Reissuance and Modification of Nationwide Permits

Nationwide Permits (NWPs)

1. Aids to Navigation 2. Structures in Artificial Canals 3. Maintenance 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities 5. Scientific Measurement Devices 6. Survey Activities 7. Outfall Structures and Associated Intake Structures 8. Oil and Gas Structures on the Outer Continental Shelf 9. Structures in Fleeting and Anchorage Areas 10. Mooring Buoys 11. Temporary Recreational Structures 12. Oil or Natural Gas Pipeline Activities 13. Bank Stabilization 14. Linear Transportation Projects 15. U.S. Coast Guard Approved Bridges 16. Return Water From Upland Contained Disposal Areas 17. Hydropower Projects 18. Minor Discharges 19. Minor Dredging 20. Response Operations for Oil or Hazardous Substances 21. Surface Coal Mining Activities 22. Removal of Vessels 23. Approved Categorical Exclusions 24. Indian Tribe or State Administered Section 404 Programs 25. Structural Discharges 26. [Reserved] 27. Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities 28. Modifications of Existing Marinas 29. Residential Developments 30. Moist Soil Management for Wildlife 31. Maintenance of Existing Flood Control Facilities 32. Completed Enforcement Actions 33. Temporary Construction, Access, and Dewatering 34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins 36. Boat Ramps 37. Emergency Watershed Protection and Rehabilitation 38. Cleanup of Hazardous and Toxic Waste 39. Commercial and Institutional Developments 40. Agricultural Activities 41. Reshaping Existing Drainage and Irrigation Ditches 42. Recreational Facilities 43. Stormwater Management Facilities 44. Mining Activities 45. Repair of Uplands Damaged by Discrete Events 46. Discharges in Ditches 47. [Reserved] 48. Commercial Shellfish Mariculture Activities 49. Coal Remining Activities 50. Underground Coal Mining Activities 51. Land-Based Renewable Energy Generation Facilities 52. Water-Based Renewable Energy Generation Pilot Projects 53. Removal of Low-Head Dams 54. Living Shorelines 55. Seaweed Mariculture Activities 56. [Reserved] 57. Electric Utility Line and Telecommunications Activities 58. Utility Line Activities for Water and Other Substances 59. Water Reclamation and Reuse Facilities

A. Activities To Improve Passage of Fish and Other Aquatic Organisms

The U.S. Army Corps of Engineers (Corps) may issue nationwide permits (NWPs) to authorize activities under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act of 1899 (RHA) that will result in no more than minimal individual and cumulative adverse environmental effects. Under Section 404 of the CWA (33 U.S.C. 1344), Department of the Army (DA) authorization is required for discharges of dredged or fill material into waters of the United States. Under Section 10 of the RHA (33 U.S.C. 403), DA authorization is required for construction of any structure in, over, or under any navigable water of the United States; the excavating from or depositing of material in navigable waters of the United States; or the accomplishment of any other work affecting the course, location, condition, or capacity of navigable waters of the United States.

NWPs were first issued by the Corps in 1977 (42 FR 37122) to authorize categories of activities that have minimal adverse effects on the aquatic environment and streamline the authorization process for those minor activities. Since1977, NWPs have been issued or reissued in 1982 (47 FR 31794), 1984 (49 FR 39478), 1986 (51 FR 41206), 1991 (56 FR 59110), 1995 (60 FR 38650), 1996 (61 FR 65874), 2000 (65 FR 12818), 2002 (67 FR 2020), 2007 (72 FR 11092), 2012 (77 FR 10184), 2017 (82 FR 1860), and 2021 (86 FR 2744 and 86 FR 73522).

Section 404(e) of the CWA provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States for a period of no more than five years after the date of issuance (33 U.S.C. 1344 (e)). The Secretary's authority to issue individual permits and general permits has been delegated to the Chief of Engineers and his or her designated representatives. NWPs are a type of general permit issued by the Chief of Engineers and are designed to regulate activities in federally jurisdictional waters and wetlands that have no more than minimal adverse environmental effects (see 33 CFR 330.1(b)). The categories of activities authorized by NWPs must be similar in nature, cause only minimal adverse environmental effects when performed separately, and have only minimal cumulative adverse effect on the environment (33 U.S.C. 1344(e)(1)). The Corps has discretionary authority to modify or revoke the NWPs before they expire. NWPs and other general permits can also be issued to authorize activities pursuant to Section 10 of the RHA (see 33 CFR 322.2(f) and 330.1(g)). The NWP program is designed to provide timely authorizations for the regulated public while protecting the Nation's aquatic resources.

Section 10 of the RHA authorizes the Corps to issue general permits and after-the-fact permits for structures and work in navigable waters of the United States. Section 10 (33 U.S.C. 403) prohibits any obstructions to the navigable capacity of any waters of the United States “unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” Section 10 does not mandate that the Corps specify what form those authorizations should take and does not limit authorization to permits, either individual permits or general permits. By using the word “authorized,” a term that is broad in scope, Section 10 gives the Corps the authority to use different types of permits to approve structures and work in navigable waters of the United States. Since 1975, the Corps has issued general permits under Section 10 of the RHA (see 40 FR 31335). The Corps has issued NWPs under the authority of Section 10 of the RHA since 1977 (see 42 FR 37140).

The NWPs provide incentives for project proponents to design activities that require DA authorization under Section 404 of the CWA and/or Section 10 of the RHA to avoid and minimize impacts to the aquatic environment in order to qualify for NWP authorization, because in most cases those project proponents can obtain NWP verifications from Corps districts in less time than it takes to receive standard individual permits. For some NWPs, project proponents can proceed with the authorized activities without reporting those activities to Corps district offices as long as the project proponent complies with all applicable terms and conditions of those NWPs. Other NWPs require project proponents to submit pre-construction notifications (PCNs) to Corps districts prior to proceeding with the authorized activities to give district engineers the opportunity to determine whether the project proponents' proposed activities are authorized by an NWP. The former set of NWPs are called non-reporting NWPs and the latter set of NWPs are called reporting NWPs.

Activities not authorized by NWPs, or by regional general permits or programmatic general permits issued by district engineers, require individual permits from the Corps. Individual permits are DA authorizations in the form of standard individual permits or letters of permission, which require an activity-specific public interest review and the preparation of appropriate environmental documentation in support of a permit decision for a specific activity. In Fiscal Year (FY) 2024, the average processing time for an NWP PCN that was required or voluntarily submitted, was 55 days and the average processing time for a standard individual permit was 253 days. The reduced processing time for NWPs creates a substantial incentive for project proponents to reduce the impacts of their regulated activities on the aquatic environment to a no more than minimal level. This incentive to minimize impacts directly benefits the aquatic resources that CWA and RHA protect.

Section 404(e)(1) of the CWA states that general permits may be issued on a state, regional, or nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States if the activities in such a category are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effects on the environment. The phrase “minimal adverse environmental effects when performed separately” refers to the direct and indirect adverse environmental effects caused by the specific activity authorized by an NWP.

The phrase “minimal cumulative adverse effect on the environment” refers to the collective direct and indirect adverse environmental effects caused by all the activities authorized by a particular NWP during the time period when the NWP is in effect (a period of no more than 5 years) in a specific geographic region.

Some NWPs include PCN requirements. When a PCN is submitted, Corps districts evaluate proposed NWP activities on a case-by-case basis to ensure that they will cause no more than minimal adverse environmental effects, individually and cumulatively. In most cases an applicant can begin their regulated activity if the district does not respond within 45 days of receiving a complete PCN. The exceptions to that general rule are when: general condition 18 (Endangered Species) or general condition 20 (Historic Properties) require a non-federal permittee to submit a PCN; activities subject to General Conditions 16 (Wild and Scenic Rivers) and 31 (Activities Affecting Structures of Works Built by the United States); activities proposed for authorization under NWP 49 (Coal Remining Activities; or if the proposed activity requires a written waiver to exceed specified limits of an NWP. When any of these exceptions apply, the applicant must wait until they are notified in writing that the activity may proceed under the NWP. District engineers also have authority under 33 CFR 330.5(d) to modify, suspend, or revoke the NWP authorization on a case-specific basis.

There are 39 Corps district offices and eight Corps division offices. The district offices administer the NWP program on a day-to- day basis by reviewing PCNs for proposed NWP activities. The division offices oversee district offices and are managed by division engineers. Division engineers have the authority to modify, suspend, or revoke NWP authorizations on a regional basis to take into account regional differences among aquatic resources and ensure that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse environmental effects in a region (see 33 CFR 330.5(c)).

When a Corps district receives a PCN, the district engineer reviews the PCN and determines whether the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects, consistent with the criteria in paragraph 2 of Section D, “District Engineer's Decision.” At this point, the district engineer may add conditions to the NWP authorization to ensure that the verified NWP activity results in no more than minimal individual and cumulative adverse environmental effects consistent with processes and requirements set out in 33 CFR 330.5(d).

For some NWPs, when submitting a PCN an applicant may request a waiver of a particular limit specified in the NWP's terms and conditions. If the applicant requests a waiver of an NWP limit and the district engineer determines, after conducting any coordination with the resource agencies required under paragraph (d) of NWP general condition 32, that the proposed NWP activity will result in no more than minimal adverse environmental effects, the district engineer may grant such a waiver. Following the conclusion of the district engineer's review of the PCN, the district engineer prepares a document explaining the decision on whether to issue a waiver for the proposed NWP activity. This document discusses the district engineer's findings as to whether a proposed NWP activity qualifies for NWP authorization, including compliance with all applicable terms and conditions, and the rationale for any waivers granted, and activity-specific conditions needed to ensure that the NWP activity will have only minimal individual and cumulative adverse environmental effects and will not be contrary to the public interest (see 33 CFR 330.6(a)(3)(i)). Waivers are only permissible when they are explicitly provided for by a specific NWP's terms and conditions.

