Reissuance and Modification of Nationwide Permits

NWP 1. Aids to Navigation. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 2. Structures in Artificial Canals. The Corps did not propose any changes to this NWP. Several commenters stated that all NWP 2 should require a PCN because the activities authorized by this NWP have the potential to cause harmful sedimentation by impacting the flow of water.

This NWP only authorizes the construction of structures in navigable waters of the United States. Discharges of dredge or fill material requiring authorization under Section 404 of the CWA are not authorized by this NWP. Permittees are required to comply with the general conditions to the NWP and regional conditions, including conditions included in any issued water

quality certifications. If an activity constructed in an artificial canal affects navigation, movement of aquatic species, or creates an impoundment (where the purpose of the activity is not to impound waters) or has improperly installed and maintained erosion and sedimentation controls, contrary to general conditions, the activity is not compliant with the NWP and is not authorized by this NWP. If a structure is not authorized, the district engineer will address the potential unauthorized activity in accordance with 33 CFR 326. This NWP is reissued as proposed.

NWP 3. Maintenance. The Corps did not propose any changes to this NWP. Many commenters supported the reissuance of this NWP. Many commenters stated that this NWP authorizes activities that are not similar in nature. Many commenters stated that this NWP should not be modified to add any additional PCN requirements or acreage limits. Many commenters stated that this NWP should have an acreage limit for “loss of waters of the United States.” One commenter stated that NWP 3 should always require a PCN because currently serviceable structures may be historic properties. One commenter suggested that the Notification paragraph for NWP 3 be modified to require documentation on how alternatives were considered. One commenter suggested that NWP 3 prohibit the emergency use of NWP 3 when the permittee has no documentation of monitoring, maintenance, or inspection activities.

The activities authorized by NWP 3 are similar in nature because they authorize the discharge of dredged or fill material in waters of the United States and work or structures, in navigable waters of the United States that are limited to the repair, rehabilitation, and replacement of currently serviceable structures or fills, or structures or fills damaged or destroyed by storms, floods (including tidal floods), fires, or other discrete events. This NWP authorizes regulated activities for the repair, rehabilitation, or replacement of existing, currently serviceable structures or fills, and only authorizes minor deviations to the structure's configuration or filled area. The Corps declines to require PCNs for activities authorized by paragraph (a) because the current qualitative and quantitative limits in the text of this NWP are sufficient to ensure that the NWP authorizes only those activities that result in no more than minimal individual and cumulative adverse effects. Paragraph (a) of this NWP authorizes only minor deviations to previously authorized structures or fills.

If a non-federal permittee proposes an activity that might have the potential to effect a historic property or a property eligible for listing on the National Register of Historic Places, general condition 20 requires the prospective permittee to submit a PCN and the non- federal permittee is not authorized to begin construction until they receive written authorization from the district engineer. If the non- federal project proponent does not comply with 33 CFR 330.4(g)(2) and general condition 20, and does not submit the required PCN, then the activity is not authorized by an NWP. In such situations, it is an unauthorized activity, and the district engineer will determine an appropriate course of action under the regulations at 33 CFR part 326 if and when the Corps learns about that unauthorized activity. Because this NWP is limited to regulated activities associated with the repair, rehabilitation, and replacement of existing, currently serviceable structures or fills, there are usually no practicable off-site alternatives for repairing, rehabilitating, or replacing these structures or fills.

Paragraph (a) of general condition 23 (Mitigation) requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable at the project site. Permittees are required to maintain structures or fills authorized by an NWP in accordance with general condition 14 (Proper Maintenance). The prompt need for repair could result from changes to a fill or structure that happen gradually, or as a result of an abrupt change, as from a natural disaster. Corps' regulations at 33 CFR 325.2(e)(4) govern the use of emergency procedures to authorize activities in emergency situations. The Corps does not require documentation from the permittee to justify the need for an emergency repair, or any other project purpose; therefore, the Corps declines to require documentation from the permittee justifying the need for the emergency repair.

Several commenters requested that the Corps define the term “minor deviations.” One commenter stated that this NWP should indicate what should be considered maintenance and what should be considered a new project. One commenter stated that NWP 3 should prohibit any increases in the size of the structure. Many commenters stated that this NWP authorizes large infrastructure repairs without Corps review.

This NWP authorizes regulated activities associated with the repair, rehabilitation, or replacement of existing infrastructure while allowing minor deviations to the structure or fill due to changes in materials, construction techniques, requirements of other regulatory agencies, or current construction codes or safety standards. What constitutes a “minor deviation” varies and is dependent on the degree to which changes in the structure's configuration or filled area would occur as a result of the repair, rehabilitation, or replacement activity relative to the size and shape of the existing structure or fill. Minor deviations may also be necessary because of changes in materials, construction techniques, the requirements of other regulatory agencies, or current construction codes or safety standards.

The NWP requires the structure or fill not be put to uses that differ from the uses originally contemplated when the structure or fill was originally constructed. Repair, rehabilitation, or replacement activities that exceed the “minor deviations” provision of this NWP may be authorized by individual permits, regional general permits, or another NWP. Discharges of dredged or fill material associated with maintenance activities which do not modify the character, scope, or size of the original fill design may be exempted from regulation under Section 404(f) of the CWA.

Many commenters stated that this NWP should be modified to authorize maintenance activities on currently serviceable structures or fill that did not require a permit at the time it was constructed. Many commenters requested that the NWP be modified to authorize new or additional riprap to protect the repaired structure or fill, provided that riprap is the minimum necessary to achieve protection. One commenter objected to the use of NWP to authorize new or additional rip rap.

For the reasons explained in the 2021 final rule (86 FR 73528), the Corps declines to modify the NWP to authorize maintenance activities for structures that did not require a permit at the time it was constructed and also declines to reissue this NWP with modifications that would authorize the placement of new or additional riprap to protect the existing structure or fill.

One commenter stated that the term “previously authorized structure” is applied inconsistently across the Districts and requested that the phrase be defined. Many commenters stated that work to repair structures or fill that are damaged by storms, floods, fire or other discrete events is inconsistent with the definition of “currently serviceable.”

The term “previously authorized” means the structure or fill was

authorized by an individual permit or a general permit, or the structure or fill was authorized under the provisions of 33 CFR 330.3. To qualify for NWP 3 authorization, it is not necessary for the project proponent to produce a copy of the prior authorization. In many cases it might not be possible to produce a copy of a written authorization because the discharge, structure, or work may have been authorized by a general permit that does not require a PCN, or it was authorized by regulation without a reporting requirement. Once a structure or fill is authorized, it remains authorized unless the district engineer suspends or revokes the authorization (see 33 CFR 325.6).

The term “currently serviceable” is defined in Section F of the NWPs (Definitions). This NWP authorizes the repair, rehabilitation, or replacement of those structures or fills destroyed or damaged by storms, floods, fire or other discrete events, provided the repair, rehabilitation, or replacement is commenced, or is under contract to commence, within two years of the date of their destruction or damage. The term currently serviceable is not included in the list of actions authorized after destruction or damage by storms, floods, fire or other discrete events. If a district engineer determines that an activity, including an activity conducted to respond to an emergency, did not comply with the terms and conditions of NWP 3, he or she can take action to address the alleged non-compliance.

One commenter recommended that paragraph (b) be modified to limit the removal of sediments to 25 cubic yards or within 25 feet of the structure. One commenter stated that activities authorized under paragraph (c) should require a PCN to ensure the activities are truly temporary. One commenter requested that a new Note be added to require that vegetation that is removed must be replaced.

Paragraph (b) authorizes the removal of accumulated sediments and debris outside the immediate vicinity of existing structures (e.g., bridges, culverted road crossings, water intake structures, etc.) for a distance of no more than 200 feet in any direction from the structure. All activities authorized by paragraph (b) of this NWP require submittal of a PCN to the district engineer. District engineers will review these proposed activities to determine whether removal of accumulated sediments up to 200 feet from the structure will result in no more than minimal individual and cumulative adverse environmental effects.

Paragraph (c) of NWP 3 does not authorize permanent discharges of dredged or fill material into waters of the United States. Permittees must comply with the requirements of paragraph (c) as well as general conditions 11 (Equipment) and 13 (Removal of Temporary Structures of Fills) and remove temporary fills in order for an activity to be authorized by NWP 3. The Corps believes that the limitation in paragraph (c) and the general conditions are adequate to ensure that impacts from temporary fills will cause no more than minimal adverse environmental effects. Paragraph (c) as well as general conditions 11 and 13 require areas to be restored to pre-construction elevations and revegetated, as appropriate. The Corps declines to add a new Note to this NWP.

Many commenters stated that this NWP authorizes activities that cause significant adverse environmental impacts. One commenter stated that the decision document for this NWP fails to consider impacts as a results of emergency reconstruction activities as a result of natural disasters.

The final decision document for this NWP provides an assessment of activities that may be authorized by this NWP during the five-year period it is anticipated to be in effect, as well as an evaluation of potential environmental impacts that is commensurate with the anticipated degree and severity of those environmental impacts. The decision document has been prepared in compliance with the requirements of the NEPA, the Corps' public interest review regulations, and the CWA Section 404(b)(1) Guidelines. As discussed in this final action and the final decision document, the Corps has determined that the NWP 3 will cause no more than minimal adverse environmental effects, both individually and cumulatively. The activities that are authorized by this NWP are considered in this final action and in the decision document, including all activities that may be authorized by paragraph (a) of the NWP.

This NWP is reissued as proposed.

NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities. The Corps sought comment on adding two notes to this NWP to protect navigation. These Notes identify information that should be provided to NOS or USCG and provide contact information for both NOS and USCG. Comments received on the proposed addition of the two Notes are summarized in Section II.E of this final action, and in that section the Corps provided responses to those comments. As discussed in Section II.E. the Corps declines to add the Notes to this NWP. This NWP is reissued as proposed.

NWP 5. Scientific Measurement Devices. The Corps did not propose any changes to this NWP. One commenter supported reissuance of NWP 5. One commenter stated that a PCN should be required for weirs and flumes. One commenter suggested modifying the NWP 5 to prohibit the placement of any device which cannot be removed in its entirety. Many commenters stated that weirs or flumes authorized by NWP 5 should be designed to maintain unimpeded fish passage. One commenter recommended modifying NWP 5 to protect treaty-reserved resources.

No PCN is required for activities authorized by this NWP. Adverse effects from the structures or fills authorized by this NWP should generally be temporary. NWP 5 requires devices and structures or fills associated with that device be removed to the maximum extent practicable. There may be situations where the removal of the device or some part of a device or structures or fills associated with that device would cause more adverse environmental effects to aquatic resources than leaving it in place. For instance, it may be preferable to cut off an anchor piling at the mud line rather than disturb the substrate in order to retrieve the entirety of the structure.

The language in NWP 5 is consistent with the language in general condition 5 (Removal of Temporary Structures and Fills). General condition 2 (Aquatic Life Movement) prohibits substantial disruption of necessary life cycle movements of aquatic life indigenous to the waterbody. Weirs and flumes may have some adverse impact to the movement of aquatic species while they are in place. If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non-federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed.

If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. District engineers can develop regional conditions and develop protocols regarding tribal notification that build

upon the existing Department of Defense, Army, and Corps' tribal consultation policies. The terms of this NWP, as well as the NWP general conditions will ensure that the authorized activities will cause no more than minimal adverse environmental effects. The Corps declines to require PCNs for weirs and flumes.

