300 linear foot NWP activities where the permittee and in-lieu fee programs would be limit from the NWPs (while retaining secured stream compensatory mitigation negatively affected because less the 1⁄2-acre limit, PCN process, and credits from mitigation bank or in-lieu compensatory mitigation would be other tools to ensure no more than fee program sponsors. This final rule required for the loss of stream beds. A minimal adverse environmental effects) only applies to activities authorized by few commenters said they have and the changes to general condition 23 these NWP after they go into effect. The reservations about the implementation will allow district engineers to authorize Corps acknowledges that a period of of a compensatory mitigation threshold certain activities by NWP and require adjustment will be required, and that for losses of stream bed and that there compensatory mitigation when different agencies may require the use of may not be bank or in-lieu fee program necessary. It will provide more different metrics to quantify losses of credits available. flexibility in the NWP and allow district stream bed and stream compensatory The removal of the 300 linear foot engineers to devote more staff and other mitigation credits. The ecological values limit for losses of stream bed from resources to proposed activities that of mitigation credits from the accrual or NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, have the potential for more substantial attainment of aquatic functions at a and 52 and the changes to this general adverse environmental effects. These compensatory mitigation site (see the condition will not result in less changes will not impair salmon definition of ‘‘credit’’ at 33 CFR 332.2). compensatory mitigation being required recovery efforts, and for those proposed Quantifying stream mitigation credits in for losses of stream bed authorized by NWP activities that the district engineer acres or linear feet is a surrogate for the NWPs. By providing equivalent determines ‘‘may affect’’ listed salmon increases in stream functions expected quantitative limits for all non-tidal species, additional protection to those to result from a stream compensatory jurisdictional waters and wetlands in listed species will be provided through mitigation project, when there is no these 10 NWPs (i.e., the 1⁄2-acre limit), the ESA section 7 process. method available to assess the specific there will likely be more NWP activities The flexibility in general condition 23 functional gains through a rapid for which district engineers require allows district engineers to consider ecological assessment method or other compensatory mitigation. As discussed mitigation and other site-specific method. above, the Corps has changed the activities required by other agencies, The amount of compensatory threshold from 1⁄10-acre to 3⁄100-acre to such as mine reclamation, when mitigation required for an NWP activity require stream compensatory mitigation determining whether to require has to be sufficient to replace lost that is more aligned with current compensatory mitigation for NWP aquatic resource functions (see 33 CFR practices and the recommendations of activities. District engineers are required 332.3(f)(1)), and the mitigation provider many commenters. The existing stream to make compensatory mitigation can use his or her judgment or the credits can be used for NWP activities, decisions within the 45-day review approved mitigation plans to determine even though the authorized impacts will period for NWP PCNs. The district how many stream credits quantified in be quantified in acres. engineer has the decision-making linear feet are needed to offset a Several commenters supported the authority for whether compensatory particular acreage of stream bed that is flexibility of the district engineer to mitigation is required for an NWP filled or excavated as a result of an NWP allow other forms of mitigation as activity.

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One commenter said the Corps should applicable NWP rather than referring to acceptable for revegetating riparian develop clear expectations and the loss of 300 linear feet in each NWP. areas. Paragraph (e) contains flexibility performance standards for the types of District engineers evaluate stream because it states that native species other mitigation that could be utilized to compensatory mitigation proposals and should be planted; it does not require compensate for stream bed losses. One should be provided the flexibility to native species to be planted. As commenter suggested modifying consider a variety of potential stream discussed in the proposed rule, non- paragraph (d) to list acceptable restoration or rehabilitation approaches. native species can have positive, alternatives to compensatory mitigation. This includes river and stream negative, or neutral effects on One commenter expressed support for restoration approaches, such as dam ecosystems and the functions they compensatory mitigation requirements removals, culvert replacements, and perform. Compensatory mitigation could be fulfilled through restoration or other process-based methods that may requirements, including long-term enhancement of riparian areas next to be more ecologically effective than management activities, must be streams. Several commenters said that natural channel design in improving practicable (see 33 CFR 332.3(a)(1)). For riparian restoration or enhancement stream functions (e.g., Palmer et al. a particular compensatory mitigation results in out-of-kind mitigation since 2014). The Corps is removing the 300 site, the district engineer may determine they do not always replace lost stream linear foot limit for losses of stream bed that the management of invasive or non- functions. One commenter suggested the from 10 NWPs and modifying general native species is not practicable cause of proposed paragraph (d) be modified to condition 23 for more efficient site or watershed conditions, the degree state that riparian restoration or administration of the NWP program. to which the invasive or non-native enhancement may only satisfy The study on stream metrics may have species is established in the region, and compensatory mitigation requirements some utility in future rulemakings and other factors. If other government when other in-kind mitigation options the development of guidance, but it is agencies and non-governmental are unavailable or are not practicable. not necessary to delay this rulemaking organizations want to undertake efforts Ecological performance standards for to wait for that study to be completed. to control invasive or non-native stream compensatory mitigation projects General condition 23 applies to all species, they can do that under their are determined by district engineers NWPs. authorities or mission statements. when they review and approve Several commenters supported the Several commenters said there is no mitigation plans. Permit applicants may proposed changes to paragraph (e). support for allowing narrow riparian propose potential alternatives to Several commenters said that paragraph areas of 25–50 feet wide on each side of compensatory to district engineers, who (e) of general condition 23 should be the stream that would support habitat will determine whether that alternative modified to eliminate the district needed by federally threatened or mitigation is appropriate and likely to engineer’s ability to allow riparian area endangered salmon. Buffers of 100 feet be effective in reducing adverse compensatory mitigation for wetland or more are needed. One commenter environmental effects so that it is not losses. One commenter suggested said that riparian area restoration and necessary to require compensatory modifying paragraph (e) to allow the enhancement requirements (e.g. mitigation. While the restoration or planting of adapted seed mixes that may minimum riparian width, historical and enhancement of riparian areas might not contain non-native species and to allow existing site conditions) should be replace all stream functions, they can for the replacement of existing addressed regionally rather than help improve some stream functions vegetation when restoring riparian included in paragraph (e). One and help reduce nutrient and pollutant areas. One commenter said the proposed commenter said that restoring or loads to streams. District engineers will condition should be modified to state enhancing riparian areas does not determine on a case-by-case basis that use of native vegetation is achieve no-net-loss of the stream bed. whether the restoration or enhancement preferred, rather than required, and to The recommended riparian area of riparian areas is appropriate and allow for consideration of regionally width of 25–50 feet was established in practicable compensatory mitigation for appropriate vegetation. A few the NWP program in 2000 (65 FR 12833) an NWP activity. commenters expressed opposition to the because riparian areas of that width can One commenter said that the general proposed changes the changes to provide important aquatic habitat condition should be modified to require paragraph (e) and expressed concerns functions and water quality benefits. the applicant to provide project that allowing non-native species would The establishment of wider riparian specifications addressing the Natural result in negative environmental effects. areas for listed species be more Stream Channel Design Techniques and One commenter said they were appropriately addressed through the Review Checklist, developed by the U.S. concerned that allowing non-native ESA section 7 consultation process. EPA and U.S. FWS. One commenter species in the restored areas could Division and district engineers can said there currently are no national or negate the prevention, control, and establish regional requirements for regional tools developed by the Corps to management of non-native species riparian areas. The purpose of restoring guide compensatory mitigation for performed by other government and enhancing riparian areas is to help stream bed losses. One commenter agencies, non-government improve stream functions and water stated the Corps and U.S. EPA are organizations, and citizens and could quality. The improved functions are currently collaborating on a peer- introduce a source for spread among expected to occur in nearby stream bed reviewed study analyzing the those activities. and in downstream waters. environmental and policy consequences The restoration and enhancement of One commenter recommended of stream restoration metrics. This riparian areas may be used to offset modifying paragraph (f)(4) of this commenter recommended not wetland losses as another form of general condition to state that if modifying the NWPs until they are mitigation that could be more permittee-responsible mitigation is the scheduled to expire in 2022 to allow for environmentally appropriate, since proposed compensatory mitigation the results of the study to be completed riparian areas perform a number of option, and the proposed compensatory and the results to be considered. One functions that are also performed by mitigation site is located on land in commenter said general condition 23 wetlands (NRC 1995, NRC 2002). There which another federal agency holds an should be incorporated into every may be a number of seed mixes that are easement, the district engineer will

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coordinate with that federal agency to authorized by an NWP until the district To qualify for NWP authorization, the determine if proposed compensatory engineer has notified the permittee that proposed activity must comply with all mitigation project is compatible with the water quality certification of the NWP’s terms and conditions (see the terms of the easement. The Corps requirement has been satisfied. 33 CFR 330.1(c)). The Corps will added the suggested text to paragraph When water quality certification is consider unauthorized any activity (f)(4) of general condition 23. required for a specific discharge requiring Corps authorization if that This general condition is adopted authorized by an NWP, and the Corps activity is under construction or with the modifications discussed above. has completed its review of the PCN and completed and does not comply with all GC 24. Safety of Impoundment has determined that the activity is of the terms and conditions of an NWP. Structures. The Corps did not propose authorized by an NWP as long as water This includes any conditions added to any changes to this general condition. quality certification is issued or waived the NWP authorization through a One commenter recommended adding for that discharge, the district engineer categorical or individual CZMA ‘‘federal’’ to this general condition will send a provisional notification to consistency concurrence. If the because some federal agencies may have the permittee. The provisional applicant cannot comply with all of the established federal dam safety criteria. notification will inform the project conditions in the general CZMA The Corps added ‘‘federal’’ to the text of proponent that the activity will be consistency concurrence, then in order this general condition so that district authorized by an NWP once water to comply with the requirements of the engineers can require non-federal quality certification for the proposed CZMA, she or he would need to apply applicants to demonstrate that the discharge is obtained or waived. If water to the state for an individual CZMA structures comply with established quality certification is issued for the consistency concurrence, or obtain a federal dam safety criteria. proposed discharge, the district presumption of concurrence. The This general condition is adopted as engineer will conduct coordination that inability to comply with all conditions with the modification discussed above. may be required under Section 401(a)(2) of a general CZMA consistency GC 25. Water Quality. The Corps concurrence does not preclude the use proposed to modify this general of the Clean Water Act. After that process, the district engineer will issue of the NWP to authorize the permitted condition to articulate that if the state, activities; such circumstances would be authorized tribe, or EPA (i.e., the the NWP verification letter with the water quality certification. The district considered a denial without prejudice certifying authority under section 401 of until the project proponent obtains an the Clean Water Act) issued a water engineer may add conditions to the NWP authorization to ensure the individual CZMA consistency quality certification (WQC) for the concurrence or a presumption of issuance of an NWP, and the permittee authorized activity results in no more than minimal individual and concurrence. cannot comply with all of the When CZMA consistency concurrence conditions in that water quality cumulative adverse environmental effects. The district engineer will also is required for a specific activity certification, he or she must submit a authorized by an NWP, and the Corps add to the NWP authorization certification request to the certifying has completed its review of the PCN and conditions in the water quality authority that satisfies the requirements has determined that the activity is certification that are not waived of 40 CFR 121.5(b) for a water quality authorized by an NWP as long as CZMA pursuant to 40 CFR 121.9(b). certification or waiver for the activity consistency concurrence is issued or a involving a specific discharge to be The Corps divided the text of this presumption of concurrence occurs for authorized by the NWP. general condition into three paragraphs the activity, the district engineer will One commenter expressed general to make the general condition easier to send a provisional notification to the support for the proposed changes to read. This general condition is adopted permittee. The provisional notification general condition 25. Several with the modifications discussed above. will inform the project proponent that commenters supported the proposed GC 26. Coastal Zone Management. the activity will be authorized by an changes clarifying that applicants need The Corps proposed to modify this NWP once CZMA consistency to request certification from the general condition to say that if the state concurrence for the proposed activity is certifying authority for specific issued a general Coastal Zone obtained or a presumption of discharges when he or she cannot Management Act (CZMA) consistency concurrence occurs. The district comply with all of the conditions in the concurrence for the NWP, and the engineer may add conditions to the WQC for the NWP. One commenter said permittee cannot comply with all NWP authorization to ensure the that general condition 25 should be conditions of that general concurrence, authorized activity results in no more clarified to state that WQCs must be then he or she must obtain an than minimal individual and consistent with 33 CFR 325.4 and 40 individual CZMA consistency cumulative adverse environmental CFR 121.7(d), and that any WQC concurrence or presumption of effects. condition not within the established concurrence from the state in order for The general condition is adopted as scope of the certification, may not be the activity to be authorized by an NWP. proposed. included as a regional condition. Several commenters expressed GC 27. Regional and Case-By-Case The proposed changes have been support for the change, stating that it Conditions. The Corps did not propose incorporated into this general condition. provided clarification of the consistency any changes to this general condition. The Corps has added text to this general concurrence process and additional No comments were received. The condition to state that if the certifying flexibility. The commenters further general condition is adopted as authority issues a water quality noted that the proposed language makes proposed. certification for the proposed discharge it clear that the permittee is expected to GC 28. Use of Multiple Nationwide authorized by a specific NWP activity, fully comply with all the conditions of Permits. The Corps proposed changes to the permittee must submit a copy of the the general concurrence or seek an this general condition to address the use certification to the district engineer. individual CZMA consistency of more than one NWP to authorize a Furthermore, the general condition concurrence or presumption of single and complete project, when two states that if certification is required for concurrence from the state coastal of those NWPs have different acreage a specific discharge, the discharge is not program. limits. The proposed changes were

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intended to ensure that use of an NWP NWPs with no acreage limits, as it has waterbody. In this situation, the 1⁄2-acre with a higher acreage limit could not since this text was incorporated into limit would apply to the cumulative circumvent the lower acreage limit for this general condition in 2000 (47 FR loss of waters of the United States another NWP, when the two NWPs are 12896). The general condition applies to caused by the electric line and water combined to authorize a single and losses of waters of the United States, as line crossing of that waterbody. complete project. that term is defined in Section F of the The general condition is adopted with A few commenters expressed support NWPs. It does not include temporary the modifications discussed above. for the change and said that it clarified impacts. Cumulative impacts are GC 29. Transfer of Nationwide Permit language regarding the use of multiple addressed separately during the district Verifications. The Corps did not NWPs for a single and complete project. engineer’s review of the PCN, in propose any changes to this general Several commenters recommended accordance with paragraph 2 of Section condition. No comments were received. making no changes to this general D, District Engineer’s Decision. The general condition is adopted as condition, and retaining the general Several commenters stated that the proposed. condition language from the 2017 Corps must prohibit the use of multiple GC 30. Compliance Certification. The NWPs. One commenter suggested that NWPs and NWPs with other general or Corps did not propose any changes to the NWP numbers used in the example individual permits as the Corps is not this NWP. No comments were received. in the text of the general condition assessing the cumulative impacts. A few The general condition is adopted as should match the NWP numbers used in commenters stated that the proposed proposed. the example in the preamble to the change may result in a greater loss of GC 31. Activities Affecting Structures proposed rule, specifically by using waters, and expressed concern that or Works Built by the United States. The NWP 39 rather than NWP 29. One allowing two NWPs with different Corps proposed to modify this general commenter said that no more than two specified acreage limits to be used condition to be consistent with the NWPs should be used to authorize a would result in larger impacts than current Engineer Circular (EC) for single and complete project. One allowed by each individual NWP. A few processing requests to alter Corps Civil commenter stated that the use of commenters said that allowing the use Works Projects pursuant to 33 U.S.C. multiple NWPs to authorize a single and of more than one NWP to authorize a 408 (EC 1165–2–220, issued on complete project should not single and complete project will result September 10, 2018). Under the current cumulatively exceed the threshold of in more than minimal individual and EC, Corps districts are required to the highest limit. cumulative adverse environmental conduct section 10 and section 404 In the example in the text of this effects. One commenter suggested that permit evaluations and requests for 408 general condition, the Corps has the Corps eliminate the use of multiple permissions in a coordinated and replaced NWP 29 with 39 to make the NWPs to authorize individual segments concurrent manner. example clearer. Nationwide permit 29 of linear projects. One commenter supported the has a subdivision provision that adds an The Corps considers cumulative proposed changes to this general additional layer of complexity, so it impacts when it evaluates PCNs for condition. One commenter stated that a would be simpler to use NWP 39 in the proposed NWP activities (see paragraph PCN should not be required for a example since that NWP has no 2 of Section D, District Engineer’s Section 408 review or permission if the subdivision provision. There may Decision). General condition 28 does underlying NWP activity does not circumstances in which more than three not address the use of NWPs with otherwise require a PCN. One NWPs may be appropriate for individual permits; it only addresses the commenter said that the proposed text authorizing a single and complete use of multiple NWPs to authorize a raises concerns about timely processing project. One commenter stated that the single and complete project. The use of of NWPs. use of multiple NWPs to authorize a NWPs with individual permits is Pre-construction notifications are single and complete project should not addressed in the Corps’ NWP required for proposed NWP activities cumulatively exceed the threshold of regulations at 33 CFR 330.6(d). The that also require Section 408 the highest limit. The general condition modification of this general condition is permissions so that the appropriate does limit the acreage loss of waters of specifically intended to prohibit the coordination can occur between district the United States to the highest circumvention of the specified acreage staff involved in the NWP authorization specified acreage limit, but it does not limits of the NWPs, so that the loss of and Section 408 permission processes. allow the acreage limit of an NWP with waters of the United States under a The Corps acknowledges that it may a lower acreage limit to be exceeded. particular NWP is not exceeded. take longer for NWP verification letters One commenter stated that the Not allowing any deviation from the to be issued by the district engineer, proposed language would limit use of specified acreage limits of the NWPs because the NWP verification cannot be NWPs with no acreage limit, such as used to authorize a single and complete issued before the Section 408 NWP 3 in combination with other project will help ensure that authorized permission process is completed. NWPs, where it may be desirable to activities will result in no more than The general condition is adopted as allow additional work beyond a minimal individual and cumulative proposed. specified acreage to occur as it would adverse environmental effects. This GC 32. Pre-Construction Notification. promote re-use and rehabilitation of general condition does not apply to the The Corps proposed several existing structures rather than long-standing practice of allowing each modifications to this general condition construction of new structures. One separate and distant crossing of waters to provide consistency with proposed commenter recommended that the of the United States for a linear project changes to the NWPs and to clarify pre- Corps provide clarification regarding to be considered a separate NWP construction notification requirements. how temporary and cumulative impacts authorization. This general condition The Corps proposed to change would be addressed when more than does apply to circumstances where a paragraph (a)(2) of this general one NWP is used to authorize a single linear project may involve two separate condition by removing the following and complete project. utility lines (e.g., an electric utility line sentence: ‘‘Also, work cannot begin The text in paragraph (a) of this authorized by NWP 57 and a water line under NWPs 21, 49, or 50 until the general condition will limit the use of authorized NWP 58) both cross a permittee has received written approval

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from the Corps.’’ This proposed change with a PCN have to be sufficiently limit for losses of stream bed in NWPs will conform to one of the changes we detailed to help a district engineer 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52, are proposing for these three NWPs, understand the proposed activity, but it and rely on the 1⁄2-acre limit, PCN which is to remove the term requiring does not have to be an engineering review process, and the ability of the permittee to obtain a written drawing or a comparably detailed division and district engineers, based on verification from the district engineer drawing. The Corps has not added any regional or local conditions, to modify, before commencing the regulated more information requirements beyond suspend, or revoke NWP authorizations activities in waters of the United States. what was proposed in the 2020 on a regional or case-by-case basis, As discussed above, the Corps proposed Proposal. The Corps does not agree that respectively, to comply with the to make NWPs 21, 49, and 50 consistent general condition 32 should be modified requirement that NWPs may only with the other NWPs that require pre- to state that a district engineer has authorize those activities that have no construction notification, where the discretionary authority to expedite more than minimal individual and project proponent can proceed with the certain time-sensitive maintenance and cumulative adverse environmental authorized work if the district engineer inspection activities. District engineers effects. The delineation of streams on does not respond to the PCN within 45 already have the discretion to manage the project site will be used to calculate days (see 33 CFR 330.1(e)(1)). their workload. the area of stream bed is proposed to be Many commenters expressed concern The Corps also proposed to modify filled or excavated and thus results in a with the 45-day clock and the default paragraph (b)(4) of this general loss of stream bed. The area of authorization of PCNs and questioned condition by dividing it into jurisdictional stream bed filled or whether this was a sufficient review subparagraphs to clarify different excavated would be applied to the 1⁄2- period. Many commenters stated that requirements of a complete PCN: The acre limit for these NWPs, to determine the Corps should hold districts description of the proposed NWP and whether the loss of stream bed plus the accountable regarding when the 45-day associated information (subparagraph losses of any other non-tidal PCN review period starts and limit (b)(4)(i)); the quantities of anticipated jurisdictional waters and wetlands information requests to a single request. losses of waters, wetlands, and other exceeds the 1⁄2-acre limit. These commenters further stated that special aquatic sites for linear projects A few commenters stated that the some Corps districts make numerous (subparagraph (b)(4)(ii)); and the Corps should add the word information requests to reset the 45-day inclusion of sketches with the PCN ‘‘jurisdictional’’ to ‘‘streams’’ in review period or request additional (subparagraph (b)(4)(iii)). In paragraph (b)(5). One commenter information not listed in the text of the subparagraph (b)(4)(i), the Corps also recommended that the Corps clarify that general condition. One commenter proposed to add ‘‘(including the same paragraph (b)(5) only applies to suggested that the Corps provide more NWP for activities that do not require jurisdictional waters. One commenter direction/guidance to districts on the PCNs)’’ after ‘‘any other NWP(s)’’ to stated that the use of the word ability to use sketches (rather than clarify that the PCN must identify non- ‘‘ephemeral’’ in paragraph (b)(5) is engineered drawings). A few PCN NWPs that are used to authorize inconsistent with the Navigable Waters commenters said that no additional any part of the proposed project or Protection Rule and recommended information requirements should be related activity, including separate and omitting the term from the general added to the PCN process that would distant crossings of waters and wetlands condition. One commenter opposed the further complicate or burden the for linear projects. In subparagraph addition of ‘‘streams’’ in paragraph process. One commenter recommended (b)(4)(ii), the Corps proposed to clarify (b)(6) and requiring PCNs for stream that district engineer use their the information requirements for linear losses in excess of 1⁄10-acre, since the discretionary authority to expedite projects, and state that these removal of the 300-foot limit only certain time-sensitive maintenance and information requirements do not trigger applies to 10 NWPs. inspection projects associated with key a PCN requirement for those crossings The Corps declines to add the word energy infrastructure projects. authorized by an NWP that do not ‘‘jurisdictional’’ to modify the word Forty-five days is sufficient time for require PCNs. The Corps also proposed ‘‘stream’’ or other types of waters listed district engineers to review PCNs and to modify this subparagraph to state that in paragraph (b)(5) because an approved determine whether proposed activities this information will be used by the jurisdictional determination is not qualify for NWP authorization or district engineer to evaluate the required for an NWP PCN. If the project whether discretionary authority should cumulative adverse environmental proponent did not obtain an approved be exercised to require individual effects of the proposed linear project. jurisdictional determination for the permits. Exceptions to the 45-day A few commenters expressed support project site prior to submitting the PCN, review period when district engineers for the proposed changes, particularly for the purposes of evaluating the PCN have to complete ESA section 7 the clarification that a PCN must the district engineer will presume the consultation, NHPH section 106 identify non-PCN NWPs used to wetlands, streams, and other waters on consultations, or other required authorize other aspects of projects, the project site are subject to Clean consultations. District engineers are including linear projects. The Corps has Water Act jurisdiction. The Corps has supposed to make only one request for incorporated the proposed changes into removed the word ‘‘ephemeral’’ from additional information to make PCNs paragraph (b)(4). paragraph (b)(5). Paragraph (b)(6) does complete. District engineers can make In the first sentence of paragraph not impose any additional PCN additional requests only when the (b)(5), the Corps proposed to remove the requirements for losses of stream bed. project proponent has not submitted the phrase ‘‘and perennial, intermittent, and The first sentence of paragraph (b)(6) requested information to the district ephemeral streams,’’ and replace it with has been revised as follows to engineer. A complete PCN only requires ‘‘streams.’’ If there are streams on the incorporate the mitigation thresholds in the information listed in general project site, then the PCN must include general condition 23: ‘‘If the proposed condition 32, plus the text of the NWP a delineation of those streams. In activity will result in the loss of greater itself if the ‘‘Notification’’ provision addition, the Corps proposed to modify than 1⁄10-acre of wetlands or 3⁄100-acre of includes additional information paragraph (b)(5) to be consistent with its stream bed and a PCN is required, the requirements. The sketches submitted proposal to remove the 300 linear foot prospective permittee must submit a

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statement describing how the mitigation intermittent or ephemeral stream bed for The Corps does not require functional requirement will be satisfied, or activities authorized by NWPs 21, 29, assessments to be peer reviewed, but explaining why the adverse 39, 40, 42, 43, 44, 50, 51, and 52. The acknowledges that peer review can help environmental effects are no more than NWPs do not require district engineers improve functional assessments to minimal and why compensatory to coordinate proposed activities that better assess aquatic resource functions. mitigation should not be required.’’ may affect source waters or drinking The Corps has modified the first The Corps proposed to modify water supplies. Pre-construction sentence of paragraph 3 of this section paragraph (c) to state that the PCN notifications are required for certain to be consistent with the wetland and should be submitted using Form ENG NWP activities, and coordination with stream mitigation thresholds in general 6082 that was approved earlier this year. state agencies is only required for condition 23. That sentence has been Form ENG 6082 should be used instead specific activities identified in changed to read: ‘‘If the proposed of ENG 4345, which is the standard paragraph (d) of this general condition. activity requires a PCN and will result individual permit application form. This general condition is adopted in the loss of greater than 1⁄10-acre of Block 18 of Form ENG 6082 has a space with the modifications discussed above. wetlands or 3⁄100-acre of stream bed, the for the project proponent to identify the I. Discussion of Proposed Modifications prospective permittee should submit a specific NWP(s) she or he wants to use to Section D, District Engineer’s mitigation proposal with the PCN.’’ to authorize the proposed activity. Decision Therefore, the Corps proposed to J. Discussion of Proposed Modifications remove the text of paragraph (c) that In paragraph 1 of Section D, the Corps to Section F, Definitions stated that a completed ENG 4345 must proposed to remove provisions that refer In the 2020 Proposal, the Corps clearly indicated that it is an NWP PCN to potential waivers of the 300 linear proposed changes to some of the NWP and must include all of the information foot limit for losses of stream bed definitions and the Corps proposed to required by subparagraphs (b)(1) authorized by NWPs 21, 29, 39, 40, 42, remove some definitions. Several through (10) of this general condition. 43, 44, 50, 51, and 52. The Corps commenters stated that the definitions One commenter stated that paragraph proposed this change to be consistent in Section F should match the (c), which references the use of ENG with our proposal to remove the 300 definitions used in the Navigable Waters 6082, should be altered to include linear foot limit and the waiver Protection Rule and in other regulations. allowance for states that have a joint provision from those NWPs. In the A few commenters suggested retaining application process. The ENG Form second sentence of paragraph 4, the the definitions for intermittent stream 6082 has been approved for purposes of Corps proposed to remove ‘‘or to and ephemeral stream. One commenter the Paperwork Reduction Act, but joint evaluate PCNs for activities authorized suggested repeating all ‘‘geographic state-federal forms have not been by NWPs 21, 49, and 50’’ because we are definitions’’ in the NWP definitions. approved. Therefore, the Corps declines proposing to remove the requirement One commenter requested definitions to make this suggested change. that permittees obtain written for levee, berm and dike. One Because of the proposal to remove the verification from the district engineer commenter asked that the Corps 300 linear foot limit for losses of stream before these activities are authorized. differentiate between ‘‘top of bank,’’ bed in NWPs 21, 29, 39, 40, 42, 43, 44, Pre-construction notifications for ‘‘ordinary high water mark’’ and 50, 51, and 52, as well as the associated activities authorized by NWPs 21 and 50 ‘‘bankfull elevation.’’ One commenter waiver provision for losses of will be subject to the same timeframes expressed concern with the proposed intermittent and ephemeral stream bed, as other NWP activities that require removal of definitions for ‘‘protected the Corps proposed to modify paragraph PCNs, because the Corps removed the tribal resources,’’ ‘‘ephemeral streams’’ (d)(2) of the agency coordination provision from these NWPs that and ‘‘intermittent streams.’’ provisions of this general condition. The required the permittee to obtain written As discussed in the proposed rule, the Corps proposed to remove the verification from the Corps before Corps proposed to modify the requirement for agency coordination for commencing the authorized activity. definitions of ‘‘ordinary high water NWP 21, 29, 39, 40, 42, 43, 44, 50, 51, This includes the ability for the mark’’ and ‘‘perennial stream’’ to be and 52 activities that require pre- permittee to presume that her or his consistent with the Navigable Waters construction notification and will result project qualifies for the NWP unless she Protection Rule at 33 CFR 328.3(c)(7) in the loss of greater than 300 linear feet or he is otherwise notified by the and 33 CFR 328.3(c)(8). The Corps is of stream bed. district engineer within a 45-day period removing the definitions of intermittent Several commenters objected to the (see 33 CFR 330.1(e)(1)), or Endangered stream and ephemeral stream because removal of the agency coordination Species Act Section 7 consultation and/ they are no longer used in the text of the process with the removal of the 300 or National Historic Preservation Act NWPs. The Corps does not believe it is linear foot limit for loss of stream bed. Section 106 consultation needs to be necessary to copy the entire definition One commenter stated that removal of completed for non-federal permittees to of ‘‘waters of the United States’’ into the the agency coordination process comply with the requirements of general NWPs because that definition is resulting from the removal of PCN conditions 18 and 20. available at 33 CFR 328.3. The Corps requirements may lead to the Corps One commenter said the Corps should declines to add definitions of the terms being the only entity involved in the only use functional assessments that ‘‘levee,’’ ‘‘berm,’’ ‘‘dike,’’ and ‘‘top of review of potential source water (i.e. have been developed, peer reviewed, bank.’’ The Corps does not see a need drinking water) impacts. One and subject to public and stakeholder to differentiate or define the terms ‘‘top commenter stated that the PCN comment at the regional level, and that of bank’’ or ‘‘bankfull elevation’’ requirement is a benefit for state agency the Corps not unilaterally revise the because those terms are not used in the coordination, which assists the tools or substitute alternative NWPs. The definition of ‘‘protected applicant and regulatory agencies in methodologies only when the Corps tribal resources’’ has been removed permit streamlining. prefers. The Corps determines which because that phrase is no longer in the The Corps has removed the agency functional assessments are appropriate text of general condition 17, tribal coordination provisions for waivers for for use in evaluating NWP PCNs and rights. The term ‘‘protected tribal losses of greater than 300 linear feet of other applications for DA authorization. resources’’ continues to be applied