The case-by-case review of PCNs often results in district engineers adding activity-specific conditions to NWP authorizations to ensure that the adverse environmental effects are no more than minimal. These can include permit conditions such as time-of-year restrictions and use of best management practices (BMPs) or compensatory mitigation requirements to offset authorized losses of jurisdictional waters and wetlands so that the net adverse environmental effects are no more than minimal. Any compensatory mitigation required for NWP activities must comply with the Corps' compensatory mitigation regulations at 33 CFR part 332. Review of a PCN may also result in the district engineer asserting discretionary authority to require an individual permit from the Corps for the proposed activity, if he or she determines, based on the information provided in the PCN and other available information, that adverse environmental effects will be more than minimal, or otherwise determines that “sufficient concerns for the environment or any other factor of the public interest so requires” consistent with 33 CFR 330.4(e)(2).

During their reviews of PCNs, district engineers use their discretion to determine the appropriate regional scale for evaluating cumulative effects for the purposes of 33 CFR 330.5(d)(1), 33 U.S.C. 1344(e)(1), 33 CFR 322.2(f)(1), and/or 33 CFR 323.2(h)(1). The appropriate regional scale for evaluating cumulative effects may be a waterbody, watershed, seascape, county, state, a Corps district, or other geographic area. The appropriate regional scale is dependent, in part, on what types of NWP activities are occurring, where they are occurring, and what types of adverse environmental effects they might be causing. For example, for NWPs that authorize structures and/or work in navigable waters of the United States under Section 10 of the RHA, the appropriate geographic region for assessing cumulative effects may be a specific navigable waterbody (e.g., a lake), or in the case of activities in ocean or estuarine waters, a seascape. For NWPs that authorize discharges of dredged or fill material into non-tidal wetlands and streams, the appropriate geographic region for assessing cumulative effects may be a watershed, county, state, or Corps district. The direct individual adverse environmental effects caused by activities authorized by NWPs are evaluated within the project footprint, and the indirect individual adverse environmental effects caused by activities authorized by NWPs are evaluated within the geographic area to which those indirect effects may extend.

Through the NWPs, the aquatic environment may also receive additional protection through regional conditions imposed by division engineers and activity-specific conditions added to NWPs by district engineers. These regional conditions and activity-specific conditions further minimize adverse environmental effects, because these conditions can only further restrict use of the NWPs. NWPs also allow district engineers to exercise, on a case-by-case basis, discretionary authority to require individual permits for proposed activities that may result in more than minimal individual and cumulative adverse environmental effects. NWPs help protect the aquatic environment because they provide incentives to permit applicants to reduce impacts to jurisdictional waters and wetlands to meet the restrictive requirements of the NWPs and receive authorization more quickly than they would through the individual permit process. Regional general permits issued by district engineers provide similar

environmental protections and incentives to project proponents.

After the NWPs are issued or reissued, division engineers will issue supplemental documents to determine whether regional conditions are necessary to ensure that use of the NWPs on a regional basis (e.g., within a Corps district or state) will authorize only those activities with no more than minimal individual and cumulative adverse environmental effects (see 33 CFR 330.5(c)(1)). The supplemental documents are prepared by Corps districts but must be approved and formally issued by the appropriate division engineer, because the NWP regulations at 33 CFR 330.5(c) state that the division engineer has the authority to modify, suspend, or revoke NWP authorizations for any specific geographic area within her or his division. For some Corps districts, their geographic area of responsibility covers an entire state. For other states, there is more than one Corps district responsible for implementing the Corps Regulatory Program, including the NWP program. In those states, there is a lead Corps district responsible for preparing the supplemental documents for all of the NWPs.

When districts prepare supplemental documents for division approval of regional conditions, or imposing no regional conditions, they assess cumulative effects by estimating the number of times a particular NWP might be used in the region (e.g., Corps district or state) covered by the supplemental document, along with estimates of impact acreages and acreages of compensatory mitigation required. If the NWP is not suspended or revoked in a state or a Corps district, the supplemental document includes a certification that the use of the NWP in that district, with any applicable regional conditions, will result in no more than minimal cumulative adverse environmental effects. See 33 CFR 330.5(c)(1).

After the NWPs are issued or reissued and go into effect, district engineers will monitor the use of these NWPs on a regional basis (e.g., within a watershed, county, state, Corps district or other appropriate geographic area), to ensure that the use of a particular NWP is not resulting in more than minimal cumulative adverse environmental effects (see 33 CFR 330.5(d)(1)). The Corps staff that evaluate NWP PCNs that are required by the text of the NWP or by NWP general conditions or regional conditions imposed by division engineers, or voluntarily submitted to the Corps district by project proponents to receive written NWP verifications, often work in a particular geographic area and have an understanding of the activities that have been authorized by NWPs, regional general permits, and individual permits over time, as well as the current environmental setting for that geographic area. If Corps district staff believe that the use of an NWP in that geographic region is approaching a threshold above which the cumulative adverse environmental effects for that category of activities may be more than minimal, the district engineer may either make a recommendation to the division engineer to modify, suspend, or revoke the NWP authorization in that geographic region in accordance with the procedures in 33 CFR 330.5(c). Alternatively, under the procedures at 33 CFR 330.5(d), the district engineer may also modify, suspend, or revoke NWP authorizations on a case-by-case basis to ensure that the NWP does not authorize activities in that region that result in more than minimal cumulative adverse environmental effects.

For the NWPs, the assessment of cumulative effects occurs at three levels: national, regional, and the verification stage. Each national NWP decision document includes a national-scale cumulative effects analysis to evaluate whether the issuance or reissuance of the NWP would result in more than minimal cumulative adverse environmental effects. For all NWPs, an evaluation of the probable effects, including cumulative effects, of the proposed activity and its intended use on the public interest is required (see 33 CFR 320.4(a)(1)). For NWPs that authorize discharges of dredged or fill material into waters of the United States, an analysis of cumulative effects conducted in accordance with 40 CFR 230.7(b)(3) is also required.

Cumulative effects are the result of the accumulation of direct and indirect effects caused by multiple activities that persist over time in a particular geographic area (MacDonald 2000), such as a watershed or ecoregion (Gosselink and Lee 1989). For the NWPs, the analysis of cumulative effects would be the accumulation of impacts caused by activities authorized by an NWP during the period it is in effect (i.e., no more than five years) in a watershed, ecoregion, or other appropriate geographic area, and how those accumulated impacts might affect the current environmental setting or environmental baseline within that geographic area. The current environmental setting includes the present effects of other federal, non-federal, and private actions, including those that do not require DA authorization, as well as the effects of other federal, non-federal, and private actions that are occurring at the same time as the activities authorized by the NWP.

In the context of an NWP issued or reissued by Corps Headquarters, the “incremental effects of the action” would be the direct and indirect effects on the environment caused by activities authorized by the NWP during the period it is in effect. The incremental effects caused by NWP activities are to be added to the effects caused by other past, present, and reasonably foreseeable actions regardless of what agency (federal or non-federal) or person authorizes or undertakes those other past, present, and reasonably foreseeable actions. Oceans, estuaries, lakes, rivers, streams, wetlands, and other aquatic ecosystems are affected by a wide variety of federal, non-federal, and private actions in addition to activities authorized by the Corps under its permitting authorities, including activities authorized by NWPs in the past and activities authorized by other types of DA permits, such as regional general permits, standard individual permits, and letters of permission. Therefore, when evaluating cumulative effects of activities authorized by NWPs, context is important, and the severity of those impacts have to be evaluated against the environmental baseline to determine whether the cumulative adverse environmental effects caused by the issuance or reissuance of an NWP are likely to be no more than minimal, or more than minimal.

For an NWP, the cumulative effects are the collective incremental environmental effects of the activities that are authorized by an NWP, including the number of times that NWP is used to authorize activities in a specific geographic area during the five-year period that NWP is in effect, as well as the estimates of impact acres and acreages of compensatory mitigation required. For the issuance or reissuance of an NWP by Corps Headquarters, the geographic scale of the cumulative effects analysis is the entire United States, including its territories. The cumulative effects likely to be caused by activities authorized by an NWP are evaluated against the environmental baseline, which has been shaped by human activities and natural disturbances and other events over time, including activities authorized by prior versions of that NWP, as well as other federal, non-federal, and private actions that directly or indirectly affect the aquatic environment and contribute to the overall cumulative effects that have influenced the structure and function of that aquatic environment over time.

In the supplemental documentation, the division engineer analyzes the cumulative effects in a region, which could be defined as a state or a Corps district. Under 33 CFR 330.5(d)(1), when a district engineer considers cumulative effects when reviewing a PCN for a proposed NWP activity, she or he will use a geographic and temporal scale that is larger than the geographic and temporal scales that were used to evaluate the direct and indirect adverse environmental effects caused by the proposed NWP-specific activity. The geographic scope of the district engineer's consideration of cumulative effects would be the seascape, watershed, or other appropriate geographic region in which the proposed NWP activity is located. The district engineer would also consider other activities that were authorized by that NWP in that geographic area during the period of time that NWP is in effect, as well as the other federal, non-federal, and private actions that shaped the environmental baseline within that geographic region, to determine whether the incremental contribution of activities authorized by that NWP in that geographic region during the time it would be in effect would not be, or would be, more than minimal. The environmental baseline includes activities conducted in the past under authorizations provided by prior issuances of that NWP, activities authorized by other forms of DA authorization, as well as other federal, non-federal, and private actions not regulated by the Corps that directly or indirectly caused changes to, or losses of, waters and wetlands subject to the Corps' jurisdiction under its permitting authorities. In addition, the environmental baseline includes the ecological functions and services the waters and wetlands within that watershed, seascape, or other geographic area provide, as well as the degree to which those waters and wetlands provide those ecological functions and services.