This NWP is reissued as proposed.

NWP 6. Survey Activities. The Corps did not propose any changes to this NWP. Many commenters recommended that the 1/10-acre limit be raised to 1/2-acre. One commenter recommended modifying this NWP to require a PCN for exploratory trenching because trenching has the potential to affect historic properties.

NWP 6 authorizes discharges of dredged or fill material that do not exceed 1/10-acre into waters of the United States for the purpose of constructing temporary pads. Temporary pads must be removed in accordance with general condition 5 (Removal of Temporary Structures and Fills). The Corps believes that the limits in this NWP are appropriate to ensure impacts from these activities cause no more than minimal adverse environmental effects. If a non-federal permittee proposes an activity that might have the potential to effect a historic property or a property eligible for listing on the National Register of Historic Places, general condition 20 (historic properties) requires the prospective permittee to submit a PCN and the permittee may not begin the activity until they receive written authorization from the district engineer. If the non-federal project proponent does not comply with 33 CFR 330.4(g)(2) and general condition 20, and does not submit the required PCN, then the activity is not authorized by an NWP.

This NWP is reissued as proposed.

NWP 7. Outfall Structures and Associated Intake Structures. The Corps did not propose any changes to this NWP. Many commenters stated that NWP authorization should not be available to project proponents who have violated National Pollutant Discharge Elimination System (NPDES) regulations or who are seeking to modify a structure due to improper design or installation of the outfall or intake structures.

This NWP authorizes work and structures, and discharges of dredged or fill material for the purpose of constructing or modifying outfall structures and associated intake structures where the effluent from the outfall is authorized or otherwise in compliance with the NPDES Program (Section 402 of the CWA). It is the responsibility of EPA, or authorized states or tribes, pursuant to Section 402 of the CWA to enforce NPDES regulations that are applicable to the effluent of outfall structures. Discharges of dredged or fill material, or work or structures, which are not in compliance with the terms and conditions of an NWP are not authorized by that NWP. District engineers may address an unauthorized action that requires authorization by Section 404 of the CWA or Section 10 of the RHA pursuant to 33 CFR 326.

This NWP is reissued as proposed.

NWP 8. Oil and Gas Structures on the Outer Continental Shelf. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 9. Structures in Fleeting and Anchorage Areas. The Corps did not propose any changes to this NWP. Many commenters stated that NWP 9 should require a mooring buoy and anchoring structure maintenance agreement and that midline floats on mooring/anchor lines should be mandatory.

We do not agree that a maintenance agreement and a midline float is required for every mooring buoy and anchoring structure. The design of these structures, as well as the characteristics of the fleeting and anchorage areas, will vary across the nation. Regional concerns about the mooring buoys authorized by this NWP are more appropriately addressed by division and district engineers, who have the authority to modify, suspend, or revoke NWP authorizations on a regional or activity-specific basis. If a division engineer imposed a regional condition on this NWP, in order to qualify for NWP authorization, the permittee must comply with that regional condition as well as any requirements in the text of the NWP and applicable NWP general conditions.

This NWP is reissued as proposed.

NWP 10. Mooring Buoys. The Corps did not propose any changes to this NWP. Many commenters stated that activities should not be authorized by NWP 10 when they interfere with tribal rights. Many commenters stated that NWP 10 should require a mooring buoy and anchoring structure maintenance agreement and that midline floats on mooring/anchor lines should be mandatory. One commenter stated that NWP 10 should be revised to limit mooring buoys where the applicant already has an existing mooring structure, or on the basis of whether the applicant has access to adjoining property.

We do not agree that a maintenance agreement and a midline float is required for every mooring buoy and anchoring structure. The design of these structures, as well as the characteristics of the fleeting and anchorage areas, will vary across the nation. Regional concerns about the mooring buoys authorized by this NWP are more appropriately addressed by division and district engineers, who have the authority to modify, suspend, or revoke NWP authorizations on a regional or activity-specific basis.

In order to qualify for NWP authorization, the permittee must comply with regional conditions, activity-specific conditions, as well as any requirements in the text of the NWP and applicable NWP general conditions. We also decline to limit the use of this NWP on the basis of the applicant's access to other mooring structures or on the basis of property ownership. As stated in Section E. (Further Information), NWPs do not grant any property rights or exclusive privileges. The Corps has no authority over zoning or land use rights.

This NWP is reissued as proposed.

NWP 11. Temporary Recreational Structures. The Corps did not propose any changes to this NWP. One commenter stated that temporary structures should be removed in less than 30 days if requested by an affected tribe.

Activities authorized by this NWP must comply with general condition 17 (tribal rights). Corps districts consulted with tribes during the process for reissuing this NWP and those consultation efforts may have resulted in regional conditions or coordination procedures with tribes to help ensure compliance with general condition 17. Shorter time periods for removal may be imposed through regional conditions, or if the district engineer receives a PCN, he or she may add activity-specific conditions.

This NWP is reissued as proposed.

NWP 12. Oil or Natural Gas Pipeline Activities. The Corps proposed to modify Note 1 and to add a Note (designated as Note 7) in this NWP. Language was added to each Note to clarify the intent of each Note. Note 1 was modified to identify information that should be provided to NOS and to provide contact information for NOS. New Note 7 identifies information that should be provided to USCG and to provide contact information for USCG. The Corps provides a summary of the comments received on revised Note 1 and new Note 7 and responses to comments in Section II.D of this final action.

Many commenters expressed support for NWP 12. Many commenters expressed support for the NWP as written. Many commenters objected to the reissuance of this NWP. One commenter stated that this NWP should be available for authorization of jurisdictional activities associated with carbon dioxide pipelines.

Nationwide permit 12 authorizes discharges of dredged or fill material or work or structures associated with oil or natural gas pipeline activities. Nationwide permit 12 defines oil or natural gas pipelines as “any pipe or pipeline for the transportation of any form of oil or natural gas, including products derived from oil or natural gas, such as gasoline, jet fuel, diesel fuel, heating oil, petrochemical feedstocks, waxes, lubricating oils, and asphalt.” Nationwide permit 58 (Utility Line Activities for Water and Other Substances) may be used to authorize regulated activities associated with the construction, maintenance, repair, and removal of utility lines for water and other substances, including but not limited to hydrogen, methanated hydrogen, or carbon dioxide. There is some overlap in the NWPs. The district engineer will review PCNs that he or she receives and determine if the case-specific activity can be authorized by the NWP requested by the prospective permittee. If the case-specific activity does not comply with the terms and conditions of the NWP, the district engineer will notify the project proponent within 30 days of the date the PCN was submitted to the district engineer that the project proponent must apply for a different NWP, a regional general permit, or an individual permit.

A few commenters stated that natural gas pipelines are subject to industry standards and oversight by the Federal Energy Regulatory Commission (FERC), resulting in temporary impacts to jurisdictional waters which are mitigated where possible. A few commenters stated that reissuance of this NWP is important for improving pipeline safety and reliability. One commenter supported reissuing this NWP before the other NWPs. Some commenters expressed opposition to specific pipeline projects. The Corps acknowledges these comments.

A few commenters stated that the NWP does not protect waters of the United States. Many commenters stated that this NWP allows more than minimal adverse environmental impacts, individually and cumulatively. Many commenters stated that the Corps should ensure that this NWP authorizes no more than minimal individual and cumulative effects. Several commenters stated that the Corps should collect more detailed information on NWP 12 verifications to better inform the decision whether the reissue the NWP. Many commenters oppose additional modifications to this NWP and further cumulative effects analysis for this NWP. Many commenters stated that this NWP violates CWA and NEPA. A few commenters stated that the Corps should prepare an EIS for each pipeline project.

Section 404(e) of the CWA provides the Corps with the authority to issue NWPs to authorize categories of activities involving discharges of dredged or fill material into waters of the United States to streamline the authorization process for these activities, as long as they result in no more than minimal individual and cumulative adverse environmental effects. The terms and conditions of the NWPs, such as acreage limits and the mitigation measures in some of the NWP general conditions, are imposed to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment and other public interest review factors.

The Corps Headquarters has prepared a national decision document to address the environmental effects of the reissuance of this NWP in accordance with NEPA and CWA. The national decision document evaluates cumulative impacts in accordance with the CWA Section 404(b)(1) Guidelines at 40 CFR 230.7 for the issuance of general permits. The national decision document includes estimates of the number of times the NWP is anticipated to be used during the five-year period it will be in effect, the authorized impacts to jurisdictional waters and wetlands, and the compensatory mitigation required to offset losses of jurisdictional waters and wetlands. Those impacts, and the compensatory mitigation, are evaluated against the current environmental setting (i.e., the affected environment).

The national decision document includes an environmental assessment (EA) with a finding of no significant impact, satisfying the requirements of NEPA. Neither the CWA nor NEPA mandate that the Corps prepare an environmental impact statement to analyze the impacts of the reauthorization of this NWP. Since the Corps fulfills the requirements of NEPA when it issues its national decision document for the reissuance of that NWP, specific activities authorized by this NWP do not require additional NEPA analysis. As documented in this action and in the national decision documents, the issuance of this NWP complies with the requirements of the CWA.

In addition to the assessment of cumulative effects at the national level, division engineers will consider cumulative effects in the supplemental documentation for a region, which is typically defined as a state or Corps district. District engineers will consider cumulative effects during their review of a PCN for a case-specific activity. In furtherance of the district engineer's review of cumulative effects, paragraph (b)(4)(ii) of NWP general condition 32 requires PCNs for proposed NWP activities for linear projects to include and any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings for linear projects that require Department of the Army authorization but do not require a PCN.

When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief document that explains the decision on whether to issue a verification letter for the proposed NWP activity or exercise discretionary authority to require an individual permit for that proposed activity. The district engineer's document explains whether the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects. If the district engineer reviews a PCN and determines that the impacts of the jurisdictional activity are more than minimal, the district engineer will exercise discretionary authority to require an individual permit for that proposed activity.

One commenter supported the determination that reissuance of the NWP will have “no effect” on listed species or critical habitat. Many commenters stated that programmatic ESA consultation should be required for reissuance of this NWP. Many commenters stated that this NWP violates the ESA. One commenter stated that this NWP should prohibit jurisdictional activities that are in the vicinity of listed species or designated critical habitat.

The Corps' compliance with ESA for the reissuance of the NWPs is discussed in Section III.C. of this action. General condition 18 (Endangered Species) addresses compliance with Section 7 of the ESA for each NWP-specific activity. If the regulated activity might affect, or

is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non- federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA.

Several commenters stated that this NWP violates Section 106 of the NHPA. One commenter stated that this NWP should require tribal consultation under Section 106 of the NHPA. One commenter expressed concern over impacts to newly discovered cultural resources.

The Corps' compliance with Section 106 of the NHPA for the reissuance of the NWPs is discussed in Section III.D. of this action. General condition 20 (Historic Properties) addresses compliance with section 106 of the NHPA. Under paragraph (c) of general condition 20, non-federal permittees must submit a PCN to the district engineer if the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties even if a PCN is not otherwise required. Non-federal permittees may not proceed with their activity unless the district engineer has reviewed the PCN and determined that the activity has “no potential to effect” historic properties or the district engineer has completed consultation under Section 106 of NHPA.