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through the Corps’ implementation of comprehensively defined in 33 CFR High Tide Line. The Corps did not the 1998 Department of Defense 323.2. propose any changes to this definition. American Indian and Alaska Native The definition is adopted as The Corps did not receive any Policy. proposed. comments on the proposed definition. One commenter stated that unless a Ecological reference. The Corps did The definition is adopted as proposed. definition of ‘‘water of the United not propose any changes to this Historic property. The Corps did not States’’ is included or referenced all definition. The Corps We did not propose any changes to this definition. waterbodies should be defined within receive any comments on the proposed The Corps did not receive any the NWPs to avoid confusion. One definition. The definition is adopted as comments on the proposed definition. commenter requested a definition of proposed. The definition is adopted as proposed. ‘‘adjacent wetlands’’ that is consistent Enhancement. The Corps did not Independent utility. The Corps did across all regulations. One commenter propose any changes to this definition. not propose any changes to this suggested adding a definition of ‘‘oil The Corps We did not receive any definition. The Corps did not receive and gas pipeline.’’ One commenter comments on the proposed definition. any comments on the proposed supported retention of the definitions The definition is adopted as proposed. definition. The definition is adopted as for ‘‘single and complete linear project,’’ Ephemeral stream. The Corps proposed. ‘‘single and complete non-linear proposed to remove the definition of Indirect effects. The Corps did not project’’ and ‘‘independent utility.’’ One ‘‘ephemeral stream’’ in conjunction with propose any changes to this definition. commenter suggested adding a the proposal to remove the 300 linear The Corps did not receive any definition of ‘‘stream’’ to differentiate foot limit for losses of stream bed and comments on the proposed definition. between linear wetlands and streams for the ability of district engineers to waive The definition is adopted as proposed. compensatory mitigation purposes. that 300 linear foot limit for losses of Intermittent stream. The Corps The phrase ‘‘waters of the United ephemeral stream bed on a case-by-case proposed to remove the definition of States’’ is defined at 33 CFR part 328.3. basis. It should also be noted that ‘‘intermittent stream,’’ in conjunction The term ‘‘adjacent wetlands’’ is defined ephemeral features, including with the proposal to remove the 300 at 33 CFR 328.3(c)(1)). The term ‘‘oil or ephemeral streams, are excluded from linear foot limit for losses of stream bed natural gas pipeline’’ is defined in the the definition of ‘‘waters of the United which obviated the need to reference a text of NWP 12. The Corps declines to States’’ at 33 CFR 328.3(b)(3). Section waiver for losses of an intermittent add a definition of ‘‘stream’’ because the 328.3 of the Corps’ regulations defines stream bed. NWPs include a definition of ‘‘stream ‘‘waters of the United States’’ for the One commenter supported the bed.’ purposes of the Clean Water Act. removal of the definition given Best management practices (BMPs). A few commenters stated that the proposed elimination of the 300 linear The Corps did not propose any changes definition of ‘‘ephemeral stream’’ foot limit from the NWPs and the to this definition. The Corps did not should be retained given the importance exclusion of ephemeral streams from receive any comments on the proposed of stream categorization in jurisdiction jurisdiction under the Navigable Waters definition. The definition is adopted as and thus whether an NWP is necessary. Protection Rule. One commenter proposed. One commenter stated that the objected to the removal of the definition Compensatory mitigation. The Corps definition should be retained to of intermittent streams since they are in did not propose any changes to this differentiate ephemeral streams from the Navigable Waters Protection Rule. definition. The Corps did not receive intermittent and perennial streams. One One commenter opposed the any comments. The definition is commenter supported the removal of definition’s removal based on adopted as proposed. the definition given proposed opposition to removal of the 300 linear Currently serviceable. The Corps did elimination of the 300 linear foot limit foot limit from the NWPs. One not propose any changes to this from the NWPs and the exclusion of commenter stated that the term should definition. One commenter stated that ephemeral streams from jurisdiction be retained because a cumulative the proposed definition includes the under the Navigable Waters Protection impacts analysis may include a unclear phrase ‘‘some maintenance’’ Rule. One commenter expressed determination of flow through and requested clarification. The Corps opposition to the definition’s removal ephemeral and intermittent streams. declines to clarify the phrase ‘‘some based on opposition to removal of the The Corps is removing this definition maintenance’’ because it is subject to 300 linear foot limit from the NWPs. as proposed because this term is no application on a case-by-case basis. One commenter stated that the term longer used in the text of the NWPs. The definition is adopted as should be retained because a cumulative Loss of waters of the United States. proposed. impacts analysis may include a The Corps proposed to rearrange the Direct effects. The Corps did not determination of flow through sentences in this definition so that the propose any changes to this definition ephemeral and intermittent streams. sentence that defines the loss of stream and did not receive any comments. The The Corps is removing this definition bed is moved to become the second definition is adopted as proposed. as proposed because, in accordance sentence of this definition. In addition, Discharge. The Corps did not propose with the Navigable Waters Protection the Corps proposed to modify this any changes to this definition. One Rule, ephemeral features, including sentence to state that the stream bed commenter said that the proposed ephemeral streams, are categorically would have to be permanently adversely definition includes the word being excluded from the definition of ‘‘waters affected, to be consistent with the first defined in its definition and suggested of the United States’’ under the Clean sentence of this definition. For edit of the definition replacing the word Water Act (see 33 CFR 328.3(b)(3)). consistency with the proposal to remove discharge in the definition with Establishment (creation). The Corps the 300 linear foot limit for losses of ‘‘addition’’, ‘‘release’’, or ‘‘placement.’’ did not propose any changes to this stream bed from 21, 29, 39, 40, 42, 43, The Corps declines to make the definition. The Corps did not receive 44, 51, and 52, and rely on the 1⁄2-acre suggested changes because the Corps any comments on the proposed limit and other tools to comply with the regulates discharges of dredged or fill definition. The definition is adopted as statutory requirement that the NWPs material and those terms are more proposed. only authorize those activities that have

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no more than minimal individual and includes only a discussion of the stream A few commenters opposed the cumulative adverse environmental bed and omits reference to the bank removal of the definition because they effects, the Corps proposed to remove contrary to the definition in other Clean opposed changing the text of general ‘‘linear feet’’ from the third sentence of Water Act rules and regulations. The condition 17. A few commenters said this definition. This would provide lateral extent of Clean Water Act that that removal of the definition and consistency among the various types of jurisdiction ends at the ordinary high the change to general condition 17 will waters when applying the fourth water mark, not the bank, if no adjacent result in substantial impacts to tribal sentence of this definition, which states wetlands are present. See 33 CFR waters, treaty, trust and cultural that the acreage loss of waters of the 328.4(c). resources. One commenter suggested United States is a threshold The definition is adopted as adding the definition to general measurement of the impact to proposed. condition 17. jurisdictional waters for determining Perennial stream. The Corps proposed The Corps is removing this definition whether a project may qualify for an to modify the definition of ‘‘perennial as proposed because it is no longer used NWP. stream’’ to be consistent with the in the text of the NWPs or the general One commenter stated that the Corps definition of ‘‘perennial’’ in the conditions. should not remove the words ‘‘linear Navigable Waters Protection Rule Re-establishment. The Corps did not feet’’ from the definition because of defining ‘‘waters of the United States’’ propose any changes to this definition. opposition to removing a method of (see 33 CFR 328.3(c)(8)). The Corps did not receive any calculating stream loss relative to One commenter stated support for the comments on the proposed definition. compensatory mitigation. One proposed change because of the The definition is adopted as proposed. commenter expressed support for the elimination of the 300 linear foot limit Rehabilitation. The Corps did not changes as it makes clear that loss is for losses of stream bed and changes propose any changes to this definition. limited to stream beds permanently made to the definition in the Navigable The Corps did not receive any adversely impacted. One commenter Waters Protection Rule. One commenter comments on the proposed definition. said that removal of linear feet from the said that the previous definition was The definition is adopted as proposed. Restoration. The Corps did not definition would result in more than clearer in instances when perennial propose any changes to this definition. minimal adverse environmental effects. streams are diverted underground. One The Corps did not receive any One commenter stated that conversion commenter stated that the definition comments on the proposed definition. of forested wetlands to other wetland does not match the definition in the types should be included in the The definition is adopted as proposed. Navigable Waters Protection Rule, and Riffle and pool complex. The Corps definition of permanent adverse effects recommended changing the definition which is included in the ‘‘loss of waters did not propose any changes to this to match that definition. definition. The Corps did not receive of the United States’’ definition. The Navigable Waters Protection Rule The Corps has removed the 300 linear any comments on the proposed at 33 CFR 328.3(c)(8) defines the term foot limit for losses of stream bed from definition. The definition is adopted as ‘‘perennial’’ not ‘‘perennial stream.’’ NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, proposed. The Corps used the definition of and 52. Therefore, the Corps is Riparian areas. The Corps did not ‘‘perennial’’ at 33 CFR 328.3(c)(8) to removing ‘‘linear feet’’ from this propose any changes to this definition. modify the NWP definition of definition. The Corps declines to The Corps did not receive any ‘‘perennial steam.’’ include the conversion of forested comments on the proposed definition. The definition is adopted as wetlands to other wetland types in the The definition is adopted as proposed. proposed. definition of ‘‘loss of waters of the Shellfish seeding. The Corps did not Practicable. The Corps did not United States’’ because those areas propose any changes to this definition. propose any changes to this definition. remain wetlands and they continue to The Corps did not receive any The Corps did not receive any provide wetland functions. comments on the proposed definition. This definition is adopted as comments on the proposed definition. The definition is adopted as proposed. proposed. The definition is adopted as proposed. Single and complete linear project. Navigable waters. The Corps did not Pre-construction notification. The The Corps did not propose any changes propose any changes to this definition. Corps did not propose any changes to to this definition. The Corps did not receive any this definition. The Corps did not Many commenters stated support for comments on the proposed definition. receive any comments on the proposed retaining the definition given The definition is adopted as proposed. definition. The definition is adopted as longstanding presence in regulation, Non-tidal wetland. The Corps did not proposed. practice by the Corps and upholding in propose any changes to this definition. Preservation. The Corps did not court cases. Several commenters stated The Corps did not receive any propose any changes to this definition. that the definition violates the Clean comments on the proposed definition. The Corps did not receive any Water Act Section 404(e) minimal The definition is adopted as proposed. comments on the proposed definition. impact limitation, the National Open water. The Corps did not The definition is adopted as proposed. Environmental Policy Act the propose any changes to this definition. Protected tribal resources. Because of Endangered Species Act and other The Corps did not receive any the proposed changes to NWP general statutes and regulations. A few comments on the proposed definition. condition 17, tribal rights, the Corps commenters stated that the definition The definition is adopted as proposed. proposed to remove this definition from recognizes ‘‘that discharges of dredged Ordinary high water mark. The Corps the NWPs since this term is not in the or fill material along a utility line, with proposed to modify this definition to be text of the proposed general condition. narrow crossings of separate and distant consistent with the definition in the The term ‘‘protected tribal resources’’ waters, will typically have minimal Navigable Waters Protection Rule does not appear elsewhere in the text of effects both on the individual waters defining ‘‘waters of the United States’’ NWPs, general conditions, or crossed and cumulatively on (see 33 CFR 328.3(c)(7)). One definitions, or in Section D, ‘‘District watersheds.’’ One commenter supported commenter said that the definition Engineer’s Decision.’’ continued use of the definition but said

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that it is vague and has led to commenter suggested that the definition III. Compliance With Relevant Statutes inconsistent application among be altered to be consistent with language A. National Environmental Policy Act districts, particularly relative to used in proposed new NWP C. Compliance multiple crossings of a single water with Specifically, the commenter, proposes multiple channels. One commenter replacing the example of ‘‘power The Corps has prepared a decision stated that the definition is transmission line’’ with ‘‘utility line’’ so document for each NWP. Each decision inconsistently applied and should be it includes other types of lines. The document contains an environmental revised to require or strongly promote Corps declines to make the suggested assessment (EA) to fulfill the the concept of ‘‘multiple’’ single and change to this definition because it requirements of the National complete linear projects. One covers a wide variety of structures that Environmental Policy Act (NEPA). The EA includes the public interest review commenter requested clarification of the may be authorized by NWPs. definition to allow a determination of described in 33 CFR part 320.4(b). The permit requirements and compensatory The definition is adopted as EA generally discusses the anticipated mitigation by the permittee. proposed. impacts the NWP will have on the The definition is consistent with the Tidal wetland. The Corps did not human environment and the Corps’ Corps’ regulations at 33 CFR 330.2(i), propose any changes to this definition. public interest review factors. If a which was promulgated in 1991, and The Corps did not receive any proposed NWP authorizes discharges of with long-standing practice for comments on the proposed definition. dredged or fill material into waters of authorizing linear projects by NWP. The definition is adopted as proposed. the United States, the decision document also includes an analysis This definition does not violate the Tribal lands. The Corps did not Clean Water Act, the National conducted pursuant to the Clean Water propose any changes to this definition. Act section 404(b)(1), in particular 40 Environmental Policy Act, or the One commenter stated that the Endangered Species Act. It is based on CFR part 230.7. These decision definition of tribal Lands used by the a regulation that was promulgated in documents evaluate, from a national U.S. EPA and the Corps’ definition is accordance with the Administrative perspective, the environmental effects of different and suggested that they be Procedure Act. District engineers have each NWP. revised to be consistent. This definition discretion in applying this definition, The final decision document for each was adopted from the 1998 Department and in identifying separate and distant NWP is available on the internet at: of Defense American Indian and Alaska crossings of waters of the United States. www.regulations.gov (docket ID number Native Policy, so the Corps is retaining Only the district engineer has the COE–2020–0002) as Supporting and that definition. authority to require compensatory Related Materials for this final rule. mitigation for activities authorized by The definition is adopted as Before the 2021 NWPs go into effect, NWPs. The permit applicant is proposed. division engineers will issue supplemental documents to evaluate responsible for submitting a mitigation Tribal rights. The Corps did not environmental effects on a regional plan to the district engineer for propose any changes to this definition. basis (e.g., a state or Corps district) and consideration. The Corps did not receive any The definition is adopted as to determine whether regional comments on the proposed definition. conditions are necessary to ensure that proposed. The definition is adopted as proposed. Single and complete non-linear the NWPs will result in no more than project. The Corps did not propose any Vegetated shallows. The Corps did minimal individual and cumulative changes to this definition. The Corps not propose any changes to this adverse environmental effects on a did not receive any comments on the definition. The Corps did not receive regional basis. The supplemental proposed definition. The definition is any comments on the proposed documents are prepared by Corps adopted as proposed. definition. The definition is adopted as districts, but must be approved and Stormwater management. The Corps proposed. issued by the appropriate division did not propose any changes to this Waterbody. The Corps did not engineer, since the NWP regulations at definition. The Corps did not receive propose any changes to this definition. 33 CFR 330.5(c) state that the division any comments on the proposed Several commenters said that the term engineer has the authority to modify, definition. The definition is adopted as ‘‘waterbody’’ can be confused with suspend, or revoke NWP authorizations proposed. ‘‘water body,’’ which describes both in a specific geographic area within his or her division. For some Corps Stormwater management facilities. jurisdictional and non-jurisdictional districts, their geographic area of The Corps did not propose any changes features, for example as used in the responsibility covers an entire state. For to this definition. The Corps did not Navigable Waters Protection Rule. The other Corps districts, their geographic receive any comments on the proposed commenter suggested deletion of area of responsibility may be based on definition. The definition is adopted as ‘‘waterbody’’ and instead use of ‘‘waters proposed. watershed boundaries. For some states, of the United States’’ to avoid there may be more than one Corps Stream bed. The Corps did not confusion. One commenter propose any changes to this definition. district responsible for implementing recommended removal of the last the Corps regulatory program, including The Corps did not receive any sentence of this definition. The Corps comments on the proposed definition. the NWP program. In states with more declines to make the suggested changes, than one Corps district, there is a lead The definition is adopted as proposed. except for the removal of the last Stream channelization. The Corps did Corps district responsible for preparing sentence, because this term is used not propose any changes to this the supplemental decision documents through the NWPs. The definition of definition. The Corps did not receive for all of the NWPs. The supplemental any comments on the proposed ‘‘waters of the United States’’ at 33 CFR decision documents will also discuss definition. The definition is adopted as 328.3 is used to identify waterbodies, regional conditions imposed by division proposed. including adjacent wetlands. engineers to protect the aquatic Structure. The Corps did not propose The definition is adopted as environment and other public interest any changes to this definition. One proposed. review factors and ensure that any

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adverse environmental effects resulting that district, with any applicable ‘‘hard look’’ at direct, indirect, and from NWP activities in that region will regional conditions, will result in no cumulative analysis required by NEPA, be no more than minimal, individually more than minimal cumulative adverse and that the Corps decision documents and cumulatively. environmental effects. fail to consider or analyze relevant The Corps solicited comments on the After the NWPs are issued or reissued factors necessary to determine draft national decision documents, and and go into effect, district engineers will significance. any comments received were considered monitor the use of these NWPs on a The Corps prepared NEPA when preparing the final decision regional basis (e.g., within a watershed, components of the draft and final documents for the NWPs. county, state, Corps district or other national decision documents in Before the final NWPs go into effect, appropriate geographic area), to ensure accordance with the Council on division engineers will issue that the use of a particular NWP is not Environmental Quality’s current NEPA supplemental documents to evaluate resulting in more than minimal regulations, published in the Federal environmental effects on a regional cumulative adverse environmental Register on July 16, 2020 (85 FR 43304). basis (e.g., state or Corps district). The effects. The Corps staff that evaluate The commenters objecting to the supplemental documents are prepared NWP PCNs that are required by the text preparation of environmental by Corps districts, but must be approved of the NWP or by NWP general assessments for the issuance of the and formally issued by the appropriate conditions or regional conditions NWPs do not provide any substantive division engineer, since the NWP imposed by division engineers, or information backing their claims that regulations at 33 CFR 330.5(c) state that voluntarily submitted to the Corps the issuance of the NWPs requires an the division engineer has the authority district by project proponents to receive environmental impact statement. The to modify, suspend, or revoke NWP written NWP verifications, often work national decision document prepared authorizations for any specific in a particular geographic area and have for each NWP issued by this final rule geographic area within his or her an understanding of the activities that discusses alternatives, consistent with division. For some Corps districts, their have been authorized by NWPs, regional CEQ’s current NEPA regulations at 40 geographic area of responsibility covers general permits, and individual permits CFR 1501.5(c). The national decision an entire state. For other states, there is over time, as well as the current documents examine the effects and more than one Corps district responsible environmental setting for that impacts of the proposed action (i.e., the for implementing the Corps Regulatory geographic area. If the Corps district issuance of the NWP by Corps Program, including the NWP program. staff believe that the use of an NWP in Headquarters) consistent with the In those states, there is a lead Corps that geographic region may be definition of ‘‘effects or impacts’’ at 40 district responsible for preparing the approaching a threshold above which CFR 1508.1(g). supplemental documents for all of the the cumulative adverse environmental A few commenters said the decision NWPs. The supplemental documents effects for that category of activities may documents somehow imply that the will discuss regional conditions be more than minimal, the district NWPs provide site-specific NEPA imposed by division engineers to engineer may either make a analysis, but that the Corps does not protect the aquatic environment and recommendation to the division undertake any NEPA analysis at a ensure that any adverse environmental engineer to modify, suspend, or revoke project-specific level. One commenter effects resulting from NWP activities in the NWP authorization in that stated that the Corps cannot defer its that region will be no more than geographic region in accordance with NEPA obligations to consider mitigation minimal, individually and the procedures in 33 CFR 330.5(c). measures, public comments, or cumulatively. Alternatively, under the procedures at alternatives analysis to the regional or For the NWPs, the assessment of 33 CFR 330.5(d), the district engineer project level review because there is no cumulative effects under the Corps’ may also modify, suspend, or revoke guarantee any further NEPA analysis public interest review occurs at three NWP authorizations on a case-by-case would occur. Several commenters said levels: National, regional, and the basis to ensure that the NWP does not the national decision documents do not verification stage. Each national NWP authorize activities that result in more provide an a NEPA-level cumulative decision document includes a national- than minimal cumulative adverse effects analysis, and that the Corps scale cumulative effects analysis under environmental effects. cannot defer the analysis at a later stage the Corps’ public interest review. Each A few commenters said that the of review. supplemental document has a Council on Environmental Quality’s The Corps did not defer any of its cumulative effects analysis under the amended NEPA regulations are NEPA obligations during the Corps’ public interest review conducted currently being litigated, and that the preparation of the national decision for a region, which is usually a state or Corps should continue to apply the documents for these NWPs. No further Corps district. When a district engineer 1978 regulations. Several commenters NEPA analysis is required for specific issues a verification letter in response to stated that an environmental assessment activities authorized by NWPs because a PCN or a voluntary request for a NWP would conclude that a finding of no the Corps fulfills the requirements of verification, the district engineer significant impact cannot be achieved NEPA when it prepares an prepares a brief decision document. for the NWPs, and therefore, an environmental assessment with a That decision document explains environmental impact statement must finding of no significant impact for each whether the proposed NWP activity, be prepared for the issuance of the NWP’s national decision document, to after considering permit conditions such NWPs. Several commenters said that a inform the decision whether to issue or as mitigation requirements, will result reasonable range of actual alternatives reissue that NWP. The 2020 CEQ NEPA in no more than minimal individual and must be evaluated, including a no action regulations altered how cumulative cumulative adverse environmental alternative, for each NWP. A few effects are considered under NEPA (see effects. commenters said because NWPs are in the definition of ‘‘effects or impacts’’ at If the NWP is not suspended or effect for five years, the Corps should 40 CFR 1508.1(g)). The Corps revoked in a state or a Corps district, the include reasonably foreseeable future considered the effects of the proposed supplemental document includes a actions. A few commenters stated the action in its national decision certification that the use of the NWP in Corps decision documents fail to take a documents.

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One commenter requested cumulative adverse environmental Clean Water Act or Section 10 of the information on what type of NEPA effects. Rivers and Harbors Act of 1899 before assessment has been completed to The various terms and conditions of issuing an individual permit or a determine the effects on aquatic these NWPs, including the NWP general permit verification. Many resources as a result of the proposed regulations at 33 CFR 330.1(d) and project proponents prefer the time changes, and what type of studies have 330.4(e), allow district engineers to savings that can occur when the Corps been performed to show these changes exercise discretionary authority to issues an individual permit or general will not result in more than minimal modify, suspend, or revoke NWP permit verification without expending effects. One commenter stated the authorizations or to require individual the time and resources needed to make national decision documents do not permits, and ensure compliance with a formal, definitive determination provide a list of agencies or persons section 404(e) of the Clean Water Act. whether those wetlands and waters are consulted in the development of the For each NWP that may authorize in fact jurisdictional and thus regulated environmental assessment. One discharges of dredged or fill material under Section 404 of the Clean Water commenter said the national decision into waters of the United States, the Act and/or Section 10 of the Rivers and documents do not include tribal national decision documents prepared Harbors Act of 1899. interests or treaty responsibilities. by Corps Headquarters include a On April 21, 2020, the U.S. The Corps’ NEPA assessment is 404(b)(1) Guidelines analysis. The Environmental Protection Agency (EPA) provided in the national decision supplemental documents prepared by and the Department of the Army document for each NWP. Further, the division engineers will discuss regional published the Navigable Waters Corps considered public comments circumstances to augment the 404(b)(1) Protection Rule, revising the definition received on the 2020 Proposal and on Guidelines analyses in the national of ‘‘waters of the United States’’ (85 FR the draft national decision documents. decision documents. These 404(b)(1) 22250). Specifically, this final rule Tribal interests and treaty Guidelines analyses are conducted in revises the Corps’ regulations at 33 CFR responsibilities are more appropriately accordance with 40 CFR part 230.7. part 328.3, where the definition of The 404(b)(1) Guidelines analyses in addressed through consultations ‘‘waters of the United States’’ is located the national decision documents also between Corps districts and tribes on for the purposes of implementing include cumulative effects analyses matters related to the NWP program and Section 404 of the Clean Water Act. On done in accordance with 40 CFR its implementation. June 22, 2020, the Navigable Waters 230.7(b) and 230.11(g). A 404(b)(1) Protection Rule became effective in all B. Compliance With Section 404(e) of Guidelines cumulative effects analysis states and jurisdictions except for the the Clean Water Act is provided in addition to the NEPA State of Colorado due to a federal cumulative effects analysis because the district court-issued stay in that state The NWPs are issued in accordance implementing regulations for NEPA and (the case is currently under appeal). The with Section 404(e) of the Clean Water the 404(b)(1) Guidelines define rule has also been challenged in several Act and 33 CFR part 330. These NWPs ‘‘cumulative impacts’’ or ‘‘cumulative other federal district courts. authorize categories of activities that are effects’’ differently. Please note that some of the NWPs similar in nature. The ‘‘similar in could authorize activities that involve C. 2020 Revisions to the Definition of nature’’ requirement does not mean that the discharge of dredged or fill material ‘‘Waters of the United States’’ (i.e., the activities authorized by an NWP must into water bodies that are not subject to Navigable Waters Protection Rule) be identical to each other. We believe CWA jurisdiction, or that may not be that the ‘‘categories of activities that are Corps general permits are not subject to CWA jurisdiction. For similar in nature’’ requirement in Clean intended to make or imply a conclusion example, a project proponent could Water Act section 404(e) is to be or determination regarding what water proceed with an NWP activity that does interpreted broadly, for practical bodies are or are not subject to CWA not require submission of a PCN to the implementation of this general permit jurisdiction. Instead, a Corps general Corps in a non-jurisdictional water program. permit merely states that, if a person without getting a definitive Nationwide permits, as well as other complies with all of the terms and determination from the Corps that the general permits, are intended to reduce conditions of the general permit, that wetland or waterbody is not a water of administrative burdens on the Corps person’s proposed discharges of dredged the United States and thus not subject and the regulated public while or fill material into the waterbody will to CWA jurisdiction. As another maintaining environmental protection, be consistent with the CWA, on the example, if a proposed NWP activity by efficiently authorizing activities that ground that any such discharges either requires pre-construction notification, have no more than minimal adverse (1) are legally authorized under the the district engineer could issue the environmental effects, consistent with CWA (to the extent that the waterbody NWP verification based on the Congressional intent expressed in the is subject to CWA jurisdiction) or (2) are delineation of wetlands, other special 1977 amendments to the Federal Water otherwise consistent with the CWA to aquatic sites, and other waters provided Pollution Control Act. The NWPs the extent that the waterbody is not with the PCN in accordance with provide incentives for project jurisdictional under the CWA. The paragraph (b)(5) of NWP general proponents to minimize impacts to Corps acknowledges that some members condition 32, without the Corps making jurisdictional waters and wetlands to of the public may seek to comply with any formal determination as to whether qualify for NWP authorization instead of the conditions of a general permit even those wetlands, special aquatic sites, having to apply for individual permits. for water bodies that are not and other waters are ‘‘waters of the Keeping the number of NWPs jurisdictional or may not be United States.’’ manageable is a key component for jurisdictional under the CWA. Such During the pendency of any litigation making the NWPs protective of the practice, though not required, is not challenging the Navigable Waters environment and streamlining the unlawful. The Corps is not required to Protection Rule, the NWPs will continue authorization process for those general make a formal determination whether a to authorize discharges of dredged or fill categories of activities that have no particular wetland or water is subject to material in all water bodies that are more than minimal individual and jurisdiction under Section 404 of the subject to CWA jurisdiction, or that may