When a district engineer reviews a PCN and determines that the proposed activity qualifies for NWP authorization, he or she will issue a written NWP verification to the permittee (see 33 CFR 330.6(a)(3)). If an NWP verification includes multiple authorizations using a single NWP (e.g., linear projects with crossings of separate and distant waters of the United States authorized by NWPs 12, 14, 57, and 58) or non-linear projects authorized with two or more different NWPs (e.g., an NWP 28 for reconfiguring an existing marina plus an NWP 19 for minor dredging within that marina), the district engineer will evaluate the cumulative effects of the applicable NWP authorizations within the appropriate geographic area. As discussed above, examples of geographic areas that may be used for cumulative effects analyses for specific NWPs may be a waterbody, watershed, county, state, Corps district, or other geographic area, such as a seascape in ocean or estuarine waters.

Corps Headquarters conducted the required cumulative effects analyses in the national decision documents for the issuance or reissuance of each of the NWPs. Therefore, district engineers do not need to replicate the Headquarters national cumulative effects analyses for NWP verifications for a specific activity authorized by one or more NWPs. For an NWP verification, the district engineer only needs to include a brief statement in the administrative record documenting the NWP PCN review stating her or his determination whether the proposed NWP activity, plus any required mitigation, will result in no more than minimal individual and cumulative adverse environmental effects for the purposes of 33 CFR 330.5(d)(1), as well as 33 U.S.C. 1344(e)(1), 33 CFR 322.2(f)(1), and/or 33 CFR 323.2(h)(1). If the district engineer determines, after considering mitigation, that a proposed NWP activity will result in more than minimal cumulative adverse environmental effects, he or she will exercise discretionary authority and require an individual permit for the proposed activity.

An activity that requires DA authorization may include discharges that would occur within more than one state or within more than one Corps district or division. When the Corps receives an NWP PCN or individual permit application for such activities, a lead Corps district will be designated, and that district will serve as a single point of contact for each permit applicant.

This final action reissues 56 of the 57 existing NWPs, with some changes, and issues one new NWP (NWP A for activities to improve passage of fish and other aquatic organisms). This action does not reissue NWP 56 (finfish mariculture activities). This action also reissues the general conditions and definitions, with some changes.

This final action reissues 56 of 57 existing NWPs that were issued or reissued in 2021 and 2022 (collectively the 2021 NWPs). This final action reissues 15 of the 16 NWPs (i.e., NWPs 12, 21, 29, 39, 40, 42, 43, 44, 48, 50, 51, 52, 55, 57, and 58) that were issued or reissued in the final rule that was published in the Federal Register on January 13, 2021, and went into effect on March 15, 2021 (86 FR 2744) with some changes. This action reissues the 41 NWPs (i.e., NWPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 45, 46, 49, 53, 54, and 59) that were issued or reissued in the final rule published in the Federal Register on December 27, 2021, and went into effect on February 25, 2022 (86 FR 73522) with some changes. This action also reissues the NWP general conditions and definitions that were published in the January 13, 2021, final rule with some changes.

These 57 NWPs, the general conditions, and the associated definitions will go into effect on March 15, 2026. The expiration date for the NWPs issued or reissued in this final action is March 15, 2031.

When the Corps reissues existing NWPs, the reissued NWPs replace the prior versions of those NWPs so that there are not two sets of NWPs in effect at the same time. The expiration date of the 57 NWPs that went into effect on March 15, 2021, and February 25, 2022, is March 14, 2026. This expiration date was expressly provided for in the rulemakings establishing these NWPs (see 86 FR 2744 and 86 FR 73522). An activity completed under the authorization provided by a 2021 NWP continues to be authorized by that NWP (see 33 CFR part 330.6(b)). Activities authorized by the 2021 NWPs that have commenced or are under contract to commence by March 14, 2026, will have one year (i.e., until March 14, 2027) to complete those activities (see 33 CFR

330.6(b)). Activities previously authorized by the 2021 NWPs that have not commenced or are not under contract to commence by March 14, 2026, or that will not be completed by March 14, 2027, will require reauthorization under the 2026 NWPs, provided those activities still comply with the terms and conditions, and qualify for authorization under the 2026 NWPs. If those activities no longer qualify for NWP authorization because they do not meet the terms and conditions of the 2026 NWPs (including any regional conditions imposed by division engineers), the project proponent will need to obtain an individual permit, or seek authorization under a regional general permit, if such a general permit is available in the applicable Corps district and can be used to authorize the proposed activity.

One commenter recommended changing the grandfather period for the activities authorized under the 2021 NWPs to between two and five years to allow for additional time to complete activities which receive verifications from the district engineer in the final year of an NWP authorization. The one-year grandfathering period in 33 CFR 330.6(b) was established in the November 22, 1991, final rule amending 33 CFR part 330 (see 56 FR 59110). Experience since this one-year grandfathering period was established has shown that it has been adequate to allow project proponents to complete the activities which were authorized by the NWP or to plan to seek new authorization under a newly issued NWP or individual permit. Therefore, the Corps declines to extend the grandfather period.

Certain NWPs require the permittee to submit a PCN prior to commencing the proposed NWP activity. The requirement to submit a PCN is identified in the NWP text when it applies, as well as certain general conditions (e.g., general conditions 18 and 20, Endangered Species and Historic Properties, respectively).

In the PCN, the project proponent must specify which NWP or NWPs the project proponent wants to use to provide the required DA authorization under Section 404 of the CWA and/or Section 10 of the RHA. The district engineer should verify the activity under the NWP(s) requested by the project proponent, as long as the proposed activity complies with all applicable terms and conditions, including any applicable regional conditions imposed by the division engineer. All NWPs have the same general requirement: that the authorized activities may only cause no more than minimal individual and cumulative adverse environmental effects. Therefore, if the proposed activity complies with the terms and all applicable conditions of the NWP the applicant wants to use, then the district engineer should issue the NWP verification unless the district engineer exercises discretionary authority to modify the NWP through the addition of conditions, or to require an individual permit. If the proposed activity does not meet the terms and conditions of the NWP identified in the applicant's PCN, and that activity meets the terms and conditions of another NWP identified by the district engineer, the district engineer will process the PCN under the NWP identified by the district engineer. If the district engineer exercises discretionary authority, the district engineer should explain the reasons for determining that the proposed activity raises sufficient concern for the environment or otherwise may be contrary to the public interest.

PCN requirements may be added to NWPs by division engineers through regional conditions to require PCNs for additional activities. For an activity where a PCN is not required, a project proponent may submit a PCN voluntarily, if the project proponent wants written confirmation that the activity is authorized by an NWP. Some project proponents submit permit applications without specifying the type of authorization they are seeking. In such cases, the district engineer will review those applications and determine if the proposed activity qualifies for NWP authorization or another form of DA authorization, such as a regional general permit (see 33 CFR 330.1(f)).

In response to a PCN or a voluntary NWP verification request, the district engineer reviews the information submitted by the prospective permittee. If the district engineer determines that the activity complies with the terms and conditions of the NWP, the district engineer will notify the permittee. Activity-specific conditions, such as compensatory mitigation requirements, may be added to an NWP authorization to ensure that the activity to be authorized under the NWP will result in no more than minimal individual and cumulative adverse environmental effects and will not be contrary to the public interest. The activity-specific conditions are incorporated into the NWP verification letter (i.e., the written confirmation from the district engineer that the proposed activity is authorized by an NWP), along with the NWP text and the NWP general conditions. In general, NWP verification letters will expire on the date the NWP expires (see 33 CFR 330.6(a)(3)(ii)), although district engineers have the authority to issue NWP verification letters that will expire before the NWP expires, if it is in the public interest to do so.

If the district engineer reviews the PCN or voluntary NWP verification request and determines that the proposed activity does not comply with the terms and conditions of an NWP, the district engineer will notify the project proponent and provide instructions for applying for authorization under a regional general permit or an individual permit. District engineers will respond to NWP verification requests, submitted voluntarily or as required through PCNs, within 45 days of receiving a complete PCN. Except for activities conducted by non- federal permittees that require PCNs under paragraph (c) of general conditions 18 (Endangered Species) and 20 (Historic Properties), activities subject to General Conditions 16 (Wild and Scenic Rivers) and 31 (Activities Affecting Structures of Works Built by the United States), and activities proposed for authorization under NWP 49 (Coal Remining Activities), if the Corps district does not respond to the PCN within 45 days of a receipt of a complete PCN, the project proponent may assume that the project is authorized, consistent with the information provided in the PCN. For NWP 49, and activities conducted by non-federal permittees that require PCNs under paragraph (c) of general conditions 18 (Endangered Species) and 20 (Historic Properties), activities subject to General Conditions 16 (Wild and Scenic Rivers) and 31 (Activities Affecting Structures of Works Built by the United States), the project proponent cannot begin work before receiving a written NWP verification. If the project proponent requested a waiver of a limit in an NWP, the waiver is not granted unless the district engineer makes a written determination that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects and issues an NWP verification.

Many commenters expressed general support for the reissuance of the NWPs and many commenters expressed opposition to the NWP program or to the use of NWPs to authorize certain activities or activities in certain locations. Many commenters encouraged the Corps to finalize the rule to reissue the NWPs before the existing NWPs expire on March 14, 2026. Several commenters stated that the NWPs should be revoked. Many commenters stated that the NWPs streamline the permit process. One commenter stated that the NWPs strike a balance between environmental protection of the aquatic environment and reasonable economic development. One commenter stated that the Corps should ensure that the issuance of this final action does not add unnecessary costs to, or unnecessarily delay, the permitting process.