If the district engineer determines that the proposed NWP activity will result in either “no historic properties affected,” “no adverse effects,” or “adverse effects,” he or she will conduct NHPA Section 106 consultation with the appropriate consulting parties, including tribes. If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the NHPA. Permittees must also comply with general condition 21 (Discovery of Previously Unknown Remains and Artifacts) and immediately notify the district engineer of discoveries of previously unknown historic, cultural, or archeological remains and artifacts. The permittee must avoid activities that may affect the remains and artifacts to the extent possible until required coordination is completed.

Some commenters stated that the Corps is not complying with Executive Order 13175. Many commenters stated that this NWP violates tribal sovereignty and does not provide opportunity for tribal input. One commenter stated that this NWP should require free prior and informed consent from tribes. One commenter stated that this NWP violates the RESPECT Act and sovereign land rights. One commenter stated that man camps associated with pipeline construction projects are linked to criminal activity.

Consultation with tribes on the reissuance of the NWPs is discussed in Section V of this final action (Administrative Requirements), in the section for E.O. 13175 (Consultation and Coordination with Indian Tribal Governments). Tribal treaty rights are addressed through NWP general condition 17 (Tribal Rights) for all NWPs, including NWP 12. General condition 17 states that no activity authorized by an NWP may impair reserved tribal rights. During the process for issuing these NWPs, Corps districts have been consulting or coordinating with tribes to identify regional conditions or coordination procedures to ensure that activities authorized by NWP 12 and other NWPs do not have substantial adverse effects on tribal rights and, as appropriate, treaty reserved resources.

Division engineers can modify the NWPs at a regional level to address tribal concerns within the limits of Corps' authorities. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is a nonbinding document that encourages good faith consultation with indigenous peoples to “obtain their free, prior, and informed consent” before implementing measures that could affect them. The Corps follows Executive Order 13175 and existing Department of Defense, Army, and Corps' tribal consultation policies to meaningfully consult with tribes and consider the concerns of tribes, but not necessarily receive the agreement of tribes, before making permit decisions. The RESPECT Act (Pub. L. 117-317) does not create obligations that are relevant to this rulemaking. Concerns regarding criminal activities are more appropriately addressed by local, state, tribal, and federal law enforcement officials.

One commenter stated that this NWP is contrary to Executive Orders 13990 (Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis) and 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations). One commenter stated that this NWP is consistent with the direction in Executive Order 14156 (Declaring a National Energy Emergency).

Executive Order 13990 was rescinded by Executive Order 14148 (Initial Rescissions of Harmful Executive Orders and Actions) and Executive Order 12898 was rescinded by Executive Order 14173 (Ending Illegal Discrimination and Restoring Merit-Based Opportunity). Executive Order 14156 declared a national energy emergency and directed federal agencies to facilitate the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources through existing permitting vehicles. This NWP helps fulfill the policies of Executive Order 14156 by maintaining the streamlined process that has been in existence since 1977, to authorize categories of activities associated with the construction and maintenance of oil or natural gas pipelines that have no more than minimal individual and cumulative adverse environmental effects.

Some commenters supported the retention of the \1/2\-acre impact limit or opposed changes to this limit. One commenter said the \1/2\- acre impact limit should be applied to the entire length of a pipeline. One commenter stated that \1/2\-acre impact limit should include temporary impacts. Many commenters expressed support for additional impact limits on this NWP. Many commenters suggested raising the impact limits on this NWP. One commenter recommended that this NWP authorize up to 1,000 linear feet of stream impacts. One commenter suggested capping the number of crossings that could be authorized by this NWP. Some commenters suggested limiting the activities that may be authorized by this NWP on the basis the dimensions of the pipeline or amount of impacts to riparian buffers. One commenter stated that this NWP should require authorization of activities in water of the United States and other non-jurisdictional waters.

This NWP authorizes discharges of dredged or fill material into waters of the United States and work and

structures in navigable waters of the United States associated with the construction, maintenance of repair, and removal of oil and natural gas pipelines and associated facilities. The NWP prohibits loss of waters that exceed \1/2\-acre of waters of the United States for each single and complete project. The “loss of waters of the United States” refers to permanent adverse effects to waters of the United States as a result of filling, flooding, excavation, or drainage because of the activities subject to the Corps' authority, and does not include temporary impacts.

The Corps believes that the \1/2\-acre limit authorized by this NWP, as limited by the constraints in the text of the NWP (e.g., requirements to restore temporary impacts to preconstruction elevations) and in the NWP general conditions, is appropriate to ensure that each single and complete project will cause no more than minimal adverse environmental effects. The Corps has no authority to regulate impacts to non-jurisdictional aquatic resources and cannot require permits for activities outside waters of the United States.

One commenter stated that temporary and cumulative impacts should be considered when evaluating activities authorized by this NWP. One commenter recommended raising the timeframe for temporary discharges from three months to five months. One commenter recommended allowing the district engineer to waive the requirement to restore areas to preconstruction contours.

The national decision document for this NWP considers both temporary impacts and cumulative effects in the analysis. Some activities authorized by NWP 12 (e.g., the construction of substations and permanent access roads) result in permanent fills while other authorized activities generally result in temporary impacts. The terms of the NWP, as well as general conditions 11 (Equipment) and 13 (Removal of Temporary Structures and Fills) require that temporary fills be removed upon completion of the activity. The permittee must restore the affected area to pre-construction elevations and revegetate the area as appropriate. When the district engineer reviews a PCN, in accordance with Section D, District Engineer's Decision, he or she will consider the duration of the adverse effects (temporary or permanent) as well as the cumulative effects of the specific activity.

Paragraph (b)(4) of NWP general condition 32 requires project proponents to include in PCNs any other NWP(s), regional general permit(s), or individual permit(s) used or intended to be used to authorize any part of the proposed project or any related activity, including other separate and distant crossings for linear projects that require DA authorization but do not require a PCN. This information is used by district engineers to determine whether the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects. When the district engineer receives a PCN, he or she will consider the direct and indirect effects of the regulated activity in accordance with Section D (District Engineer's Decision) and determine if the activity will cause no more than minimal adverse environmental effects, both individually and cumulatively.

This NWP states that material from trench excavation can be temporarily sidecast into waters of the United States for no more than three months and this time period may be extended by the district engineer to not more than 180 days (6 months) where appropriate. The Corps retains the three-month limit and the district engineer's discretion to allow temporary fills to remain in place for six months. Waters of the United States which are filled, flooded, excavated, or drained, and are not restored to preconstruction contours and elevations after construction, are included in the measurement of loss of waters of the United States, and are considered permanent adverse effects.

Many commenters opposed further limits on the thresholds for requiring a PCN. A few commenters stated that no PCN should be required by this NWP. Many commenters stated that this NWP should require a PCN for all activities. Many commenters supported lowering the thresholds for requiring a PCN. A few commenters suggested adding other thresholds for requiring the submittal of a PCN. One commenter recommended retaining the 0.10-acre threshold for requiring the submittal of a PCN. A few commenters opposed the 250-mile threshold for requiring a submittal of a PCN. One commenter suggested raising the 250-mile PCN threshold.

Nationwide permit 12 requires a PCN for any discharge of dredged or fill material into waters of the United States that results in a loss of greater than \1/10\-acre of waters of the United States. A PCN is also required for any proposed work or structure which requires authorization under Section 10 of the RHA, and for any regulated activity associated with an overall project that is greater than 250 miles in length when the project purpose is to install new pipeline for the majority of the distance of the overall project length. If a proposed NWP 12 activity does not trigger any of the three PCN thresholds in the text of the NWP, or a PCN threshold in the text of one of the NWP general conditions (e.g., general condition 18 (Endangered species) and general condition 20 (Historic Properties)), then a PCN is not required for the proposed activity unless a division engineer has imposed a regional condition to require PCNs in a particular geographic region.

Division engineers can add regional conditions to add PCN thresholds, if he or she determines the PCN threshold is necessary to ensure that the NWP authorizes only those activities that have no more than minimal adverse environmental effects. The Corps has found that a length of 250 miles is both a good indicator of potential cumulative effects of an oil or natural gas pipeline while minimizing the potential for inconsistent implementation of the PCN requirement across districts. The Corps is retaining the PCN thresholds associated with NWP 12 activities that result in losses of waters of the United States or have potential effects on navigation. The PCN thresholds, in combination with the other terms of the NWP and the general conditions ensure that the NWP causes no more than minimal adverse environmental effects.

Many commenters stated that the Corps should require a PCN for mechanized land clearing of forested wetlands. Many commenters supported the removal of the PCN threshold for mechanized land clearing in the 2021 final rule to reissue the NWPs.

Mechanized land clearing in waters of the United States may result in a discharge of dredged material which requires DA authorization under Section 404 of the CWA. To be regulated under Section 404 of the CWA, a discharge of dredged material involves any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States that is incidental to any activity, including mechanized land clearing, ditching, channelization, or other excavation (see 33 CFR 323.2(d)(1)(iii)). For the reasons stated in the 2021 final rule (86 FR 2773-2775), the Corps maintains the position that no PCN for mechanized land clearing should be added to this NWP.

A few commenters stated that the NWP should require avoidance and minimization to the maximum extent possible. Many commenters opposed the addition of uniform national BMPs or standards to this NWP.

Paragraph (a) of general condition 23 (Mitigation), requires permittees to avoid and minimize adverse effects to

waters of the United States to the maximum extent practicable. Best management practices are more appropriately addressed as regional conditions added to the NWPs by division engineers or activity-specific conditions added to NWP authorizations by district engineers. The Corps is not adding any national BMPs to NWP 12.

Many commenters suggested that acreage impact limits and PCN thresholds be consistent between NWPs 12 and 14. The acreage limits for NWPs 12 and 14 have some similarities, with a \1/2\-acre limit for losses of non-tidal waters of the United States. The \1/2\-acre limit for NWP 12 also applies to tidal waters, while NWP 14 has a \1/3\-acre limit for losses of tidal waters. NWP 12 and NWP 14 both require a PCN for activities causing the loss of greater than \1/10\-acre of waters of the United States. NWP 12 also requires a PCN for activities requiring a Section 10 permit and when a proposed oil or natural gas pipeline activity is associated with an overall project that is greater than 250 miles in length and the project purpose is to install new pipeline along the majority of the distance of the overall project length. In addition to the \1/10\-acre PCN threshold, the NWP 14 requires a PCN for discharges of fill material into special aquatic sites. Nationwide permits 12 and 14 have somewhat different impact limits and PCN thresholds because of differences between oil or natural gas pipeline activities and linear transportation projects. With the exception of discharges of dredged or fill material associated with substations, pipeline foundations, or access roads, many impacts authorized by the NWP 12 are temporary and require restoration back to preconstruction elevations (i.e., discharges of dredged or fill material associated with the installation of the oil or natural gas pipeline). Nationwide permit 14 for linear transportation projects authorizes discharges of dredged or fill material associated with linear transportation projects (e.g., roads, railroads, airport runways, and trails), which are more likely to result in discharges of dredged or fill material that are not temporary.

Many commenters recommended restricting the ability of the division or district engineer to modify, suspend, and revoke NWP authorizations. Many commenters opposed restricting the ability of the division or district engineer to modify, suspend, and revoke NWP authorizations. In accordance with 33 CFR 330.5, division and engineers have the discretion to modify, suspend, or revoke NWP authorizations. The Corps is retaining the division and district engineer's discretion to modify, suspend, and revoke NWPs.

Several commenters stated that permittees fail to comply with the requirement to remove temporary access roads and recommended increased compliance and enforcement by the Corps. A few commenters stated that this NWP should include language about the repercussions of unauthorized activities in this NWP.