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be subject to CWA jurisdiction, at the might affect listed species or designated the district engineer with the time those discharges occur. Where a critical habitat, species proposed for appropriate documentation to particular waterbody into which a listing, or critical habitat proposed for demonstrate compliance with section 7 person proposes to discharge dredged or such designation, the activity is not of the ESA. The district engineer will fill material is subject to CWA authorized by an NWP until either the verify that the appropriate jurisdiction, compliance with the terms district engineer makes a ‘‘no effect’’ documentation has been submitted. If and conditions of one or more NWPs, or determination or makes a ‘‘may affect’’ the appropriate documentation has not an individual permit, will be necessary. determination and completes formal or been submitted, additional ESA section An affected party has the opportunity to informal ESA section 7 consultation. 7 consultation may be necessary for the request an approved jurisdictional The district engineer may also use a proposed activity to fulfill both the determination from the Corps if the regional programmatic consultation to federal agency’s and the Corps’ affected party would like the Corps’ comply with the requirements of section obligations to comply with the ESA. formal determination on the 7 of the ESA. The only activities that potentially jurisdictional status of a water or feature When evaluating a PCN, where could be immediately authorized by under the CWA. necessary and appropriate, the Corps NWPs, assuming they meet all other district will either make a ‘‘no effect’’ applicable NWP conditions, are D. Compliance With the Endangered determination or a ‘‘may affect’’ activities that would have ‘‘no effect’’ on Species Act determination. If the district engineer listed species or designated critical The NWP regulations at 33 CFR makes a ‘‘may affect’’ determination, she habitat within the meaning of Section 7 330.4(f) and NWP general condition 18, or he will notify the non-federal project of the ESA and its implementing endangered species, ensure that all proponent and the activity is not regulations at 50 CFR part 402. activities authorized by NWPs comply authorized by the NWP until ESA Therefore, the issuance or reissuance of with section 7 of the Endangered Section 7 consultation has been NWPs does not require ESA section 7 Species Act (ESA). Those regulations completed. In making these consultation because no activities and general condition 18 require non- determinations, the district engineer authorized by any NWPs ‘‘may affect’’ federal permittees to submit PCNs for will apply the definition of ‘‘effects of listed species or critical habitat without any activity that might affect listed the action’’ in the FWS’s and NMFS’s first completing activity-specific ESA species or designated critical habitat, as ESA consultation regulations at 50 CFR Section 7 consultations with the well as species proposed for listing and 402.02. If the district engineer initiates Services, as required by general critical habitat proposed for such section 7 consultation with the FWS condition 18 and 33 CFR 330.4(f). designation. When the district engineer and/or NMFS, that consultation will Regional programmatic ESA section 7 evaluates a PCN, he or she determines also consider ESA section 7 cumulative consultations may also be used by whether the proposed NWP activity may effects, in accordance with the district engineers to satisfy the affect listed species or designated definition of ‘‘cumulative effects’’ at 50 requirements of the NWPs in general critical habitat. The Corps established CFR 402.02. If the non-federal project condition 18 and 33 CFR 330.4(f) if a the ‘‘might affect’’ threshold in 33 CFR proponent does not comply with 33 CFR proposed NWP activity is covered by 330.4(f)(2) and paragraph (c) of general 330.4(f)(2) and general condition 18, that regional programmatic condition 18 because it is more stringent and does not submit the required PCN, consultation. than the ‘‘may affect’’ threshold for then the activity is not authorized by an In the August 27, 2019, issue of the section 7 consultation in the U.S. Fish NWP. In such situations, it is an Federal Register (84 FR 44976) the FWS and Wildlife Service’s (FWS) and unauthorized activity and the Corps and NMFS published a final rule that National Marine Fisheries Service’s district will determine an appropriate amended their regulations for (NMFS) ESA section 7 consultation course of action under its regulations at interagency cooperation under Section 7 regulations at 50 CFR part 402. The 33 CFR part 326 to respond to the of the ESA. That final rule went into word ‘‘might’’ is defined as having ‘‘less unauthorized activity, if and when the effect on October 28, 2019. With respect probability or possibility’’ than the word Corps learns about that unauthorized to making effects determinations for ‘‘may’’ (Merriam-Webster’s Collegiate activity. proposed federal actions, such as Dictionary, 10th edition). Since ‘‘might’’ Federal agencies, including state activities authorized by NWPs, the FWS has a lower probability of occurring, it agencies (e.g., certain state Departments and NMFS made two important changes is below the threshold (i.e., ‘‘may of Transportation) to which the Federal to 50 CFR part 402: (a) Introducing the affect’’) that triggers the requirement for Highway Administration has assigned term ‘‘consequences’’ to help define ESA section 7 consultation for a its responsibilities for ESA section 7 what is an effect under ESA section 7, proposed Federal action. As discussed consultation pursuant to 23 U.S.C. and (b) emphasizing that to be below, each year the Corps conducts 327(a)(2)(B), are required to follow their considered an ‘‘effect of the action’’ thousands of ESA section 7 own procedures for complying with under section 7 consultation, the consultations with the FWS and NMFS Section 7 of the ESA (see 33 CFR consequences caused by the action for activities authorized by NWPs. In 330.4(f)(1) and paragraph (b) of general would not occur but for the proposed recent years, an average of more than condition 18). This includes action and must be reasonably certain to 10,800 formal, informal, and circumstances where an NWP activity is occur (see 84 FR 44977). Further programmatic ESA section 7 part of a larger overall federal project or clarification of ‘‘activities that are consultations are conducted each year action. The federal agency’s ESA section reasonably certain to occur’’ and between the Corps and the FWS and/or 7 compliance covers the NWP activity ‘‘consequences caused by the proposed NMFS in response to NWP PCNs, because it is undertaking the NWP action’’ were provided by the FWS and including those activities that required activity and possibly other related NMFS in rule text added at 50 CFR PCNs under paragraph (c) of general activities that are part of a larger overall 402.17(a) and (b), respectively. condition 18 under the ‘‘might affect’’ federal project or action. For those Applying the 2019 amendments to the threshold. NWPs that require pre-construction section 7 regulations to the NWP If the project proponent is required to notification for proposed activities, the program, consequences to listed species submit a PCN and the proposed activity federal permittee is required to provide and designated critical habitat caused

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by proposed NWP activities must be For a proposed NWP activity that may species and critical habitat, general reasonably certain to occur. In the affect listed species or designated condition 18 expressly prohibits any preamble to their final rule, the FWS critical habitat, a biological opinion activity ‘‘which ‘may affect’ a listed and NMFS stated that for a with an incidental take statement is species or designated critical habitat, ‘‘consequence of an activity to be needed for the NWP activity to go unless section 7 consultation addressing considered reasonably certain to occur, forward unless the FWS or NMFS the effects of the proposed activity has the determination must be based on issued a written concurrence that the been completed.’’ General condition 18 clear and substantial information’’ (see proposed NWP activity is not likely to also states that if an activity ‘‘might 84 FR 44977). The FWS and NMFS adversely affect listed species or affect’’ a listed species or designated explained that ‘‘clear and substantial’’ designated critical habitat. It is through critical habitat (or a species proposed means that there has to be a firm basis activity-specific section 7 consultations for listing or critical habitat proposed for supporting a conclusion that a and regional programmatic section 7 for such designation), a non-federal consequence of a federal action is consultations between the Corps and the applicant must submit a PCN and ‘‘shall reasonably certain to occur. The FWS and NMFS that effective protection not begin work on the activity until determination that a consequence is of listed species and their designated notified by the district engineer that the reasonably certain to occur should not critical habitat is achieved. requirements of the ESA have been be based on speculation or conjecture, After applying the current ESA satisfied and that the activity is and the information used to make that section 7 regulations at 50 CFR part 402 authorized.’’ In addition, 33 CFR determination should have a ‘‘degree of to the NWP rulemaking process, the 330.4(f)(2) imposes a PCN requirement certitude’’ (see 84 FR 44977). The Corps Corps continues to believe that the for proposed NWP activities by non- will apply these considerations when issuance or reissuance of the NWPs has federal permittees where listed species evaluating pre-construction ‘‘no effect’’ on listed species or (or species proposed for listing) or notifications for proposed NWP designated critical habitat, and that the critical habitat might be affected or are activities. ESA section 7 compliance is most in the vicinity of the proposed NWP When the district engineer receives a effectively achieved by applying the activity. Section 330.4(f)(2) also pre-construction notification for a requirements of general condition 18 prohibits those permittees from proposed NWP activity, he or she is and 33 CFR 330.4(f) to specific proposed beginning the NWP activity until responsible for applying the current NWP activities that are identified after notified by the district engineer that the definition of ‘‘effect of the action’’ to the the NWPs are issued and go into effect. requirements of the ESA have been proposed NWP activity and to Compliance with the requirements of satisfied and that the activity is determine the consequences caused by ESA section 7 can also be achieved by authorized. Permit applicants that are the proposed action and which district engineers applying appropriate Federal agencies must and will follow activities are reasonably certain to formal or informal regional their own requirements for complying occur. The district engineer determines programmatic ESA section 7 with the ESA (see 33 CFR 330.4(f)(1)). whether the proposed NWP activity consultations that have been developed Thus, because no NWP can or does ‘‘may affect’’ listed species or by Corps districts with regional offices authorize an activity that may affect a designated critical habitat and initiates of the FWS and NMFS. listed species or critical habitat absent formal or informal section 7 Section 7 of the Endangered Species an activity-specific ESA section 7 consultation, unless she or he Act requires each federal agency to consultation or applicable regional determines that the proposed NWP ensure, through consultation with the programmatic ESA section 7 activity will have ‘‘no effect’’ on listed Services, that ‘‘any action authorized, consultation, and because any activity species or designated critical habitat. As funded, or carried out’’ by that agency that may affect a listed species or a general rule, the district engineer ‘‘is not likely to jeopardize the critical habitat must undergo an documents his or her ‘‘no effect’’ continued existence of listed species or activity-specific consultation or be in determination in writing for every pre- adversely modify designated critical compliance with a regional construction notification that the habitat.’’ (See 16 U.S.C. 1536(a)(2).) programmatic ESA section 7 district engineer receives and responds Accordingly, the Services’ section 7 consultation before the district engineer to. regulations specify that an action agency can verify that the activity is authorized The NWP program has been must ensure that the action ‘‘it by an NWP, the issuance or reissuance structured, through the requirements of authorizes,’’ including authorization by of NWPs has ‘‘no effect’’ on listed NWP general condition 18 and 33 CFR permit, does not cause jeopardy or species or critical habitat. Accordingly, 330.4(f), to focus ESA section 7 adverse modification. (See 50 CFR the action being ‘‘authorized’’ by the compliance at the activity-specific and 402.01(a) and 402.02). Thus, in Corps (i.e., the issuance or re-issuance of regional levels. Each year, an average of assessing application of ESA section 7 the NWPs themselves) has no effect on more than 10,800 formal, informal, and to NWPs issued or reissued by the listed species or critical habitat. regional programmatic ESA section 7 Corps, the proper focus is on the nature To help ensure protection of listed consultations are conducted by Corps and extent of the specific activities species and critical habitat, general districts with the FWS and/or NMFS in ‘‘authorized’’ by the NWPs and the condition 18 and 33 CFR 330.4(f) response to NWP PCNs for specific timing of that authorization. establish a more stringent threshold NWP activities (see below). Focusing The issuance or reissuance of the than the threshold set forth in the ESA section 7 compliance at the NWPs by the Chief of Engineers imposes Services’ ESA section 7 regulations for activity-specific scale and regional express limitations on activities initiation of section 7 consultation. programmatic scale is more efficient for authorized by these NWPs. These Specifically, while section 7 the permittees, the Corps, and the FWS limitations are imposed by the NWP consultation must be initiated for any and NMFS, than doing so at the national terms and conditions, including the activity that ‘‘may affect’’ listed species level because of the similarities in general conditions that apply to all or critical habitat, for non-federal ecosystem characteristics and associated NWPs regardless of whether pre- permittees general condition 18 require listed species and critical habitat within construction notification is required by submission of a PCN to the Corps if a particular region. a specific NWP. With respect to listed ‘‘any listed species (or species proposed

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for listing) or designated critical habitat the project proponent could be subject NWP activities will not jeopardize any might be affected or is in the vicinity of to enforcement action and penalties threatened and endangered species or the activity, or if the activity is located under the CWA. In addition, if the result in the destruction or adverse in designated critical habitat’’ or critical unauthorized activity results in a ‘‘take’’ modification of designated critical habitat proposed for such designation, of listed species as defined by the ESA habitat. Such procedures may result in and prohibits work until ‘‘notified by and its implementing regulations, then the development of regional conditions the district engineer that the he or she could be subject to penalties, added to the NWP by the division requirements of the ESA have been enforcement actions, and other actions engineer, or in activity-specific satisfied and that the activity is by the FWS or NMFS under section 11 conditions to be added to an NWP authorized.’’ (See paragraph (c) of of the ESA. authorization by the district engineer. general condition 18.) The PCN must For listed species (and species The Corps has prepared a biological ‘‘include the name(s) of the endangered proposed for listing) under the assessment for this rulemaking action. or threatened species (or species jurisdiction of the FWS, information on The biological assessment concludes proposed for listing) that might be listed species that may be present in the that the issuance or reissuance of NWPs affected by the proposed work or that vicinity of a proposed activity is has ‘‘no effect’’ on listed species and utilize the designated critical habitat (or available through the Information designated critical habitat and does not critical habitat proposed for such Planning and Consultation (IPaC) require ESA section 7 consultation. This designation) that might be affected by system,4 an on-line project planning conclusion was reached because no the proposed work.’’ (See paragraph tool developed and maintained by the activities authorized by any NWPs ‘‘may (b)(7) of the ‘‘Pre-Construction FWS. affect’’ listed species or critical habitat Notification’’ general condition.) During the process for developing without first completing activity- Paragraph (f) of general condition 18 regional conditions, Corps districts specific ESA Section 7 consultations notes that information on the location of collaborate with FWS and/or NMFS with the Services, as required by general listed species and their critical habitat regional or field offices to identify condition 18 and 33 CFR 330.4(f). can be obtained from the Services regional conditions that can provide Based on the fact that NWP issuance directly or from their websites. additional assurance of compliance with or reissuance of the NWPs is contingent General condition 18 makes it clear to general condition 18 and 33 CFR upon any proposed NWP activity that project proponents that an NWP does 330.4(f)(2). Such regional conditions can ‘‘may affect’’ listed species or critical not authorize the ‘‘take’’ of an add PCN requirements to one or more habitat undergoing an activity-specific endangered or threatened species. NWPs in areas inhabited by listed or regional programmatic ESA section 7 Paragraph (e) of general condition 18 species or where designated critical consultation, there is no requirement also states that a separate authorization habitat occurs. Regional conditions can that the Corps undertake consultation (e.g., an ESA section 10 permit or a also be used to establish time-of-year for the NWP program. The national biological opinion with an ‘‘incidental restrictions when no NWP activity can programmatic consultations conducted take statement’’) is required to take a take place to ensure that individuals of in the past for the NWP program were listed species. In addition, paragraph (a) listed species are not adversely affected voluntary consultations despite the of general condition 18 states that no by such activities. Corps districts will inclusion of procedures to ensure activity is authorized by an NWP which continue to consider through regional consultation under Section 7 for is likely to ‘‘directly or indirectly collaborations and consultations, local proposed NWP activities that may affect jeopardize the continued existence of a initiatives, or other cooperative efforts listed species or designated critical threatened or endangered species or a additional information and measures to habitat. Regional programmatic species proposed for such designation’’ ensure protection of listed species and consultations can be conducted or ‘‘which will directly or indirectly critical habitat, the requirements voluntarily by Corps districts and destroy or adversely modify the critical established by general condition 18 regional or local offices of the FWS and/ habitat of such species.’’ Such activities (which apply to all uses of all NWPs), or NMFS to tailor regional conditions would require district engineers to and other provisions of the Corps and procedures to ensure the ‘‘might exercise their discretionary authority regulations ensure full compliance with affect’’ threshold is implemented and subject the proposed activity to the ESA section 7. consistently and effectively. individual permit review process, Corps district office personnel meet Examples of regional programmatic because an activity that would with local representatives of the FWS consultations currently in effect, with jeopardize the continued existence of a and NMFS to establish or modify the applicable Service the Corps listed species, or a species proposed for existing procedures, where necessary, to consulted with, include: The Standard listing, or that would destroy or ensure that the Corps has the latest Local Operating Procedures for adversely modify the critical habitat of information regarding the existence and Endangered Species in Mississippi such species would not result in no location of any threatened or (2017—FWS); the Endangered Species more than minimal adverse endangered species or their critical Act Section 7 Programmatic Biological environmental effects and thus cannot habitat, including species proposed for Opinion and Magnuson-Stevens Fishery be authorized by an NWP. listing or critical habitat proposed for Conservation and Management Act The Corps’ NWP regulations at 33 such designation. Corps districts can Essential Fish Habitat Consultation for CFR 330.1(c) state that an ‘‘activity is also establish, through local procedures Tidal Area Restoration Authorized, authorized under an NWP only if that or other means, additional safeguards Funded, or Implemented by the Corps of activity and the permittee satisfy all of that ensure compliance with the ESA. Engineers, Federal Emergency the NWP’s terms and conditions.’’ Thus, Through formal ESA section 7 Management Agency, and Federal if a project proponent moves forward consultation, or through other Highways Administration, in Oregon with an activity that ‘‘might affect’’ an coordination with the FWS and/or the and the Lower Columbia River (NMFS— ESA listed species without complying NMFS, as appropriate, the Corps 2018); the U.S. Army Corps of Engineers with the PCN or other requirements of establishes procedures to ensure that Jacksonville District’s Programmatic general condition 18, the activity is not Biological Opinion (JAXBO) (NMFS— authorized under the CWA. In this case, 4 https://ecos.fws.gov/ipac/. 2017); Missouri Bat Programmatic

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Informal Consultation Framework result in more than minimal adverse NWPs. During this coordination, other (FWS—2019); Revised Programmatic environmental effects. tools, such as additional regional Biological/Conference Opinion for Each year, the Corps conducts programmatic consultations or standard bridge and culvert repair and thousands of ESA section 7 local operating procedures, might be replacement projects affecting the Dwarf consultations with the FWS and NMFS developed by the Corps, FWS, and Wedgemussel, Tar River Spinymussel, for activities authorized by NWPs. NMFS to facilitate compliance with the Yellow Lance and Atlantic Pigtoe. These section 7 consultations are ESA while streamlining the process for Programmatic Conference Opinion tracked in ORM. In FY 2018 (October 1, authorizing activities under the NWPs. (PCO) for Bridge and Culvert 2017 to September 30, 2018), Corps Section 7 consultation on regional Replacement/Repairs/Rehabilitations in districts conducted 640 formal conditions occurs only when a Corps Eastern North Carolina, NCDOT consultations and 3,048 informal districts makes a ‘‘may affect’’ Divisions 1–8 (FWS—2018); and the consultations under ESA section 7 for determination and initiates formal or Corps and NOAA Fisheries Greater NWP PCNs. During that time period, the informal section 7 consultation with the Atlantic Regional Fisheries Office Corps also used regional programmatic FWS and/or NMFS, depending on the (GARFO) Not Likely to Adversely Affect consultations for 7,148 NWP PCNs to species that may be affected. Otherwise, Program Programmatic Consultation comply with ESA section 7. Therefore, the Corps district coordinates the (NMFS—2017). each year an average of more than regional conditions with the FWS and/ The programmatic ESA section 7 10,800 formal, informal, and or NMFS. Regional conditions, standard consultations that the Corps conducted programmatic ESA section 7 local operating procedures, and regional for the 2007 and 2012 NWPs were consultations are conducted between programmatic consultations developed voluntary consultations. The voluntary the Corps and the FWS and/or NMFS in by the Corps, FWS, and NMFS are programmatic consultation conducted response to NWP PCNs, including those important tools for protecting listed with the NMFS for the 2012 NWPs activities that required PCNs under species and critical habitat and helping resulted in a biological opinion issued paragraph (c) of general condition 18. to tailor the NWP program to address on February 15, 2012, which was For a linear project authorized by NWPs specific species, their habitats, and the replaced by a new biological opinion 12 or 14, where the district engineer stressors that affect those species. issued on November 24, 2014. A new determines that one or more crossings of The Corps received numerous biological opinion was issued by NMFS waters of the United States that require comments regarding compliance with after the proposed action was modified Corps authorization ‘‘may affect’’ listed the Endangered Species Act for both the and triggered re-initiation of that species or designated critical habitat, rulemaking process for issuing, programmatic consultation. The the district engineer initiates a single reissuing, and modifying the NWPs by programmatic consultation on the 2012 section 7 consultation with the FWS Corps Headquarters, and compliance for NWPs with the FWS did not result in a and/or NMFS for all of those crossings specific activities authorized by NWPs. biological opinion. For the 2017 NWPs, that he or she determines ‘‘may affect’’ Many commenters expressed support the Corps did not request a national listed species or designate critical for the Corps’ current method of ESA programmatic consultation. habitat. The number of section 7 compliance without need for a national In the Corps Regulatory Program’s consultations provided above represents programmatic section 7 consultation. automated information system (ORM), the number of NWP PCNs that required These commenters said that the the Corps collects data on all individual some form of ESA section 7 requirements of general condition 18 permit applications, all NWP PCNs, all consultation, not the number of single provide a sufficiently low threshold to voluntary requests for NWP and complete projects authorized by an trigger necessary ESA section 7 verifications where the NWP or general NWP that may be included in a single consultations for NWP activities. Many conditions do not require PCNs, and all PCN. A single NWP PCN may include commenters said that there is no verifications of activities authorized by more than one single and complete requirement for the Corps to consult regional general permits. For all written project, especially if it is for a linear under the ESA for the reissuance of the authorizations issued by the Corps, the project such as a utility line or road NWPs because the reissuance of the collected data include authorized with multiple separate and distant NWPs has no effect on listed species impacts and required compensatory crossings of jurisdictional waters and and consultation for each NWP activity mitigation, as well as information on all wetlands from its point of origin to its occurs as necessary. One commenter consultations conducted under section 7 terminal point. suggested that the Corps voluntarily of the ESA. Every year, the Corps During the process for reissuing the consult on reissuance of the NWPs to evaluates approximately 35,000 NWP NWPs, Corps districts coordinated with provide regulatory certainty to the PCNs and requests for NWP regional and field offices of the FWS business community, and said that this verifications for activities that do not and NMFS to discuss whether new or voluntary consultation should not delay require PCNs, and provides written modified regional conditions should be issuance of a final rule. Many verifications for those activities when imposed on the NWPs to improve commenters expressed opposition to district engineers determine those implementation of the ‘‘might effect’’ reissuing the NWPs without completing activities result in no more than threshold and improve protection of a national programmatic ESA section 7 minimal adverse environmental effects. listed species and designated critical consultation and addressing cumulative During the evaluation process, district habitat and ensure that the NWPs only impacts to listed species. Several engineers assess potential impacts to authorize activities with no more than commenters stated that the Corps had listed species and critical habitat and minimal individual and cumulative failed to ensure that NWP activities are conduct section 7 consultations adverse environmental effects. Regional not likely to jeopardize the continued whenever they determine proposed conditions must comply with the Corps’ existence of listed species or adversely NWP activities ‘‘may affect’’ listed regulations at 33 CFR 325.4 for adding modify or destroy critical habitat, in species or critical habitat. District permit conditions to DA authorizations. violation of the ESA. A few commenters engineers will exercise discretionary The Corps decides whether suggested said that the Corps’ programmatic ‘‘no authority and require individual permits regional conditions identified during effect’’ determination for the NWPs is in when proposed NWP activities will this coordination are appropriate for the error because it is arbitrary and

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capricious, in violation of the ESA, and/ ESA is only required when a federal have the legal authority to regulate or or in violation of federal court agency determines that its proposed control future state or private actions decisions. action may affect listed species or that do not involve activities that With this final rule, the Corps is designated critical habitat. As explained require DA authorization under Section continuing to implement its current in this section of the final rule, the 10 of the Rivers and Harbors Act of 1899 approach to ESA section 7 compliance, ‘‘might affect’’ threshold in paragraph or Section 404 of the Clean Water Act. through general condition 18 and 33 (c) of general condition 18 is lower than Therefore, the Corps does not have the CFR 330.4(f). The Corps has determined the ‘‘may affect’’ threshold for triggering authority or discretion to control that the issuance of this final rule will a requirement for consultation with the cumulative effects to listed species or have no effect on endangered or FWS and/or NMFS. The district designated critical habitat that are threatened species or critical habitat, engineer, not the permit applicant, is caused by future state or private completed a Biological Assessment to responsible for making a ‘‘may effect’’ or activities. Incidental take is addressed inform that conclusion, and therefore ‘‘no effect’’ determination under ESA through activity-specific and regional will not be submitting a request to the section 7. The non-federal permittee is programmatic formal ESA section 7 FWS and NMFS for a voluntary national responsible for complying with section consultations when district programmatic ESA section 7 paragraph (c) of general condition 18 engineers determine proposed NWP consultation. The Corps will continue to and submitting a PCN to the district activities may affect listed species or comply with the requirements of engineer when a proposed NWP activity designated critical habitat. Section 7(a)(2) of the ESA through triggers one of the PCN thresholds in Previous national ESA section 7 activity-specific and regional that paragraph. programmatic consultations on the programmatic section 7 consultations As discussed above, the Corps NWPs were voluntary consultations. conducted between district engineers evaluated the programmatic action of Even though some listing decisions by and regional and field offices of the rulemaking to issue these NWPs and the FWS or NMFS may have identified FWS and NMFS. determined that the issuance or activities that may require DA permits A few commenters stated that general reissuance of the NWPs by Corps as one of the contributing factors to 18 unlawfully delegates the Corps’ ESA Headquarters has no effect on listed listing a particular species as section 7 responsibilities to permittees. species or designated critical habitat; endangered or threatened under the By requiring project proponents to that evaluation is documented in a ESA, those listing decisions usually submit PCNs if listed species ‘‘might Biological Assessment that supports its acknowledge that section 7 be’’ affected, some commenters stated no effect determination. Therefore, an consultations will be conducted for that the Corps unlawfully delegates the ESA section 7(a)(2) consultation with proposed federal actions that may affect initial effect determination to the the FWS and NMFS is not required on those species, including activities that permittee. A few commenters said that a national, programmatic level for the require DA authorization under Section the definition of agency ‘‘action’’ in the issuance or reissuance of the NWPs in 10 of the Rivers and Harbors Act of 1899 ESA which requires ESA section 7(b) this final rule. The Corps considered the and Section 404 of the Clean Water Act. consultation includes programmatic effects of its proposed action (i.e., the An example is the final rule issued by actions such as the Corps issuance of issuance or reissuance of the NWPs NMFS on June 28, 2005, for the final the NWPs. A few commenters said that through the rulemaking process), listing determinations for 16 formal programmatic consultation including the cumulative effects between the Corps and the Services is anticipated to be caused by that evolutionary significant units of west necessary to meet the requirements of proposed action. Those cumulative coast salmon (see 70 FR 37195). the ESA, asserting that such impacts include the projected use of the One commenter suggested that the consultation allows for consideration of NWPs during the 5-year period those Corps require PCNs for all NWPs to the cumulative impacts of a program NWPs are anticipated to be in effect, ensure that the Corps is consulting as and guides implementation of the along with the estimated impacts to necessary under the ESA and is able to program by establishing criteria to avoid jurisdictional waters and wetlands and accurately track and evaluate adverse effects. These commenters also other resources, and the estimated cumulative impacts. One commenter said that project-specific consultation compensatory mitigation required by stated that there is no requirement for must then be undertaken for specific district engineers to offset the the Corps to consult under the ESA for actions under the program, which is authorized impacts. When issuing or the NWPs but believes the Corps needs when incidental take is authorized. One reissuing the NWPs, or determining to rebut the findings in the Montana commenter said that the Corps’ whether specific activities are district court case in the text of the rule programmatic ‘‘no effect’’ with reliance authorized by an NWP, the Corps for purposes of future litigation. One on project specific consultation for considers the individual and cumulative commenter said that the Corps’ ‘‘no compliance with the ESA is in error as adverse environmental effects caused by effect’’ determination and deferral of it does not address cumulative impacts those activities, including adverse ESA consultation until the project is to species. The commenter further environmental effects to a variety of proposed is in alignment with recent stated that this is clear based on past resources, including jurisdictional changes to ESA implementing court cases, a past national waters and wetlands and the species regulations at 50 CFR 402.17(a) and (b). programmatic consultation with NMFS, that inhabit those waters and wetlands. Specifically, these commenters assert and the Services’ listing decisions and With respect to cumulative effects that the change to the ESA section 7 critical habitat designations whereby under ESA section 7, the FWS and regulations require that ‘‘program they assess activities permitted by NWP NMFS define ‘‘cumulative effects’’ as actions that are reasonably certain to as a cause of the listing or designation the ‘‘effects of future state or private occur’’ and the potential consequences decision. activities, not involving Federal of proposed actions be based on ‘‘clear General condition 18 does not activities, that are reasonably certain to and substantial information.’’ delegate the Corps’ ESA section 7 occur within the action area of the Information that, the commenter argues, responsibilities to permittees. Federal action subject to consultation’’ is not available until the project and its Consultation under section 7(a)(2) of the (see 50 CFR 402.02). The Corps does not location are proposed.