One commenter stated that the NWP program allows the Corps to focus its limited resources on reviewing permit applications that would result in more than minimal environmental impacts. Many commenters requested that the Corps increase permitting efficiencies in the NWP program, through this rulemaking, future rulemakings, and other administrative actions. Many commenters suggested that the Corps undertake a second rulemaking before the NWPs in this final action expire. Many commenters suggested changes to the NWPs that should be considered in future rulemakings. One commenter stated that the NWPs do not cover routine activities, which causes Corps Districts to use resources to develop Regional General Permits.

The NWP program provides a mechanism to efficiently authorize activities that have no more than minimal adverse environmental effects on the environment. The NWP program is an important part of the Regulatory program because it allows the Corps to focus its finite resources on evaluating applications for Department of the Army (DA) authorization which cause more than minimal adverse environmental effects. The NWP program furthers the regulatory approach of the Corps Regulatory program that is articulated in 33 CFR 320.1(a)(3), to avoid unnecessary regulatory controls, and in 33 CFR 320.1(a)(1), to balance favorable impacts against detrimental impacts, reflecting the national concerns for both the protection and utilization of important resources. In accordance with 33 CFR 330.5(b)(1) anyone may, at any time, suggest changes to the NWPs to the Chief of Engineers. From time to time, but at least every 5 years, the Chief of Engineers will evaluate new NWPs and revocations or modifications to existing NWPs.

Many commenters stated that the proposed NWPs do not comply with the CWA, the National Environmental Policy Act (NEPA), the Endangered Species Act, and the National Historic Preservation Act. Many commenters stated that the NWPs achieve the goals in various Executive Orders, including Executive Order 14154 “Unleashing Energy Dominance”, issued on January 20, 2025. Many commenters stated that the NWPs do not comply with the Administrative Procedure Act, stating that the Corps did not allow adequate time to comment or adequately explain its decision. One commenter stated that all technical documents, internal documents, regional manuals, document templates, and other interpretive materials used by the Corps must comply with the Administrative Procedures Act.

The decision to reissue, modify, or issue the NWPs is made in compliance with the CWA, NEPA, the Endangered Species Act, the National Historic Preservation Act, and other federal laws. Comments and responses to comments on compliance with the CWA, NEPA, ESA, and NHPA are discussed in more detail in Section III of this final action. The Administrative Procedure Act governs the process by which federal agencies issue regulations and publish notices in the Federal Register. This rulemaking has been conducted in accordance with the Administrative Procedure Act and Executive Order 12866. The manner in which unidentified technical documents and other unidentified documents used by the Corps are developed and approved is beyond the scope of this rulemaking.

Many commenters stated that the NWPs provide clear guidance. One commenter requested that the NWPs include precise procedures for how to apply the NWP program in each circumstance. This final action incorporates modifications to the NWPs to provide additional clarity to potential permittees. The application of the terms of each NWP, in combination with the general conditions and other information in this final action, as well as any regional conditions, address how an NWP will be applied to a proposed specific activity.

Many commenters and several tribes stated that the proposed rule did not allow for adequate time to meaningfully participate in the rulemaking process and requested extensions to the deadline to comment on the proposed rule. Some commenters stated that this rulemaking is procedurally deficient. One commenter objected to extending the comment period. Several commenters recognized that the Corps had limited time to complete the current rulemaking and recommended that the future rulemaking for the NWPs allow for a longer comment period.

For the 2025 proposed rule, the Corps provided a 30-day comment period. The 2025 Proposal to reissue, issue, or modify the NWPs described modest changes to the 2021 NWPs. Of the 57 existing NWPs, changes were proposed to 13 NWPs and one new NWP was proposed. There were no changes proposed to 43 NWPs. The Corps believes that a 30-day review period allowed for adequate time to provide substantive comments on the proposed rule. The Corps sent response letters to entities that made timely requests for extensions of the comment period for the 2025 Proposal. The process and timing of any future rulemaking for the NWPs are beyond the scope of this rulemaking.

One commenter requested a public hearing on the 2025 Proposal and stated that the Corps should offer to hold meetings with the public and tribes to receive input on the 2025 Proposal. The Corps declined to hold a public hearing or public meetings on the proposed NWPs because it determined that a

public hearing or public meeting was unlikely to provide additional information that would inform the Corps' decision whether to reissue, issue, or modify these NWPs. Under the Corps' regulations at 33 CFR 327.4(b), requests for public hearing under this paragraph shall be granted, unless the Corps determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by holding a public hearing. The Corps received around two hundred comments on the proposed rule, and it is unlikely that any statements provided during a public hearing would raise issues that are different than the issues or concerns discussed in the written comments received in response to the 2025 Proposal.

One commenter stated that the NWPs are useful for development with minimal impacts to waterways. Many commenters stated that the NWPs result in more than minimal adverse environmental impacts. Many commenters stated that the Corps should achieve “no net loss” of wetlands. Many commenters stated that the NWPs promote avoidance and minimization of environmental impacts. Many commenters opposed the NWPs because they do not require avoidance and minimization of impacts.

Section 404(e) of the CWA recognizes that activities authorized by general permits, including NWPs, will result in adverse environmental impacts, but limits those adverse impacts so that they can only be no more than minimal. The Corps has adopted terms and conditions for the NWPs to be sufficiently protective of the aquatic environment while allowing activities that result in no more than minimal adverse environmental effects to be conducted. There is no federal statute or regulation that requires “no net loss” of aquatic resources. The “no overall net loss” goal for wetlands articulated in the 1990 U.S. EPA- Army Memorandum of Agreement for mitigation for CWA Section 404 permits states that the Section 404 permit program will contribute to that national goal. The 1990 Memorandum of Agreement only applies to standard individual permits, not to general permits.

The NWPs authorize impacts with less paperwork and a shorter processing time for project proponents than standard individual permits. These differences in burden can incentivize project proponents to voluntarily reduce the adverse effects of their planned activities that would otherwise require an individual permit under Section 404 of the CWA and/or Section 10 of the RHA, in order to qualify for NWP authorization. This reduction in adverse effects can therefore reduce a project's impact on the Nation's aquatic resources. General condition 23 (Mitigation) requires permittees to design and construct their projects to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site.

Many commenters suggested removing or raising the \1/2\-acre impact limit of loss of waters for the NWPs. Many commenters recommended raising the \1/2\-acre impact limit to three acres.

We are retaining the acreage limits for those NWPs that have specified acreage limits. Comments suggesting changes to the acreage limits of a specific NWP are summarized in the section of the preamble that discusses the comments received on that NWP. The acreage limits, along with the current PCN thresholds, other terms of the NWPs, in combination with the general conditions satisfy the requirements of Section 404(e) of the CWA and ensure that the NWPs authorize no more than minimal adverse environmental impacts both individually and cumulatively. In addition, division engineers have the authority to modify NWPs on a regional basis to reduce acreage limits through regional conditions and district engineers, upon review of a PCN, can modify an NWP verification to ensure that a case-specific activity will have no more than minimal adverse environmental effects.

In areas of the United States where higher acreage limits (e.g., one or two acres) would be appropriate for general permit authorizations, district engineers have the authority to issue regional general permits. A number of NWPs are self-limiting, in that the category of activities authorized by that NWP acts as a limit (e.g., NWP 10, which authorizes a single, non-commercial mooring buoy). For those self-limiting NWPs, acreage and linear foot limits are not necessary to control the adverse environmental effects of those activities. In NWPs which have impact limits or PCN thresholds, the acre impact limits, in conjunction with the PCN thresholds, and the \1/ 10\-acre loss of wetlands and \3/100\-acre loss of stream bed compensatory mitigation thresholds are sufficient to protect waters of the United States to ensure the NWPs cause no more than minimal adverse environmental effects.

Many commenters stated that the Corps should reinstate the 300 linear foot impact limit for losses of stream bed in NWPs 21 (Surface Coal Mining Activities), 29 (Residential Developments), 39 (Commercial and Institutional Facilities), 40 (Agricultural Activities), 42 (Recreational Facilities), 43 (Stormwater Management Facilities), 44 (Mining Activities), 50 (Underground Coal Mining Activities), 51 (Land- Based Renewable Energy Generation), and 52 (Water-Based Renewable Energy Generation Pilot Projects). Many commenters stated that removal of the 300 linear foot limit from NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51 and 52 allows unlimited impacts to streams. One commenter recommended adding a linear foot impact limit of 500 feet.

The 300 linear foot impact limit was removed from 10 NWPs and the \3/100\-acre threshold for stream compensatory mitigation for NWP activities was established in the 2021 NWPs as explained in the final rule to issue the 2021 NWPs (86 FR 2761-2768) and remains the Corps' position. The Corps will rely on other, existing protective mechanisms within the NWPs to ensure that the activities authorized by these NWPs will result in no more than minimal individual and cumulative adverse environmental effects. Those mechanisms include the \1/2\-acre impact limit, the PCN requirements for these NWPs, and the ability of division and district engineers to further condition or restrict the applicability of an NWP in situations where they have concerns for the aquatic environment under the CWA Section 404(b)(1) Guidelines or for any factor of the public interest (see 33 CFR 330.1(d)).

Many commenters requested that all NWPs require PCNs for all activities. Many commenters stated that no PCN requirement should be changed. A few commenters stated that thresholds for PCN requirements should be lowered. Many commenters stated that the PCN requirements should be reduced. One commenter stated that the acreage threshold for triggering PCNs for certain NWPs is arbitrarily determined. One commenter stated that PCNs create unnecessary work and delay. Many commenters stated that the Corps should not exempt federal agencies from requirements to submit PCNs. Many commenters stated that by not requiring PCNs for every NWP activity, the Corps is failing to meet its statutory and regulatory obligations.