If the permittee fails to comply with the terms and conditions of an NWP, including NWP general conditions then the activity is not authorized by that NWP and the district engineer may pursue compliance of an unauthorized action pursuant to 33 CFR 326. The district engineer has discretion how to resolve unauthorized actions, including whether to require restoration, accept an application for an after-the-fact authorization, or other remedies. The Note in Section C (NWP General Conditions) advises prospective permittees of their obligations regarding compliance with NWP terms and conditions.

Several commenters stated that the Corps should require additional information in PCNs for NWP 12. One commenter stated that prospective permittees should not be allowed to proceed with construction 45 days after submittal of a PCN.

The Corps has determined that the contents of a complete PCN as stated in paragraph (b) of general condition 32 are sufficient for the district engineer to make his or her decision. Some general conditions, such as general condition 18 (endangered species) or general condition 20 (historic properties) require a non-federal permittee to wait for written approval before commencing construction. Activities that qualify for the default authorization that occurs 45-days after the district engineer receives a complete PCN must comply with all conditions of the NWP, including the general conditions and any applicable regional conditions imposed by the division engineer.

One commenter supported separating this NWP into one or more general permits. One commenter objected to separating this NWP into one or more general permits. One commenter recommended that use of this NWP be prohibited for activities in sensitive areas. One commenter stated that use of this NWP should be prohibited for large pipeline projects. Many commenters stated that this NWP should not automatically prohibit authorization of activities associated with oil and gas pipelines.

Section 404(e) of the CWA does not specify how broad or narrow categories of activities authorized by NWPs and other general permits must be. The Corps has substantial discretion to identify categories of activities that are appropriate for NWPs and other general permits. For instance, in the 2021 final rule to reissue the NWPs (86 FR 2744), the Corps modified NWP 12 and created two new NWPs (NWP 57. Electric Utility Line and Telecommunications Activities and NWP 58 Utility Line Activities for Water and Other Substances) to authorize activities associated with types of utility projects that were formerly authorized by NWP 12. The Corps declines to further narrow the activities authorized by NWP 12.

Division engineers may develop regional conditions for an NWP if he or she determines it necessary to ensure that activities in a region will cause no more than minimal adverse environmental effects to sensitive areas. This NWP requires project proponents to submit a PCN for regulated activities associated with pipelines greater than 250- miles in length, when the purpose is to install new pipeline over the majority of the overall length. The PCN must include the locations and proposed impacts of all crossings of waters of the United States that require DA authorization. The district engineer will review the PCN and determine if the proposed NWP activity will, after considering permit conditions such as mitigation requirements, result in no more than minimal individual and cumulative adverse environmental effects. If one crossing of waters of the United States associated with the installation of a new oil or natural gas pipeline requires an individual permit, then 33 CFR 330.6(d) applies and the district engineer will determine which activities require individual permits and which activities can be authorized by an NWP. Section 330.6(d) of the Corps' NWP regulations, as well as Note 2 of NWP 12, remain in effect. Section 330.6(d) and Note 2 maintain the Corps' long-standing process regarding the use of NWPs and individual permits to authorize linear projects such as oil or natural gas pipelines.

Many commenters requested more consistency across districts regarding whether this NWP authorizes regulated activities associated with the abandonment of pipelines. District engineers have discretion to determine on a case-by-case basis how to address pipeline abandonment activities. If a permittee proposes to abandon a pipeline which lies over, under, or in a navigable water of the United States, the district engineer will review the PCN to

determine if the proposed action will impact navigation.

Many commenters requested a clarification of the scope of “emergency activities” authorized by this NWP. The activities that are authorized by NWP 12 are defined in the terms of this NWP. Nationwide permit 12 can be used to authorize regulated activities associated with emergency installation, replacement or repair of utility lines. The availability of this NWP to authorize such activities may facilitate the implementation of these emergency activities by reducing delays in securing authorization. Which activities constitute an “emergency” is determined by regulation and policy.

Many commenters requested that “normal maintenance” be exempted under Section 404(f). Discharges of dredged or fill material for maintenance activities may be exempted from regulation under the CWA by Section 404(f), in accordance with 33 CFR 323.4(a)(2). If not exempted by Section 404(f) of the CWA, such discharges may be authorized by a variety of NWPs, such as NWP 3 (Maintenance), NWP 33 (Temporary Construction, Access, and Dewatering), or NWP 45 (Repair of Uplands Damaged by Discrete Events). The 1989 Memorandum of Agreement Between the Department of the Army and the U.S. EPA Concerning the Determination of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the Clean Water Act, states that the U.S. EPA has the authority to establish policies on which activities are eligible for the CWA Section 404(f) exemptions. There are no work or structures in navigable waters of the United States that are exempted from regulation under Section 10 of the RHA.

Many commenters stated that the definition of “single and complete linear project” causes cumulative effects to aquatic resources. Many commenters objected to the determination that each waterbody crossing is a single and complete project. One commenter requested that the Corps define “separate and distant.” One commenter disagreed that the Corps fails to consider cumulative impacts from all crossings.

The authorization of separate and distant crossings of waters of the United States as single and complete projects for the purposes of NWP authorization is a long-standing practice consistent with the Corps' regulations at 33 CFR 330.2(i). Under paragraph (b)(4) of general condition 32, PCNs for linear projects are required to include those crossings of waters of the United States that require NWP PCNs as well as those crossings that will utilize the NWPs and do not require PCNs. The Corps declines to define the phrase “separate and distant” because what constitutes separate and distant crossings can vary across the country because of differences in the distribution of waters and wetlands in the landscape, local hydrologic conditions, local geologic conditions, and other factors. What constitutes separate and distant crossings is more appropriately determined by district engineers on a case-by-case basis. When reviewing a PCN, the district engineer will consider the cumulative effects of all crossings of waters of the United States and apply the 10 criteria listed in paragraph 2 of Section D, District Engineer's Decision.

One commenter stated that vague conditions such as “to the maximum extent possible” and “where practicable” should be eliminated from the NWP. One commenter recommended that the phrase “near as possible” be revised to “maximum extent practicable.” The use of the terms such as “to the maximum extent practicable” and “where practicable” afford the district engineer the discretion to consider the benefits and detriments of activities, temporary activities in light of differences in the local hydrologic conditions, and other factors while ensuring that the activity will have no more than minimal adverse environmental effects. This NWP requires access roads to be constructed as near as possible to pre-construction contours and elevations. The additional avoidance and minimization required by the more restrictive “near as possible” is necessary and still allows flexibility to deviate from preconstruction contours.

Many commenters oppose providing notice and an opportunity for potentially impacted communities to comment on each NWP-specific activity. Many commenters stated that the NWP does not provide opportunity for public input on each activity. Many commenters stated that this NWP does not ensure that impacts to disadvantaged and environmental justice communities are considered.

The public was provided an opportunity to comment on the Corps' proposal to issue, reissue, or modify NWP 12 when Corps Headquarters published its proposed rule in the Federal Register (90 FR 26100) to start the public comment period. However, after an NWP is issued, there is no public comment process for specific NWP activities. If, for a proposed oil or natural gas pipeline activity, the district engineer exercises discretionary authority and requires an individual permit for that activity, the public will have an opportunity to provide comments in response to the public notice issued by the Corps district. During the process to reissue or modify the NWPs, the Corps considers the adverse environmental effects of the reissuance of these NWPs in accordance Section 404(e) of the CWA, Section 10 of the RHA, and in compliance with applicable environmental laws, regulation, guidance and policy, as limited by the scope of our authority. The level of analysis and consideration of environmental justice concerns in the national decision documents and this final action comply with current Executive Orders and agency directives, including Executive Order 14151. The NWPs are not expected to have any discriminatory effect or disproportionate negative impact on any community or group.

One commenter opposed this NWP, stating it undermines local environmental requirements. One commenter stated that states and local authorities should review projects with activities that may be authorized by this NWP. One commenter stated that a PCN should be required for activities proposed where residential areas are within 500 feet of the pipeline right-of-way. One commenter stated that the Corps has no authority to make siting decisions for pipelines. One commenter expressed concerns over risks of horizontal directional drilling.

As stated in item 2 of Section E (Further Information), the NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law. State and local governments are the entities that have primary responsibility for regulating land use and pipeline siting. The Corps does not have jurisdiction to regulate or enforce inadvertent returns, leaks, or spills that may occur during horizontal directional drilling to install or replace oil or natural gas pipelines. The eighth paragraph of this NWP authorizes, to the extent that DA authorization is required, temporary structures, fills, and work necessary for the remediation of inadvertent returns of drilling fluids to waters of the United States through subsoil fissures or fractures that might occur during horizontal directional drilling activities conducted for the purpose of installing or replacing oil or natural gas pipelines. The purpose of this paragraph is to provide authorization for regulated activities that are necessary to remediate inadvertent returns of drilling fluids to reduce adverse environmental effects that might be caused by releases of

drilling fluids to the surrounding environment.

One commenter stated that this NWP should be available to all parties rather than just to the oil and gas industry. One commenter expressed concern that this NWP exposes the NWP Program to judicial scrutiny. This NWP places no restriction on who may apply for authorization for discharges of dredged or fill material into waters of the United States or work and structures in navigable waters of the United States for activities associated with oil or natural gas pipelines. While potential litigation risk is a consideration when contemplating changes to an NWP, the Corps also considers other factors such as administrative efficiency, reduction of regulatory burdens, and other approaches for maintaining environmental protections.

Many commenters expressed concern over the impacts of activities authorized by this NWP on water supply and water quality. Many commenters expressed opposition to oil and gas pipelines because of concern over fossil fuels or supporting renewable energy resources. Many commenters stated that authorizing fossil fuel projects is contrary to the public interest. Many commenters expressed concerns over ruptures, spills and leaks from oil and gas pipelines. Several commenters stated that the Corps does not analyze the harms and threats posed on the environment through operation and maintenance of pipelines.

The national decision document for this NWP considers the effects of regulated discharges of dredged or fill material, or work or structures, on water supply and conservation as part of the public interest review. Discharges of dredged or fill material into waters of the United States require water quality certification from the appropriate certifying authority unless a waiver of the water quality certification requirement occurs. For those certifying authorities that choose to require individual water quality certifications for activities authorized by this NWP, they can place conditions on the certification to ensure the activity complies with state water quality standards. General condition 25 (water quality) requires permittees to comply with any granted water quality certifications. As stated in item 2 of Section E (Further Information), the NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law. State and local governments are the entities that have primary responsibility for regulating water use.

Congress did not grant the Corps' statutory authority to regulate the extraction of oil or natural gas, the operation of any oil or natural gas pipeline, the product transported by the pipeline, or the emissions that result from combustion of oil or natural gas or from the industrial processes that derive other products from oil or natural gas. The Corps' authority is limited to the discharges of dredged or fill material into waters of the United States and work or structure in navigable waters of the United States. The extent of the NEPA analysis for this NWP addresses the environmental effects of reissuing NWP 12 for a period of five years. NEPA does not require that the Corps evaluate upstream and downstream impacts, including potential impacts on the planet's climate which are associated with the extraction or consumption of oil or natural gas or products derived from oil or natural gas.