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It is neither practical nor necessary to specific NEPA analysis. One commenter districts that have EFH designated require PCNs for all activities stated that the incidental take statement within their geographic areas of authorized by NWPs to ensure must be applied to entire project and responsibility will coordinate with compliance with section 7 the ESA. not just the areas over which the Corps NMFS regional offices, to the extent There are many activities authorized by has control and responsibility. If not, necessary, to develop NWP regional the NWPs each year that have no effect the project proponent must obtain an conditions that conserve EFH and are on listed species or designated critical ESA section 10(a)(1)(B) permit from the consistent with the NMFS regional EFH habitat, despite approximately 10,800 Services to ensure compliance with the Conservation Recommendations. Corps ESA section 7 consultations occurring ESA. Absent this, general condition 18 districts will conduct consultations in annually. Listed species are not has the potential to continuously violate accordance with the EFH consultation uniformly distributed across the United the ESA. regulations at 50 CFR 600.920. States and tend to be concentrated in When a district engineer adds One commenter said that consultation specific geographic areas (‘‘hotspots’’) conditions to an NWP authorization to with NMFS needs to occur for all NWPs (e.g., Evans et al. 2016), and there are comply with the ESA or other federal used in essential fish habitat. The Corps areas in the country with jurisdictional laws, including terms and conditions continues to implement the EFH waters and wetlands that have no or few from reasonable and prudent measures Conservation Recommendation listed species where NWP activities identified in an incidental take provided by NMFS in 1999. In those proceed with no effects to listed species statement in a biological opinion that Corps districts where essential fish or critical habitat. In addition, requiring apply to the activity authorized by an habitat has been designated, district PCNs for all activities authorized by NWP, a project-specific NEPA analysis engineers review PCNs for proposed NWPs would nearly double the number is not required. The Corps complies NWP activities to determine whether of PCNs reviewed by Corps district each with the requirements of NEPA when it those proposed activities may adversely year. In Appendix A of the Regulatory prepares environmental assessments in affect essential fish habitat. If the Impact Analysis for the 2020 Proposal, the national decision documents for the district engineer determines a proposed the Corps estimates that nearly 32,000 issuance or reissuance of the NWPs by NWP activity may adversely affect NWP activities proceed without PCNs Corps Headquarters. The activities to essential fish habitat, she or he initiates each year. The Regulatory Impact which an incidental take statement in a EFH consultation with the NMFS. Analysis for the 2020 proposal is biological opinion issued by the FWS or Division engineers can add PCN available in the www.regulations.gov NMFS applies is dependent on project- requirements via regional conditions to docket for this rule (docket number specific circumstances identified in that those NWPs that do not require PCNs COE–2020–0002). That increase in the biological opinion. When the FWS or for all activities to ensure that EFH Corps’ workload could result in changes NMFS write an incidental take consultation is conducted for proposed in the effectiveness and efficiency in the statement for a biological opinion, activities that may adversely affect EFH. under section 7(b)(4)(iv) of the ESA they review of PCNs by district engineers, as F. Compliance With Section 106 of the can assign responsibility of specific well as their evaluations of other National Historic Preservation Act activities requiring DA authorization, terms and conditions of the incidental including activities authorized by take statement to the federal action The NWP regulations at 33 CFR individual permits and regional general agency (e.g., the Corps), the applicant, 330.4(g) and the ‘‘Historic Properties’’ permits. The increase in the Corps’ or both taking into account their general condition (general condition workload could also affect its ability to respective roles, authorities, and 20), ensure that all activities authorized conduct enforcement and compliance responsibilities (see 84 FR 44977). by NWPs comply with section 106 of actions. Finally, and as explained above, Paragraph (f) of general condition 18 the NHPA. The ‘‘Historic Properties’’ General Condition 18 addresses this addresses ESA section 10(a)(1)(B) general condition requires non-federal commenter’s concerns regarding PCN incidental take permits and their permittees to submit PCNs for any requirements. potential application for NWP activities. activity that might have the potential to The Corps agrees that its ‘‘no effect’’ The Corps has carefully considered cause effects to any historic properties determination for the issuance or and evaluated all comments that were listed on, determined to be eligible for reissuance of the NWPs complies with provided regarding this issue. The Corps listing on, or potentially eligible for the ESA section 7 regulations at 50 CFR reaffirms that its ‘‘no effect’’ listing on the National Register of part 402, because section 7 consultation determination for the promulgation of Historic Places, including previously is not required when a federal agency the NWPs is correct and appropriate, for unidentified properties. The Corps then determines its proposed action will the reasons explained above. evaluates the PCN and makes an effect have no effect on listed species or determination for the proposed NWP E. Compliance With the Essential Fish designated critical habitat. In the activity for the purposes of NHPA Habitat Provisions of the Magnuson- biological assessment prepared by the section 106. We established the ‘‘might Stevens Fishery Conservation and Corps for this rulemaking activity, the have the potential to cause effects’’ Management Act Corps presents a substantial amount of threshold in paragraph (c) of the data to demonstrate the actions it takes The NWP Program’s compliance with ‘‘Historic Properties’’ general condition to comply with section 7 of the ESA, the essential fish habitat (EFH) to require PCNs for those activities so including the number of formal and consultation requirements of the that the district engineer can evaluate informal section 7 consultations it Magnuson-Stevens Fishery the proposed NWP activity and conducts with the FWS and NMFS and Conservation and Management Act will determine whether it has no potential to the number of regional programmatic be achieved through EFH consultations cause effects to historic properties or consultations and other tools it has between Corps districts and NMFS whether it has potential to cause effects developed with the FWS and NMFS. regional offices. This approach to historic properties and thus require One commenter said that the when continues the EFH Conservation section 106 consultation. the Corps implements an incidental take Recommendations provided by NMFS If the project proponent is required to statement as a condition in its NWP Headquarters to Corps Headquarters in submit a PCN and the proposed activity verification it must undertake a project 1999 for the NWP program. Corps might have the potential to cause effects

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

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One commenter stated the reissuance Corps does not have the authority under The Corps’ permit area or area of of the NWPs does not require Section the Clean Water Act and the River and potential effects is limited to those areas 106 NHPA consultation, but specific Harbors Act of 1899 to promulgate its and activities where the Corps has activities may require section 106 own regulations for compliance with control and responsibility to address consultation. One commenter said the Section 106 of the National Historic effects to historic properties through its Corps should programmatically address Preservation Act (i.e., Appendix C to 33 permitting authorities under Section the potential adverse effects from CFR part 325) rather than complying 404 of the Clean Water Act and Section undertakings permitted pursuant to the with 36 CFR part 800. 10 of the Rivers and Harbors Act of NWPs either by creating a national The Corps continues to use Appendix 1899. District engineers work with programmatic agreement or a division- C and the 2005 and 2007 interim permit applicants and other consulting specific programmatic agreement. One guidance to comply with section 106 of parties to resolve disagreements about commenter stated that the Corps’ the NHPA. Section 110(a)(2)(E)(i) of the permit areas for section 106 compliance. position that effects to historic NHPA states that federal agencies can When evaluating PCNs, district properties would be evaluated on an develop their own procedures for engineers consider direct and indirect individual activity phase is not complying with section 106 as long as effects to historic properties. consistent with the 36 CFR part 800 those procedures are consistent with the A few commenters said that a federal regulations. One commenter disagreed regulations issued by the Advisory agency must consult with the Advisory with the Corps’ position that the Council on Historic Preservation. Council on Historic Preservation, State issuance or reissuance of the NWPs has A few commenters stated the NWPs Historic Preservation Offices, Tribal ‘‘no potential to cause effect’’ on historic and the general conditions violate the Historic Preservation Officers, tribes, properties and does not require NHPA by delegating the effects and Native Hawaiian organization, compliance with Section 106 of the determination to non-federal permittees where applicable, when effects to NHPA. This commenter said that by allowing permittees to make a historic properties cannot be fully reliance on general conditions 20, 21, determination of effect for NWP determined, and said that if a PCN is not and 32 is not a substitute for appropriate activities that do not require PCNs. warranted, these groups are not compliance with section 106 in Several commenters said that general provided an opportunity to comment. individual cases. condition 20 is inconsistent with the 36 One commenter said that the Corps For most NWP activities, the need to CFR part 800 regulations. One must afford the Advisory Council on conduct NHPA section 106 is commenter stated that general condition Historic Preservation a reasonable determined on a case-by-case basis, as 20 does not provide a standard by opportunity to comment on the district engineers evaluate PCNs for which the permittee must determine a undertaking, and when no PCN is proposed NWP activities, including PCN is necessary because of potential required for an NWP activity, there is no PCNs submitted by non-federal effects to historic properties. consultation on the undertaking. permittees under paragraph (c) of The NWPs and their general Non-federal permit applicants are general condition 20. The Corps conditions do not delegate effects responsible for complying with general believes that programmatic agreements determinations under section 106 of the condition 20, including the requirement for section 106 compliance are more NHPA to non-federal permittees. to submit PCNs for any proposed NWP appropriately developed at a regional Paragraph (c) of general condition 20 activity that might have the potential to level, between Corps districts and State requires non-federal permittees to cause effects to historic properties, so Historic Preservation Officers and Tribal submit PCNs to district engineers for that the district engineer can determine Historic Preservation Officers. The any proposed NWP activity that might whether section 106 consultation is Advisory Council on Historic have the potential to cause effects to required for proposed activity. If the Preservation’s regulations provide for historic properties. District engineers district engineer determines section 106 section 106 consultation on a case-by- will review those PCNs and determine consultation is necessary, she or he will case basis, although it includes whether section 106 NHPA consultation identify consulting parties and initiate provisions for federal agency program is required for proposed NWP activities. section 106 consultation with those alternatives, including alternative The ‘‘might have the potential to cause consulting parties. District engineers procedures and programmatic effects’’ to any historic property is a provide the Advisory Council on agreements (see 36 CFR 800.14). With standard to guide permittees as to when Historic Preservation with a reasonable respect to section 106 of the NHPA, the they need to submit PCNs so that opportunity to comment when the only activities immediately authorized district engineers can determine Council enters the section 106 process by an NWP are those activities that have whether section 106 consultation is in accordance with Appendix A to 36 no potential to cause effects to historic required for a proposed NWP activity. CFR part 800. properties. Paragraph (c) of general A few commenters said that the condition 20 requires non-federal Corps’ permit area (area of potential G. Section 401 of the Clean Water Act permittees to submit PCNs for any effects) for section 106 compliance A water quality certification issued by proposed NWP activities that might should not be limited to the activity a state, authorized tribe, or EPA, or a have the potential to cause effects to within waters of the United States that waiver thereof, is required by section historic properties. District engineers requires DA authorization, and that the 401 of the Clean Water Act, for an review these PCNs to determine area of potential effects should activity authorized by an NWP which whether NHPA section 106 consultation encompass the entire project that may result in a discharge from a point is required for a proposed NWP activity. requires the permit. One commenter source into waters of the United States. Several commenters stated that stated that the Corps’ limited permit Water quality certifications may be Appendix C to 33 CFR part 325 and the area causes costly delays to the project granted without conditions, granted 2005 and 2007 interim guidance proponent when section 106 disputes with conditions, denied, or waived for documents issued by the Corps does not are triggered, and that by limiting the specific NWPs. constitute an acceptable federal agency permit area, the Corps undertaking does Nationwide permits 21, 29, 39, 40, 42, program alternative under 36 CFR not adequately consider direct or 43, and 50 would authorize activities 800.14. One commenter said that the indirect effect on historic properties. that may result in discharges to waters

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of the United States and therefore In response to the proposed rule and certifying the proposed NWPs at the section 401 water quality certification or the associated requests for water quality same time. Several commenters said waiver is required for those NWPs. certification, many certifying authorities that water quality certification Nationwide permits 12, 48, 51, 52, 57, requested an extension of the 60-day conditions could change if the final and 58 would authorize various reasonable period of time to review and NWPs are modified from the proposed activities, some of which may result in certify the proposed NWPs. A few NWPs. a discharge to waters of the United commenters said that many states Section 401 of the Clean Water Act States and require section 401 water cannot comply with the 60 days states that no permit shall be issued quality certification or waiver, and provided due to public participation until water quality certification has been others which may not. Nationwide requirements, including public obtained or waived. Therefore, the water permits 55, and 56 do not require hearings. A few commenters stated that quality certification process must be section 401 water quality certification the 60-day review period is not completed before the final NWPs are because they would authorize activities sufficient time to review the proposed issued. That process is consistent with which, in the opinion of the Corps, NWPs considering recent changes to the Corps’ NWP regulations at 33 CFR could not reasonably be expected to EPA’s regulations for Section 401 of the 330.4(c)(1), which says that ‘‘water result in a discharge into waters of the Clean Water Act and the issuance of the quality certification pursuant to section United States. In the case of NWP 8, it final Navigable Waters Protection Rule. 401 of the Clean Water Act, or waiver only authorizes activities seaward of the One commenter voiced support for 60 thereof, is required prior to the issuance territorial seas where the Clean Water days certifying their complete WQC or reissuance of NWPs authorizing Act does not apply. decision for the proposed NWPs. One activities which may result in a Prior to the issuance of the 16 NWPs, commenter stated that the 60-day discharge into waters of the United certifying authorities made their reasonable period of time should be States.’’ The water quality certification decisions on whether to issue, deny, or extended to 180 days to provide regulations issued by EPA this year also waive water quality certification (WQC) adequate time to review the proposed state that water quality certification for the issuance of the NWPs. If a rule including the proposed NWPs. One requests are made for proposed general certifying authority issued water quality commenter said that the abbreviated permits, not the final general permits. certifications with conditions for the timeline undermines and limits state The regulations issued by EPA include issuance of these NWPs, district and tribal input. A few commenters said no provisions for modifying water engineers reviewed the conditions in the Corps should request certification quality certifications after the certifying those water quality certifications to on the final NWPs. One commenter said authority has acted on the federal determine whether they comply with that 60 days to act on the certification agency’s certification request. If the the requirements in 40 CFR 121.7(d). If request is not consistent with the terms federal agency is planning to make the district engineer determines that any of a 1992 settlement agreement between changes to the general permit in condition in the water quality the Pennsylvania Department of response to public comments, those certification for the issuance of the Environmental Resources and the Corps. changes may trigger a requirement for a NWPs does not comply with the In light of the timeframe for issuing new certification before the federal requirements of 40 CFR 121.7(d), and is the final NWPs, the Corps did not grant agency can issue the final general waived pursuant to 40 CFR 121.9(d), the extensions to the 60-day reasonable permit (see 85 FR 42279). district engineer will notify the period of time for water quality A few commenters said that certifying authority and the EPA certification. Section 401 of the Clean requesting state certification of the Administrator in accordance with 40 Water Act and EPA’s regulations at 40 proposed NWPs does not recognize that CFR 121.9(c). The conditions in the CFR 121.6 give the Corps the authority there may be changes to the final NWPs water quality certification for the to establish the reasonable period of based upon the public comments issuance of the NWP that comply with time. For this issuance of these NWPs, received. A few commenters stated that the requirements of 40 CFR 121.7(d) and the Corps complied with EPA’s final they should have the opportunity to are not waived become conditions of the rule, which was published in the fully evaluate the final version of the NWP authorization in accordance with Federal Register on July 13, 2020, and NWPs and modify their water quality Section 401(d) of the Clean Water Act. went into effect on September 11, 2020. certifications as necessary. A few If a certifying agency denies WQC for That final rule went into effect a few commenters expressed disagreement the issuance of an NWP, then the days before the proposed NWPs were with the request to certify the proposed proposed discharges are not authorized published in the Federal Register for NWPs and requested the Corps provide by that NWP unless and until a project public comment. The Corps worked a reasonable review time and issue the proponent obtains WQC for the specific with the Commonwealth of WQC on the final NWPs after any discharge from the certifying authority, Pennsylvania to address the 1992 changes have been made after or a waiver of WQC occurs. settlement agreement. considering public comments. A few In the 2020 Proposal, the Corps noted Many commenters said that the commenters said that water quality that EPA issued revisions to its reasonable period of time for certifications may be issued regulations governing the Clean Water certification of the NWPs should be conditionally and only valid if the final Act section 401 certification process on extended until the final rule is issued. NWPs are not different than the June 1, 2020. In the future, it may be A few commenters stated that certifying proposed NWPs. A few commenters necessary or appropriate for the Corps to the proposed NWPs prior to the NWPs noted that the Corps’ request to certify revise its own section 401 regulations, being finalized is problematic as there the proposed NWPs is a departure from including 33 CFR 330.4, in light of are significant proposed changes in the past practice whereby states issue water EPA’s Clean Water Act Section 401 NWPs. Several commenters said that the quality certifications on the final NWPs Certification Rule. The Corps invited procedure is outside of the normal before those NWPs go into effect. comments from the public on whether standard practice of certifying the NWPs As discussed above, certifying and, if so, when the Corps should revise after the final NWPs are issued. Many authorities must act on certification those regulations in light of the new commenters expressed concern and requests before the Corps can issue the EPA regulations. disagreement over reviewing and final NWPs. The Corps acknowledges

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that the water quality certification authorities can deny water quality the issuance of the NWPs. If a state process for the 2020 Proposal is a certifications if they believe they do not issued a concurrence with conditions departure from past practice; however, have sufficient information to issue for the issuance of these NWPs, district it is consistent with section 401 and water quality certification (see 40 CFR engineers reviewed the conditions in EPA’s final certification regulation at 40 121.7(e)(2)). The Corps acknowledges those consistency concurrences to CFR part 121. In the 16 NWPs issued in that denial of water quality determine whether they comply with this final rule, there were no substantive certifications for the issuance of the the Corps’ regulations for permit changes that trigger a requirement for NWPs creates burdens on the regulated conditions at 33 CFR 325.4. If a state the Corps to submit new certification public in terms of having to obtain objected to the Corps’ CZMA requests for the NWPs. water quality certifications or waivers consistency determination for the A few commenters said that the for specific discharges authorized by issuance of an NWP, then the activity is separate review 60-day timeline for NWPs. The issuance of the NWPs by not authorized by that NWP unless and water quality certification and the 90- Corps Headquarters is an independent until a project proponent obtains a day timeline for CZMA consistency process from the issuance of regional consistency concurrence from the state determinations bifurcates the review general permits by district engineers. or a presumption of concurrence occurs. process and is unnecessarily One commenter stated a website The Corps’ CZMA consistency cumbersome and suggested that a joint where all final WQC conditions are determination only applied to NWP 90-day review period should be posted would be helpful. One authorizations for activities that are provided. The Corps established commenter said the Corps should within, or affect, any land, water uses or different review periods for water provide proposed water quality natural resources of a State’s coastal quality certification and CZMA certification conditions for the NWPs zone. A state’s coastal zone management consistency determinations because and let the state agencies review those plan may identify geographic areas in those are separate processes that are proposed conditions to make the federal waters on the outer continental governed by distinctly different laws certification process for the NWPs. One shelf, where activities that require and regulations. Section 401 of the commenter stated that the Corps should federal permits conducted in those areas Clean Water Act gives the permitting not revise its water quality certification require consistency certification from authority the ability to establish the regulations. the state because they affect any coastal reasonable period of time for a certify After the final NWPs are issued and use or resource. In its coastal zone authority to act on a request for water division engineers have approved the management plan, the state may include quality certification. The CZMA final regional conditions for the NWPs, an outer continental shelf plan. An consistency determination process is Corps districts will issue public notices outer continental shelf plan is a plan for governed by regulations issued by the announcing the final regional ‘‘the exploration or development of, or Department of Commerce at 15 CFR part conditions for the NWPs and the production from, any area which has 930. disposition of water quality been leased under the Outer Continental Several commenters stated that certifications and CZMA consistency Shelf Lands Act’’ and regulations issued subsequent changes from the proposed concurrences for the final NWPs. The under that Act (see 15 CFR 930.73). NWPs to the final NWPs may result in Corps will post copies of these district Activities requiring federal permits that in missing or inappropriate conditions public notices in the are not identified in the state’s outer and leave the certifying agencies with www.regulations.gov docket for this continental shelf plan are considered no opportunity to remedy a deficient rulemaking action (docket number unlisted activities. If the state wants to certification. One commenter said that COE–2020–0002). It is the certifying review an unlisted activity under the changes between the proposed NWPs authorities’ responsibility to develop CZMA, then it must notify the applicant and the final NWPs may require conditions for their water quality and the federal permitting agency that it certifying authorities to deny certifications for the issuance of the intends to review the proposed activity. certification due to insufficient NWPs. The Corps will be revising the Nationwide permit authorizations for information. One commenter stated that provisions in its regulations for water activities that are not within or would denying water quality certification for quality certification, to be consistent not affect a state’s coastal zone do not all of the proposed NWPs would have with EPA’s new water quality require the Corps’ CZMA consistency significant implications for streamlining certification regulations. determinations and thus are not federal permitting of discharges contingent on a State’s concurrence H. Section 307 of the Coastal Zone authorized by the NWPs. One with the Corps’ consistency Management Act (CZMA) commenter said that should water determinations. quality certification for the issuance of Any state with a federally-approved If a state objects to the Corps’ CZMA the NWPs be denied, there will be CZMA program must concur with the consistency determination for an NWP, additional burdens on permittees. One Corps’ determination that activities then the affected activities are not commenter said the Corps would need authorized by NWPs which are within, authorized by an NWP within that state to request water quality certification on or will have reasonably foreseeable until a project proponent obtains an the final NWPs to have valid water effects on any land or water uses or individual CZMA consistency quality certifications. One commenter natural resources of, the state’s coastal concurrence, or sufficient time (i.e., six said that some states operate under state zone, are consistent with the CZMA months) passes after requesting a CZMA general permits where NWPs are program to the maximum extent consistency concurrence for the revoked. This commenter noted that the practicable. Coastal Zone Management applicant to make a presumption of denied certifications for NWPs will raise Act consistency concurrences may be consistency, as provided in 33 CFR conflicts and issues when state general issued without conditions, issued with 330.4(d)(6). However, when applicants permits are reissued. conditions, or denied for specific NWPs. request NWP verifications for activities As discussed above, water quality Prior to the issuance of the 16 NWPs, that require individual consistency certification decisions by certifying states made their decisions on whether concurrences, and the Corps determines authorities must be made before the to concur with or object to the Corps’ that those activities meet the terms and Corps issues the final NWPs. Certifying CZMA consistency determination for conditions of the NWP, in accordance

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with 33 CFR 330.6(a)(3)(iii) the Corps complete its review and make its proposal will reduce net burden for the will issue provisional NWP verification determinations. regulated public. Specifically, letters. The provisional verification The CZMA consistency concurrence increasing the number of activities that letter will contain general and regional process for the issuance of the NWPs can be authorized by NWPs is expected conditions as well as any activity- must be completed before the final to decrease compliance costs for permit specific conditions the Corps NWPs are issued. The Department of applicants since, as discussed below, determines are necessary for the NWP Commerce’s CZMA regulations at 15 the compliance costs for obtaining NWP authorization. The Corps will notify the CFR 930.36(b)(1) state that the federal authorization are less than the applicant that he or she must obtain an agency’s consistency determination compliance costs for obtaining activity-specific CZMA consistency shall be provided to state agencies at individual permits. In addition, the concurrence or a presumption of least 90 days before final approval of the NWPs can incentivize some project concurrence before he or she is federal agency’s activity unless both the proponents to design their projects in authorized to start work in waters of the federal agency and the state agency such a way that they would qualify for United States. That is, NWP agree to an alternative notification a NWP thereby reducing impacts to authorization will be contingent upon schedule. Therefore, the CZMA jurisdictional waters and wetlands. In obtaining the necessary CZMA consistency concurrence process must FY2018, the average time to receive an consistency concurrence from the state, be completed before the Corps issues NWP verification was 45 days from the or a presumption of concurrence. the final NWPs. If the Corps were to date the Corps district receives a Anyone wanting to perform such make substantial changes to the complete PCN, compared to 264 days to activities where pre-construction proposed NWPs, then the Corps would receive a standard individual permit notification to the Corps is not required conduct supplemental coordination after receipt of a complete permit has an affirmative responsibility to with the states. In these 16 final NWPs, application (see table 1.2 of the present a CZMA consistency the Corps did not make any substantial regulatory impact analysis for this final determination to the appropriate state changes that would trigger rule, which is available in the agency for concurrence. Upon supplemental coordination with states. www.regulations.gov docket (docket concurrence with such CZMA The Corps acknowledges that under 15 number COE–2020–0002)). CFR 930.41(a), it could have requested consistency determinations by the state, As discussed in the Regulatory Impact the activity would be authorized by the responses from state agencies within 60 days of receipt of the Corps’ consistency Analysis for this proposed rule, the NWP. This requirement is provided at Corps estimates that a permit 33 CFR 330.4(d). determination and supporting information. Under 15 CFR 930.41(b), applicant’s compliance cost for In response to the 2020 proposal federal agencies are required to approve obtaining NWP authorization in 2019$ several commenters said that the Corps one extension period of 15 days or less, ranges from $4,412 to $14,705 (Institute is providing a CZMA federal if the state agency requests an extension for Water Resources (2001),5 adjusted consistency determination for the of time within the 60-day review period. for inflation using the GDP deflator proposed rule and is asking the states to The WQC and CZMA consistency approach). The Corps estimates that a concur with a federal action that is not concurrence review periods are different permit applicant’s compliance costs for final. These commenters said that if because they are governed by different obtaining an individual permit for a there are changes in the final NWPs, regulations. proposed activity impacting up to 3 those changes may result in missing or acres of wetland ranges from $17,646 to inappropriate conditions and leave IV. Economic Impact $35,293 in 2019$. Considering how the states with no opportunity to remedy The NWPs are expected to increase proposed NWPs will increase the deficiencies. Several commenters stated the number of activities eligible for number of activities authorized by an that the Corps should have allowed NWP authorization, and reduce the NWP each year, the Corps estimates that comment on the proposed rule prior to number of activities that require the 16 final NWPs, when compared with initiating the federal consistency review individual permits. The Corps estimates the 2017 NWPs, will decrease process. A few commenters said there is that the proposed NWPs will authorize compliance costs for the regulated a disconnect between the 60-days an 209 activities each year that would public by approximately $3 million per allowed for water quality certifications have otherwise required an individual year. The Corps invited comment on the and the 90-days allowed for CZMA permit. While applying for a NWP may assumptions and methodology used to consistency reviews. One commenter entail some burden (namely, in the form calculate the compliance costs and requested an extension of time until of a PCN, when applicable), by burden in general associated with the mid-January 2021 for the state to authorizing more activities by NWP, this NWP and received no comments.

Nationwide permit(s) Changes Anticipated impacts

• NWP 21 ...... Removed 300 linear foot limit for losses of Increase number of activities authorized by an • NWP 29. stream bed and rely on 1⁄2-acre limit, pre- NWP; decrease number of activities requir- • NWP 39. construction notification (PCN) review proc- ing individual permits. • NWP 40. ess, and other tools to comply with Clean • NWP 42. Water Act Section 404(e). • NWP 43. • NWP 44. • NWP 50. • NWP 51. • NWP 52.

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

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Nationwide permit(s) Changes Anticipated impacts

• NWP 12 ...... Issued separate NWPs for oil or natural gas No change in number of NWP authorizations. • NWP 57. pipeline activities, electric utility line and • NWP 58. telecommunications activities, and utility lines for water and other substances; re- duced number of PCN thresholds. • NWP 21 ...... Removed requirement for written authorization No change in number of NWP authorizations. • NWP 49. before commencing authorized activity. • NWP 50. • NWP 48 ...... Changed PCN threshold to require PCNs for Increased number of activities authorized by activities directly impacting more than 1⁄2- an NWP; decreased number of activities re- acre of submerged aquatic vegetation. Re- quiring individual permits. moved 1⁄2-acre limit for impacts to sub- merged aquatic vegetation. • NWP 55...... Issued new NWP to authorize seaweed Increased number of activities authorized by mariculture activities and multi-trophic an NWP; decreased number of activities re- mariculture activities. quiring individual permits. • NWP 56...... Issued new NWP to authorize finfish Increased number of activities authorized by mariculture activities and multi-trophic an NWP; decreased number of activities re- mariculture activities. quiring individual permits. • General condition 17, tribal rights ...... Restored text of general condition in 2012 No change in number of NWP authorizations. NWPs. • General condition 18, endangered species .... Revised to address 2019 changes to 50 CFR No change in number of NWP authorizations. part 402. Clarified PCN requirements for species proposed for listing and proposed critical habitat to be consistent with 33 CFR 330.4(f)(2). • General condition 23, mitigation ...... Added 3⁄100-acre threshold for compensatory No change in number of NWP authorizations. mitigation for losses of stream bed. • General condition 25, water quality ...... Clarified that if NWP activity does not comply No change in number of NWP authorizations. with conditions of a general water quality certification, an individual certification is re- quired, unless a waiver occurs. Require permittee to provide district engineer with copy of water quality certification for indi- vidual discharge authorized by an NWP. • General condition 26, coastal zone manage- Clarified that if NWP activity does not comply No change in number of NWP authorizations. ment. with conditions of a general consistency concurrence, and individual consistency concurrence is required, unless presump- tion occurs. • General condition 28, use of multiple NWPs Modified general condition to clarify applica- No change in number of NWP authorizations. tion to NWPs with different numeric limits. • General condition 32, pre-construction notifi- Modified to encourage use of Form ENG No change in number of NWP authorizations. cation. 6082 for NWP pre-construction notifications.