In this final action, we have retained the PCN thresholds that were in the 2025 Proposal. PCNs are an important mechanism to ensure that the NWPs only authorize those activities that have no more than minimal individual and cumulative adverse environmental effects. Pre- construction notifications allow district engineers to evaluate the

activity- and site-specific circumstances of proposed NWP activities to decide whether those activities are eligible for NWP authorization or require individual permits. In addition, PCNs provide district engineers with the opportunity to impose activity-specific conditions on the NWPs, including mitigation requirements, to ensure that the regulated activity will cause no more than minimal adverse environmental effects.

We agree that federal agencies that use the NWPs to authorize their activities must submit a PCN when required by the terms of the NWP and certain general conditions. General conditions 18 (Endangered Species) and 20 (Historic Properties) require federal agencies to follow their own implementing procedures for complying with the ESA and NHPA. Federal agencies do not have to submit a PCN to satisfy general conditions 18 or 20 if no PCN is required by the terms of the NWP which authorizes the proposed regulated activity or by any other general condition. Section 404(e) of the CWA does not mandate that the Corps track all NWP activities. Since the inception of the NWP program in 1977, many of the NWPs have not required PCNs, thus the changes that are being finalized are not a departure from the Corps' practice or procedures. The Corps will continue to use reliable data and resources to analyze the effects of the NWP Program.

One commenter stated that the PCN thresholds should be set to \1/ 10\-acre or 300 linear feet. One commenter stated there is no ecological support for differing thresholds between \1/10\th and \1/2\ acres for cumulative impacts.

For NWPs that have an acreage PCN threshold, the Corps has set that threshold at \1/10\-acre. The \1/10\-acre threshold is a sufficiently protective limit to allow district engineers review PCNs and provide opportunity to impose activity-specific conditions on the NWPs, including mitigation requirements, to ensure that the regulated activity will cause no more than minimal adverse environmental effects. The areal limit is also a more consistently understood measurement of impact compared to the length limit. The \1/2\-acre limit to loss of waters of the United States, where NWPs have such a limit, in combination to the PCN requirements and other terms and condition of the NWP are sufficient to ensure that the NWPs will cause no more than minimal adverse environmental effects, individually and cumulatively.

Many commenters requested clarification on how to submit a PCN for a linear project that spans more than one Corps district. Prospective permittees of linear projects that cross the boundaries of a Corps district or division may submit a PCN to one of the districts where regulated activities in waters of the United States are proposed. When the Corps receives an NWP PCN for activities that cross the boundary of a Corps district or division, a lead Corps district will be designated and serve as a single point of contact for each permit applicant.

Several commenters stated that all NWPs should require PCNs so the Corps can coordinate or consult with tribes on proposed NWP activities. Many commenters stated that activities should not be authorized by an NWP when they interfere with tribal rights. Several commenters stated that regional conditions should be modified to ensure that the NWPs do not authorize impacts to any lands or waters ceded in treaties, impacts to treaty rights, or any sacred/cultural site/landscape.

Consistent with general condition 17 (Tribal Rights), no activities are authorized by NWP where they impair reserved tribal rights. Corps districts consulted with tribes during the process for reissuing the NWPs and those consultation efforts may have resulted in regional conditions or coordination procedures with tribes to help ensure compliance with general condition 17. District engineers can develop regional conditions and develop protocols regarding tribal notification that build upon the existing Department of Defense, Army, and Corps' tribal consultation policies. In geographic areas where there are regional concerns about impacts to a particular waterbody or a sensitive aquatic resource, division engineers have the discretionary authority to suspend, modify, or revoke this NWP in a region or location. During review of a PCN, the district engineer will assess the proposal for compliance with general condition 17.

One commenter stated that the Corps should audit a sample of NWPs each year and publish the result of the audit in a report. One commenter recommended treating commercial and non-commercial project proponents differently, such as conditioning permits to protect certain landowners from harsh enforcement actions. Several commenters stated that the Corps should refuse to authorize activities after-the-fact if a PCN was not submitted.

If a permittee receives a verification letter, they must certify their compliance with the NWP, including any conditions to the NWP in accordance with general condition 30 (Compliance Certification). Corps districts conduct compliance inspections on a proportion of permit actions authorized each year, including activities authorized by NWPs. If a project proponent fails to comply with the terms and conditions of an NWP, then the activity is not authorized by that NWP and the district engineer may pursue compliance of an unauthorized action pursuant to 33 CFR 326. The district engineer has discretion how to resolve unauthorized actions, including whether to require restoration, accept an application for an after-the-fact authorization, or other remedies.

One commenter requested definition of the term “verification.” As described in Section I.E. of this action, when a project proponent submits a PCN and the district engineer agrees that the proposed activity is authorized by an NWP, the district engineer sends a verification letter to the project proponent verifying that the proposed activity is authorized by an NWP. The district engineer is not issuing a permit, rather they are verifying that the proposed activity complies with the terms and conditions of an issued NWP. The NWP PCN and verification are a streamlined process, intended to be completed by the project proponent and district engineer with a minimal amount of paperwork.

Some commenters recommended that the Corps revise the CWA, various Corps regulations in 33 CFR parts 320 through 332, regional general permits, and the regulations for implementing Section 401 of the Water Act.

The Corps does not have authority to amend the statutory provisions of the CWA. The implementing regulations for Section 401 of the CWA are under the authority of the EPA and are beyond the scope of the Corps' authority to modify. Rulemaking for sections of Corps regulations beyond the reissuance of these NWPs are outside the scope of this rulemaking. Several commenters provided comments on concerns over specific impacts or permit actions in various regions or objections to regional general permits, which are beyond the scope of this review and will be addressed by the districts that issued them.

Many commenters stated these NWPs support the national priorities for energy infrastructure development. One commenter stated that Executive Order 14156 (Declaring a National Energy Emergency) has reduced statutory protections of natural resources. Many commenters support the timely reissuance of the NWPs to avoid disruption to energy infrastructure projects.

Use of emergency procedures does not obviate legal requirements to comply with all applicable laws and regulations. Consequently, compliance with other laws such as the NEPA, Endangered Species Act, the National Historic Preservation Act, and others are still required. The NWPs can provide a streamline process to more quickly issue DA authorization for activities which meet the terms and NWP conditions.

Many commenters stated that the NWPs do not consider climate change or environmental justice concerns. During the process to reissue or modify the NWPs, the Corps considers the adverse environmental effects of the reissuance of these NWPs in accordance Section 404(e) of the CWA, Section 10 of the RHA, and in compliance with applicable environmental laws, regulation, guidance and policy, as limited by the scope of our authority. Executive Order 14148--Initial Rescissions of Harmful Executive Orders and Actions (January 20, 2025) revoked several prior executive orders which addressed climate change and environmental justice concerns. Revoked orders included Executive Order 13990-- Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis (January 20, 2021); Executive Order 14008-- Tackling the Climate Crisis at Home and Abroad (January 27, 2021); Executive Order 13985--Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (January 20, 2021); and Executive Order 14096--Revitalizing Our Nation's Commitment to Environmental Justice for All (April 21, 2023).

Executive Order 14154--Unleashing American Energy (January 20, 2025) provided further policy guidance on the consideration of climate change in agency regulatory analyses. On May 5, 2025, the Office of Management and Budget distributed further guidance to agencies (as required by E.O. 14154) which restricted consideration of greenhouse gas emissions in agency regulatory and permitting decision-making. In Executive Order 14151--Ending Radical and Wasteful Government DEI Programs and Preferencing (20 January 2025), the President of the United States directed the termination of environmental justice initiatives. On May 8, 2025, the Acting Assistant Secretary of the Army (Civil Works) rescinded the Corps' Environmental Justice strategic plan. The level of analysis and consideration of climate change and environmental justice concerns in the national decision documents and this final action comply with these Executive Orders and directives.

Under Section 404(e) of the CWA, NWPs can only be issued for those activities that result in no more than minimal individual and cumulative adverse environmental effects. Corps regulations impose the same standard for general permits that authorize activities under Section 10 of the RHA (33 U.S.C. 403) (33 CFR 330.1(b), (g)). The NWP terms and general conditions to the NWPs may not account for regional differences; therefore, regional conditions imposed by division engineers are an important mechanism for addressing those regional differences and ensuring compliance with statutory requirements. Effective regional conditions help protect local aquatic ecosystems and other resources and the functions and services they provide. They also help ensure that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse effects on the aquatic environment and are not contrary to the public interest.

There are two types of regional conditions: (1) Corps regional conditions and (2) water quality certification/CZMA consistency concurrence regional conditions. Corps regional conditions are added to the NWPs by division engineers in accordance with the procedures at 33 CFR 330.5(c). Water quality certification and Coastal Zone Management Act consistency concurrence regional conditions are also added to the NWPs if an appropriate authority grants a water quality certification or CZMA consistency concurrence with conditions for the issuance, reissuance, or modification of the NWPs prior to the effective date of the issued, reissued, or modified NWPs.

Examples of Corps regional conditions include:

Restricting the types of waters of the United States where the NWPs may be used (e.g., fens, bogs, bottomland hardwood forests, etc.) or prohibiting the use of some or all of the NWPs in those types of waters or in specific watersheds.

Restricting or prohibiting the use of NWPs in an area covered by a Special Area Management Plan, where regional general permits are issued to authorize activities that have no more than minimal individual and cumulative adverse environmental effects and are consistent with that plan.

Revoking certain NWPs in a watershed or other type of geographic area (e.g., a state or county) to require other forms of DA authorization (e.g., individual permits) for those activities.