In the national decision document for the issuance of this NWP, the Corps discusses leaks or spills that may occur during the construction and/or operation of oil or natural gas pipelines. Congress has not granted the Corps statutory authority to take actions to prevent or control potential leaks or spills that may occur during the construction or operation of oil or natural gas pipelines. Since the Corps does not regulate the release of oil, natural gas, or products derived from oil or natural gas, the Corps is not required to perform a detailed analysis of the effects of those possible future leaks or spills because those leaks or spills are not an effect of the Corps' proposed action. Although some regulated activities authorized by various NWPs may be associated with energy production, distribution, and use, the Corps does not have the authority to regulate or control the which type of energy production is proposed by a project proponent.

Many commenters recommended that compensatory mitigation should be required for all losses of stream banks and any loss of waters. One commenter stated that states rely on the Corps to require compensatory mitigation for impacts to streams in their state.

General condition 23 requires compensatory mitigation for all wetland losses greater than 1/10-acre and for all stream losses greater than 3/100-acre that require PCNs, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate. The Corps establishes PCN thresholds to ensure compliance with federal law and to ensure that activities authorized by an NWP will cause no more than minimal adverse environmental effects. States and other local authorities may enact laws and regulations to place further protections on streams and other natural resources. The NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law.

This NWP is reissued as proposed.

NWP 13. Bank Stabilization. The Corps proposed to modify NWP 13 by adding a paragraph to clarify that this NWP can be used to authorize regulated activities that incorporate nature-based solutions associated with bank stabilization activities, including those in conjunction with hard bank stabilization activities such as seawalls, bulkheads, and revetments. The Corps also proposed to modify this NWP by adding a new Note to encourage project proponents to use soft bank stabilization approaches and/or nature-based solutions where appropriate to reduce the potential individual and cumulative adverse environmental effects that may be caused by bank stabilization activities. The proposed new Note also provides examples of the numerous factors that likely need to be considered when planning and designing a proposed bank stabilization activity, including hard or soft approaches to bank stabilization.

Many commenters recommended that the Corps not reissue this NWP. Many commenters stated that this NWP causes more than minimal adverse environmental effects. Many commenters stated that the Corps failed to support the finding that this NWP will cause no more than minimal individual and cumulative adverse environmental effects. Many commenters objected to the reliance on compensatory mitigation to reduce the cumulative impacts of NWP 13 to a minimal level. Many commenters stated that NWP 13 authorizes activities with significant adverse impacts and therefore violates NEPA and the CWA. Many commenters expressed concern that the Corps failed to analyze “secondary effects” on aquatic ecosystems. Many commenters stated that Corps should conduct proper endangered species consultation for the reissuance of NWP 13.

The process to reissue this NWP complied with Section 404(e) of the CWA (including the Section 404(b)(1) Guidelines), NEPA, and ESA. The terms and conditions for this NWP are appropriate for limiting bank stabilization activities so that they have no more than minimal individual and cumulative adverse environmental effects, while allowing landowners and other entities to protect their property

and safety. In the national decision document for the reissuance of this NWP, the Corps prepared an EA using reliable data and resources to inform a finding of no significant impact to comply with NEPA requirements. Therefore, the reissuance of this NWP does not require the preparation of an environmental impact statement. In the national decision document, we have completed a 404(b)(1) Guidelines analysis, including an analysis of direct and secondary effects, and determined that the reissuance of this NWP complies with the Guidelines. The Corps' compliance with ESA for the reissuance of the NWPs is discussed in Section III.C. of this action.

Many commenters stated that this NWP authorizes activities that are not similar in nature. One commenter stated that the Corps should require mitigation for projects that result in more than minimal losses of riverine functions for hard bank stabilization. Many commenters expressed concern that the Corps failed to meaningfully consider climate change and sea level rise.

This NWP authorizes discharges of dredged or fill material into waters of the United States or work and structures in navigable waters of the United States associated with bank stabilization activities necessary for erosion control or prevention. This NWP authorizes categories of activities that are similar in nature. The similar in nature requirement does not mean that activities authorized by an NWP must be identical to each other. The phrase “categories of activities that are similar in nature”, is best read to confer broad discretion on the Secretary to facilitate the practical implementation of this general permit program. General condition 23 requires compensatory mitigation for all wetland losses greater than 1/10-acre and for all stream losses greater than 3/100-acre that require PCNs, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate. The activities authorized by NWP 13 are a tool for landowners and communities to adapt to sea level rise and increases in the frequency of severe storm events.

Many commenters suggested reducing the impact limits for this NWP. Many commenters recommended adding an acreage impact to this NWP. Many stated that all armoring projects should be evaluated through the individual permit process. Many commenters stated that the public should be given the opportunity to comment on all shoreline armoring projects regardless of size.

This NWP does not have an acreage limit; regulated activities authorized by this NWP are subject to nine criteria, including a 500- linear foot length limit along the bank and one-cubic yard per running foot, unless waived by the district engineer. The limits in this NWP are sufficient to ensure that the NWP authorizes only those activities that have minimal adverse effects on the aquatic environment. Division engineers may regionally condition this NWP to impose lower impact limits to account for local environmental conditions and the ecological functions and services provided by waters of the United States in those areas.

In response to a PCN the district engineer can add special conditions to the NWP authorization to ensure minimal adverse effects, or exercise discretionary authority and require another type of permit, such as an individual permit, for the activity. If the district engineer exercises discretionary authority and requires an individual permit for a bank stabilization activity, the public will have an opportunity to provide comments in response to the public notice issued by the Corps district. The public was provided an opportunity to comment on the Corps' proposal to issue, reissue, or modify an NWP when Corps Headquarters published its proposed rule in the Federal Register (90 FR 26100) to start the public comment period. However, after an NWP is issued, there is no public comment process for specific NWP activities.

Many commenters stated that PCNs should be required for all NWP 13 projects. Many commenters objected to any new PCN thresholds. Several commenters recommended reducing the 500-linear foot limit. One commenter suggested raising the 500-linear foot limit. One commenter stated that the one cubic yard per running foot limit is too restrictive. One commenter requested clarification if the 500 linear foot limit is measured along the centerline or along each bank.

The Corps establishes PCN thresholds to ensure compliance with federal laws and to ensure that activities authorized by an NWP will cause no more than minimal adverse environmental effects. This NWP requires the prospective permittee submit a PCN when a proposed activity (1) involves discharges of dredged or fill material into special aquatic sites; or (2) is in excess of 500 feet in length; or (3) will involve the discharge of dredged or fill material of greater than an average of one cubic yard per running foot as measured along the length of the treated bank, below the plane of the ordinary high water mark or the high tide line.

The linear foot limit in this NWP applies to the length of the regulated activity as measured along each bank where the bank stabilization would occur, not the length of the stream segment as measured along the centerline. If the prospective permittee intends bank stabilization along 300 linear feet of the right stream bank and additional bank stabilization along 300 linear feet of the left stream bank of the same stream segment, a PCN is required because the total length of the activity will exceed 500 linear feet. If a proposed activity does not trigger any of the three PCN thresholds in the text of the NWP, or a PCN threshold in the text of one of the NWP general conditions (e.g., general condition 18, endangered species and general condition 20, historic properties), then a PCN is not required for the proposed activity unless a division engineer has imposed a regional condition to require PCNs in a particular geographic region. Upon receipt of a PCN, the district engineer will determine if the regulated activity will cause no more than minimal adverse environmental effects. The Corps is retaining the PCN thresholds in this NWP.

Many commenters recommended removing the district engineers' ability to waive the limits in this NWP. Many commenters stated that the Corps is not adequately considering the benefits versus the adverse effects when deciding whether to waive limits. Many commenters suggested removing the 1,000 linear foot limit on waivers for bulkheads to allow for case-by-case approvals.

Paragraph (b) limits the activity authorized by this NWP to 500 linear feet unless waived and limits any bulkhead to no more than 1,000 linear feet. Paragraph (c) limits the activity to an average of one cubic yard per running foot along the length of the treated bank unless waived. Paragraph (d) prohibits discharges of dredged or fill material into special aquatic sites unless waived. The criterion in paragraphs (b), (c), and (d) of this NWP can be waived upon written determination by the district engineer that the discharge of dredged or fill material will result in no more than minimal adverse environmental effects. All requests for waivers under NWP 13 will be coordinated with the appropriate resource agencies, in accordance with paragraph (d) of general condition 32, to assist with the district engineer's evaluation. The district engineer will review the PCN and determine if the proposed NWP activity will, after

considering any comments from resource agencies, any waived criterion, and permit conditions such as mitigation requirements, result in no more than minimal individual and cumulative adverse environmental effects.

We are retaining the waiver provisions for NWP 13. Waivers are an important tool for providing flexibility in the NWP program, and for authorizing activities that have only minimal adverse environmental effects. Waivers also allow the Corps to focus its limited resources on proposed activities that require DA authorization and may have more than minimal impacts on the aquatic environment. The national decision documents list the estimated annual usage of this NWP, the amount of authorized impacts and the amount of required compensatory mitigation. This level of information is sufficient to determine that this NWP is being reissued compliant with Section 404(e) of the CWA.

Many commenters suggested an addition to paragraph (e) to prohibit the impediment of groundwater and hyporheic exchange, for example, through the filling of wetlands. One commenter recommended adding “and that material from failed protection will be removed from stream (and if reused, can only be used as backfill as it does not meet 100 yr flood requirements)” to the end of paragraph (e). Many commenters suggested that subsection (i) should state that maintenance of any bank stabilization must be required for the lifetime of the activity. One commenter requested that the NWP include a condition that requires the project be designed to ensure the bank stabilization is sustainable. One commenter suggested clarifying that the authorized maintenance under the NWP includes the removal of failing structures.

Discharges of dredged or fill material into wetlands and other waters of the United States may directly or indirectly impact movement of ground water and hyporheic exchange. The loss of functions resulting from the regulated activity are considered in the evaluation of the impacts, at the national level, at the regional level, and at the district level. The district engineer will determine, through review of the PCN, if impacts to wetlands and other special aquatic sites resulting from the specific activity will cause no more than minimal adverse environmental effects. Paragraph (i) and general condition 14 (Proper Maintenance) require a permittee maintain and repair any activity authorized by this NWP. Paragraph (i) does not require a landowner or other entity to maintain a bank stabilization activity in perpetuity. There are also a variety of other factors that affect the functional lifespan of a bank stabilization activity.

If failure of an authorized activity occurs, the district engineer may pursue compliance of an unauthorized action pursuant to 33 CFR 326. The Corps declines to modify paragraph (e) to prescribe a specific method for resolving noncompliance with an NWP, preserving flexibility in such situations. As described in 33 CFR 326, the district engineer has the discretion to make decisions on resolving unauthorized actions based on the specific site characteristics, type of resource impacted, and whether removal of eroded material would cause greater impacts then allowing it to remain in place. Consistent with paragraph (i) and general condition 14 (Proper Maintenance) a permittee may remove existing fill or structures in order to maintain and repair any activity authorized by this NWP. Removal of authorized fills and structures may be also authorized by NWP 3 (Maintenance), by regional general permit, or by individual permit.

Many commenters suggested adding language that requires that fill material must be free from contaminants. Many commenters recommended adding language that requires the applicant to ensure the preservation of fish when dewatering aquatic resources.

Activities authorized by this NWP must comply with general condition 6 (Suitable Material) which prohibits the discharge of material that contains pollutants in toxic amounts. The permittee is also responsible for complying with all general conditions to the NWP. General condition 2 (Aquatic Life Movements) requires that temporary crossings be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non-federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. The permittee is required to comply with any mitigation measures identified during Section 7 ESA consultation, or species proposed for listed) or critical habitat (or habitat proposed for such designation).