Several commenters stated that the pipeline rights-of-way from NWP 12. and enhancement activities authorized Corps’ Regulatory Impact Analysis Several commenters said the Regulatory by NWP 27 and the removal of low-head should include estimates of costs to the Impact Analysis should also analyze the dams authorized by NWP 53) are public due to losses of wetland and economic impacts of the 2020 Proposal generally expected to result in gains in stream functions and losses of on the ecological restoration industry. some ecosystem services. Any ecosystem services caused by activities One commenter said that a cost-benefit consideration of ecosystem services lost authorized by NWPs. These commenters analysis or reissuing the NWPs ahead of as a result of activities authorized by also said the Regulatory Impact Analysis schedule should be performed. NWPs must also take into account any should address flooding that is The Regulatory Impact Analysis gains in goods and services provided by exacerbated by development in and prepared by the Corps for this final rule activities authorized by NWPs or the around stream and wetland habitats. In was prepared in accordance with the operation of those activities, such as addition, these commenters stated that Office of Management and Budget’s housing, food production, energy the Regulatory Impact Analysis should (OMB) Circular A–4 and OMB’s generation and transmission, evaluate the effect the proposed 1⁄10-acre Memorandum M–17–21 for transportation, public safety, providing threshold for stream mitigation in implementing E.O. 13771. The potable water, removing sewage, etc. In general condition 23 would have in Regulatory Impact Analysis provides the Regulatory Impact Analysis for this terms of a reduction in stream some general information on the value final rule, the Corps has added a general compensatory mitigation for NWP of ecosystem services provided by discussion of the goods and services activities, and increases in losses of general categories of aquatic resources that activities authorized by the NWPs headwater streams. These commenters that may be impacted by activities provide for human well-being. also stated that the Corps should authorized by NWPs and thus result in Increases in downstream flooding are analyze the effects of removing the PCN some degree of loss of ecosystem usually caused by development threshold for mechanized land clearing services. Other activities authorized by activities (e.g., the construction of of forested wetlands in oil or natural gas NWPs (e.g., aquatic resource restoration houses, commercial buildings,

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educational buildings, manufacturing NWPs for stream compensatory V. Administrative Requirements buildings, roads, parking lots, etc.) that mitigation. In response to comments Plain Language reduce the land area in a watershed received on the 2020 Proposal, the where precipitation can infiltrate into Corps changed the proposed 1⁄10-acre In compliance with the principles in the soil, and subsequently cause stream mitigation threshold to 3⁄100-acre the President’s Memorandum of June 1, increases in surface runoff to to be consistent with the current 1998, (63 FR 31885, June 10, 1998) downstream waters that increase the practices of numerous Corps districts for regarding plain language, this preamble frequency and severity of flooding (NRC when they require stream compensatory is written using plain language. In 2009). Upland development activities mitigation for proposed NWP activities. writing this final rule, the Corps used provide a significant contribution to Therefore, the changes to general the active voice, short sentences, and these changes in watershed hydrology, condition 23 are not expected to reduce common everyday terms except for because wetlands and streams occupy a stream compensatory mitigation for necessary technical terms. relatively small percentage of land area NWP or have substantive economic Paperwork Reduction Act in a watershed (e.g., Zedler and Kercher impacts on the compensatory mitigation et al. 2005, Butman and Raymond 2011). industry. The paperwork burden associated The removal of the PCN threshold in State and local government agencies with the NWP relates exclusively to the the 2017 NWP 12 for mechanized land may require developers to construct preparation of the PCN. While different clearing of a forested wetland in a utility stormwater management facilities and NWPs require that different information line right-of-way will not eliminate green infrastructure (e.g., rain gardens) be included in a PCN, the Corps compensatory mitigation requirements to provide water storage and water estimates that a PCN takes, on average, for those activities. If the impacts to infiltration within the watershed to 11 hours to complete. The 16 final forested wetlands caused by reduce potential changes in downstream NWPs would decrease the total mechanized land clearing for an oil or flooding. paperwork burden associated with this natural gas pipeline right-of-way cannot program because the Corps estimates Stream compensatory mitigation was be restored to pre-construction contours added to the mitigation general in waters of the United States, and there that under this final rule 59 more PCNs would be required each year. This condition for the NWPs in 2007 (see is a loss of greater than 1⁄10-acre of general condition 20 in the 2007 NWP forested wetlands, then the project increase is due to the number of final rule at 72 FR 11193). That general proponent is required to submit a PCN activities that would be authorized condition did not have an acreage-based to the district engineer. The district under the 16 NWPs that previously or linear foot based threshold for stream engineer may require compensatory required individual permits, and the mitigation. In the 2012 and 2017 final mitigation to offset those losses of changes in the PCN thresholds for NWP rules for the issuance and reissuance of waters of the United States. The district 48 for commercial shellfish mariculture the NWPs (77 FR 10184 and 82 FR 1860, engineer may also require compensatory activities and the modified PCN respectively), there was no acreage- mitigation to offset losses of specific thresholds for NWP 12 (oil and natural based or linear foot based threshold for wetland functions (see paragraph (i) of gas pipeline activities). The paperwork stream mitigation. Under the 2007, general condition 23). burden associated with the 16 final 2012, and 2017 NWPs, district engineers The Corps does not believe it is NWPs is expected to increase by determined on a case-by-case basis necessary to prepare a cost-benefit approximately 99 hours per year from whether stream compensatory analysis for reissuing the NWPs earlier 160,677 hours to 160,776 hours. mitigation is required for an NWP than many of the users of the NWPs The following table summarizes the activity. The 2020 Proposal is the first expected. One of the reasons the Corps projected changes in paperwork burden time the Corps proposed a threshold in is conducting this rulemaking is to from the 2017 NWPs to the 16 NWPs the mitigation general condition for the address recent court decisions. issued in this final rule.

Estimated Number of NWP Estimated changes in Number of NWP activities not Estimated changes in number of PCNs per year requiring PCNs changes in NWP number of standard per year PCNs per year authorized NWP individual activities permits per year

2017 NWPs ...... 14,607 2,655 ...... 16 NWPs ...... 14,616 2,855 +591 +209 ¥209

An agency may not conduct or maintained by the Corps of Engineers the estimated cost savings can be found sponsor, and a person is not required to (OMB approval number 0710–0003). in the rule’s economic analysis. respond to, a collection of information Executive Order 12866 Executive Order 13132 unless it displays a currently valid Office of Management and Budget This action is a significant regulatory Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, (OMB) control number. For the Corps action under Executive Order 12866 (58 1999), requires the Corps to develop an Regulatory Program under section 10 of FR 51735, October 4, 1993) that was accountable process to ensure the Rivers and Harbors Act of 1899, submitted to the Office of Management ‘‘meaningful and timely input by State Section 404 of the Clean Water Act, and and Budget (OMB) for review. section 103 of the Marine Protection, and local officials in the development of regulatory policies that have federalism Research and Sanctuaries Act of 1972, Executive Order 13771 implications.’’ The issuance and the current OMB approval number for This final rule is considered an E.O. modification of NWPs does not have information collection requirements is 13771 deregulatory action. Details on federalism implications. The Corps does

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not believe that the final NWPs will permits are a form of general permit and conditions of the revised NWPs will have substantial direct effects on the issued by the Chief of Engineers. not impose substantially higher costs on states, on the relationship between the Nationwide permits automatically small entities than those of the existing federal government and the states, or on expire and become null and void if they NWPs. If an NWP is not available to the distribution of power and are not modified or reissued within five authorize a particular activity, then responsibilities among the various years of their effective date (see 33 CFR another form of DA authorization, such levels of government. These NWPs will 330.6(b)). Furthermore, section 404(e) of as an individual permit or a regional not impose any additional substantive the Clean Water Act states that general general permit authorization, must be obligations on state or local permits, including NWPs, can be issued secured. However, as noted above, the governments. Therefore, Executive for no more than five years. If the 2017 Corps estimates an increase in the Order 13132 does not apply to this NWPs are not modified or reissued, they number of activities than can be proposal. will expire on March 18, 2022, and authorized through NWPs, because the small entities and other project Corps made some modifications to the Regulatory Flexibility Act, as Amended proponents would be required to obtain NWPs to authorize additional activities. by the Small Business Regulatory alternative forms of DA permits (i.e., Because those activities required Enforcement Fairness Act of 1996, 5 standard permits, letters of permission, authorization through other forms of DA U.S.C. 601 et seq. or regional general permits) for activities authorization (e.g., individual permits The Regulatory Flexibility Act involving discharges of dredged or fill or regional general permits) the Corps generally requires an agency to prepare material into waters of the United States expects a concurrent decrease in the a regulatory flexibility analysis of any or structures or work in navigable numbers of individual permit and rule subject to notice-and-comment waters of the United States. Regional regional general permit authorizations rulemaking requirements under the general permits that authorize similar required for these activities. Administrative Procedure Act or any activities as the NWPs may be available other statute unless the agency certifies in some geographic areas, but small Unfunded Mandates Reform Act that the proposed rule will not have a entities conducting regulated activities Title II of the Unfunded Mandates significant economic impact on a outside those geographic areas would Reform Act of 1995 (UMRA), Public substantial number of small entities. have to obtain individual permits for Law 104–4, establishes requirements for Small entities include small businesses, activities that require DA permits. federal agencies to assess the effects of small organizations, and small When compared with the compliance their regulatory actions on state, local, governmental jurisdictions. costs for individual permits, most of the and tribal governments and the private For purposes of assessing the impacts terms and conditions of the NWPs are sector. Under section 202 of the UMRA, of the issuance and modification of expected to result in decreases in the the agencies generally must prepare a NWPs on small entities, a small entity costs of complying with the permit written statement, including a cost- is defined as: (1) A small business based requirements of sections 10 and 404. benefit analysis, for proposed and final on Small Business Administration size The anticipated decrease in compliance rules with ‘‘federal mandates’’ that may standards; (2) a small governmental cost results from the lower cost of result in expenditures to state, local, jurisdiction that is a government of a obtaining NWP authorization instead of and tribal governments, in the aggregate, city, county, town, school district, or standard permits. Unlike standard or to the private sector, of $100 million special district with a population of less permits, NWPs authorize activities or more in any one year. Before than 50,000; or (3) a small organization without the requirement for public promulgating a rule for which a written that is any not-for-profit enterprise notice and comment on each proposed statement is needed, section 205 of the which is independently owned and activity. UMRA generally requires the agencies operated and is not dominant in its Another requirement of section 404(e) to identify and consider a reasonable field. of the Clean Water Act is that general number of regulatory alternatives and The statues under which the Corps permits, including NWPs, authorize adopt the least costly, most cost- issues, reissues, or modifies NWPs are only those activities that result in no effective, or least burdensome Section 404(e) of the Clean Water Act more than minimal adverse alternative that achieves the objectives (33 U.S.C. 1344(e)) and section 10 of the environmental effects, individually and of the rule. The provisions of section Rivers and Harbors Act of 1899 (33 cumulatively. The terms and conditions 205 do not apply when they are U.S.C. 403). Under section 404, of the NWPs, such as acreage limits and inconsistent with applicable law. Department of the Army (DA) permits the mitigation measures in some of the Moreover, section 205 allows an agency are required for discharges of dredged or NWP general conditions, are imposed to to adopt an alternative other than the fill material into waters of the United ensure that the NWPs authorize only least costly, most cost-effective, or least States. Under section 10, DA permits are those activities that result in no more burdensome alternative if the agency required for any structures or other than minimal adverse effects on the publishes with the final rule an work that affect the course, location, or aquatic environment and other public explanation why that alternative was condition of navigable waters of the interest review factors. not adopted. Before an agency United States. Small entities proposing After considering the economic establishes any regulatory requirements to discharge dredged or fill material into impacts of the NWPs on small entities, that may significantly or uniquely affect waters of the United States and/or I certify that this action will not have a small governments, including tribal install structures or conduct work in significant impact on a substantial governments, it must have developed, navigable waters of the United States number of small entities. Small entities under section 203 of the UMRA, a small must obtain DA permits to conduct may obtain required DA authorizations government agency plan. The plan must those activities, unless a particular through the NWPs, in cases where there provide for notifying potentially activity is exempt from those permit are applicable NWPs authorizing those affected small governments, enabling requirements. Individual permits and activities and the proposed work will officials of affected small governments general permits can be issued by the result in only minimal adverse effects to have meaningful and timely input in Corps to satisfy the permit requirements on the aquatic environment and other the development of regulatory proposals of these two statutes. Nationwide public interest review factors. The terms with significant federal

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intergovernmental mandates, and include regulations that have specific NWP activities that may have informing, educating, and advising ‘‘substantial direct effects on one or adverse effects on tribal rights and tribal small governments on compliance with more Tribes, on the relationship trust resources) to ensure that the NWPs the regulatory requirements. between the federal government and the will not have substantial direct effects The Corps has determined that the Tribes, or on the distribution of power on tribal governments, on the NWPs do not contain a federal mandate and responsibilities between the federal relationship between the federal that may result in expenditures of $100 government and Tribes.’’ government and the tribes, or on the million or more for state, local, and The issuance of these NWPs is distribution of power and tribal governments, in the aggregate, or generally consistent with current agency responsibilities between the federal the private sector in any one year. The practice and will not have substantial government and tribes. General NWPs are generally consistent with direct effects on tribal governments, on condition 17 has been modified to state current agency practice, do not impose the relationship between the federal that no NWP activity or its operation new substantive requirements and government and the tribes, or on the may impair reserved tribal rights, therefore do not contain a federal distribution of power and including, but not limited to, reserved mandate that may result in expenditures responsibilities between the federal water rights and treaty fishing and of $100 million or more for state, local, government and tribes. Therefore, hunting rights. Tribes use NWPs for and tribal governments, in the aggregate, Executive Order 13175 does not apply activities they conduct that require DA or the private sector in any one year. to this final rule. However, in the spirit authorization under section 404 of the Therefore, this final rule is not subject of Executive Order 13175, the Corps Clean Water Act and/or section 10 of the to the requirements of sections 202 and specifically requested comments from Rivers and Harbors Act of 1899. For 205 of the UMRA. For the same reasons, tribal officials on the proposed rule. example, tribes that conduct the Corps has determined that the NWPs Their comments were fully considered commercial shellfish mariculture contain no regulatory requirements that during the preparation of this final rule. activities have used NWP 48, and tribes might significantly or uniquely affect Each Corps district conducted that conduct aquatic habitat restoration small governments. Therefore, the government-to-government consultation activities have used NWP 27. issuance and modification of NWPs is with tribes, to identify regional For 16 NWPs issued in this final rule, not subject to the requirements of conditions, other local NWP Corps districts conducted consultations section 203 of UMRA. modifications to protect aquatic with tribes to identify regional resources of interest to tribes, and conditions to ensure that NWP activities Executive Order 13045 coordination procedures with tribes, as comply with general conditions 17 and Executive Order 13045, ‘‘Protection of part of the Corps’ responsibility to 20. Through those consultations, district Children from Environmental Health protect tribal trust resources and fulfill engineers can also develop coordination Risks and Safety Risks’’ (62 FR 19885, its tribal trust responsibilities. procedures with tribes to provide tribes April 23, 1997), applies to any rule that: Many commenters stated that they with opportunities to review proposed (1) Is determined to be ‘‘economically disagreed with the Corps’ determination NWP activities and provide their views significant’’ as defined under Executive that the proposal to reissue and issue on whether those activities will cause Order 12866, and (2) concerns an the NWPs would not have substantial more than minimal adverse effects on environmental health or safety risk that direct effects on tribal governments, on tribal rights (including treaty rights), we have reason to believe may have a the relationship between the federal protected tribal resources, or tribal disproportionate effect on children. If government and the tribes, or on the lands. When a Corps district receives a the regulatory action meets both criteria, distribution of power and pre-construction notification that we must evaluate the environmental responsibilities between the federal triggers a need to consult with one or health or safety effects of the proposed government and tribes. Most of these more tribes, that consultation will be rule on children and explain why the commenters said that the Corps is completed before the district engineer regulation is preferable to other required to consult and coordinate with makes his or her decision on whether to potentially effective and reasonably the tribes on the proposed rule. Many issue the NWP verification. If, after feasible alternatives. commenters stated that meaningful considering mitigation, the district The NWPs are not subject to this consultation with tribes is not possible engineer determines the proposed NWP Executive Order because they are not given the short time frames set by the activity will have more than minimal economically significant as defined in administration, lack of information, and adverse effects on tribal rights Executive Order 12866. In addition, the complications resulting from the COVID (including treaty rights), protected tribal proposed NWPs do not concern an pandemic. One commenter stated that resources, or tribal lands, he or she will environmental health or safety risk that the Corps should extend its comment exercise discretionary authority and the Corps has reason to believe may period 60 days or should withdraw its require an individual permit. Division have a disproportionate effect on proposal to allow early tribal engineers can modify, suspend, or children. engagement. revoke one or more NWPs in a region to While the NWPs are regulations, the protect tribal rights. A district engineer Executive Order 13175 Corps believe the final NWPs will not can modify, suspend, or revoke an NWP Executive Order 13175, entitled have substantial direct effects on tribal to protect tribal rights, protected tribal ‘‘Consultation and Coordination with governments, on the relationship resources, and tribal lands. Indian Tribal Governments’’ (65 FR between the federal government and the For the 2020 Proposal, the Corps 67249, November 6, 2000), requires tribes, or on the distribution of power provided a 60-day public comment agencies to develop an accountable and responsibilities between the federal period, which is consistent with the process to ensure ‘‘meaningful and government and tribes. In response to length of the comment period provided timely input by tribal officials in the the proposed rule, the Corps received for past NWP rulemaking efforts. After development of regulatory policies that comments from 35 tribes and tribal the comment period for the 2020 have tribal implications.’’ The phrase organizations. The Corps has taken, and Proposal ended on November 16, 2020, ‘‘policies that have tribal implications’’ will continue to take, measures (such as there was some additional time for is defined in the Executive Order to Corps districts consulting with tribes on Corps districts to conduct consultation

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and coordination with tribes. For Corps must make achieving environmental 40. Agricultural Activities district consultation and coordination justice part of its mission. Executive 42. Recreational Facilities with tribes, the Corps provided Order 12898 provides that each federal 43. Stormwater Management Facilities information similar to the information agency conduct its programs, policies, 44. Mining Activities provided during past NWP rulemaking and activities that substantially affect 48. Commercial Shellfish Mariculture efforts. The Corps acknowledges that the human health or the environment in a Activities pandemic complicated tribal manner that ensures that such programs, 50. Underground Coal Mining Activities consultation and coordination activities, policies, and activities do not have the 51. Land-Based Renewable Energy but the rulemaking effort needed to be effect of excluding persons (including Generation Facilities completed by the required time frame. populations) from participation in, 52. Water-Based Renewable Energy Generation Pilot Projects Environmental Documentation denying persons (including populations) the benefits of, or 55. Seaweed Mariculture Activities A decision document has been subjecting persons (including 56. Finfish Mariculture Activities prepared for each of the 16 NWPs being populations) to discrimination under 57. Electric Utility Line and issued in this final rule. Each decision such programs, policies, and activities Telecommunications Activities document includes an environmental because of their race, color, or national 58. Utility Line Activities for Water and assessment and public interest review origin. Other Substances determination. If an NWP authorizes The NWPs are not expected to have Nationwide Permit General Conditions discharges of dredged or fill material any discriminatory effect or into waters of the United States, the disproportionate negative impact on any 1. Navigation decision document includes a 404(b)(1) community or group, and therefore are 2. Aquatic Life Movements Guidelines analysis. These decision not expected to cause any 3. Spawning Areas documents are available at: disproportionately high and adverse 4. Migratory Bird Breeding Areas www.regulations.gov (docket ID number impacts to minority or low-income 5. Shellfish Beds COE–2020–0002). They are also communities. 6. Suitable Material available by contacting Headquarters, 7. Water Supply Intakes U.S. Army Corps of Engineers, Executive Order 13211 8. Adverse Effects from Impoundments Operations and Regulatory Community This action is not a ‘‘significant 9. Management of Water Flows of Practice, 441 G Street NW, energy action’’ because it is not likely to 10. Fills Within 100-Year Floodplains Washington, DC 20314–1000. have a significant adverse effect on the 11. Equipment Congressional Review Act supply, distribution or use of energy 12. Soil Erosion and Sediment Controls and has not otherwise been designated 13. Removal of Temporary Fills The Congressional Review Act, 5 by the OIRA Administrator as a 14. Proper Maintenance U.S.C. 801 et seq., as added by the Small significant energy action. 15. Single and Complete Project Business Regulatory Enforcement 16. Wild and Scenic Rivers Fairness Act of 1996, generally provides VI. References 17. Tribal Rights that before a rule may take effect, the A complete list of all references cited 18. Endangered Species agency promulgating the rule must in this document is available on the 19. Migratory Birds and Bald and submit a rule report, which includes a internet at http://www.regulations.gov Golden Eagles copy of the rule, to each House of the in docket number COE–2020–0002 or 20. Historic Properties Congress and to the Comptroller General upon request from the U.S. Army Corps 21. Discovery of Previously Unknown of the United States. The Corps will of Engineers (see FOR FURTHER Remains and Artifacts submit a report containing the final 16 INFORMATION CONTACT). 22. Designated Critical Resource Waters NWPs and other required information to Authority 23. Mitigation the U.S. Senate, the U.S. House of 24. Safety of Impoundment Structures Representatives, and the Government The Corps is reissuing 12 existing 25. Water Quality Accountability Office. A major rule NWPs and issuing 4 new NWPs under 26. Coastal Zone Management cannot take effect until 60 days after it the authority of Section 404(e) of the 27. Regional and Case-by-Case is published in the Federal Register. Clean Water Act (33 U.S.C. 1344(e)) and Conditions The 16 NWPs are not a ‘‘major rule’’ as Section 10 of the Rivers and Harbors Act 28. Use of Multiple Nationwide Permits defined by 5 U.S.C. 804(2), because they of 1899 (33 U.S.C. 401 et seq.). 29. Transfer of Nationwide Permit are not likely to result in: (1) An annual William H. Graham, Verifications effect on the economy of $100,000,000 Major General, U.S. Army, Deputy 30. Compliance Certification or more; (2) a major increase in costs or Commanding General for Civil and 31. Activities Affecting Structures or prices for consumers, individual Emergency Operations. Works Built by the United States industries, federal, state, or local 32. Pre-Construction Notification government agencies, or geographic Nationwide Permits, Conditions, regions; or (3) significant adverse effects Further Information, and Definitions District Engineer’s Decision on competition, employment, A. Index of Nationwide Permits, Further Information investment, productivity, innovation, or Conditions, District Engineer’s Decision, Definitions on the ability of United States-based Further Information, and Definitions enterprises to compete with foreign- Best management practices (BMPs) based enterprises in domestic and Nationwide Permits Compensatory mitigation export markets. 12. Oil or Natural Gas Pipeline Currently serviceable Direct effects Executive Order 12898 Activities 21. Surface Coal Mining Activities Discharge Executive Order 12898 requires that, 29. Residential Developments Ecological reference to the greatest extent practicable and 39. Commercial and Institutional Enhancement permitted by law, each federal agency Developments Establishment (creation)

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High Tide Line inches of the trench should normally be navigable waters of the United States Historic property backfilled with topsoil from the trench. even if there is no associated discharge Independent utility The trench cannot be constructed or of dredged or fill material (see 33 CFR Indirect effects backfilled in such a manner as to drain part 322). Oil or natural gas pipelines Loss of waters of the United States waters of the United States (e.g., routed in, over, or under section 10 Navigable waters backfilling with extensive gravel layers, waters without a discharge of dredged Non-tidal wetland creating a french drain effect). Any or fill material may require a section 10 Open water exposed slopes and stream banks must permit. Ordinary high water mark be stabilized immediately upon This NWP authorizes, to the extent Perennial stream completion of the utility line crossing of that Department of the Army Practicable each waterbody. authorization is required, temporary Pre-construction notification Oil or natural gas pipeline structures, fills, and work necessary for Preservation substations: This NWP authorizes the the remediation of inadvertent returns Re-establishment construction, maintenance, or of drilling fluids to waters of the United Rehabilitation expansion of substation facilities (e.g., States through sub-soil fissures or Restoration oil or natural gas or gaseous fuel fractures that might occur during Riffle and pool complex custody transfer stations, boosting horizontal directional drilling activities Riparian areas stations, compression stations, metering conducted for the purpose of installing Shellfish seeding stations, pressure regulating stations) or replacing oil or natural gas pipelines. Single and complete linear project associated with an oil or natural gas These remediation activities must be Single and complete non-linear project pipeline in non-tidal waters of the done as soon as practicable, to restore Stormwater management United States, provided the activity, in the affected waterbody. District Stormwater management facilities combination with all other activities engineers may add special conditions to Stream bed included in one single and complete this NWP to require a remediation plan Stream channelization project, does not result in the loss of for addressing inadvertent returns of Structure greater than 1⁄2-acre of waters of the drilling fluids to waters of the United Tidal wetland United States. This NWP does not States during horizontal directional Tribal lands authorize discharges of dredged or fill drilling activities conducted for the Tribal rights material into non-tidal wetlands purpose of installing or replacing oil or Vegetated shallows adjacent to tidal waters of the United natural gas pipelines. Waterbody States to construct, maintain, or expand This NWP also authorizes temporary B. Nationwide Permits substation facilities. structures, fills, and work, including the Foundations for above-ground oil or use of temporary mats, necessary to 12. Oil or Natural Gas Pipeline natural gas pipelines: This NWP conduct the oil or natural gas pipeline Activities. Activities required for the authorizes the construction or activity. Appropriate measures must be construction, maintenance, repair, and maintenance of foundations for above- taken to maintain normal downstream removal of oil and natural gas pipelines ground oil or natural gas pipelines in all flows and minimize flooding to the and associated facilities in waters of the waters of the United States, provided maximum extent practicable, when United States, provided the activity the foundations are the minimum size temporary structures, work, and does not result in the loss of greater than necessary. discharges of dredged or fill material, 1⁄2-acre of waters of the United States for Access roads: This NWP authorizes including cofferdams, are necessary for each single and complete project. the construction of access roads for the construction activities, access fills, or Oil or natural gas pipelines: This construction and maintenance of oil or dewatering of construction sites. NWP authorizes discharges of dredged natural gas pipelines, in non-tidal Temporary fills must consist of or fill material into waters of the United waters of the United States, provided materials, and be placed in a manner, States and structures or work in the activity, in combination with all that will not be eroded by expected high navigable waters for crossings of those other activities included in one single flows. After construction, temporary waters associated with the construction, and complete project, does not cause the fills must be removed in their entirety maintenance, or repair of oil and natural loss of greater than 1⁄2-acre of non-tidal and the affected areas returned to pre- gas pipelines. There must be no change waters of the United States. This NWP construction elevations. The areas in pre-construction contours of waters does not authorize discharges of affected by temporary fills must be of the United States. An ‘‘oil or natural dredged or fill material into non-tidal revegetated, as appropriate. gas pipeline’’ is defined as any pipe or wetlands adjacent to tidal waters for Notification: The permittee must pipeline for the transportation of any access roads. Access roads must be the submit a pre-construction notification to form of oil or natural gas, including minimum width necessary (see Note 2, the district engineer prior to products derived from oil or natural gas, below). Access roads must be commencing the activity if: (1) A section such as gasoline, jet fuel, diesel fuel. constructed so that the length of the 10 permit is required; (2) the discharge heating oil, petrochemical feedstocks, road minimizes any adverse effects on will result in the loss of greater than 1⁄10- waxes, lubricating oils, and asphalt. waters of the United States and must be acre of waters of the United States; or Material resulting from trench as near as possible to pre-construction (3) the proposed oil or natural gas excavation may be temporarily sidecast contours and elevations (e.g., at grade pipeline activity is associated with an into waters of the United States for no corduroy roads or geotextile/gravel overall project that is greater than 250 more than three months, provided the roads). Access roads constructed above miles in length and the project purpose material is not placed in such a manner pre-construction contours and is to install new pipeline (vs. conduct that it is dispersed by currents or other elevations in waters of the United States repair or maintenance activities) along forces. The district engineer may extend must be properly bridged or culverted to the majority of the distance of the the period of temporary side casting for maintain surface flows. overall project length. If the proposed no more than a total of 180 days, where This NWP may authorize oil or oil or gas pipeline is greater than 250 appropriate. In wetlands, the top 6 to 12 natural gas pipelines in or affecting miles in length, the pre-construction

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notification must include the locations crossings that require Department of the does not authorize discharges of and proposed impacts (in acres or other Army authorization but do not require dredged or fill material into non-tidal appropriate unit of measure) for all pre-construction notification (see wetlands adjacent to tidal waters. crossings of waters of the United States paragraph (b)(4) of general condition Subdivisions: For residential that require DA authorization, including 32). The district engineer will evaluate subdivisions, the aggregate total loss of those crossings authorized by an NWP the PCN in accordance with Section D, waters of United States authorized by would not otherwise require pre- ‘‘District Engineer’s Decision.’’ The this NWP cannot exceed 1⁄2-acre. This construction notification. (See general district engineer may require mitigation includes any loss of waters of the condition 32.) (Authorities: Sections 10 to ensure that the authorized activity United States associated with and 404) results in no more than minimal development of individual subdivision Note 1: Where the oil or natural gas individual and cumulative adverse lots. pipeline is constructed, installed, or environmental effects (see general Notification: The permittee must maintained in navigable waters of the condition 23). submit a pre-construction notification to United States (i.e., section 10 waters) 21. Surface Coal Mining Activities. the district engineer prior to within the coastal United States, the Discharges of dredged or fill material commencing the activity. (See general Great Lakes, and United States into waters of the United States condition 32.) (Authorities: Sections 10 territories, a copy of the NWP associated with surface coal mining and and 404) verification will be sent by the Corps to reclamation operations, provided the 39. Commercial and Institutional the National Oceanic and Atmospheric following criteria are met: Developments. Discharges of dredged or Administration (NOAA), National (a) The activities are already fill material into non-tidal waters of the Ocean Service (NOS), for charting the authorized, or are currently being United States for the construction or oil or natural gas pipeline to protect processed by states with approved expansion of commercial and navigation. programs under Title V of the Surface institutional building foundations and Note 2: For oil or natural gas pipeline Mining Control and Reclamation Act of building pads and attendant features activities crossing a single waterbody 1977 or by the Department of the that are necessary for the use and more than one time at separate and Interior, Office of Surface Mining maintenance of the structures. distant locations, or multiple Reclamation and Enforcement; Attendant features may include, but are waterbodies at separate and distant (b) The discharge must not cause the not limited to, roads, parking lots, locations, each crossing is considered a loss of greater than 1⁄2-acre of non-tidal garages, yards, utility lines, storm water single and complete project for purposes waters of the United States. This NWP management facilities, wastewater of NWP authorization. Oil or natural gas does not authorize discharges of treatment facilities, and recreation pipeline activities must comply with 33 dredged or fill material into tidal waters facilities such as playgrounds and CFR 330.6(d). or non-tidal wetlands adjacent to tidal playing fields. Examples of commercial Note 3: Access roads used for both waters; and developments include retail stores, construction and maintenance may be (c) The discharge is not associated industrial facilities, restaurants, authorized, provided they meet the with the construction of valley fills. A business parks, and shopping centers. terms and conditions of this NWP. ‘‘valley fill’’ is a fill structure that is Examples of institutional developments Access roads used solely for typically constructed within valleys include schools, fire stations, construction of the oil or natural gas associated with steep, mountainous government office buildings, judicial pipeline must be removed upon terrain, associated with surface coal buildings, public works buildings, completion of the work, in accordance mining activities. libraries, hospitals, and places of with the requirements for temporary Notification: The permittee must worship. The construction of new golf fills. submit a pre-construction notification to courses and new ski areas is not Note 4: Pipes or pipelines used to the district engineer. (See general authorized by this NWP. transport gaseous, liquid, liquescent, or condition 32.) (Authorities: Sections 10 The discharge must not cause the loss slurry substances over navigable waters and 404) of greater than 1⁄2-acre of non-tidal of the United States are considered to be 29. Residential Developments. waters of the United States. This NWP bridges, and may require a permit from Discharges of dredged or fill material does not authorize discharges of the U.S. Coast Guard pursuant to the into non-tidal waters of the United dredged or fill material into non-tidal General Bridge Act of 1946. However, States for the construction or expansion wetlands adjacent to tidal waters. any discharges of dredged or fill of a single residence, a multiple unit Notification: The permittee must material into waters of the United States residential development, or a residential submit a pre-construction notification to associated with such oil or natural gas subdivision. This NWP authorizes the the district engineer prior to pipelines will require a section 404 construction of building foundations commencing the activity. (See general permit (see NWP 15). and building pads and attendant condition 32.) (Authorities: Sections 10 Note 5: This NWP authorizes oil or features that are necessary for the use of and 404) natural gas pipeline maintenance and the residence or residential Note: For any activity that involves repair activities that do not qualify for development. Attendant features may the construction of a wind energy the Clean Water Act section 404(f) include but are not limited to roads, generating structure, solar tower, or exemption for maintenance of currently parking lots, garages, yards, utility lines, overhead transmission line, a copy of serviceable fills or fill structures. storm water management facilities, the PCN and NWP verification will be Note 6: For NWP 12 activities that septic fields, and recreation facilities provided by the Corps to the require pre-construction notification, such as playgrounds, playing fields, and Department of Defense Siting the PCN must include any other golf courses (provided the golf course is Clearinghouse, which will evaluate NWP(s), regional general permit(s), or an integral part of the residential potential effects on military activities. individual permit(s) used or intended to development). 40. Agricultural Activities. Discharges be used to authorize any part of the The discharge must not cause the loss of dredged or fill material into non-tidal proposed project or any related activity, of greater than 1⁄2-acre of non-tidal waters of the United States for including other separate and distant waters of the United States. This NWP agricultural activities, including the