Adding PCN requirements to NWPs in certain watersheds or other types of geographic areas, or in certain types of waters of the United States, to require notification for all activities or impose lower PCN thresholds.

Reducing NWP acreage limits for activities in certain types of waters of the United States (e.g., streams) or specific waterbodies, or in specific watersheds or other types of geographic regions.

Restricting activities authorized by NWPs to certain times of the year in a particular waterbody, to minimize the adverse effects of those activities on fish or shellfish spawning, wildlife nesting, or other ecologically cyclical events.

Conditions necessary to facilitate compliance with the “Endangered Species” general condition, to enhance protection of listed species or designated critical habitat under the Endangered Species Act.

Conditions necessary to facilitate compliance with the “Tribal Rights” general condition, to enhance protection of tribal trust resources, including natural and cultural resources and tribal lands.

Conditions necessary for ensuring compliance with the “Historic Properties” general condition, to enhance protection of historic properties.

Conditions necessary to ensure that activities authorized by NWP will have no more than minimal individual and cumulative adverse effects on Essential Fish Habitat.

Regional conditions are modifications of the NWPs that are made by division engineers. Regional conditions can only add conditions to, or further restrict the applicability of, an NWP (see 33 CFR 330.1(d)). Corps regional conditions approved by division engineers cannot remove any of the terms and conditions of the NWPs, including general conditions. Corps regional conditions cannot increase PCN thresholds or remove notification requirements, but they can lower PCN thresholds to require PCNs for more activities authorized by a specific NWP. In summary, Corps regional conditions can only be more restrictive than the NWP terms and conditions established by Corps Headquarters when it issues or reissues an NWP.

Corps regional conditions may be added to NWPs by division engineers after a public notice and comment process and coordination with appropriate federal, state, and local agencies, as well as tribes. After Corps

Headquarters published, in the Federal Register, the proposed rule to issue, reissue, or modify NWPs, district engineers issued local public notices to announce the availability of the proposed rule for review and comment and to solicit public comment on proposed regional conditions and/or proposed suspensions or revocations of NWP authorizations for specific geographic areas, classes of activities, or classes of waters (see 33 CFR 330.5(b)(2)(ii)). These local public notices usually have a 45-day comment period. The local public notices also solicited suggestions from the public and interested agencies on additional regional conditions that they believe are necessary to ensure that the NWPs authorize only those activities that have no more than minimal adverse environmental effects.

Comments on proposed regional conditions were evaluated by the Corps district that issued the public notice. Corps districts also consulted or coordinated with tribes to identify and propose regional conditions to ensure compliance with general condition 17 (Tribal Rights) and fulfill the Corps' tribal trust responsibilities. The process for adding Corps regional conditions to the NWPs is described at 33 CFR 330.5(c). The regulations for the regional conditioning process were promulgated in 1991, with the proposed rule published in the Federal Register on April 10, 1991 (56 FR 14598) and the final rule published in the Federal Register on November 22, 1991 (56 FR 59110).

In response to the districts' local public notice, interested parties suggested additional Corps regional conditions or changes to Corps regional conditions. Interested parties also suggested suspension or revocation of NWPs in certain geographic areas, such as specific watersheds or waterbodies. Such comments should include data to support the need for the suggested modifications, suspensions, or revocations of NWPs.

After the public comment period ended for the districts' local public notices, each Corps district evaluated the comments received in response to their local public notice and began preparing, as required by 33 CFR 330.5(c)(1)(iii), supplemental documents for each NWP. Each supplemental document evaluates the NWP on a regional basis (e.g., by Corps district geographic area of responsibility or by state) and discusses whether regional conditions are needed for that NWP to ensure that authorized activities result in no more than minimal individual and cumulative adverse environmental effects. Each supplemental document will also include a statement by the division engineer that will certify that the NWP, with approved regional conditions, will authorize only those activities that will have no more than minimal individual and cumulative adverse environmental effects.

The supplemental documents may cover a Corps district, especially in cases where the geographic area of responsibility for the Corps district covers an entire state. The supplemental documents may also cover portions of multiple Corps districts in cases where more than one Corps district has a geographic area of responsibility in a single state. The supplemental documents include an evaluation of public and agency comments on proposed and suggested regional conditions, with responses to those comments, to show that the views of potentially affected parties were fully considered (33 CFR 330.5(c)(1)(ii)). Each supplemental document also explains how substantive comments submitted in response to the local public notice were considered. After the supplemental documents for the NWPs are drafted by the district, they are sent to the division engineer for review along with the district's recommendations for regional conditions. The division engineer may approve the supplemental documents and the district's recommended regional conditions. Alternatively, the division engineer may also request changes to one or more supplemental documents, including changes to the regional conditions recommended by the district in those supplemental documents.

After the division engineer approves regional conditions for the NWPs by signing the supplemental documents, the district issues a public notice announcing the final Corps regional conditions and when those regional conditions go into effect (see 33 CFR 330.5(c)(1)(v)). The district's public notice will be posted on its website. Copies of the district's public notice are also sent to interested parties that are on the district's public notice mailing list via email or the U.S. mail. The public notice will also describe, if appropriate, a grandfathering period as specified by 33 CFR 330.6(b) for those project proponents who have already commenced work under the NWP or are under contract to commence work under the NWP (see 33 CFR 330.5(c)(1)(iv)). Copies of all Corps regional conditions approved by the division engineers for the NWPs are forwarded to Corps Headquarters (see 33 CFR 330.5(c)(3)).

The purpose of regional conditions is to tailor the NWPs to account for regional differences in aquatic resource types, the functions they provide, and their value to the region so that the NWPs in a particular geographic area authorize only those activities that result in no more than minimal individual and cumulative adverse environmental effects. Requiring consistency among regional conditions at a national level would be contrary to the purpose of regional conditions and would reduce the utility of the NWPs. In other words, the ability to add restrictions to one or more NWPs at a regional level to ensure that those activities result in no more than minimal individual and cumulative adverse environmental effects, allows the national terms and conditions to be less restrictive in other areas of the country where additional restrictions may not be necessary or relevant to the aquatic ecosystem.

The ability to tailor the NWP program in specific areas of the country allows the NWPs to authorize more activities than would be possible if the need for greater restrictions in one part of the country had to be applied to the nation as a whole. Corps regional conditions should be written clearly and provide only the additional restrictions that are necessary to ensure that NWP activities in the applicable geographic region result only in minimal individual and cumulative adverse environmental effects, consistent with the requirements of Section 404(e) of the CWA.

Under 33 CFR 330.5(c), the authority to approve Corps regional conditions is assigned to division engineers. A division engineer can take steps to provide consistency in Corps regional conditions for the districts within her or his division. However, it should also be noted that the eight Corps divisions encompass large geographic regions and there can be substantial differences in aquatic resource types, functions, services, and values within a Corps division. For example, the Corps' Northwestern Division extends from the northwest coast to the Midwest, with oceanic and estuarine waters along the coasts of Oregon and Washington, to inland wetlands and rivers in Missouri and Nebraska. As another example, the Mississippi Valley Division extends from Louisiana, with its extensive coastal wetlands and bottomland hardwood forests to Minnesota, which has many lakes, bogs, marshes, and swamps.

In addition, there are usually also substantial differences in other resources that are subject to regional conditions that may be developed to

assist in the Corps' compliance with other applicable federal laws, such as Section 7 of the Endangered Species Act, the Essential Fish Habitat provisions of the Magnuson-Stevens Fishery Conservation and Management Act, Section 106 of the National Historic Preservation Act, and the Wild and Scenic Rivers Act. The presence and ranges of endangered and threatened species, and the locations of designated critical habitat often vary substantially within a Corps division. Most coastal Corps districts have essential fish habitat in their geographic areas of responsibility, whereas inland districts do not.

Regional conditions may also be developed to address tribal treaty rights and trust resources, which likely vary from tribe to tribe. Therefore, because of these factors, consistency in regional conditions necessary to ensure that NWPs only authorize activities that have no more than minimal adverse environmental effects cannot be practicably achieved at a national or division level without reducing the availability of NWPs in other areas of the country.

Consistent with the Corps' approach to providing more transparency in the process for proposing and adding regional conditions to the NWPs that was adopted for the 2021 NWPs, the Corps posted copies of the district public notices soliciting input for proposed and suggested regional conditions in the www.regulations.gov docket for this rulemaking action (docket number COE-2025-0002), under “Supporting and Related Material.” In addition, after publication of this final action to reissue the NWPs, the Corps will post copies of all district public notices announcing the final regional conditions in the www.regulations.gov docket for this rulemaking action, so that copies of all these district public notices are available in a single location. This docket is intended to provide a central location for interested parties to obtain information on proposed and finalized Corps regional conditions, as well as the WQC/CZMA regional conditions added through the water quality certification process and Coastal Zone Management Act consistency concurrence process for the issuance and reissuance process for the NWPs.

If, after the NWPs go into effect, division or district engineers receive new information that calls for new or modified Corps regional conditions to ensure that authorized activities cause no more than minimal individual and cumulative adverse environmental effects, Corps division and district engineers may work together to propose and approve new or modified regional conditions after following the procedures in 33 CFR 330.5(c). Adding new Corps regional conditions, or modifying existing Corps regional conditions, after the final action issuing or reissuing the NWPs go into effect includes a public notice and comment process and amending supplemental documents for those Corps regional conditions. Information on regional conditions for the NWPs, and on the suspension or revocation of one or more NWPs in a particular area, can be obtained from the appropriate district engineer.

A few commenters recommended eliminating regional conditions or objected to applying regional conditions the NWPs. Many commenters stated the Corps should make PCN requirements and interpretations among the Corps districts standardized. A few commenters expressed support for applying regional conditions to ensure the NWPs result in no more than minimal adverse environmental effects in a region. One commenter stated that regional conditions are the most effective way to ensure compliance with an NWP. One commenter stated that the Corps should publish the justifications for each regional condition. One commenter stated that the Corps Headquarters should review and approve regional conditions.