Many commenters supported the proposed addition of language about nature-based solutions. Many commenters opposed the addition of the nature-based solutions definition and some expressed concern that nature-based solutions are not always the most beneficial to the environment or feasible. Many commenters recommended requiring the use of nature-based solutions. Many commenters suggested requiring nature- based solutions be considered before allowing another form of bank stabilization. One commenter recommended that the district engineer ensure a seamless transition occurs between soft bank transitions to hard bank structures and transitions to unmodified bank.

This NWP encourages project proponents to incorporate nature-based solutions into the design of the activities authorized by this NWP. The Corps acknowledges that there are circumstances when nature-based solutions will not be practicable for a site for a variety of reasons. Inclusion of nature-based solutions into the design of a project is not required by this NWP. Note 2 reinforces the Corps' acknowledgement that the landowner has the general right to protect his or her property from erosion. The project proponent will determine what bank stabilization options are feasible. In addition, district engineers can only provide general information to landowners regarding bank stabilization options. District engineers cannot design a landowner's bank stabilization activity.

Paragraph (a) of general condition 23 (Mitigation), requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable. General condition 23 requires compensatory mitigation for all wetland losses greater than 1/ 10-acre and for all stream losses greater than 3/100-acre for all activities authorized under this NWP, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate. The district engineer will determine if a proposed activity would cause more than minimal adverse impacts to the environment in light of the terms of the

NWP, all the general conditions, and the criteria in Section D. District Engineer's Decision.

A few commenters expressed concern that proposed examples of nature-based solutions are actually bank hardening approaches that contradict nature-based solutions. One commenter recommended clarifying if “bags of molluscs” refers to living organisms, is limited to the use of native species, the quantity of mollusks used, or if this relates to oyster shell bags used in living shorelines. One commenter suggests aligning the definition of nature-based solutions with the examples provided in NWP 43 (Stormwater Management Facilities) to ensure consistency for transportation and stormwater management projects that incorporate nature-based solutions. One commenter suggested adding the word “also” to the first sentence of the eleventh paragraph, so it reads “This NWP also authorizes discharges . . .” to clarify that the permit doesn't only authorize discharges incorporating nature-based solution.

Depending on the characteristics of a site, soft bank stabilization may not be appropriate. Nature-based solutions can include natural and engineered components. Elements of nature-based solutions can be incorporated into hard bank stabilization, such as use of construction materials for seawalls and bulkheads that have textured surfaces, or the placement of rock clusters next to a seawall or bulkhead. We have modified NWP to add “vegetative stabilization” and “bioengineering” to the list of examples of nature-based solutions for bank stabilization activities. We have also added a sentence to the eleventh paragraph to reinforce that nature-based solutions should be appropriate for the physical and biological characteristics of the site.

Nature-based solutions may also include the placement of bags of molluscs to create habitat. Molluscs are found in both freshwater and saltwater and include mussels and oysters. The phrase “bags of molluscs” refers to living organisms, but nature-based solutions can also include the placement of bags of mollusc shells. If the molluscs are living, the bags of molluscs should consist of species that are native to the waterway where they will be placed to avoid the introduction of invasive species in a waterway. The examples of nature- based solutions in NWP 13 and in NWP 43 (Stormwater Management Facilities) are necessarily different because the examples listed in any NWP are related to the purpose of the proposed discharge of dredged or fill material or work and structures. The Corps is retaining the list of examples in this NWP. The Corps agrees to modify the first sentence of the eleventh paragraph to make clear that this NWP authorizes activities associated with bank stabilization and also authorizes activities associated with incorporating nature-based solutions into new and existing bank stabilization.

Many commenters supported the addition of Note 2 to this NWP. Many commenters opposed the addition of Note 2. Several commenters expressed concern that Note 2 would only apply to activities that require submittal of a PCN. One commenter requested a modification to Note 2 to state what hard armoring is permitted along shorelines and to specify what private property structures are eligible for protection and what level of bank stabilization is required. A few commenters expressed concerns that Note 2 recommends nature-based solutions and does not prohibit hard stabilization. Several commenters stated that the Note should be modified to recognize local agencies authority to determine approaches for projects. Several commenters recommended adding additional factors to consider when determining the type of bank stabilization, such as local climate, soil properties, water fluctuations, bank slope and wake action. One commenter stated that the private property owner's right to protect their property is limited by concerns of adverse impacts to property of others, public health and safety, adverse environmental impacts, and the public interest.

This NWP encourages the incorporation of nature-based solutions into existing and new bank stabilization projects where those methods are likely to be successful. Note 2 applies to all activities authorized by this NWP. The Corps recognizes that there may be locations where the incorporation of soft bank stabilization or other nature-based solutions may not be practicable. The responsibility for land use planning and zoning, including land use in coastal zones, generally falls on state and local governments. If a state regulates shore erosion control activities, the state's regulations or permit decisions will influence or dictate the shore erosion approach proposed by the landowner. There will be a variety of factors to consider when identifying, planning, and designing an appropriate and effective bank stabilization activity for a particular site. Some of the factors to consider are listed in Note 2, but there may be other factors to consider based on the location of a site.

The Corps acknowledges that the property owner's right to protect their property is balanced by considerations including whether the protective structure may cause damage to the property of others, adversely affect public health, or otherwise be contrary to the public interest. It is up to the landowner to decide how he or she wants to protect his or her property from erosion. Upon review of the PCN, if the district engineer determines that the proposed activity does not qualify for the NWP, he or she will advise the applicant whether the activity qualifies for another NWP or regional general permit authorization or requires an individual permit.

Many commenters suggested that the NWP explicitly state the preference for the use of NWP 54 for shoreline stabilization projects instead of NWP 13. Several commenters requested that the Corps properly enforce the removal of permitted temporary fills.

The Corps declines to establish a preference for one approach to bank stabilization over other approaches. Paragraph (b) of general condition 32 (Pre-Construction Notification) states the PCN must include the specific NWP(s) that the prospective permittee wants to use to authorize the proposed activity. Corps districts will enforce NWP 13 activities in the same manner as they enforce all individual permits and general permit authorizations, which is through the procedures described in the Corps' regulations at 33 CFR part 326 and relevant guidance and policy documents. Under its procedures at 33 CFR part 326, the Corps can take actions to address situations where permittees do not comply with the terms and conditions of this NWP, including the removal of temporary discharges of dredged or fill material into waters of the United States.

This NWP is reissued with the modifications discussed above.

NWP 14. Linear Transportation Projects. The Corps did not propose any changes to this NWP. Many commenters expressed support for the reissuance of this NWP. Many commenters oppose the reissuance of this NWP. One commenter stated that this NWP authorizes more than minimal impacts. Many commenters stated that this NWP causes significant cumulative impacts to water quality, salmon, and shellfish. Several commenters stated that a public comment period should be required for this NWP. Many commenters support the use of temporary mats under NWP 14.

This NWP authorizes activities that have no more than minimal individual and cumulative adverse environmental effects. For this NWP, the assessment of cumulative effects occurs at three levels:

National, regional, and the verification stage. The national NWP decision document includes a national scale cumulative effects analysis. Corps Headquarters prepared a national decision document for the reissuance of this NWP and made a finding of no significant impact. Each supplemental document has a cumulative effects analysis conducted for a region, which is typically defined as a state or Corps district.

When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief document that explains whether the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects. The public was provided an opportunity to comment on the Corps' proposal to issue, reissue, or modify an NWP when Corps Headquarters published its proposed rule in the Federal Register (90 FR 26100) to start the public comment period. However, after an NWP is issued, there is no public comment process for specific NWP activities.

Many commenters requested that NWP 12 and NWP 14 have consistent acreage limits. Many commenters oppose the \1/3\-acre impact limit in tidal waters and \1/2\-acre impact limit in non-tidal waters. One commenter stated that the impact limits should not be changed.

The acreage limits for NWPs 12 and 14 have some similarities, with a \1/2\-acre limit for losses of non-tidal waters of the United States. The \1/2\-acre limit for NWP 12 also applies to tidal waters, while NWP 14 has a \1/3\-acre limit for losses of tidal waters. Nationwide permits 12 and 14 have somewhat different impact thresholds because of differences between oil or natural gas pipeline activities and linear transportation projects. With the exception of discharges of dredged or fill material associated with substations, pipeline foundations, or access roads, many impacts authorized by the NWP 12 are temporary and require restoration back to preconstruction elevations (i.e., discharges of dredged or fill material associated with the installation of the oil or natural gas pipeline). Nationwide permit 14 for linear transportation projects authorizes discharges of dredged or fill material associated with linear transportation projects (e.g., roads, railroads, airport runways, and trails), which are more likely to result in discharges of dredged or fill material that are not temporary. The Corps is retaining the impact limits for this NWP.

Many commenters requested that NWP 12 and NWP 14 have consistent PCN thresholds. Several commenters supported the \1/10\-acre threshold for submittal of a PCN. A few commenters stated this NWP should have no PCN threshold for low quality wetlands. One commenter stated that isolated waters should not be considered special aquatic sites. One commenter stated that a PCN should be required for all activities authorized by this NWP because historic resources are being affected.

NWP 12 and NWP 14 both require a PCN for activities causing the loss of greater than \1/10\-acre of waters of the United States. NWP 12 also requires a PCN for activities requiring a Section 10 permit and when a proposed oil or natural gas pipeline activity is associated with an overall project that is greater than 250 miles in length and the project purpose is to install new pipeline along the majority of the distance of the overall project length. In addition to the \1/10\-acre threshold, NWP 14 requires a PCN for discharges of fill material into special aquatic sites. Wetlands are special aquatic sites as defined by regulation in 33 CFR 330.2(j).

The Corps only has the authority to issue permits for regulated activities in waters of the United States. Not all wetlands and waters are waters of the United States. A jurisdictional determination is not required in order to submit a PCN. If the project proponent did not obtain an approved jurisdictional determination for the project site prior to submitting the PCN, for the purposes of evaluating the PCN, the district engineer will presume the wetlands, streams, and other waters on the project site are subject to CWA jurisdiction. If a PCN is required, the district engineer will review the PCN and consider the quality of the aquatic resources that would be impacted by the regulated activity when making the district engineer's decision (Section D).

If a non-federal permittee proposes an activity that might have the potential to effect a historic property or a property eligible for listing on the National Register of Historic Places, in accordance with general condition 20 (historic properties), the prospective permittee must submit a PCN and may not begin construction until they receive written authorization from the district engineer. Federal agencies must follow their own regulations for complying with Section 106 of the NHPA. During the review of the PCN, the district engineer will assess the proposal for compliance with general condition 17 (Tribal Rights). The Corps declines to modify the PCN thresholds for this NWP. The PCN requirements, in addition to the other terms of this NWP and the NWP general conditions ensure that the activities authorized by this NWP cause no more than minimal adverse environmental effects.

Many commenters oppose the definition of “single and complete linear project,” stating that it is used to avoid review of projects through the individual permit process. The practice for providing NWP authorization for single and complete linear projects, where each separate and distant crossing of waters of the United States may qualify for its own NWP authorization, is consistent with the Corps' NWP regulations at 33 CFR 330.2(i), and dates back to November 22, 1991. District engineers will review PCNs to determine whether proposed crossings of waters of the United States are to be considered together or as separate and distant on a case-by-case basis, after evaluating site and regional characteristics. If one crossing of waters of the United States associated with the construction of a linear transportation project requires an individual permit, then 33 CFR 330.6(d) applies and the district engineer will determine which activities require individual permits and which activities can be authorized by an NWP. Section 330.6(d) of the Corps' NWP regulations, as well as Note 1 of NWP 14, remain in effect. Section 330.6(d) and Note 1 maintain the Corps' long-standing process regarding the use of NWPs and individual permits to authorize linear projects.