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construction of building pads for farm dredged or fill material into non-tidal engineer prior to commencing the buildings. Authorized activities include wetlands adjacent to tidal waters. activity. (See general condition 32.) the installation, placement, or Notification: The permittee must Maintenance activities do not require construction of drainage tiles, ditches, submit a pre-construction notification to pre-construction notification if they are or levees; mechanized land clearing; the district engineer prior to limited to restoring the original design land leveling; the relocation of existing commencing the activity. (See general capacities of the stormwater serviceable drainage ditches constructed condition 32.) (Authority: Section 404) management facility or pollutant in waters of the United States; and 43. Stormwater Management reduction green infrastructure feature. similar activities. Facilities. Discharges of dredged or fill (Authority: Section 404) This NWP also authorizes the material into non-tidal waters of the 44. Mining Activities. Discharges of construction of farm ponds in non-tidal United States for the construction of dredged or fill material into non-tidal waters of the United States, excluding stormwater management facilities, waters of the United States for mining perennial streams, provided the farm including stormwater detention basins activities, except for coal mining pond is used solely for agricultural and retention basins and other activities, provided the activity meets purposes. This NWP does not authorize stormwater management facilities; the all of the following criteria: the construction of aquaculture ponds. construction of water control structures, (a) For mining activities involving This NWP also authorizes discharges outfall structures and emergency discharges of dredged or fill material of dredged or fill material into non-tidal spillways; the construction of low into non-tidal jurisdictional wetlands, jurisdictional waters of the United impact development integrated the discharge must not cause the loss of 1 States to relocate existing serviceable management features such as greater than ⁄2-acre of non-tidal drainage ditches constructed in non- bioretention facilities (e.g., rain jurisdictional wetlands; (b) For mining activities involving tidal streams. gardens), vegetated filter strips, grassed discharges of dredged or fill material in The discharge must not cause the loss swales, and infiltration trenches; and the construction of pollutant reduction non-tidal jurisdictional open waters of greater than 1⁄2-acre of non-tidal green infrastructure features designed to (e.g., rivers, streams, lakes, and ponds) waters of the United States. This NWP reduce inputs of sediments, nutrients, or work in non-tidal navigable waters of does not authorize discharges of and other pollutants into waters, such as the United States (i.e., section 10 dredged or fill material into non-tidal features needed to meet reduction waters), the mined area, including wetlands adjacent to tidal waters. targets established under Total permanent and temporary impacts due Notification: The permittee must Maximum Daily Loads set under the to discharges of dredged or fill material submit a pre-construction notification to Clean Water Act. into jurisdictional waters, must not the district engineer prior to This NWP authorizes, to the extent exceed 1⁄2-acre; and commencing the activity. (See general that a section 404 permit is required, (c) The acreage loss under paragraph condition 32.) (Authority: Section 404) discharges of dredged or fill material (a) plus the acreage impact under Note: Some discharges of dredged or into non-tidal waters of the United paragraph (b) does not exceed 1⁄2-acre. fill material into waters of the United States for the maintenance of This NWP does not authorize States for agricultural activities may stormwater management facilities, low discharges of dredged or fill material qualify for an exemption under Section impact development integrated into non-tidal wetlands adjacent to tidal 404(f) of the Clean Water Act (see 33 management features, and pollutant waters. CFR 323.4). This NWP authorizes the reduction green infrastructure features. Notification: The permittee must construction of farm ponds that do not The maintenance of stormwater submit a pre-construction notification to qualify for the Clean Water Act section management facilities, low impact the district engineer prior to 404(f)(1)(C) exemption because of the development integrated management commencing the activity. (See general recapture provision at section 404(f)(2). features, and pollutant reduction green condition 32.) If reclamation is required 42. Recreational Facilities. Discharges infrastructure features that are not by other statutes, then a copy of the of dredged or fill material into non-tidal waters of the United States does not final reclamation plan must be waters of the United States for the require a section 404 permit. submitted with the pre-construction construction or expansion of The discharge must not cause the loss notification. (Authorities: Sections 10 recreational facilities. Examples of of greater than 1⁄2-acre of non-tidal and 404) recreational facilities that may be waters of the United States. This NWP 48. Commercial Shellfish Mariculture authorized by this NWP include playing does not authorize discharges of Activities. Structures or work in fields (e.g., football fields, baseball dredged or fill material into non-tidal navigable waters of the United States fields), basketball courts, tennis courts, wetlands adjacent to tidal waters. This and discharges of dredged or fill hiking trails, bike paths, golf courses, NWP does not authorize discharges of material into waters of the United States ski areas, horse paths, nature centers, dredged or fill material for the necessary for new and continuing and campgrounds (excluding construction of new stormwater commercial shellfish mariculture recreational vehicle parks). This NWP management facilities in perennial operations (i.e., the cultivation of also authorizes the construction or streams. bivalve molluscs such as oysters, expansion of small support facilities, Notification: For discharges of mussels, clams, and scallops) in such as maintenance and storage dredged or fill material into non-tidal authorized project areas. For the buildings and stables that are directly waters of the United States for the purposes of this NWP, the project area related to the recreational activity, but it construction of new stormwater is the area in which the operator is does not authorize the construction of management facilities or pollutant authorized to conduct commercial hotels, restaurants, racetracks, stadiums, reduction green infrastructure features, shellfish mariculture activities, as arenas, or similar facilities. or the expansion of existing stormwater identified through a lease or permit The discharge must not cause the loss management facilities or pollutant issued by an appropriate state or local of greater than 1⁄2-acre of non-tidal reduction green infrastructure features, government agency, a treaty, or any waters of the United States. This NWP the permittee must submit a pre- easement, lease, deed, contract, or other does not authorize discharges of construction notification to the district legally binding agreement that

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establishes an enforceable property Department of the Interior, Office of expansion, or modification of a land- interest for the operator. Surface Mining Reclamation and based renewable energy generation This NWP authorizes the installation Enforcement, or by states with approved facility that require Department of the of buoys, floats, racks, trays, nets, lines, programs under Title V of the Surface Army authorization are discharges of tubes, containers, and other structures Mining Control and Reclamation Act of dredged or fill material into waters of into navigable waters of the United 1977. the United States to construct, maintain, States. This NWP also authorizes The discharge must not cause the loss repair, and/or remove electric utility discharges of dredged or fill material of greater than 1⁄2-acre of non-tidal lines and/or road crossings, then NWP into waters of the United States waters of the United States. This NWP 57 and/or NWP 14 shall be used if those necessary for shellfish seeding, rearing, does not authorize discharges of activities meet the terms and conditions cultivating, transplanting, and dredged or fill material into non-tidal of NWPs 57 and 14, including any harvesting activities. Rafts and other wetlands adjacent to tidal waters. This applicable regional conditions and any floating structures must be securely NWP does not authorize coal case-specific conditions imposed by the anchored and clearly marked. preparation and processing activities district engineer. This NWP does not authorize: outside of the mine site. Note 3: For any activity that involves (a) The cultivation of a nonindigenous Notification: The permittee must the construction of a wind energy species unless that species has been submit a pre-construction notification to generating structure, solar tower, or previously cultivated in the waterbody; the district engineer. (See general overhead transmission line, a copy of (b) The cultivation of an aquatic condition 32.) If reclamation is required the PCN and NWP verification will be nuisance species as defined in the by other statutes, then a copy of the provided by the Corps to the Nonindigenous Aquatic Nuisance reclamation plan must be submitted Department of Defense Siting Prevention and Control Act of 1990; or with the pre-construction notification. Clearinghouse, which will evaluate (c) Attendant features such as docks, (Authorities: Sections 10 and 404) potential effects on military activities. piers, boat ramps, stockpiles, or staging 51. Land-Based Renewable Energy 52. Water-Based Renewable Energy areas, or the deposition of shell material Generation Facilities. Discharges of Generation Pilot Projects. Structures and back into waters of the United States as dredged or fill material into non-tidal work in navigable waters of the United waste. waters of the United States for the Notification: The permittee must construction, expansion, or States and discharges of dredged or fill submit a pre-construction notification to modification of land-based renewable material into waters of the United States the district engineer if the activity energy production facilities, including for the construction, expansion, modification, or removal of water-based directly affects more than 1⁄2-acre of attendant features. Such facilities submerged aquatic vegetation. If the include infrastructure to collect solar wind, water-based solar, wave energy, operator will be conducting commercial (concentrating solar power and or hydrokinetic renewable energy shellfish mariculture activities in photovoltaic), wind, biomass, or generation pilot projects and their multiple contiguous project areas, he or geothermal energy. Attendant features attendant features. Attendant features she can either submit one PCN for those may include, but are not limited to may include, but are not limited to, contiguous project areas or submit a roads, parking lots, and stormwater land-based collection and distribution separate PCN for each project area. (See management facilities within the land- facilities, control facilities, roads, general condition 32.) (Authorities: based renewable energy generation parking lots, and stormwater Sections 10 and 404) facility. management facilities. Note 1: The permittee should notify The discharge must not cause the loss For the purposes of this NWP, the 1 term ‘‘pilot project’’ means an the applicable U.S. Coast Guard office of greater than ⁄2-acre of non-tidal regarding the project. waters of the United States. This NWP experimental project where the water- Note 2: To prevent introduction of does not authorize discharges of based renewable energy generation units aquatic nuisance species, no material dredged or fill material into non-tidal will be monitored to collect information that has been taken from a different wetlands adjacent to tidal waters. on their performance and environmental waterbody may be reused in the current Notification: The permittee must effects at the project site. project area, unless it has been treated submit a pre-construction notification to The placement of a transmission line in accordance with the applicable the district engineer prior to on the bed of a navigable water of the regional aquatic nuisance species commencing the activity if the discharge United States from the renewable energy management plan. results in the loss of greater than 1⁄10- generation unit(s) to a land-based Note 3: The Nonindigenous Aquatic acre of waters of the United States. (See collection and distribution facility is Nuisance Prevention and Control Act of general condition 32.) (Authorities: considered a structure under Section 10 1990 defines ‘‘aquatic nuisance species’’ Sections 10 and 404) of the Rivers and Harbors Act of 1899 as ‘‘a nonindigenous species that Note 1: Electric utility lines (see 33 CFR 322.2(b)), and the threatens the diversity or abundance of constructed to transfer the energy from placement of the transmission line on native species or the ecological stability the land-based renewable energy the bed of a navigable water of the of infested waters, or commercial, generation facility to a distribution United States is not a loss of waters of agricultural, aquacultural, or system, regional grid, or other facility the United States for the purposes of recreational activities dependent on are generally considered to be linear applying the 1⁄2-acre limit. such waters.’’ projects and each separate and distant For each single and complete project, 50. Underground Coal Mining crossing of a waterbody is eligible for no more than 10 generation units (e.g., Activities. Discharges of dredged or fill treatment as a separate single and wind turbines, wave energy devices, or material into non-tidal waters of the complete linear project. Those electric hydrokinetic devices) are authorized. United States associated with utility lines may be authorized by NWP For floating solar panels in navigable underground coal mining and 57 or another Department of the Army waters of the United States, each single reclamation operations provided the authorization. and complete project cannot exceed 1⁄2- activities are authorized, or are Note 2: If the only activities acre in water surface area covered by the currently being processed by the associated with the construction, floating solar panels.

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This NWP does not authorize authorization by the Federal Energy Notification: The permittee must activities in coral reefs. Structures in an Regulatory Commission under the submit a pre-construction notification to anchorage area established by the U.S. Federal Power Act of 1920 do not the district engineer. (See general Coast Guard must comply with the require separate authorization from the condition 32.) requirements in 33 CFR 322.5(l)(2). Corps under section 10 of the Rivers and In addition to the information Structures may not be placed in Harbors Act of 1899. required by paragraph (b) of general established danger zones or restricted Note 5: For any activity that involves condition 32, the preconstruction areas designated in 33 CFR part 334, the construction of a wind energy notification must also include the Federal navigation channels, shipping generating structure, solar tower, or following information: (1) A map safety fairways or traffic separation overhead transmission line, a copy of showing the locations and dimensions schemes established by the U.S. Coast the PCN and NWP verification will be of the structure(s); (2) the name(s) of the Guard (see 33 CFR 322.5(l)(1)), or EPA provided by the Corps to the species that will be cultivated during or Corps designated open water dredged Department of Defense Siting the period this NWP is in effect; and (3) material disposal areas. Clearinghouse, which will evaluate general water depths in the project Upon completion of the pilot project, potential effects on military activities. area(s) (a detailed survey is not the generation units, transmission lines, 55. Seaweed Mariculture Activities. required). No more than one pre- and other structures or fills associated Structures in marine and estuarine construction notification per structure with the pilot project must be removed waters, including structures anchored to or group of structures should be to the maximum extent practicable the seabed in waters overlying the outer submitted for the seaweed mariculture unless they are authorized by a separate continental shelf, for seaweed operation during the effective period of Department of the Army authorization, mariculture activities. This NWP also this NWP. The pre-construction such as another NWP, an individual authorizes structures for bivalve notification should describe all species permit, or a regional general permit. shellfish mariculture if shellfish and culture activities the operator Completion of the pilot project will be production is a component of an expects to undertake during the identified as the date of expiration of integrated multi-trophic mariculture effective period of this NWP. (Authority: the Federal Energy Regulatory system (e.g., the production of seaweed Section 10) Note 1: The permittee should notify Commission (FERC) license, or the and bivalve shellfish on the same the applicable U.S. Coast Guard office expiration date of the NWP structure or a nearby mariculture authorization if no FERC license is regarding the project. structure that is part of the single and Note 2: To prevent introduction of required. complete project). Notification: The permittee must aquatic nuisance species, no material This NWP authorizes the installation submit a pre-construction notification to that has been taken from a different of buoys, long-lines, floats, anchors, the district engineer prior to waterbody may be reused in the current commencing the activity. (See general rafts, racks, and other similar structures project area, unless it has been treated condition 32.) (Authorities: Sections 10 into navigable waters of the United in accordance with the applicable and 404) States. Rafts, racks and other floating regional aquatic nuisance species Note 1: Electric utility lines structures must be securely anchored management plan. constructed to transfer the energy from and clearly marked. To the maximum Note 3: The Nonindigenous Aquatic the land-based collection facility to a extent practicable, the permittee must Nuisance Prevention and Control Act of distribution system, regional grid, or remove these structures from navigable 1990 defines ‘‘aquatic nuisance species’’ other facility are generally considered to waters of the United States if they will as ‘‘a nonindigenous species that be linear projects and each separate and no longer be used for seaweed threatens the diversity or abundance of distant crossing of a waterbody is mariculture activities or multi-trophic native species or the ecological stability eligible for treatment as a separate single mariculture activities. of infested waters, or commercial, and complete linear project. Those Structures in an anchorage area agricultural, aquacultural, or electric utility lines may be authorized established by the U.S. Coast Guard recreational activities dependent on by NWP 57 or another Department of must comply with the requirements in such waters.’’ the Army authorization. 33 CFR 322.5(l)(2). Structures may not 56. Finfish Mariculture Activities. Note 2: An activity that is located on be placed in established danger zones or Structures in marine and estuarine an existing locally or federally restricted areas designated in 33 CFR waters, including structures anchored to maintained U.S. Army Corps of part 334, Federal navigation channels, the seabed in waters overlying the outer Engineers project requires separate shipping safety fairways or traffic continental shelf, for finfish mariculture review and/or approval from the Corps separation schemes established by the activities. This NWP also authorizes under 33 U.S.C. 408. U.S. Coast Guard (see 33 CFR structures for bivalve shellfish Note 3: If the pilot project generation 322.5(l)(1)), or EPA or Corps designated mariculture and/or seaweed mariculture units, including any transmission lines, open water dredged material disposal if the structures for bivalve shellfish are placed in navigable waters of the areas. and/or seaweed production are a United States (i.e., section 10 waters) This NWP does not authorize: component of an integrated multi- within the coastal United States, the (a) The cultivation of an aquatic trophic mariculture structure (e.g., the Great Lakes, and United States nuisance species as defined in the production of bivalve shellfish or territories, copies of the NWP Nonindigenous Aquatic Nuisance seaweed on the structure used for verification will be sent by the Corps to Prevention and Control Act of 1990 or finfish mariculture, or a nearby the National Oceanic and Atmospheric the cultivation of a nonindigenous mariculture structure that is part of the Administration, National Ocean Service, species unless that species has been single and complete project). for charting the generation units and previously cultivated in the waterbody; This NWP authorizes the installation associated transmission line(s) to or of cages, net pens, anchors, floats, protect navigation. (b) Attendant features such as docks, buoys, and other similar structures into Note 4: Hydrokinetic renewable piers, boat ramps, stockpiles, or staging navigable waters of the United States. energy generation projects that require areas. Net pens, cages, and other floating

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structures must be securely anchored waterbody may be reused in the current maintenance, or expansion of substation and clearly marked. To the maximum project area, unless it has been treated facilities associated with an electric extent practicable, the permittee must in accordance with the applicable utility line or telecommunication line in remove these structures from navigable regional aquatic nuisance species non-tidal waters of the United States, waters of the United States if they will management plan. provided the activity, in combination no longer be used for finfish mariculture Note 3: The Nonindigenous Aquatic with all other activities included in one activities or multi-trophic mariculture Nuisance Prevention and Control Act of single and complete project, does not activities. 1990 defines ‘‘aquatic nuisance species’’ result in the loss of greater than 1⁄2-acre This NWP does not authorize the as ‘‘a nonindigenous species that of waters of the United States. This construction of land-based fish threatens the diversity or abundance of NWP does not authorize discharges of hatcheries or other attendant features. native species or the ecological stability dredged or fill material into non-tidal Structures in an anchorage area of infested waters, or commercial, wetlands adjacent to tidal waters of the established by the U.S. Coast Guard agricultural, aquacultural, or United States to construct, maintain, or must comply with the requirements in recreational activities dependent on expand substation facilities. 33 CFR 322.5(l)(2). Structures may not such waters.’’ Foundations for overhead electric be placed in established danger zones or 57. Electric Utility Line and utility line or telecommunication line restricted areas designated in 33 CFR Telecommunications Activities. towers, poles, and anchors: This NWP part 334, Federal navigation channels, Activities required for the construction, authorizes the construction or shipping safety fairways or traffic maintenance, repair, and removal of maintenance of foundations for separation schemes established by the electric utility lines, telecommunication overhead electric utility line or U.S. Coast Guard (see 33 CFR lines, and associated facilities in waters telecommunication line towers, poles, 322.5(l)(1)), or EPA or Corps designated of the United States, provided the and anchors in all waters of the United open water dredged material disposal activity does not result in the loss of States, provided the foundations are the areas. greater than 1⁄2-acre of waters of the minimum size necessary and separate This NWP does not authorize: United States for each single and footings for each tower leg (rather than (a) The cultivation of an aquatic complete project. a larger single pad) are used where nuisance species as defined in the Electric utility lines and feasible. Nonindigenous Aquatic Nuisance telecommunication lines: This NWP Access roads: This NWP authorizes Prevention and Control Act of 1990 or authorizes discharges of dredged or fill the construction of access roads for the the cultivation of a nonindigenous material into waters of the United States construction and maintenance of species unless that species has been and structures or work in navigable electric utility lines or previously cultivated in the waterbody; waters for crossings of those waters telecommunication lines, including or associated with the construction, overhead lines and substations, in non- (b) Attendant features such as docks, maintenance, or repair of electric utility tidal waters of the United States, piers, boat ramps, stockpiles, or staging lines and telecommunication lines. provided the activity, in combination areas. There must be no change in pre- with all other activities included in one Notification: The permittee must construction contours of waters of the single and complete project, does not submit a pre-construction notification to United States. An ‘‘electric utility line cause the loss of greater than 1⁄2-acre of the district engineer. (See general and telecommunication line’’ is defined non-tidal waters of the United States. condition 32.) as any cable, line, fiber optic line, or This NWP does not authorize discharges In addition to the information wire for the transmission for any of dredged or fill material into non-tidal required by paragraph (b) of general purpose of electrical energy, telephone, wetlands adjacent to tidal waters for condition 32, the pre-construction and telegraph messages, and internet, access roads. Access roads must be the notification must also include the radio, and television communication. minimum width necessary (see Note 2, following information: (1) A map Material resulting from trench below). Access roads must be showing the locations and dimensions excavation may be temporarily sidecast constructed so that the length of the of the structure(s); (2) the name(s) of the into waters of the United States for no road minimizes any adverse effects on species that will be cultivated during more than three months, provided the waters of the United States and must be the period this NWP is in effect; and (3) material is not placed in such a manner as near as possible to pre-construction general water depths in the project that it is dispersed by currents or other contours and elevations (e.g., at grade area(s) (a detailed survey is not forces. The district engineer may extend corduroy roads or geotextile/gravel required). No more than one pre- the period of temporary side casting for roads). Access roads constructed above construction notification per structure no more than a total of 180 days, where pre-construction contours and or group of structures should be appropriate. In wetlands, the top 6 to 12 elevations in waters of the United States submitted for the finfish mariculture inches of the trench should normally be must be properly bridged or culverted to operation during the effective period of backfilled with topsoil from the trench. maintain surface flows. this NWP. The pre-construction The trench cannot be constructed or This NWP may authorize electric notification should describe all species backfilled in such a manner as to drain utility lines or telecommunication lines and culture activities the operator waters of the United States (e.g., in or affecting navigable waters of the expects to undertake during the backfilling with extensive gravel layers, United States even if there is no effective period of this NWP. (Authority: creating a french drain effect). Any associated discharge of dredged or fill Section 10) exposed slopes and stream banks must material (see 33 CFR part 322). Electric Note 1: The permittee should notify be stabilized immediately upon utility lines or telecommunication lines the applicable U.S. Coast Guard office completion of the electric utility line or constructed over section 10 waters and regarding the finfish mariculture telecommunication line crossing of each electric utility lines or activity. waterbody. telecommunication lines that are routed Note 2: To prevent introduction of Electric utility line and in or under section 10 waters without a aquatic nuisance species, no material telecommunications substations: This discharge of dredged or fill material that has been taken from a different NWP authorizes the construction, require a section 10 permit.

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This NWP authorizes, to the extent single waterbody more than one time at products derived from oil or natural gas, that Department of the Army separate and distant locations, or and electricity. Oil or natural gas authorization is required, temporary multiple waterbodies at separate and pipeline activities or electric utility line structures, fills, and work necessary for distant locations, each crossing is and telecommunications activities may the remediation of inadvertent returns considered a single and complete be authorized by NWPs 12 or 57, of drilling fluids to waters of the United project for purposes of NWP respectively. This NWP also authorizes States through sub-soil fissures or authorization. Electric utility line and associated utility line facilities in waters fractures that might occur during telecommunications activities must of the United States, provided the horizontal directional drilling activities comply with 33 CFR 330.6(d). activity does not result in the loss of conducted for the purpose of installing Note 3: Electric utility lines or greater than 1⁄2-acre of waters of the or replacing electric utility lines or telecommunication lines consisting of United States for each single and telecommunication lines. These aerial electric power transmission lines complete project. remediation activities must be done as crossing navigable waters of the United Utility lines: This NWP authorizes soon as practicable, to restore the States (which are defined at 33 CFR part discharges of dredged or fill material affected waterbody. District engineers 329) must comply with the applicable into waters of the United States and may add special conditions to this NWP minimum clearances specified in 33 structures or work in navigable waters to require a remediation plan for CFR 322.5(i). for crossings of those waters associated addressing inadvertent returns of Note 4: Access roads used for both with the construction, maintenance, or drilling fluids to waters of the United construction and maintenance may be repair of utility lines for water and other States during horizontal directional authorized, provided they meet the substances, including outfall and intake drilling activities conducted for the terms and conditions of this NWP. structures. There must be no change in purpose of installing or replacing Access roads used solely for pre-construction contours of waters of electric utility lines or construction of the electric utility line the United States. A ‘‘utility line’’ is telecommunication lines. or telecommunication line must be defined as any pipe or pipeline for the This NWP also authorizes temporary removed upon completion of the work, transportation of any gaseous, liquid, structures, fills, and work, including the in accordance with the requirements for liquescent, or slurry substance, for any use of temporary mats, necessary to temporary fills. purpose that is not oil, natural gas, or conduct the electric utility line activity. Note 5: This NWP authorizes electric petrochemicals. Examples of activities Appropriate measures must be taken to utility line and telecommunication line authorized by this NWP include utility maintain normal downstream flows and maintenance and repair activities that lines that convey water, sewage, minimize flooding to the maximum do not qualify for the Clean Water Act stormwater, wastewater, brine, irrigation extent practicable, when temporary section 404(f) exemption for water, and industrial products that are structures, work, and discharges of maintenance of currently serviceable not petrochemicals. The term ‘‘utility dredged or fill material, including fills or fill structures. line’’ does not include activities that cofferdams, are necessary for Note 6: For overhead electric utility drain a water of the United States, such construction activities, access fills, or lines and telecommunication lines as drainage tile or french drains, but it dewatering of construction sites. authorized by this NWP, a copy of the does apply to pipes conveying drainage Temporary fills must consist of PCN and NWP verification will be from another area. materials, and be placed in a manner, provided by the Corps to the Material resulting from trench that will not be eroded by expected high Department of Defense Siting excavation may be temporarily sidecast flows. After construction, temporary Clearinghouse, which will evaluate into waters of the United States for no fills must be removed in their entirety potential effects on military activities. more than three months, provided the and the affected areas returned to pre- Note 7: For activities that require pre- material is not placed in such a manner construction elevations. The areas construction notification, the PCN must that it is dispersed by currents or other affected by temporary fills must be include any other NWP(s), regional forces. The district engineer may extend revegetated, as appropriate. general permit(s), or individual the period of temporary side casting for Notification: The permittee must permit(s) used or intended to be used to no more than a total of 180 days, where submit a pre-construction notification to authorize any part of the proposed appropriate. In wetlands, the top 6 to 12 the district engineer prior to project or any related activity, including inches of the trench should normally be commencing the activity if: (1) A section other separate and distant crossings that backfilled with topsoil from the trench. 10 permit is required; or (2) the require Department of the Army The trench cannot be constructed or discharge will result in the loss of authorization but do not require pre- backfilled in such a manner as to drain greater than 1⁄10-acre of waters of the construction notification (see paragraph waters of the United States (e.g., United States. (See general condition (b)(4) of general condition 32). The backfilling with extensive gravel layers, 32.) (Authorities: Sections 10 and 404) district engineer will evaluate the PCN creating a french drain effect). Any Note 1: Where the electric utility line in accordance with Section D, ‘‘District exposed slopes and stream banks must is constructed, installed, or maintained Engineer’s Decision.’’ The district be stabilized immediately upon in navigable waters of the United States engineer may require mitigation to completion of the utility line crossing of (i.e., section 10 waters) within the ensure that the authorized activity each waterbody. coastal United States, the Great Lakes, results in no more than minimal Utility line substations: This NWP and United States territories, a copy of individual and cumulative adverse authorizes the construction, the NWP verification will be sent by the environmental effects (see general maintenance, or expansion of substation Corps to the National Oceanic and condition 23). facilities associated with a utility line in Atmospheric Administration (NOAA), 58. Utility Line Activities for Water non-tidal waters of the United States, National Ocean Service (NOS), for and Other Substances. Activities provided the activity, in combination charting the electric utility line to required for the construction, with all other activities included in one protect navigation. maintenance, repair, and removal of single and complete project, does not Note 2: For electric utility line or utility lines for water and other result in the loss of greater than 1⁄2-acre telecommunications activities crossing a substances, excluding oil, natural gas, of waters of the United States. This