The NWPs establish terms and conditions for authorization of regulated activities for the nation. Regional conditions provide flexibility to consider the variety of waters of the United States, quality of the aquatic resources, or regional concerns for specific types of impacts to waters of the United States while continuing to ensure that the NWPs will cause no more than minimal adverse environmental effects. Supplemental documentation is publicly available, and division engineers may make supplemental documents available on their websites, at their discretion. After this action is finalized, district engineers will issue public notices to notify the public of the final regional conditions to the NWPs. Water Quality Certification and Coastal Zone Management Authorization Regional Reviews

The processes for states, approved tribes, and EPA to issue water quality certifications (WQCs) for the issuance of the NWPs, and for states to issue general CZMA consistency concurrences for the NWPs are separate from the Corps' process in 33 CFR 330.5(c) for division engineers adding Corps regional conditions to the NWPs. The WQC process is governed by EPA's regulations at 40 CFR part 121, and by the regulations and policies of certifying authorities, such as states, tribes approved by EPA to administer their own water quality certification programs, or EPA regions. EPA regions act as the certifying authorities where no state or tribe has authority to issue certification (33 U.S.C. 1341(a)(1)). Currently, EPA acts as the certifying authority in two scenarios: (1) on behalf of tribes without “treatment in a similar manner as a state” (TAS) for CWA Section 401 and (2) on lands of exclusive federal jurisdiction in relevant respects.

The CZMA consistency process is governed by regulations issued by the Department of Commerce at 15 CFR part 930. Individuals who are interested in providing comments specific to WQCs and CZMA consistency determinations for the issuance or reissuance of the NWPs should submit their comments directly to the appropriate state, authorized tribe, or EPA regional office. Because these processes are separate from the Corps' regional conditioning process, the public notices issued by states, authorized tribes, and EPA regions during the WQC and CZMA consistency determination processes will not be included in the docket for this rulemaking action.

The Corps' regulations for establishing WQC regional conditions for the NWPs are provided at 33 CFR 330.4(c)(2). If, prior to the issuance or reissuance of NWPs, a state, authorized tribe, or EPA region issues a CWA Section 401 water quality certification with conditions, the division engineer will make those water quality certification conditions regional conditions for the applicable NWPs, unless she or he determines those conditions do not comply with 33 CFR 325.4 (see 33 CFR 330.4(c)(2)).

If the division engineer determines those water quality certification conditions do not comply with 33 CFR 325.4, then the conditioned water quality certification will be considered denied, and the project proponent will need to request an activity-specific water quality certification for the proposed activity which may result in any discharge from a point source into waters of the United States from the certifying authority. That certification request must satisfy the requirements of 40 CFR 121.5. The certifying authority may grant, grant with conditions, or deny water quality certification for an individual license or permit, for any activity which may result in any discharge into waters of the United

States (see 40 CFR 121.7), including an activity-specific discharge into waters of the United States that may be authorized by an NWP.

A similar process applies to a CZMA consistency concurrence issued by a state for the issuance of an NWP (see 33 CFR 330.4(d)(2)). If the division engineer determines those CZMA concurrence conditions do not comply with 33 CFR 325.4, then the conditioned CZMA consistency certification will be considered an objection (see 15 CFR 930.4(b)), and the project proponent will need to request an activity-specific CZMA consistency concurrence from the state under subpart D of 15 CFR part 930.

After division engineers finalize Corps regional conditions and determined whether conditions in WQCs and CZMA consistency concurrences for the issuance or reissuance of the NWPs are WQC/CZMA regional conditions for the NWPs, Corps districts will issue public notices announcing the final Corps and WQC/CZMA regional conditions, and the status of WQCs and CZMA consistency concurrences for the final NWPs. Corps Headquarters will post copies of these district public notices in the regulations.gov docket (docket number COE-2025-0002), under “Supporting and Related Material.”

In the 2025 Proposal, the Corps proposed to add a definition for “nature-based solutions” to the NWPs, in Section F, Definitions. Nature-based solutions can be incorporated into regulated activities authorized by NWP 13 (bank stabilization activities), NWP 27 (aquatic ecosystem restoration, enhancement, and establishment activities), NWP 31 (maintenance of existing flood control facilities), NWP 41 (reshaping existing drainage and irrigation ditches), NWP 43 (stormwater management facilities), NWP 54 (living shorelines), NWP 55 (seaweed mariculture activities), NWP 59 (water reclamation and reuse facilities), and NWP A (Activities to Improve Passage of Fish and Other Aquatic Organisms). The Corps also proposed modifications to some NWPs (e.g., NWPs 13 and 43) to enhance the ability of those NWPs to authorize regulated activities associated with nature-based solutions.

Many commenters expressed support for the addition of this definition. One commenter recommended that the Corps consider including the phrases “best management practices” and “stormwater control measures” in the definition of “nature-based solutions” or instead of “nature-based solutions.” One commenter objected to the inclusion of “regenerative stormwater conveyances” and “natural channel design” as acceptable practices of “nature-based solutions.” One commenter recommended using more commonly known terms such as “green infrastructure” or “low-impact development” instead of “nature- based solutions.”

“Best management practices,” “stormwater management,” “green infrastructure,” and “low-impact development” are subcategories of nature-based solutions. The terms “best management practices,” “stormwater management,” and “stormwater management facilities” are already defined in Section F (Definitions) of this action. Nature-based solutions can include “regenerative stormwater conveyances,” which can result in benefits to an ecosystem, however these types of activities may not result in a project that meets an ecological reference and therefore may not be authorized by NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment). Nature-based solutions include a wider range of actions, protection, management, restoration of ecosystems resulting in a broader range of benefits. Nature-based solutions can vary in the degree to which they involve natural or restored ecosystems and engineered components. We have not included “natural channel design” as an example of a nature-based solution.

One commenter recommended revising this definition to be consistent with the definition of “nature-based solutions” used by other Corps and federal agency programs. Many commenters recommended deleting overly broad language from the definition relating to societal challenges, suggesting that they could lead to challenges in interpretation and are aspirational. One commenter suggested adding “that ensure no net loss of ecological function” to the end of the definition.

The Corps declines to adopt a different definition of nature-based solutions than was proposed, and will include the language in the new definition referring to societal challenges. Societal challenges can be environmental and include water security and disaster-risk reduction. District engineers have the discretion to determine whether a proposed activity may be authorized by an NWP. Definitions for nature-based solutions generally have the elements of conservation, restoration, or management of natural systems for the benefit of people and environments. We have adopted the definition of nature-based solutions from Cohen-Shacham and others (2016). The Corps declines to require that nature-based solutions ensure no net loss of ecological function as inclusion of that requirement would discourage the use of nature- based solutions. Nature-based solutions provide benefits to the ecosystem but may not result in no net loss of ecological function.

One commenter suggested incorporating a list of examples of nature- based solutions in the definition. One commenter stated that the term “nature-based solutions” is used differently in NWPs 13 and 43. One commenter suggested expanding the list of nature-based solutions examples to include vegetative stabilization and bioengineering. One commenter recommended removing thin-layer placement of sediment as an example of nature-based solutions out of concern that use of such an example would create a perceived narrowing of the types of sediment placement activities that may be authorized by NWP 27.

In this action, the Corps has proposed a new definition of “nature-based solutions.” Nature-based solutions can vary in the degree to which they involve natural or restored ecosystems and engineered components. Nature-based solutions may result in avoidance or minimization of adverse effects of authorized activities. They may also cause adverse effects to waters of the United States while providing other benefits to the aquatic ecosystem.

Some nature-based solutions will not qualify for authorization under certain NWPs which authorize nature-based solutions because the proposed activity does not meet the terms and conditions of that NWP. For instance, a proposed activity that is a nature-based solution may not be authorized by NWP 27 (aquatic ecosystem restoration, enhancement, and establishment activities) because it involves engineered features that do not resemble ecological references. Examples of nature-based solutions are listed in the terms of NWP 13 (bank stabilization activities) and NWP 43 (stormwater management facilities). The list of examples in each of these NWPs will be necessarily different because of the difference in the purpose of the regulated activities authorized by each of those NWPs.

Nature-based solutions associated with bank stabilization activities can include use of seawalls and bulkheads that are constructed with materials that have textured surfaces (e.g., crevices, depressions, pits, grooves, gaps) that

provide structural complexity and microhabitats that habitat-forming sessile organisms such as barnacles, branching coralline algae, bivalves, algae, and corals can attach to, grow on, and further enhance habitat structure (Strain et al. 2017) for other aquatic organisms. Fish may feed on the aquatic organisms attached to these seawalls and bulkheads, and aquatic organisms can be attracted to the structural habitat on these seawalls and bulkheads. Seawalls and bulkheads constructed with textured surfaces and other features to increase habitat complexity and are colonized by benthic organisms, such as seaweeds and sessile animals, and may attract and support populations of juvenile fish, including salmon species (Morris et al. 2018). Habitat complexity at seawalls and bulkheads that supports more diverse aquatic organism assemblages can also be enhanced at seawalls by incorporating water retaining features such as rock or tidal pools (O'Shaughnessy et al. 2020), “flower pots” (Morris et al. 2018), and benches (Toft et al. 2013), or large or small ledges (Strain et al. 2017).