One commenter stated that replacement of existing fills should not count toward the \3/100\-acre threshold. One commenter stated that this NWP should authorize nature-based solutions. One commenter recommended adding a note to NWP 14 to encourage the use of nature-based solutions.

Discharges of dredged or fill material for maintenance activities may be exempt from regulation under the CWA by Section 404(f) in accordance with 33 CFR 323.4(a)(2). If not exempted by Section 404(f) of the CWA, such discharges may be authorized by a variety of NWPs, such as NWP 3 (Maintenance) or NWP 14 (Linear Transportation Projects), NWP 33 (Temporary Construction, Access, and Dewatering), or NWP 45 (Repair of Uplands Damaged by Discrete Events). General condition 23 requires compensatory mitigation for all wetland losses greater than \1/10\-acre and for all stream losses greater than \3/100\-acre for all activities which require a PCN,

unless the district engineer determines that some other form of mitigation would be more environmentally appropriate.

This NWP authorizes discharges of dredged or fill material into waters of the United States and work and structures in navigable waters of the United States for activities associated with the construction, expansion, modification, or improvement of linear transportation projects. Prospective permittees may incorporate nature-based solutions into activities which requires DA authorization, where appropriate. Culvert replacements may be authorized by NWP 3 (Maintenance), NWP 14 (Linear Transportation Projects), or NWP A (Activities to Improve Passage of Fish and Other Aquatic Organisms) when the case-specific activity complies with the terms and conditions of the NWP. However, the incorporation of nature-based solutions may not be possible based on-site conditions, design requirements, and other factors. We decline to add a note to NWP 14 because the opportunity to incorporate nature- based solutions into linear transportation projects may be limited.

This NWP is reissued as proposed.

NWP 15. U.S. Coast Guard Approved Bridges. The Corps proposed to modify this NWP to refer to the General Bridge Act of 1946 as one of the statutory authorities that may be used by the U.S. Coast Guard to authorize a bridge over navigable waters of the United States. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 16. Return Water From Upland Contained Disposal Areas. The Corps did not propose any changes to this NWP. One commenter suggested changes to NWP 16 to authorize discharges of return water from a barge.

The return water from a contained disposal area is administratively defined as a discharge of dredged material by 33 CFR 323.2(d). NWP 16 authorizes the return water from an upland contained disposal area provided the activity meets the terms and conditions of this NWP. This NWP only authorizes the return water. NWP 16 does not authorize the actual dredging activity, dredge material transport, or the discharge of dredged or fill material into waters of the United States, beyond the return water activity described above. The text of NWP 16 states dredging activities may require Section 404 authorization (33 CFR 323.2(d)) and will require Section 10 authorization if located in navigable waters of the United States. This NWP does not authorize the discharge of return water from a vessel. We decline to modify the terms of this NWP.

One commenter suggested revising the NWP to require that activities authorized by NWP 16 require a separate individual Section 401 water quality certification. One commenter suggested NWP 16 not be reissued, stating it could authorize the placement of contaminated dredged material, causing detrimental water quality impacts and violating the CWA. One commenter stated that a PCN should be required for activities authorized under NWP 16 and that testing of the dredged material should be required.

The authority to make decisions regarding water quality under Section 401 of the CWA, including whether a project proponent must obtain an individual water quality certification, lies with state, tribe or EPA Region with the authority to grant, waive or deny water quality certifications. The permittee is responsible for complying with the terms and conditions to the NWP and any applicable regional conditions, including conditions of a granted general or individual 401 WQC. Activities authorized by this NWP must also comply with general condition 6 (Suitable Material) which prohibits the discharge of material that contains pollutants in toxic amounts. If the permittee fails to comply with a general condition, 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. We do not agree that a PCN should be required for this NWP. If the project proponent intends to discharge dredged material into waters of the United States beyond the return water activity, he or she must obtain a separate DA authorization, and a separate water quality certification.

This NWP is reissued as proposed.

NWP 17. Hydropower Projects. The Corps did not propose any changes to this NWP. Many commenters stated that the activities authorized under this NWP are not similar in nature and objected to the lack of impact limitations. Many commenters requested that the Corps decrease the total allowable generating capacity for NWP 17 activities from 10,000 kw to 5,000 kw. Many commenters requested confirmation that NWP 17 cannot be used for new dam construction.

This NWP authorizes categories of activities that are similar in nature, that is discharges of dredged or fill material regulated by the Corps that are associated with the construction of hydropower facilities within existing infrastructure which is under the authority of the FERC. For the reasons articulated in the 2021 NWPs (86 FR 73522) NWP 17 was modified to authorize activities associated with hydropower projects with a generating capacity of less than 10,000 kilowatts. This NWP does not authorize the construction of new dams for hydropower projects. This NWP authorizes discharges of dredged or fill material to install hydropower generation into existing reservoirs or structures.

Many commenters requested that the Corps withdraw the NWP 17 because it authorizes significant adverse impacts that violate the CWA. Many commenters suggested the inclusion of additional protective measures in the NWP, such as limiting impact size, requiring fish passage technology, bypasses, size restrictions, sediment flushing, fish-protective turbine spacing, and technologies to prevent water quality violations.

This NWP requires a PCN for all authorized activities. District engineers will review each PCN to determine if the proposed discharge of dredged or fill material into waters of the United States will result in no more than minimal individual and cumulative adverse environmental effects and may include activity-specific conditions in the NWP authorization. Decisions on the appropriate protective measures necessary to ensure the activity causes no more than minimal adverse effects to the environment will vary based on site conditions, type of facility, the proposed action and species and habitats that are present. If the district engineer determines a proposed discharge of dredged or fill material into waters of the United States will result in more than minimal adverse environmental effects after considering mitigation proposed by the applicant, he or she will exercise discretionary authority and require an individual permit for the proposed activity.

Many commenters oppose the authorization of activities under NWP 17 in watersheds containing unlicensed or non-compliant hydropower projects with known environmental and cultural impacts. Many commenters requested that the Corps prohibit use of NWP 17 for hydropower projects in a specific waterbody. Many commenters suggested requiring formal government-to-government consultation and written concurrence from affected tribes for all NWP 17 activities.

Division engineers may regionally condition this NWP to account for local environmental conditions and the ecological functions and services provided by waters of the United States. 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 the review of the PCN, the district engineer will assess the proposal for compliance with general condition 17 (Tribal Rights).

This NWP is reissued as proposed.

NWP 18. Minor Discharges. The Corps did not propose any changes to this NWP. Many commenters supported reissuance of this NWP with no changes. Many commenters suggested adding language to paragraph (a) of this NWP specifying that dredged or fill material cannot be discarded in areas above the plane of the ordinary high-water mark or high tide line in a manner that would result in future discharge into the waterbody via runoff. Many commenters recommended increasing the acreage impact threshold in this NWP to \1/2\-acre. One commenter requested that the volume limit be raised to 50 cubic yards. One commenter stated that wetlands are not all special aquatic sites and requested the Corps change the PCN threshold of this NWP to only require a PCN when wetlands of a certain quality would be impacted by the activity.

This NWP authorizes discharges of dredged or fill material into waters of the United States provided the activity meets certain criteria. Disposal of dredged material in uplands is not subject to Corps' authority with the exception of return water, which may be authorized by NWP 16 (Return Water from Upland Disposal Sites). If discharges of dredged or fill material into waters of the United States located above the ordinary high water mark or high tide line are authorized by an NWP, the permittee must comply with general condition 12 (Soil Erosion and Sediment Controls) to stabilize exposed soils and fills. The permittee must also protect water quality through compliance with any conditions to water quality certifications.

The Corps believes that the 25 cubic yard limit for discharges and excavation activities and the \1/10\-acre limit for losses of waters of the United States ensure that this NWP authorizes only those activities that have minimal individual and cumulative adverse effects on the aquatic environment. Special aquatic sites are defined by regulation in 33 CFR 330.2(j) and include all areas that meet the definition of a wetland. The Corps declines to change the PCN threshold to exclude certain wetlands.

One commenter recommended that the language in paragraph (a) of the NWP be modified to remove the phrase “and the volume of material excavated” because the Corps does not typically regulate excavation or removal of material. One commenter stated that wetlands do not have an ordinary high water mark or high tide line and recommended that paragraph (a) be revised to limit the quantity of discharges in waters of the United States rather than below the plane of the ordinary high water mark or the high tide line.

When measuring the quantity of the discharge of dredged or fill material, the Corps will include the volume of any excavated area (i.e., the volume of the substrate excavated) which is below the plane of the ordinary high water mark (OHWM) or high tide line (HTL). Excavation activities may result in discharges of dredged or fill material into waters of the United States that require Section 404 permits (see 33 CFR 323.2(d)). Therefore, it is not appropriate to remove references to excavation from this NWP. Unless exempted under Section 404(f) of the CWA, excavation activities in waters of the United States that result in more than incidental fallback require Section 404 authorization. Minor discharges authorized under NWP 18 often involve excavation activities that result in more than incidental fallback and would therefore constitute a discharge that is regulated under Section 404. The volume limitation is applied in waters of the United States below the high tide line or ordinary high water mark. The acreage limitation is applied in all waters of the United States. Wetlands may occur both waterward and below, or landward and above, the ordinary high water mark or the high tide line. For these reasons, the Corps declines to revise paragraph (a).

This NWP is reissued as proposed.

NWP 19. Minor Dredging. The Corps did not propose any changes to this NWP. One commenter expressed support for reissuance of the NWP as written. One commenter requested that the volume limit of this NWP be raised to 50 cubic yards. One commenter suggested requiring a PCN for all activities authorized by this NWP. Another commenter suggested requiring a PCN for activities in special aquatic sites.

The Corps believes that the 25 cubic yard limit in this NWP ensures that this NWP authorizes those activities that have minimal individual and cumulative adverse effects on the aquatic environment. Where the 25 cubic yard limit would be exceeded, the dredging activity may be authorized under regional general permits or individual permits. Division engineers can also add regional conditions to this NWP to require PCNs for some or all NWP 19 activities to provide district engineers the opportunity to evaluate these minor dredging activities on a case-by-case basis.

One commenter stated that the NWP should include language that requires dredging to be conducted in a manner that avoids destabilizing the bed and banks of waterbodies. One commenter recommended expanding the list of areas where dredging is not authorized to include areas such as habitats for anadromous species, as well as in tidal marshes, eelgrass beds, mapped pocket estuaries, and tribal shellfish harvesting areas. One commenter requested a cumulative impact assessment for areas where repeated dredging has substantially reduced habitat availability.

General condition 12 (Soil Erosion and Sediment Controls) requires a permittee to stabilize any work below the ordinary high water mark or high tide line at the earliest practicable date. Division engineers may develop regional conditions for an NWP if he or she determines it necessary to ensure that activities in a region will cause no more than minimal adverse environmental effects to sensitive areas. If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non-federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA.

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 under the Corps' public interest review. Each supplemental document has a cumulative effects analysis for a region, which is usually a state or Corps district. When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP

verification, the district engineer prepares a brief document that explains whether the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.

This NWP is reissued as proposed.