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NWP does not authorize discharges of purpose of installing or replacing utility Guard pursuant to the General Bridge dredged or fill material into non-tidal lines. Act of 1946. However, any discharges of wetlands adjacent to tidal waters of the This NWP also authorizes temporary dredged or fill material into waters of United States to construct, maintain, or structures, fills, and work, including the the United States associated with such expand substation facilities. use of temporary mats, necessary to pipelines will require a section 404 Foundations for above-ground utility conduct the utility line activity. permit (see NWP 15). lines: This NWP authorizes the Appropriate measures must be taken to Note 5: This NWP authorizes utility construction or maintenance of maintain normal downstream flows and line maintenance and repair activities foundations for above-ground utility minimize flooding to the maximum that do not qualify for the Clean Water lines in all waters of the United States, extent practicable, when temporary Act section 404(f) exemption for provided the foundations are the structures, work, and discharges of maintenance of currently serviceable minimum size necessary. dredged or fill material, including fills or fill structures. Access roads: This NWP authorizes cofferdams, are necessary for Note 6: For activities that require pre- the construction of access roads for the construction activities, access fills, or construction notification, the PCN must construction and maintenance of utility dewatering of construction sites. include any other NWP(s), regional lines, including utility line substations, Temporary fills must consist of general permit(s), or individual in non-tidal waters of the United States, materials, and be placed in a manner, permit(s) used or intended to be used to provided the activity, in combination that will not be eroded by expected high authorize any part of the proposed with all other activities included in one flows. After construction, temporary project or any related activity, including single and complete project, does not fills must be removed in their entirety other separate and distant crossings that cause the loss of greater than 1⁄2-acre of and the affected areas returned to pre- require Department of the Army non-tidal waters of the United States. construction elevations. The areas authorization but do not require pre- This NWP does not authorize discharges affected by temporary fills must be construction notification (see paragraph of dredged or fill material into non-tidal revegetated, as appropriate. (b)(4) of general condition 32). The wetlands adjacent to tidal waters for Notification: The permittee must district engineer will evaluate the PCN access roads. Access roads must be the submit a pre-construction notification to in accordance with Section D, ‘‘District minimum width necessary (see Note 2, the district engineer prior to Engineer’s Decision.’’ The district below). Access roads must be commencing the activity if: (1) A section engineer may require mitigation to constructed so that the length of the 10 permit is required; or (2) the ensure that the authorized activity road minimizes any adverse effects on discharge will result in the loss of results in no more than minimal waters of the United States and must be greater than 1⁄10-acre of waters of the individual and cumulative adverse as near as possible to pre-construction United States. (See general condition environmental effects (see general contours and elevations (e.g., at grade 32.) (Authorities: Sections 10 and 404) condition 23). corduroy roads or geotextile/gravel Note 1: Where the utility line is C. Nationwide Permit General roads). Access roads constructed above constructed, installed, or maintained in Conditions pre-construction contours and navigable waters of the United States elevations in waters of the United States (i.e., section 10 waters) within the Note: To qualify for NWP must be properly bridged or culverted to coastal United States, the Great Lakes, authorization, the prospective permittee maintain surface flows. and United States territories, a copy of must comply with the following general This NWP may authorize utility lines the NWP verification will be sent by the conditions, as applicable, in addition to in or affecting navigable waters of the Corps to the National Oceanic and any regional or case-specific conditions United States even if there is no Atmospheric Administration (NOAA), imposed by the division engineer or associated discharge of dredged or fill National Ocean Service (NOS), for district engineer. Prospective permittees material (see 33 CFR part 322). charting the utility line to protect should contact the appropriate Corps Overhead utility lines constructed over navigation. district office to determine if regional section 10 waters and utility lines that Note 2: For utility line activities conditions have been imposed on an are routed in or under section 10 waters crossing a single waterbody more than NWP. Prospective permittees should without a discharge of dredged or fill one time at separate and distant also contact the appropriate Corps material require a section 10 permit. locations, or multiple waterbodies at district office to determine the status of This NWP authorizes, to the extent separate and distant locations, each Clean Water Act Section 401 water that Department of the Army crossing is considered a single and quality certification and/or Coastal Zone authorization is required, temporary complete project for purposes of NWP Management Act consistency for an structures, fills, and work necessary for authorization. Utility line activities NWP. Every person who may wish to the remediation of inadvertent returns must comply with 33 CFR 330.6(d). obtain permit authorization under one of drilling fluids to waters of the United Note 3: Access roads used for both or more NWPs, or who is currently States through sub-soil fissures or construction and maintenance may be relying on an existing or prior permit fractures that might occur during authorized, provided they meet the authorization under one or more NWPs, horizontal directional drilling activities terms and conditions of this NWP. has been and is on notice that all of the conducted for the purpose of installing Access roads used solely for provisions of 33 CFR 330.1 through or replacing utility lines. These construction of the utility line must be 330.6 apply to every NWP remediation activities must be done as removed upon completion of the work, authorization. Note especially 33 CFR soon as practicable, to restore the in accordance with the requirements for 330.5 relating to the modification, affected waterbody. District engineers temporary fills. suspension, or revocation of any NWP may add special conditions to this NWP Note 4: Pipes or pipelines used to authorization. to require a remediation plan for transport gaseous, liquid, liquescent, or 1. Navigation. (a) No activity may addressing inadvertent returns of slurry substances over navigable waters cause more than a minimal adverse drilling fluids to waters of the United of the United States are considered to be effect on navigation. States during horizontal directional bridges, not utility lines, and may (b) Any safety lights and signals drilling activities conducted for the require a permit from the U.S. Coast prescribed by the U.S. Coast Guard,

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through regulations or otherwise, must 7. Water Supply Intakes. No activity 14. Proper Maintenance. Any be installed and maintained at the may occur in the proximity of a public authorized structure or fill shall be permittee’s expense on authorized water supply intake, except where the properly maintained, including facilities in navigable waters of the activity is for the repair or improvement maintenance to ensure public safety and United States. of public water supply intake structures compliance with applicable NWP (c) The permittee understands and or adjacent bank stabilization. general conditions, as well as any agrees that, if future operations by the 8. Adverse Effects From activity-specific conditions added by United States require the removal, Impoundments. If the activity creates an the district engineer to an NWP relocation, or other alteration, of the impoundment of water, adverse effects authorization. structure or work herein authorized, or to the aquatic system due to accelerating 15. Single and Complete Project. The if, in the opinion of the Secretary of the the passage of water, and/or restricting activity must be a single and complete Army or his or her authorized its flow must be minimized to the project. The same NWP cannot be used representative, said structure or work maximum extent practicable. more than once for the same single and shall cause unreasonable obstruction to 9. Management of Water Flows. To the complete project. the free navigation of the navigable maximum extent practicable, the pre- 16. Wild and Scenic Rivers. (a) No waters, the permittee will be required, construction course, condition, NWP activity may occur in a component upon due notice from the Corps of capacity, and location of open waters of the National Wild and Scenic River Engineers, to remove, relocate, or alter must be maintained for each activity, System, or in a river officially the structural work or obstructions including stream channelization, storm designated by Congress as a ‘‘study caused thereby, without expense to the water management activities, and river’’ for possible inclusion in the United States. No claim shall be made temporary and permanent road system while the river is in an official against the United States on account of crossings, except as provided below. study status, unless the appropriate any such removal or alteration. The activity must be constructed to Federal agency with direct management responsibility for such river, has 2. Aquatic Life Movements. No withstand expected high flows. The activity may substantially disrupt the determined in writing that the proposed activity must not restrict or impede the necessary life cycle movements of those activity will not adversely affect the passage of normal or high flows, unless species of aquatic life indigenous to the Wild and Scenic River designation or the primary purpose of the activity is to waterbody, including those species that study status. impound water or manage high flows. normally migrate through the area, (b) If a proposed NWP activity will The activity may alter the pre- unless the activity’s primary purpose is occur in a component of the National construction course, condition, to impound water. All permanent and Wild and Scenic River System, or in a capacity, and location of open waters if temporary crossings of waterbodies river officially designated by Congress it benefits the aquatic environment (e.g., shall be suitably culverted, bridged, or as a ‘‘study river’’ for possible inclusion stream restoration or relocation otherwise designed and constructed to in the system while the river is in an maintain low flows to sustain the activities). official study status, the permittee must movement of those aquatic species. If a 10. Fills Within 100-Year Floodplains. submit a pre-construction notification bottomless culvert cannot be used, then The activity must comply with (see general condition 32). The district the crossing should be designed and applicable FEMA-approved state or engineer will coordinate the PCN with constructed to minimize adverse effects local floodplain management the Federal agency with direct to aquatic life movements. requirements. management responsibility for that 3. Spawning Areas. Activities in 11. Equipment. Heavy equipment river. Permittees shall not begin the spawning areas during spawning working in wetlands or mudflats must NWP activity until notified by the seasons must be avoided to the be placed on mats, or other measures district engineer that the Federal agency maximum extent practicable. Activities must be taken to minimize soil with direct management responsibility that result in the physical destruction disturbance. for that river has determined in writing (e.g., through excavation, fill, or 12. Soil Erosion and Sediment that the proposed NWP activity will not downstream smothering by substantial Controls. Appropriate soil erosion and adversely affect the Wild and Scenic turbidity) of an important spawning area sediment controls must be used and River designation or study status. are not authorized. maintained in effective operating (c) Information on Wild and Scenic 4. Migratory Bird Breeding Areas. condition during construction, and all Rivers may be obtained from the Activities in waters of the United States exposed soil and other fills, as well as appropriate Federal land management that serve as breeding areas for any work below the ordinary high water agency responsible for the designated migratory birds must be avoided to the mark or high tide line, must be Wild and Scenic River or study river maximum extent practicable. permanently stabilized at the earliest (e.g., National Park Service, U.S. Forest 5. Shellfish Beds. No activity may practicable date. Permittees are Service, Bureau of Land Management, occur in areas of concentrated shellfish encouraged to perform work within U.S. Fish and Wildlife Service). populations, unless the activity is waters of the United States during Information on these rivers is also directly related to a shellfish harvesting periods of low-flow or no-flow, or available at: http://www.rivers.gov/. activity authorized by NWPs 4 and 48, during low tides. 17. Tribal Rights. No activity or its or is a shellfish seeding or habitat 13. Removal of Temporary Structures operation may impair reserved tribal restoration activity authorized by NWP and Fills. Temporary structures must be rights, including, but not limited to, 27. removed, to the maximum extent reserved water rights and treaty fishing 6. Suitable Material. No activity may practicable, after their use has been and hunting rights. use unsuitable material (e.g., trash, discontinued. Temporary fills must be 18. Endangered Species. (a) No debris, car bodies, asphalt, etc.). removed in their entirety and the activity is authorized under any NWP Material used for construction or affected areas returned to pre- which is likely to directly or indirectly discharged must be free from toxic construction elevations. The affected jeopardize the continued existence of a pollutants in toxic amounts (see section areas must be revegetated, as threatened or endangered species or a 307 of the Clean Water Act). appropriate. species proposed for such designation,

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as identified under the Federal proposed activity ‘‘may affect’’ or will associated incidental take were Endangered Species Act (ESA), or have ‘‘no effect’’ to listed species and considered in the internal ESA section which will directly or indirectly destroy designated critical habitat and will 7 consultation conducted for the ESA or adversely modify designated critical notify the non-Federal applicant of the section 10(a)(1)(B) permit. If that habitat or critical habitat proposed for Corps’ determination within 45 days of coordination results in concurrence such designation. No activity is receipt of a complete pre-construction from the agency that the proposed NWP authorized under any NWP which ‘‘may notification. For activities where the activity and the associated incidental affect’’ a listed species or critical non-Federal applicant has identified take were considered in the internal habitat, unless ESA section 7 listed species (or species proposed for ESA section 7 consultation for the ESA consultation addressing the listing) or designated critical habitat (or section 10(a)(1)(B) permit, the district consequences of the proposed activity critical habitat proposed for such engineer does not need to conduct a on listed species or critical habitat has designation) that might be affected or is separate ESA section 7 consultation for been completed. See 50 CFR 402.02 for in the vicinity of the activity, and has the proposed NWP activity. The district the definition of ‘‘effects of the action’’ so notified the Corps, the applicant shall engineer will notify the non-federal for the purposes of ESA section 7 not begin work until the Corps has applicant within 45 days of receipt of a consultation, as well as 50 CFR 402.17, provided notification that the proposed complete pre-construction notification which provides further explanation activity will have ‘‘no effect’’ on listed whether the ESA section 10(a)(1)(B) under ESA section 7 regarding species (or species proposed for listing permit covers the proposed NWP ‘‘activities that are reasonably certain to or designated critical habitat (or critical activity or whether additional ESA occur’’ and ‘‘consequences caused by habitat proposed for such designation), section 7 consultation is required. the proposed action.’’ or until ESA section 7 consultation or (g) Information on the location of (b) Federal agencies should follow conference has been completed. If the threatened and endangered species and their own procedures for complying non-Federal applicant has not heard their critical habitat can be obtained with the requirements of the ESA (see back from the Corps within 45 days, the directly from the offices of the FWS and 33 CFR 330.4(f)(1)). If pre-construction applicant must still wait for notification NMFS or their world wide web pages at notification is required for the proposed from the Corps. http://www.fws.gov/ or http:// activity, the Federal permittee must (d) As a result of formal or informal www.fws.gov/ipac and http:// provide the district engineer with the consultation or conference with the www.nmfs.noaa.gov/pr/species/esa/ appropriate documentation to FWS or NMFS the district engineer may respectively. demonstrate compliance with those add species-specific permit conditions 19. Migratory Birds and Bald and requirements. The district engineer will to the NWPs. Golden Eagles. The permittee is verify that the appropriate (e) Authorization of an activity by an responsible for ensuring that an action documentation has been submitted. If NWP does not authorize the ‘‘take’’ of a authorized by an NWP complies with the appropriate documentation has not threatened or endangered species as the Migratory Bird Treaty Act and the been submitted, additional ESA section defined under the ESA. In the absence Bald and Golden Eagle Protection Act. 7 consultation may be necessary for the of separate authorization (e.g., an ESA The permittee is responsible for activity and the respective federal Section 10 Permit, a Biological Opinion contacting the appropriate local office of agency would be responsible for with ‘‘incidental take’’ provisions, etc.) the U.S. Fish and Wildlife Service to fulfilling its obligation under section 7 from the FWS or the NMFS, the determine what measures, if any, are of the ESA. Endangered Species Act prohibits any necessary or appropriate to reduce (c) Non-federal permittees must person subject to the jurisdiction of the adverse effects to migratory birds or submit a pre-construction notification to United States to take a listed species, eagles, including whether ‘‘incidental the district engineer if any listed species where ‘‘take’’ means to harass, harm, take’’ permits are necessary and (or species proposed for listing) or pursue, hunt, shoot, wound, kill, trap, available under the Migratory Bird designated critical habitat (or critical capture, or collect, or to attempt to Treaty Act or Bald and Golden Eagle habitat proposed such designation) engage in any such conduct. The word Protection Act for a particular activity. might be affected or is in the vicinity of ‘‘harm’’ in the definition of ‘‘take’’ 20. Historic Properties. (a) No activity the activity, or if the activity is located means an act which actually kills or is authorized under any NWP which in designated critical habitat or critical injures wildlife. Such an act may may have the potential to cause effects habitat proposed for such designation, include significant habitat modification to properties listed, or eligible for and shall not begin work on the activity or degradation where it actually kills or listing, in the National Register of until notified by the district engineer injures wildlife by significantly Historic Places until the requirements of that the requirements of the ESA have impairing essential behavioral patterns, Section 106 of the National Historic been satisfied and that the activity is including breeding, feeding or Preservation Act (NHPA) have been authorized. For activities that might sheltering. satisfied. affect Federally-listed endangered or (f) If the non-federal permittee has a (b) Federal permittees should follow threatened species (or species proposed valid ESA section 10(a)(1)(B) incidental their own procedures for complying for listing) or designated critical habitat take permit with an approved Habitat with the requirements of section 106 of (or critical habitat proposed for such Conservation Plan for a project or a the National Historic Preservation Act designation), the pre-construction group of projects that includes the (see 33 CFR 330.4(g)(1)). If pre- notification must include the name(s) of proposed NWP activity, the non-federal construction notification is required for the endangered or threatened species (or applicant should provide a copy of that the proposed NWP activity, the Federal species proposed for listing) that might ESA section 10(a)(1)(B) permit with the permittee must provide the district be affected by the proposed activity or PCN required by paragraph (c) of this engineer with the appropriate that utilize the designated critical general condition. The district engineer documentation to demonstrate habitat (or critical habitat proposed for will coordinate with the agency that compliance with those requirements. such designation) that might be affected issued the ESA section 10(a)(1)(B) The district engineer will verify that the by the proposed activity. The district permit to determine whether the appropriate documentation has been engineer will determine whether the proposed NWP activity and the submitted. If the appropriate

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documentation is not submitted, then which the proposed NWP activity might completed. The district engineer will additional consultation under section have the potential to cause effects and initiate the Federal, Tribal, and state 106 may be necessary. The respective has so notified the Corps, the non- coordination required to determine if federal agency is responsible for Federal applicant shall not begin the the items or remains warrant a recovery fulfilling its obligation to comply with activity until notified by the district effort or if the site is eligible for listing section 106. engineer either that the activity has no in the National Register of Historic (c) Non-federal permittees must potential to cause effects to historic Places. submit a pre-construction notification to properties or that NHPA section 106 22. Designated Critical Resource the district engineer if the NWP activity consultation has been completed. For Waters. Critical resource waters include, might have the potential to cause effects non-federal permittees, the district NOAA-managed marine sanctuaries and to any historic properties listed on, engineer will notify the prospective marine monuments, and National determined to be eligible for listing on, permittee within 45 days of receipt of a Estuarine Research Reserves. The or potentially eligible for listing on the complete pre-construction notification district engineer may designate, after National Register of Historic Places, whether NHPA section 106 consultation notice and opportunity for public including previously unidentified is required. If NHPA section 106 comment, additional waters officially properties. For such activities, the pre- consultation is required, the district designated by a state as having construction notification must state engineer will notify the non-Federal particular environmental or ecological which historic properties might have applicant that he or she cannot begin significance, such as outstanding the potential to be affected by the the activity until section 106 national resource waters or state natural proposed NWP activity or include a consultation is completed. If the non- heritage sites. The district engineer may vicinity map indicating the location of Federal applicant has not heard back also designate additional critical the historic properties or the potential from the Corps within 45 days, the resource waters after notice and for the presence of historic properties. applicant must still wait for notification opportunity for public comment. Assistance regarding information on the from the Corps. (a) Discharges of dredged or fill location of, or potential for, the presence (e) Prospective permittees should be material into waters of the United States of historic properties can be sought from aware that section 110k of the NHPA (54 are not authorized by NWPs 7, 12, 14, the State Historic Preservation Officer, U.S.C. 306113) prevents the Corps from 16, 17, 21, 29, 31, 35, 39, 40, 42, 43, 44, Tribal Historic Preservation Officer, or granting a permit or other assistance to 49, 50, 51, 52, 57 and 58 for any activity designated tribal representative, as an applicant who, with intent to avoid within, or directly affecting, critical appropriate, and the National Register of the requirements of section 106 of the resource waters, including wetlands Historic Places (see 33 CFR 330.4(g)). NHPA, has intentionally significantly adjacent to such waters. When reviewing pre-construction adversely affected a historic property to (b) For NWPs 3, 8, 10, 13, 15, 18, 19, notifications, district engineers will which the permit would relate, or 22, 23, 25, 27, 28, 30, 33, 34, 36, 37, 38, comply with the current procedures for having legal power to prevent it, and 54, notification is required in addressing the requirements of section allowed such significant adverse effect accordance with general condition 32, 106 of the National Historic to occur, unless the Corps, after for any activity proposed by permittees Preservation Act. The district engineer consultation with the Advisory Council in the designated critical resource shall make a reasonable and good faith on Historic Preservation (ACHP), waters including wetlands adjacent to effort to carry out appropriate determines that circumstances justify those waters. The district engineer may identification efforts commensurate granting such assistance despite the authorize activities under these NWPs with potential impacts, which may adverse effect created or permitted by only after she or he determines that the include background research, the applicant. If circumstances justify impacts to the critical resource waters consultation, oral history interviews, granting the assistance, the Corps is will be no more than minimal. sample field investigation, and/or field required to notify the ACHP and 23. Mitigation. The district engineer survey. Based on the information provide documentation specifying the will consider the following factors when submitted in the PCN and these circumstances, the degree of damage to determining appropriate and practicable identification efforts, the district the integrity of any historic properties mitigation necessary to ensure that the engineer shall determine whether the affected, and proposed mitigation. This individual and cumulative adverse proposed NWP activity has the potential documentation must include any views environmental effects are no more than to cause effects on the historic obtained from the applicant, SHPO/ minimal: properties. Section 106 consultation is THPO, appropriate Indian tribes if the (a) The activity must be designed and not required when the district engineer undertaking occurs on or affects historic constructed to avoid and minimize determines that the activity does not properties on tribal lands or affects adverse effects, both temporary and have the potential to cause effects on properties of interest to those tribes, and permanent, to waters of the United historic properties (see 36 CFR 800.3(a)). other parties known to have a legitimate States to the maximum extent Section 106 consultation is required interest in the impacts to the permitted practicable at the project site (i.e., on when the district engineer determines activity on historic properties. site). that the activity has the potential to 21. Discovery of Previously Unknown (b) Mitigation in all its forms cause effects on historic properties. The Remains and Artifacts. Permittees that (avoiding, minimizing, rectifying, district engineer will conduct discover any previously unknown reducing, or compensating for resource consultation with consulting parties historic, cultural or archeological losses) will be required to the extent identified under 36 CFR 800.2(c) when remains and artifacts while necessary to ensure that the individual he or she makes any of the following accomplishing the activity authorized and cumulative adverse environmental effect determinations for the purposes of by an NWP, they must immediately effects are no more than minimal. section 106 of the NHPA: No historic notify the district engineer of what they (c) Compensatory mitigation at a properties affected, no adverse effect, or have found, and to the maximum extent minimum one-for-one ratio will be adverse effect. practicable, avoid construction activities required for all wetland losses that (d) Where the non-Federal applicant that may affect the remains and artifacts exceed 1⁄10-acre and require pre- has identified historic properties on until the required coordination has been construction notification, unless the

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district engineer determines in writing area on both sides of a stream, or if the district engineer determines that prior that either some other form of mitigation waterbody is a lake or coastal waters, approval of the final mitigation plan is would be more environmentally then restoring or maintaining/protecting not practicable or not necessary to appropriate or the adverse a riparian area along a single bank or ensure timely completion of the environmental effects of the proposed shoreline may be sufficient. Where both required compensatory mitigation (see activity are no more than minimal, and wetlands and open waters exist on the 33 CFR 332.3(k)(3)). If permittee- provides an activity-specific waiver of project site, the district engineer will responsible mitigation is the proposed this requirement. For wetland losses of determine the appropriate option, and the proposed compensatory 1⁄10-acre or less that require pre- compensatory mitigation (e.g., riparian mitigation site is located on land in construction notification, the district areas and/or wetlands compensation) which another federal agency holds an engineer may determine on a case-by- based on what is best for the aquatic easement, the district engineer will case basis that compensatory mitigation environment on a watershed basis. In coordinate with that federal agency to is required to ensure that the activity cases where riparian areas are determine if proposed compensatory results in only minimal adverse determined to be the most appropriate mitigation project is compatible with environmental effects. form of minimization or compensatory the terms of the easement. (d) Compensatory mitigation at a mitigation, the district engineer may (5) If mitigation bank or in-lieu fee minimum one-for-one ratio will be waive or reduce the requirement to program credits are the proposed required for all losses of stream bed that provide wetland compensatory option, the mitigation plan needs to exceed 3⁄100-acre and require pre- mitigation for wetland losses. address only the baseline conditions at construction notification, unless the (f) Compensatory mitigation projects the impact site and the number of district engineer determines in writing provided to offset losses of aquatic credits to be provided (see 33 CFR that either some other form of mitigation resources must comply with the 332.4(c)(1)(ii)). would be more environmentally applicable provisions of 33 CFR part (6) Compensatory mitigation appropriate or the adverse 332. requirements (e.g., resource type and environmental effects of the proposed (1) The prospective permittee is amount to be provided as compensatory activity are no more than minimal, and responsible for proposing an mitigation, site protection, ecological provides an activity-specific waiver of appropriate compensatory mitigation performance standards, monitoring this requirement. This compensatory option if compensatory mitigation is requirements) may be addressed mitigation requirement may be satisfied necessary to ensure that the activity through conditions added to the NWP through the restoration or enhancement results in no more than minimal adverse authorization, instead of components of of riparian areas next to streams in environmental effects. For the NWPs, a compensatory mitigation plan (see 33 accordance with paragraph (e) of this the preferred mechanism for providing CFR 332.4(c)(1)(ii)). general condition. For losses of stream compensatory mitigation is mitigation (g) Compensatory mitigation will not bed of 3⁄100-acre or less that require pre- bank credits or in-lieu fee program be used to increase the acreage losses construction notification, the district credits (see 33 CFR 332.3(b)(2) and (3)). allowed by the acreage limits of the engineer may determine on a case-by- However, if an appropriate number and NWPs. For example, if an NWP has an case basis that compensatory mitigation type of mitigation bank or in-lieu credits acreage limit of 1⁄2-acre, it cannot be is required to ensure that the activity are not available at the time the PCN is used to authorize any NWP activity results in only minimal adverse submitted to the district engineer, the resulting in the loss of greater than 1⁄2- environmental effects. Compensatory district engineer may approve the use of acre of waters of the United States, even mitigation for losses of streams should permittee-responsible mitigation. if compensatory mitigation is provided be provided, if practicable, through (2) The amount of compensatory that replaces or restores some of the lost stream rehabilitation, enhancement, or mitigation required by the district waters. However, compensatory preservation, since streams are difficult- engineer must be sufficient to ensure mitigation can and should be used, as to-replace resources (see 33 CFR that the authorized activity results in no necessary, to ensure that an NWP 332.3(e)(3)). more than minimal individual and activity already meeting the established (e) Compensatory mitigation plans for cumulative adverse environmental acreage limits also satisfies the no more NWP activities in or near streams or effects (see 33 CFR 330.1(e)(3)). (See than minimal impact requirement for other open waters will normally include also 33 CFR 332.3(f).) the NWPs. a requirement for the restoration or (3) Since the likelihood of success is (h) Permittees may propose the use of enhancement, maintenance, and legal greater and the impacts to potentially mitigation banks, in-lieu fee programs, protection (e.g., conservation easements) valuable uplands are reduced, aquatic or permittee-responsible mitigation. of riparian areas next to open waters. In resource restoration should be the first When developing a compensatory some cases, the restoration or compensatory mitigation option mitigation proposal, the permittee must maintenance/protection of riparian considered for permittee-responsible consider appropriate and practicable areas may be the only compensatory mitigation. options consistent with the framework mitigation required. If restoring riparian (4) If permittee-responsible mitigation at 33 CFR 332.3(b). For activities areas involves planting vegetation, only is the proposed option, the prospective resulting in the loss of marine or native species should be planted. The permittee is responsible for submitting a estuarine resources, permittee- width of the required riparian area will mitigation plan. A conceptual or responsible mitigation may be address documented water quality or detailed mitigation plan may be used by environmentally preferable if there are aquatic habitat loss concerns. Normally, the district engineer to make the no mitigation banks or in-lieu fee the riparian area will be 25 to 50 feet decision on the NWP verification programs in the area that have marine wide on each side of the stream, but the request, but a final mitigation plan that or estuarine credits available for sale or district engineer may require slightly addresses the applicable requirements transfer to the permittee. For permittee- wider riparian areas to address of 33 CFR 332.4(c)(2) through (14) must responsible mitigation, the special documented water quality or habitat be approved by the district engineer conditions of the NWP verification must loss concerns. If it is not possible to before the permittee begins work in clearly indicate the party or parties restore or maintain/protect a riparian waters of the United States, unless the responsible for the implementation and

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performance of the compensatory result in more than minimal degradation United States due to the NWP 39 and 46 mitigation project, and, if required, its of water quality. activities cannot exceed 1 acre. long-term management. 26. Coastal Zone Management. In 29. Transfer of Nationwide Permit (i) Where certain functions and coastal states where an NWP has not Verifications. If the permittee sells the services of waters of the United States previously received a state coastal zone property associated with a nationwide are permanently adversely affected by a management consistency concurrence, permit verification, the permittee may regulated activity, such as discharges of an individual state coastal zone transfer the nationwide permit dredged or fill material into waters of management consistency concurrence verification to the new owner by the United States that will convert a must be obtained, or a presumption of submitting a letter to the appropriate forested or scrub-shrub wetland to a concurrence must occur (see 33 CFR Corps district office to validate the herbaceous wetland in a permanently 330.4(d)). If the permittee cannot transfer. A copy of the nationwide maintained utility line right-of-way, comply with all of the conditions of a permit verification must be attached to mitigation may be required to reduce coastal zone management consistency the letter, and the letter must contain the adverse environmental effects of the concurrence previously issued by the the following statement and signature: activity to the no more than minimal state, then the permittee must obtain an ‘‘When the structures or work level. individual coastal zone management authorized by this nationwide permit 24. Safety of Impoundment consistency concurrence or are still in existence at the time the Structures. To ensure that all presumption of concurrence in order for property is transferred, the terms and impoundment structures are safely the activity to be authorized by an NWP. conditions of this nationwide permit, designed, the district engineer may The district engineer or a state may including any special conditions, will require non-Federal applicants to require additional measures to ensure continue to be binding on the new demonstrate that the structures comply that the authorized activity is consistent owner(s) of the property. To validate the with established state or federal, dam with state coastal zone management transfer of this nationwide permit and safety criteria or have been designed by requirements. the associated liabilities associated with qualified persons. The district engineer 27. Regional and Case-By-Case compliance with its terms and may also require documentation that the Conditions. The activity must comply conditions, have the transferee sign and design has been independently with any regional conditions that may date below.’’ reviewed by similarly qualified persons, have been added by the Division lllllllllllllllllllll and appropriate modifications made to Engineer (see 33 CFR 330.4(e)) and with (Transferee) ensure safety. 25. Water Quality. (a) Where the any case specific conditions added by lllllllllllllllllllll certifying authority (state, authorized the Corps or by the state, Indian Tribe, (Date) tribe, or EPA, as appropriate) has not or U.S. EPA in its CWA section 401 30. Compliance Certification. Each previously certified compliance of an Water Quality Certification, or by the permittee who receives an NWP NWP with CWA section 401, a CWA state in its Coastal Zone Management verification letter from the Corps must section 401 water quality certification Act consistency determination. provide a signed certification for the proposed discharge must be 28. Use of Multiple Nationwide documenting completion of the obtained or waived (see 33 CFR Permits. The use of more than one NWP authorized activity and implementation 330.4(c)). If the permittee cannot for a single and complete project is of any required compensatory comply with all of the conditions of a authorized, subject to the following mitigation. The success of any required water quality certification previously restrictions: permittee-responsible mitigation, issued by certifying authority for the (a) If only one of the NWPs used to including the achievement of ecological issuance of the NWP, then the permittee authorize the single and complete performance standards, will be must obtain a water quality certification project has a specified acreage limit, the addressed separately by the district or waiver for the proposed discharge in acreage loss of waters of the United engineer. The Corps will provide the order for the activity to be authorized by States cannot exceed the acreage limit of permittee the certification document an NWP. the NWP with the highest specified with the NWP verification letter. The (b) If the NWP activity requires pre- acreage limit. For example, if a road certification document will include: construction notification and the crossing over tidal waters is constructed (a) A statement that the authorized certifying authority has not previously under NWP 14, with associated bank activity was done in accordance with certified compliance of an NWP with stabilization authorized by NWP 13, the the NWP authorization, including any CWA section 401, the proposed maximum acreage loss of waters of the general, regional, or activity-specific discharge is not authorized by an NWP United States for the total project cannot conditions; until water quality certification is exceed 1⁄3-acre. (b) A statement that the obtained or waived. If the certifying (b) If one or more of the NWPs used implementation of any required authority issues a water quality to authorize the single and complete compensatory mitigation was completed certification for the proposed discharge, project has specified acreage limits, the in accordance with the permit the permittee must submit a copy of the acreage loss of waters of the United conditions. If credits from a mitigation certification to the district engineer. The States authorized by those NWPs cannot bank or in-lieu fee program are used to discharge is not authorized by an NWP exceed their respective specified acreage satisfy the compensatory mitigation until the district engineer has notified limits. For example, if a commercial requirements, the certification must the permittee that the water quality development is constructed under NWP include the documentation required by certification requirement has been 39, and the single and complete project 33 CFR 332.3(l)(3) to confirm that the satisfied by the issuance of a water includes the filling of an upland ditch permittee secured the appropriate quality certification or a waiver. authorized by NWP 46, the maximum number and resource type of credits; (c) The district engineer or certifying acreage loss of waters of the United and authority may require additional water States for the commercial development (c) The signature of the permittee quality management measures to ensure under NWP 39 cannot exceed 1⁄2-acre, certifying the completion of the activity that the authorized activity does not and the total acreage loss of waters of and mitigation.