Nature based solutions associated with bank stabilization may also include rocks placed in subtidal and intertidal areas next to seawalls and bulkheads, or in clusters next to seawalls and bulkheads, to provide habitat for aquatic organisms (Suedel et al. 2022). Rock piles next to seawalls and bulkheads can be constructed from rocks of different sizes or rocks of similar size, and gaps between these rocks can provide habitat and refuge areas for aquatic organisms. Another nature-based solution that may increase habitat and biodiversity next to seawalls, bulkheads, and revetments involves the placement of bags of molluscs or the placement of small reef structures to provide habitat for molluscs and other sessile aquatic organisms next to a seawall, bulkhead, or revetment (Suedel et al. 2022).

Other nature-based solutions associated with bank stabilization include revetments designed and constructed to increase structural complexity that can provide habitat for benthic and motile aquatic organisms. Rocks of different sizes can be used to construct revetments and provide cracks and holes of different sizes that can be used as habitat by aquatic organisms and plants (Suedel et al. 2022). Another nature-based solution that can add structural complexity in marine waters, is the placement of pieces of large wood in front seawalls, bulkheads, and revetments.

In waterbodies with soft substrates such as sand, the large wood pieces can attract benthic and pelagic organisms and enhance local biodiversity (Dickson et al. 2023). Installing large pieces of wood into marine and estuarine waters seaward of seawalls, bulkheads, and revetments can provide habitat for a variety of aquatic organisms, increase the number of trophic connections among aquatic species, and contribute to local nutrient cycling, and may help lessen changes in of biodiversity that may occur as a result of the construction of a seawall, bulkhead, or revetment (Witte et al. 2024, Dickson et al. 2023). Nature-based solutions which may be authorized by NWP 13 and may also be authorized by NWP 54 (living shorelines), include vegetative stabilization, bioengineering, or other types of soft bank stabilization.

Examples of nature-based solutions can be incorporated into regulated activities that may be authorized by NWP 27 (aquatic ecosystem restoration, enhancement, and establishment activities) include thin-layer placement of dredged material to sustain wetlands and other aquatic habitats; placement of spoil material to elevate a degraded riverbed and restore geomorphic processes; alignments of river channels within the existing floodway to enhance riverine function and connectivity; and reservoir sediment management activities to maintain continuity of sediment transport through the river network to sustain downstream aquatic habitats (e.g., downstream geomorphology) and terrestrial habitats (non-wetland riparian areas and floodplains) (see 86 FR 73544-73548). Thin layer placement of dredged material is one of a number of nature-based solutions that may involve the discharge of sediments into waters of the United States for the purpose of restoring wetlands, streams and other waters. Placement of sediments for the purpose of restoration, enhancement, or establishment, may occur in a variety of depths or configurations and may be authorized by NWP 27 provided the activity results in in net increases in aquatic ecosystem functions and services and resembles an ecological reference.

Other examples of nature-based solutions that might be associated with activities authorized by NWP 27 include restoration of fringe wetlands in estuaries and lakes to reduce bank erosion; restoration of oyster reefs, coral reefs, and other types of subtidal or intertidal habitats to provide habitat, support biodiversity, and provide a variety of co-benefits (e.g., reduced shoreline or bank erosion); the re-establishment, rehabilitation, establishment, or enhancement of riparian areas and wetlands to trap or transform sediments and pollutants carried by surface run-off or shallow subsurface flows before that water reaches rivers, streams, lakes, estuaries, ocean waters; and the use of dredged material to reestablish, rehabilitate, enhance, or establish wetlands or other aquatic habitats. Another nature-based solution includes process-based restoration of river corridors (i.e., river and stream channels and their associated floodplains, riparian areas, and wetlands) to increase the functions and services provided by river corridors and provide increased resilience to drought and wildfires.

NWP 43 (Stormwater Management Facilities) may authorize regulated activities which incorporate nature-based solutions for the construction and maintenance of stormwater management and pollution abatement facilities if they involve discharges of dredged or fill material into non-tidal waters of the United States, such as stream biofilters, bioretention ponds or swales, rain gardens, vegetated filter strips, vegetated swales (bioswales), constructed wetlands, infiltration trenches, and regenerative stormwater conveyances. Other regulated activities that incorporate nature-based solutions that are conducted to meet pollutant discharge targets established under the CWA may also be authorized by NWP 43 as long as they comply with the applicable terms and conditions of this NWP.

Proposed new NWP A (Activities to Improve Passage of Fish and Other Organisms) may authorize regulated activities that incorporate nature- based solutions such as nature-like fishways, which use ecological engineering principles to provide nature-based solutions to improve the ability of fish and other aquatic organisms to pass around obstacles to access other aquatic habitats.

Other NWPs, such as NWP 31 (maintenance of existing flood control facilities), NWP 41 (reshaping existing drainage and irrigation ditches), NWP 55 (seaweed mariculture activities), and NWP 59 (water reclamation and reuse facilities) may also authorize regulated activities that incorporate nature-based solutions, including some of the examples listed in this section. Examples of regulated activities associated with nature-based solutions that may be authorized by these NWPs include bioretention ponds, biofilters, placement of bags of molluscs, and constructed wetlands.

One commenter suggested including a clear definition of soft bank stabilization. One commenter recommended adding a definition of bioengineering. Many commenters recommended that the Corps add language to each NWP to require prioritization of the use of nature-based solutions wherever possible.

Soft bank stabilization includes bioengineering and vegetative stabilization. Bioengineering is a longstanding concept in the discipline of soil and bank stabilization. We decline to add a definition of “soft bank stabilization” or “bioengineering” to the NWPs to maintain the flexibility to apply those definitions as the science around each concept evolves. We will rely on the new definition of nature-based solutions as an overarching term that encompasses both soft-bank stabilization and bioengineering activities. Prospective permittees are encouraged to incorporate nature-based solutions into regulated activities. The incorporation of nature-based solutions into an NWP-specific activity may not be possible or appropriate in all situations, depending on the purpose of the activity, site specific characteristics and other factors.

In this action, the Corps has modified the NWPs which may provide the most opportunity to incorporate nature-based solutions into the activity which requires DA authorization to provide examples of nature- based solutions. The Corps has also added the definition of “nature- based solutions” to Section F (Definitions) as a guide to prospective permittees and districts in the incorporation of nature-based solutions into NWP-specific activities.

In the 2025 Proposal, the Corps proposed to modify the NWPs that authorize activities associated with utilities and the activities associated with mariculture. The Corps proposed to add or modify two Notes in each NWP to add language to clarify the intent of each Note, to identify information that should be provided to National Oceanic and Atmospheric Administration (NOAA), National Ocean Service (NOS) or U.S. Coast Guard (USCG), and to provide contact information for both NOS and USCG.

The Corps proposed to modify an existing note in NWP 12 (Oil or Natural Gas Pipeline Activities), NWP 52 (Water-Based Renewable Energy Generation Pilot Projects), NWP 57 (Electric Utility Line and Telecommunications Activities), and NWP 58 (Utility Line Activities for Water and Other Substances) to encourage project proponents to contact NOS and to add a note to advise the permittee to contact USCG. The Corps proposed to modify an existing Note in NWP 48 (Commercial Shellfish Mariculture Activities) and NWP 55 (Seaweed Mariculture Activities) to advise the permittee to contact the USCG and to add a note that encourages project proponents to contact NOS. The Corps also requested comments on adding both Notes to NWP 4 (Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities) and NWP 27 (Aquatic Habitat Restoration, Enhancement, and Establishment Activities).

Many commenters supported or stated they did not object to the modified or added Notes. One commenter noted that the responsibility to provide information to the USCG and NOS was being moved from the Corps to the permittee. One commenter recommended that the Corps research a technology-based solution to provide the requested information to the NOS and USCG. A few commenters recommended that the Notes include a more detailed list of information that should be provided or should not be provided to USCG or NOS. One commenter requested clarification if district engineers must wait for a response from USCG before reviewing a PCN. One commenter stated that notification to NOS should only be required if a structure would obstruct navigation. Several commenters recommended adding language to the Notes to state that the information should be submitted to NOS within 1-year of completion. Several commenters recommended that the Notes be clarified to state that proponents of activities which do not require a PCN should also contact USCG. One commenter stated that the information provided to NOS for activities authorized under NWPs 12, 48, 52, 55, 57, and 58 should be provided to affected tribes upon request.

The purpose of these Notes is to encourage the permittee to contact USCG and NOS regarding the location and marking of proposed structures in navigable waters of the United States to avoid conflicts with navigation. Prospective permittees are encouraged to contact the USCG and NOS for activities in navigable waters of the United States subject to authorization by NWPs 12, 48, 52, 55, 57, and 58 regardless of whether the NWP requires submittal of a PCN to the district engineer. Prospective permittees are not required to wait for a response from USCG before submitting a PCN. District engineers should not delay review of a PCN if the prospective permittee has not engaged with or received a response from USCG.

The Notes cannot detail all of the information that the USCG or NOS might prefer or request to receive from a permittee. Prospective permittees should coordinate with USCG and NOS regarding information necessary to inform the reviews or actions that are the responsibility of USCG or NOS. Tribes may, at any time, request such information from the district engineer that the district engineer has in his or her possession.

One commenter expressed objections to adding the Notes to NWP 4 and NWP 27. One commenter stated that it is impractical to notify NOS of structures or devices that are temporary in nature.

NWP 4 authorizes temporary structures and small fish attraction devices, but does not authorize artificial reefs or other large permanent structures in navigable water of the U.S. NWP 27 authorizes activities to restore aquatic ecosystems, and does not authorize the installation of engineered structures in waters of the United States NWP 27 can be used to authorize the removal of culverts and other obstructions from waters, but it cannot be used to add or replace existing structures with new structures. After consideration of these comments, the Corps has determined that it is not necessary to add either Note to NWP 4 or NWP 27.

After reviewing the comments received in response to the proposed rule, the Corps has decided to adopt the Notes as proposed.