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The completed certification document or critical habitat might be affected or environmental effects of the activity will must be submitted to the district are in the vicinity of the activity, or to be no more than minimal and to engineer within 30 days of completion notify the Corps pursuant to general determine the need for compensatory of the authorized activity or the condition 20 that the activity might mitigation or other mitigation measures. implementation of any required have the potential to cause effects to (ii) For linear projects where one or compensatory mitigation, whichever historic properties, the permittee cannot more single and complete crossings occurs later. begin the activity until receiving written require pre-construction notification, 31. Activities Affecting Structures or notification from the Corps that there is the PCN must include the quantity of Works Built by the United States. If an ‘‘no effect’’ on listed species or ‘‘no anticipated losses of wetlands, other NWP activity also requires review by, or potential to cause effects’’ on historic special aquatic sites, and other waters permission from, the Corps pursuant to properties, or that any consultation for each single and complete crossing of 33 U.S.C. 408 because it will alter or required under Section 7 of the those wetlands, other special aquatic temporarily or permanently occupy or Endangered Species Act (see 33 CFR sites, and other waters (including those use a U.S. Army Corps of Engineers 330.4(f)) and/or section 106 of the single and complete crossings (USACE) federally authorized Civil National Historic Preservation Act (see authorized by an NWP but do not Works project (a ‘‘USACE project’’), the 33 CFR 330.4(g)) has been completed. If require PCNs). This information will be prospective permittee must submit a the proposed activity requires a written used by the district engineer to evaluate pre-construction notification. See waiver to exceed specified limits of an the cumulative adverse environmental paragraph (b)(10) of general condition NWP, the permittee may not begin the effects of the proposed linear project, 32. An activity that requires section 408 activity until the district engineer issues and does not change those non-PCN permission and/or review is not the waiver. If the district or division NWP activities into NWP PCNs. authorized by an NWP until the engineer notifies the permittee in (iii) Sketches should be provided appropriate Corps office issues the writing that an individual permit is when necessary to show that the activity section 408 permission or completes its required within 45 calendar days of complies with the terms of the NWP. review to alter, occupy, or use the receipt of a complete PCN, the permittee (Sketches usually clarify the activity USACE project, and the district engineer cannot begin the activity until an and when provided results in a quicker issues a written NWP verification. individual permit has been obtained. decision. Sketches should contain 32. Pre-Construction Notification. (a) Subsequently, the permittee’s right to sufficient detail to provide an Timing. Where required by the terms of proceed under the NWP may be illustrative description of the proposed the NWP, the prospective permittee modified, suspended, or revoked only in activity (e.g., a conceptual plan), but do must notify the district engineer by accordance with the procedure set forth not need to be detailed engineering submitting a pre-construction in 33 CFR 330.5(d)(2). plans); notification (PCN) as early as possible. (b) Contents of Pre-Construction (5) The PCN must include a The district engineer must determine if Notification: The PCN must be in delineation of wetlands, other special the PCN is complete within 30 calendar writing and include the following aquatic sites, and other waters, such as days of the date of receipt and, if the information: lakes and ponds, and perennial and PCN is determined to be incomplete, (1) Name, address and telephone intermittent streams, on the project site. notify the prospective permittee within numbers of the prospective permittee; Wetland delineations must be prepared that 30 day period to request the (2) Location of the proposed activity; in accordance with the current method additional information necessary to (3) Identify the specific NWP or required by the Corps. The permittee make the PCN complete. The request NWP(s) the prospective permittee wants may ask the Corps to delineate the must specify the information needed to to use to authorize the proposed special aquatic sites and other waters on make the PCN complete. As a general activity; the project site, but there may be a delay rule, district engineers will request (4) (i) A description of the proposed if the Corps does the delineation, additional information necessary to activity; the activity’s purpose; direct especially if the project site is large or make the PCN complete only once. and indirect adverse environmental contains many wetlands, other special However, if the prospective permittee effects the activity would cause, aquatic sites, and other waters. does not provide all of the requested including the anticipated amount of loss Furthermore, the 45-day period will not information, then the district engineer of wetlands, other special aquatic sites, start until the delineation has been will notify the prospective permittee and other waters expected to result from submitted to or completed by the Corps, that the PCN is still incomplete and the the NWP activity, in acres, linear feet, as appropriate; PCN review process will not commence or other appropriate unit of measure; a (6) If the proposed activity will result until all of the requested information description of any proposed mitigation in the loss of greater than 1⁄10-acre of has been received by the district measures intended to reduce the wetlands or 3⁄100-acre of stream bed and engineer. The prospective permittee adverse environmental effects caused by a PCN is required, the prospective shall not begin the activity until either: the proposed activity; and any other permittee must submit a statement (1) He or she is notified in writing by NWP(s), regional general permit(s), or describing how the mitigation the district engineer that the activity individual permit(s) used or intended to requirement will be satisfied, or may proceed under the NWP with any be used to authorize any part of the explaining why the adverse special conditions imposed by the proposed project or any related activity, environmental effects are no more than district or division engineer; or including other separate and distant minimal and why compensatory (2) 45 calendar days have passed from crossings for linear projects that require mitigation should not be required. As an the district engineer’s receipt of the Department of the Army authorization alternative, the prospective permittee complete PCN and the prospective but do not require pre-construction may submit a conceptual or detailed permittee has not received written notification. The description of the mitigation plan. notice from the district or division proposed activity and any proposed (7) For non-federal permittees, if any engineer. However, if the permittee was mitigation measures should be listed species (or species proposed for required to notify the Corps pursuant to sufficiently detailed to allow the district listing) or designated critical habitat (or general condition 18 that listed species engineer to determine that the adverse critical habitat proposed for such

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designation) might be affected or is in (d) Agency Coordination: (1) The occur. The district engineer will the vicinity of the activity, or if the district engineer will consider any consider any comments received to activity is located in designated critical comments from Federal and state decide whether the NWP 37 habitat (or critical habitat proposed for agencies concerning the proposed authorization should be modified, such designation), the PCN must activity’s compliance with the terms suspended, or revoked in accordance include the name(s) of those endangered and conditions of the NWPs and the with the procedures at 33 CFR 330.5. or threatened species (or species need for mitigation to reduce the (4) In cases of where the prospective proposed for listing) that might be activity’s adverse environmental effects permittee is not a Federal agency, the affected by the proposed activity or so that they are no more than minimal. district engineer will provide a response utilize the designated critical habitat (or (2) Agency coordination is required to NMFS within 30 calendar days of critical habitat proposed for such for: (i) All NWP activities that require receipt of any Essential Fish Habitat designation) that might be affected by pre-construction notification and result conservation recommendations, as the proposed activity. For NWP in the loss of greater than 1⁄2-acre of required by section 305(b)(4)(B) of the activities that require pre-construction waters of the United States; (ii) NWP 13 Magnuson-Stevens Fishery notification, Federal permittees must activities in excess of 500 linear feet, Conservation and Management Act. provide documentation demonstrating fills greater than one cubic yard per (5) Applicants are encouraged to compliance with the Endangered running foot, or involve discharges of provide the Corps with either electronic Species Act; dredged or fill material into special files or multiple copies of pre- (8) For non-federal permittees, if the aquatic sites; and (iii) NWP 54 activities construction notifications to expedite NWP activity might have the potential in excess of 500 linear feet, or that agency coordination. to cause effects to a historic property extend into the waterbody more than 30 D. District Engineer’s Decision listed on, determined to be eligible for feet from the mean low water line in listing on, or potentially eligible for tidal waters or the ordinary high water 1. In reviewing the PCN for the listing on, the National Register of mark in the Great Lakes. proposed activity, the district engineer Historic Places, the PCN must state (3) When agency coordination is will determine whether the activity which historic property might have the required, the district engineer will authorized by the NWP will result in potential to be affected by the proposed immediately provide (e.g., via email, more than minimal individual or activity or include a vicinity map facsimile transmission, overnight mail, cumulative adverse environmental indicating the location of the historic or other expeditious manner) a copy of effects or may be contrary to the public property. For NWP activities that the complete PCN to the appropriate interest. If a project proponent requests require pre-construction notification, Federal or state offices (FWS, state authorization by a specific NWP, the Federal permittees must provide natural resource or water quality district engineer should issue the NWP documentation demonstrating agency, EPA, and, if appropriate, the verification for that activity if it meets compliance with section 106 of the NMFS). With the exception of NWP 37, the terms and conditions of that NWP, National Historic Preservation Act; these agencies will have 10 calendar unless he or she determines, after (9) For an activity that will occur in days from the date the material is considering mitigation, that the a component of the National Wild and transmitted to notify the district proposed activity will result in more Scenic River System, or in a river engineer via telephone, facsimile than minimal individual and officially designated by Congress as a transmission, or email that they intend cumulative adverse effects on the ‘‘study river’’ for possible inclusion in to provide substantive, site-specific aquatic environment and other aspects the system while the river is in an comments. The comments must explain of the public interest and exercises official study status, the PCN must why the agency believes the adverse discretionary authority to require an identify the Wild and Scenic River or environmental effects will be more than individual permit for the proposed the ‘‘study river’’ (see general condition minimal. If so contacted by an agency, activity. For a linear project, this 16); and the district engineer will wait an determination will include an (10) For an NWP activity that requires additional 15 calendar days before evaluation of the single and complete permission from, or review by, the making a decision on the pre- crossings of waters of the United States Corps pursuant to 33 U.S.C. 408 because construction notification. The district that require PCNs to determine whether it will alter or temporarily or engineer will fully consider agency they individually satisfy the terms and permanently occupy or use a U.S. Army comments received within the specified conditions of the NWP(s), as well as the Corps of Engineers federally authorized time frame concerning the proposed cumulative effects caused by all of the civil works project, the pre-construction activity’s compliance with the terms crossings of waters of the United States notification must include a statement and conditions of the NWPs, including authorized by an NWP. If an applicant confirming that the project proponent the need for mitigation to ensure that requests a waiver of an applicable limit, has submitted a written request for the net adverse environmental effects of as provided for in NWPs 13, 36, or 54, section 408 permission from, or review the proposed activity are no more than the district engineer will only grant the by, the Corps office having jurisdiction minimal. The district engineer will waiver upon a written determination over that USACE project. provide no response to the resource that the NWP activity will result in only (c) Form of Pre-Construction agency, except as provided below. The minimal individual and cumulative Notification: The nationwide permit district engineer will indicate in the adverse environmental effects. pre-construction notification form administrative record associated with 2. When making minimal adverse (Form ENG 6082) should be used for each pre-construction notification that environmental effects determinations NWP PCNs. A letter containing the the resource agencies’ concerns were the district engineer will consider the required information may also be used. considered. For NWP 37, the emergency direct and indirect effects caused by the Applicants may provide electronic files watershed protection and rehabilitation NWP activity. He or she will also of PCNs and supporting materials if the activity may proceed immediately in consider the cumulative adverse district engineer has established tools cases where there is an unacceptable environmental effects caused by and procedures for electronic hazard to life or a significant loss of activities authorized by an NWP and submittals. property or economic hardship will whether those cumulative adverse

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environmental effects are no more than ensure timely completion of the of the required compensatory minimal. The district engineer will also required compensatory mitigation. If the mitigation. consider site specific factors, such as the prospective permittee elects to submit a E. Further Information environmental setting in the vicinity of compensatory mitigation plan with the the NWP activity, the type of resource PCN, the district engineer will 1. District engineers have authority to that will be affected by the NWP expeditiously review the proposed determine if an activity complies with activity, the functions provided by the compensatory mitigation plan. The the terms and conditions of an NWP. aquatic resources that will be affected district engineer must review the 2. NWPs do not obviate the need to by the NWP activity, the degree or proposed compensatory mitigation plan obtain other federal, state, or local magnitude to which the aquatic within 45 calendar days of receiving a permits, approvals, or authorizations resources perform those functions, the complete PCN and determine whether required by law. extent that aquatic resource functions the proposed mitigation would ensure 3. NWPs do not grant any property will be lost as a result of the NWP that the NWP activity results in no more rights or exclusive privileges. activity (e.g., partial or complete loss), than minimal adverse environmental 4. NWPs do not authorize any injury the duration of the adverse effects effects. If the net adverse environmental to the property or rights of others. (temporary or permanent), the effects of the NWP activity (after 5. NWPs do not authorize interference importance of the aquatic resource consideration of the mitigation with any existing or proposed Federal functions to the region (e.g., watershed proposal) are determined by the district project (see general condition 31). or ecoregion), and mitigation required engineer to be no more than minimal, F. Definitions by the district engineer. If an the district engineer will provide a Best management practices (BMPs): appropriate functional or condition timely written response to the applicant. Policies, practices, procedures, or assessment method is available and The response will state that the NWP structures implemented to mitigate the practicable to use, that assessment activity can proceed under the terms adverse environmental effects on method may be used by the district and conditions of the NWP, including surface water quality resulting from engineer to assist in the minimal any activity-specific conditions added development. BMPs are categorized as adverse environmental effects to the NWP authorization by the district structural or non-structural. determination. The district engineer engineer. Compensatory mitigation: The may add case-specific special 4. If the district engineer determines restoration (re-establishment or conditions to the NWP authorization to that the adverse environmental effects of rehabilitation), establishment (creation), address site-specific environmental the proposed activity are more than enhancement, and/or in certain concerns. minimal, then the district engineer will circumstances preservation of aquatic 3. If the proposed activity requires a notify the applicant either: (a) That the resources for the purposes of offsetting PCN and will result in a loss of greater activity does not qualify for unavoidable adverse impacts which than 1⁄10-acre of wetlands or 3⁄100-acre of authorization under the NWP and remain after all appropriate and stream bed, the prospective permittee instruct the applicant on the procedures practicable avoidance and minimization should submit a mitigation proposal to seek authorization under an has been achieved. with the PCN. Applicants may also individual permit; (b) that the activity is Currently serviceable: Useable as is or propose compensatory mitigation for authorized under the NWP subject to with some maintenance, but not so NWP activities with smaller impacts, or the applicant’s submission of a degraded as to essentially require for impacts to other types of waters. The mitigation plan that would reduce the reconstruction. district engineer will consider any adverse environmental effects so that Direct effects: Effects that are caused proposed compensatory mitigation or they are no more than minimal; or (c) by the activity and occur at the same other mitigation measures the applicant that the activity is authorized under the time and place. has included in the proposal in NWP with specific modifications or Discharge: The term ‘‘discharge’’ determining whether the net adverse conditions. Where the district engineer means any discharge of dredged or fill environmental effects of the proposed determines that mitigation is required to material into waters of the United activity are no more than minimal. The ensure no more than minimal adverse States. compensatory mitigation proposal may environmental effects, the activity will Ecological reference: A model used to be either conceptual or detailed. If the be authorized within the 45-day PCN plan and design an aquatic habitat and district engineer determines that the period (unless additional time is riparian area restoration, enhancement, activity complies with the terms and required to comply with general or establishment activity under NWP 27. conditions of the NWP and that the conditions 18, 20, and/or 31), with An ecological reference may be based on adverse environmental effects are no activity-specific conditions that state the the structure, functions, and dynamics more than minimal, after considering mitigation requirements. The of an aquatic habitat type or a riparian mitigation, the district engineer will authorization will include the necessary area type that currently exists in the notify the permittee and include any conceptual or detailed mitigation plan region where the proposed NWP 27 activity-specific conditions in the NWP or a requirement that the applicant activity is located. Alternatively, an verification the district engineer deems submit a mitigation plan that would ecological reference may be based on a necessary. Conditions for compensatory reduce the adverse environmental conceptual model for the aquatic habitat mitigation requirements must comply effects so that they are no more than type or riparian area type to be restored, with the appropriate provisions at 33 minimal. When compensatory enhanced, or established as a result of CFR 332.3(k). The district engineer must mitigation is required, no work in the proposed NWP 27 activity. An approve the final mitigation plan before waters of the United States may occur ecological reference takes into account the permittee commences work in until the district engineer has approved the range of variation of the aquatic waters of the United States, unless the a specific mitigation plan or has habitat type or riparian area type in the district engineer determines that prior determined that prior approval of a final region. approval of the final mitigation plan is mitigation plan is not practicable or not Enhancement: The manipulation of not practicable or not necessary to necessary to ensure timely completion the physical, chemical, or biological

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characteristics of an aquatic resource to Indirect effects: Effects that are caused natural line impressed on the bank, heighten, intensify, or improve a by the activity and are later in time or shelving, changes in the character of specific aquatic resource function(s). farther removed in distance, but are still soil, destruction of terrestrial vegetation, Enhancement results in the gain of reasonably foreseeable. the presence of litter and debris, or selected aquatic resource function(s), Loss of waters of the United States: other appropriate means that consider but may also lead to a decline in other Waters of the United States that are the characteristics of the surrounding aquatic resource function(s). permanently adversely affected by areas. Enhancement does not result in a gain filling, flooding, excavation, or drainage Perennial stream: A perennial stream in aquatic resource area. because of the regulated activity. The has surface water flowing continuously Establishment (creation): The loss of stream bed includes the acres of year-round during a typical year. manipulation of the physical, chemical, stream bed that are permanently Practicable: Available and capable of or biological characteristics present to adversely affected by filling or being done after taking into develop an aquatic resource that did not excavation because of the regulated consideration cost, existing technology, previously exist at an upland site. activity. Permanent adverse effects and logistics in light of overall project Establishment results in a gain in include permanent discharges of purposes. aquatic resource area. dredged or fill material that change an Pre-construction notification: A request submitted by the project High Tide Line: The line of aquatic area to dry land, increase the proponent to the Corps for confirmation intersection of the land with the water’s bottom elevation of a waterbody, or that a particular activity is authorized surface at the maximum height reached change the use of a waterbody. The by nationwide permit. The request may by a rising tide. The high tide line may acreage of loss of waters of the United be a permit application, letter, or similar be determined, in the absence of actual States is a threshold measurement of the document that includes information data, by a line of oil or scum along shore impact to jurisdictional waters or about the proposed work and its objects, a more or less continuous wetlands for determining whether a anticipated environmental effects. Pre- deposit of fine shell or debris on the project may qualify for an NWP; it is not a net threshold that is calculated after construction notification may be foreshore or berm, other physical required by the terms and conditions of markings or characteristics, vegetation considering compensatory mitigation that may be used to offset losses of a nationwide permit, or by regional lines, tidal gages, or other suitable conditions. A pre-construction means that delineate the general height aquatic functions and services. Waters of the United States temporarily filled, notification may be voluntarily reached by a rising tide. The line flooded, excavated, or drained, but submitted in cases where pre- encompasses spring high tides and other restored to pre-construction contours construction notification is not required high tides that occur with periodic and elevations after construction, are and the project proponent wants frequency but does not include storm not included in the measurement of loss confirmation that the activity is surges in which there is a departure of waters of the United States. Impacts authorized by nationwide permit. from the normal or predicted reach of resulting from activities that do not Preservation: The removal of a threat the tide due to the piling up of water require Department of the Army to, or preventing the decline of, aquatic against a coast by strong winds such as authorization, such as activities eligible resources by an action in or near those those accompanying a hurricane or for exemptions under section 404(f) of aquatic resources. This term includes other intense storm. the Clean Water Act, are not considered activities commonly associated with the Historic Property: Any prehistoric or when calculating the loss of waters of protection and maintenance of aquatic historic district, site (including the United States. resources through the implementation archaeological site), building, structure, Navigable waters: Waters subject to of appropriate legal and physical or other object included in, or eligible section 10 of the Rivers and Harbors Act mechanisms. Preservation does not for inclusion in, the National Register of of 1899. These waters are defined at 33 result in a gain of aquatic resource area Historic Places maintained by the CFR part 329. or functions. Secretary of the Interior. This term Non-tidal wetland: A non-tidal Re-establishment: The manipulation includes artifacts, records, and remains wetland is a wetland that is not subject of the physical, chemical, or biological that are related to and located within to the ebb and flow of tidal waters. Non- characteristics of a site with the goal of such properties. The term includes tidal wetlands contiguous to tidal returning natural/historic functions to a properties of traditional religious and waters are located landward of the high former aquatic resource. Re- cultural importance to an Indian tribe or tide line (i.e., spring high tide line). establishment results in rebuilding a Native Hawaiian organization and that Open water: For purposes of the former aquatic resource and results in a meet the National Register criteria (36 NWPs, an open water is any area that in gain in aquatic resource area and CFR part 60). a year with normal patterns of functions. Independent utility: A test to precipitation has water flowing or Rehabilitation: The manipulation of determine what constitutes a single and standing above ground to the extent that the physical, chemical, or biological complete non-linear project in the Corps an ordinary high water mark can be characteristics of a site with the goal of Regulatory Program. A project is determined. Aquatic vegetation within repairing natural/historic functions to a considered to have independent utility the area of flowing or standing water is degraded aquatic resource. if it would be constructed absent the either non-emergent, sparse, or absent. Rehabilitation results in a gain in construction of other projects in the Vegetated shallows are considered to be aquatic resource function, but does not project area. Portions of a multi-phase open waters. Examples of ‘‘open waters’’ result in a gain in aquatic resource area. project that depend upon other phases include rivers, streams, lakes, and Restoration: The manipulation of the of the project do not have independent ponds. physical, chemical, or biological utility. Phases of a project that would be Ordinary High Water Mark: The term characteristics of a site with the goal of constructed even if the other phases ordinary high water mark means that returning natural/historic functions to a were not built can be considered as line on the shore established by the former or degraded aquatic resource. For separate single and complete projects fluctuations of water and indicated by the purpose of tracking net gains in with independent utility. physical characteristics such as a clear, aquatic resource area, restoration is

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divided into two categories: Re- linear projects crossing a single or channelized jurisdictional stream establishment and rehabilitation. multiple waterbodies several times at remains a water of the United States. Riffle and pool complex: Riffle and separate and distant locations, each Structure: An object that is arranged pool complexes are special aquatic sites crossing is considered a single and in a definite pattern of organization. under the 404(b)(1) Guidelines. Riffle complete project for purposes of NWP Examples of structures include, without and pool complexes sometimes authorization. However, individual limitation, any pier, boat dock, boat characterize steep gradient sections of channels in a braided stream or river, or ramp, wharf, dolphin, weir, boom, streams. Such stream sections are individual arms of a large, irregularly breakwater, bulkhead, revetment, recognizable by their hydraulic shaped wetland or lake, etc., are not riprap, jetty, artificial island, artificial characteristics. The rapid movement of separate waterbodies, and crossings of reef, permanent mooring structure, water over a course substrate in riffles such features cannot be considered power transmission line, permanently results in a rough flow, a turbulent separately. moored floating vessel, piling, aid to surface, and high dissolved oxygen Single and complete non-linear navigation, or any other manmade levels in the water. Pools are deeper project: For non-linear projects, the term obstacle or obstruction. areas associated with riffles. A slower ‘‘single and complete project’’ is defined Tidal wetland: A tidal wetland is a stream velocity, a streaming flow, a at 33 CFR 330.2(i) as the total project jurisdictional wetland that is inundated smooth surface, and a finer substrate proposed or accomplished by one by tidal waters. Tidal waters rise and characterize pools. owner/developer or partnership or other fall in a predictable and measurable Riparian areas: Riparian areas are association of owners/developers. A rhythm or cycle due to the gravitational lands next to streams, lakes, and single and complete non-linear project pulls of the moon and sun. Tidal waters estuarine-marine shorelines. Riparian must have independent utility (see end where the rise and fall of the water areas are transitional between terrestrial definition of ‘‘independent utility’’). surface can no longer be practically and aquatic ecosystems, through which Single and complete non-linear projects measured in a predictable rhythm due surface and subsurface hydrology may not be ‘‘piecemealed’’ to avoid the to masking by other waters, wind, or connects riverine, lacustrine, estuarine, limits in an NWP authorization. other effects. Tidal wetlands are located and marine waters with their adjacent channelward of the high tide line. wetlands, non-wetland waters, or Stormwater management: Stormwater Tribal lands: Any lands title to which uplands. Riparian areas provide a management is the mechanism for is either: (1) Held in trust by the United variety of ecological functions and controlling stormwater runoff for the States for the benefit of any Indian tribe services and help improve or maintain purposes of reducing downstream or individual; or (2) held by any Indian local water quality. (See general erosion, water quality degradation, and tribe or individual subject to restrictions condition 23.) flooding and mitigating the adverse by the United States against alienation. Shellfish seeding: The placement of effects of changes in land use on the shellfish seed and/or suitable substrate aquatic environment. Tribal rights: Those rights legally to increase shellfish production. Stormwater management facilities: accruing to a tribe or tribes by virtue of Shellfish seed consists of immature Stormwater management facilities are inherent sovereign authority, individual shellfish or individual those facilities, including but not unextinguished aboriginal title, treaty, shellfish attached to shells or shell limited to, stormwater retention and statute, judicial decisions, executive fragments (i.e., spat on shell). Suitable detention ponds and best management order or agreement, and that give rise to substrate may consist of shellfish shells, practices, which retain water for a legally enforceable remedies. shell fragments, or other appropriate period of time to control runoff and/or Vegetated shallows: Vegetated materials placed into waters for improve the quality (i.e., by reducing shallows are special aquatic sites under shellfish habitat. the concentration of nutrients, the 404(b)(1) Guidelines. They are areas Single and complete linear project: A sediments, hazardous substances and that are permanently inundated and linear project is a project constructed for other pollutants) of stormwater runoff. under normal circumstances have the purpose of getting people, goods, or Stream bed: The substrate of the rooted aquatic vegetation, such as services from a point of origin to a stream channel between the ordinary seagrasses in marine and estuarine terminal point, which often involves high water marks. The substrate may be systems and a variety of vascular rooted multiple crossings of one or more bedrock or inorganic particles that range plants in freshwater systems. waterbodies at separate and distant in size from clay to boulders. Wetlands Waterbody: For purposes of the locations. The term ‘‘single and contiguous to the stream bed, but NWPs, a waterbody is a ‘‘water of the complete project’’ is defined as that outside of the ordinary high water United States.’’ If a wetland is adjacent portion of the total linear project marks, are not considered part of the to a waterbody determined to be a water proposed or accomplished by one stream bed. of the United States, that waterbody and owner/developer or partnership or other Stream channelization: The any adjacent wetlands are considered association of owners/developers that manipulation of a stream’s course, together as a single aquatic unit (see 33 includes all crossings of a single water condition, capacity, or location that CFR 328.4(c)(2)). of the United States (i.e., a single causes more than minimal interruption [FR Doc. 2021–00102 Filed 1–12–21; 8:45 am] waterbody) at a specific location. For of normal stream processes. A BILLING CODE 3720–58–P

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