NWP 20. Response Operations for Oil or Hazardous Substances. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 21. Surface Coal Mining Activities. The Corps did not propose any changes to this NWP. Several commenters stated that this NWP should not be reissued. Several commenters stated that the \1/2\-acre impact limit is overly permissive. Several commenters stated that surface coal mining activities should only be authorized by individual permits.

The discharge of dredged or fill material associated with surface coal mining and reclamation operations that are authorized by this NWP cannot result in the loss of greater than \1/2\-acre of non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters. All activities authorized by this NWP require PCNs. If the district engineer determines a proposed NWP 21 activity will result in more than minimal adverse environmental effects after considering mitigation proposed by the permit applicant, he or she will exercise discretionary authority and require an individual permit for the proposed activity. The \1/2\-acre limit, the PCN requirements, and the ability of division and district engineers to modify, suspend, or revoke this NWP on a regional or activity-specific basis ensures that the activities authorized by this NWP result in no more than minimal adverse environmental effects.

Several commenters stated that this NWP authorizes activities that have significant direct and cumulative effects, including effects to threatened and endangered species, waterways, water quality, animals, flood risks, and the human environment. Several commenters stated that the reissuance of the NWP should be evaluated in an environmental impact statement and programmatic ESA consultation.

As discussed in Section III.A. of this final action, the Corps Headquarters has prepared a national decision document and with a finding of no significant impact, therefore the requirements of NEPA have been met and no environmental impact statement is required. The terms and conditions of this NWP, such as acreage limits and the mitigation measures in some of the NWP general conditions, are imposed to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment and other public interest review factors. District engineers will review the PCN and consider the effects of the regulated activity on waters of the United States. Permittees must comply with general conditions 10 (Fills Within 100-Year Floodplains) and 25 (Water Quality) and any conditions of a granted water quality certification. As discussed in Section III.C. of this final action, the Corps has determined that the issuance of this final action will have “no effect” on listed species (or species proposed for listed) or critical habitat (or habitat proposed for such designation), therefore no programmatic consultation on the issuance of these NWP is required.

Several commenters stated that the prohibition on “valley fills” allows other activities to be authorized under this NWP that have similar impacts on downstream waters. Several commenters stated that the scale of the cumulative impacts assessment for the activities authorized by NWP 21 should be limited to those areas where coal is mined, rather than nationwide. Several commenters stated that this NWP should never be used to authorize activities in the Appalachian Region.

The term “valley fills” is defined in the terms of NWP 21, and discharges of dredged or fill material that meet that definition are not authorized by this NWP. Other discharges of dredged or fill material into waters of the United States for activities associated with mining operations may be authorized by this NWP provided the regulated activity causes no more than minimal adverse effects to the aquatic environment. For the NWPs, the assessment of cumulative effects under the Corps' public interest review occurs at three levels: National, regional, and the verification stage. Each national NWP decision document includes a national scale cumulative effects analysis under the Corps' public interest review. The cumulative effects analysis at the national scale considers past, present, and reasonably foreseeable impacts to the nations waters which are impacts by human activities. Each supplemental document has a cumulative effects analysis for a region, which is typically defined as a state or Corps district. When a district engineer issues a verification in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief decision document that documents the district engineer's decision that the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.

If the Corps district staff believe that the use of an NWP in that geographic region may be approaching a threshold above which the cumulative adverse environmental effects for that category of activities may be more than minimal, the district engineer may 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 that result in more than minimal cumulative adverse environmental effects.

This NWP is reissued as proposed.

NWP 22. Removal of Vessels. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 23. Approved Categorical Exclusions. The Corps proposed to modify paragraph (a) of this NWP to add references to NEPA to replace the references from the Council on Environmental Quality NEPA regulations that were removed from the Code of Federal Regulations on April 11, 2025 (90 FR 10610). The Corps proposed to modify paragraph (a) to reference Sections 106, 109, and 111(1) of the NEPA statute. The Corps also sought comment on whether a Regulatory Guidance Letter is the best way to document the categorical exclusions that are approved under this NWP or if another document, such as a Federal Register notice, would provide better notice to the public.

One commenter supported the updates to the text of the NWP. Many commenters requested that the Corps use the Federal Register to notify the public of categorical exclusions that are approved for use under this NWP. One commenter requested that the Corps use a Regulatory Guidance Letter to notify the public of categorical exclusions that are approved under this NWP. Several commenters recommended notifying the public of any revisions to the list of categorical exclusions in both the Federal Register and in a Regulatory Guidance Letter. One commenter recommended that the Corps provide a list of categorical exclusions approved

by the Federal Highways Administration or a summary of activities that have historically qualified for this NWP.

After consideration of the comments, the Corps will notify the public of future changes to the list of categorical exclusions applicable to this NWP in a Federal Register notice. We have modified the text of the Note to indicate that future changes to approve categorical exclusions applicable to this NWP will be announced in the Federal Register. Until it is rescinded or replaced, Regulatory Guidance Letter 05-07 contains the list of activities approved for authorization under this NWP as of the date of this action. Regulatory Guidance Letter 05-07 and any future Federal Register notices of changes to categorical exclusions applicable to NWP 23 can be found on the Corps' website (usace.army.mil). Regulatory Guidance Letter 05-07 lists the categorical exclusions requested by the Federal Highways Administration, Bureau of Reclamation, and USCG and approved for authorization under this NWP.

Many commenters stated that the activities authorized by this NWP are not all similar in nature. One commenter stated that a PCN should be required for all activities proposed for authorization under this NWP.

We believe that the “categories of activities that are similar in nature” requirement in CWA Section 404(e) is to be interpreted broadly, for practical implementation of this general permit program. This NWP only authorizes discharges of dredged or fill material into waters of the United States and work and structures in navigable waters of the United States when: (1) another federal agency has determined, pursuant to Section 106, 109, and 111(1) of NEPA, that the activity is categorically excluded from the requirement to prepare an environmental impact statement or environmental assessment analysis; and (2) the Chief of Engineers has concurred with that agency's or department's determination and has approved that activity for authorization under this NWP.

To be categorically excluded from NEPA, an agency must determine that a category of activities normally does not individually or cumulatively have significant effect on the human environment. After the other agency makes that determination, the Chief of Engineers also evaluates that category of activities to determine if he or she concurs that the agencies' categorical exclusions have no more than minimal adverse effects on the aquatic environment. A PCN is required for certain activities approved for authorization under this NWP. If the district engineer determines a proposed discharge of dredged or fill material into waters of the United States will result in more than minimal adverse environmental effects, he or she will exercise discretionary authority to add case-specific conditions to the NWP or to require an individual permit for the proposed activity.

One commenter requested that the Corps consider whether certain categories of routine transportation activities, such as minor road maintenance or rehabilitation, could be addressed through standardized verification procedures. One commenter stated that the NWP should include a Note to advise the permittee that an action that qualifies for a categorical exclusion under NEPA may not be categorically excluded from a state environmental policy regulation.

The NWPs provide a streamlined process for authorizing activities that cause no more than minimal adverse environmental effects. Discharges of dredged or fill material for maintenance activities may be exempted from regulation under the CWA by Section 404(f). If not exempted by Section 404(f) of the CWA, such discharges may be authorized by a variety of NWPs, such as NWP 3 (Maintenance) or NWP 14 (Linear Transportation Projects), NWP 33 (Temporary Construction, Access, and Dewatering), NWP 45 (Repair of Uplands Damaged by Discrete Events). Maintenance activities in navigable waters of the United States may also be authorized by a variety of NWPs, such as NWP 3 (Maintenance) or NWP 14 (Linear Transportation Projects), NWP 33 (Temporary Construction, Access, and Dewatering), NWP 45 (Repair of Uplands Damaged by Discrete Events).

Environmental policy regulations and requirements are different for each state. If there are state requirements which inform the Division Engineer's decision on the addition of regional conditions to the NWPs or the district engineer's case-specific review of an activity that may be authorized by the NWP, the division engineer or the district engineer may use his or her discretionary authority to modify the NWP. It is not necessary to add a Note advising permittees that their activity may be subject to review under state laws and regulations because the NWP does not purport to exempt a proposed activity from compliance with applicable state laws or regulations.

This NWP is reissued with the modifications discussed above.

NWP 24. Indian Tribe or State Administered Section 404 Programs. The Corps proposed to modify this NWP to remove Florida from the list of states that have been approved by EPA to administer their own CWA Section 404 permit program under the authority of 33 U.S.C. 1344(g)- (l). EPA's approval of Florida's assumption of the CWA Section 404 permit program was vacated by the District Court for the District of Columbia in 2024. One commenter expressed support for the change to the NWP.

This NWP is reissued as proposed.

NWP 25. Structural Discharges. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 27. Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities. The Corps proposed to change the title of this NWP to refer to “aquatic ecosystems” instead of “aquatic habitats” because activities authorized by this NWP should, over time, produce net increases in a variety of aquatic ecosystem functions and services. The Corps also proposed to modify the paragraph that requires NWP 27 activities to resemble ecological references and include ecological references that are cultural ecosystems and ecological references based on indigenous and local ecological knowledge. In addition, the Corps proposed to remove the list of examples of activities authorized by this NWP and modify the list of categories of activities that are not authorized by this NWP.

The Corps also proposed to require the submission of Reports for all NWP 27 activities and remove the “Notification” paragraphs from this NWP. However, PCNs will still be required when PCN thresholds in the NWP general conditions (e.g., general condition 18, endangered species) or regional conditions added by division engineers are triggered. Lastly, the Corps proposed to add a new Note (Note 2) to this NWP to state that if an NWP 27 activity requires PCN because of an NWP general condition or a regional condition imposed by a division engineer, the baseline information required by paragraph (3) of the Reporting requirement substitutes for the delineation of waters, wetlands, and other special aquatic sites required by paragraph (b)(5) of general condition 32.

A few commenters opposed the reissuance of this NWP. Many commenters supported the proposed changes to this NWP. A few commenters requested a size limit be placed on all projects that can be authorized by NWP 27. One commenter stated that no activities should be authorized under this NWP without a public hearing or

public notice. Many commenters supported the statement that activities authorized by this NWP do not require compensatory mitigation. A few commenters opposed the language clarifying compensatory mitigation shall not be required by NWP 27.

This NWP requires aquatic ecosystem restoration, enhancement, and establishment activities that result in net increases in aquatic resource functions and services and resemble ecological references. This NWP does not have any acreage or other quantitative limits because the overall effect of the regulated activity results in a benefit to the aquatic environment. Aquatic habitat restoration, enhancement, and establishment activities can occur in large or small areas. When the district engineer reviews the reports required for activities proposed for authorization by this NWP, he or she will assess whether the activities will satisfy the terms and conditions of this NWP. If a specific activity does not, then the district engineer will notify the project proponent that he or she must apply for a different NWP, for a regional general permit, or for an individual permit.

This NWP requires that activities in waters of the United States associated with restoration, enhancement, and establishment result in net increases in aquatic ecosystem functions and services, which will generally result in an increase in acreage of aquatic habitats. However, there may be some activities authorized by this NWP that result in a decrease in acreage of aquatic resources in order to affect a net increase in aquatic ecosystem functions and services. Such decreases in acreage of aquatic resources are acceptable because it is the ecosystem functions, and the services that people derive from those functions, which are important to society. The public was provided an opportunity to comment on the Corps' proposal to issue, reissue, or modify NWP 27 when Corps Headquarters published its proposed rule in the Federal Register (90 FR 26100) to start the public comment period. However, after an NWP is issued, there is no public comment process for specific NWP activities. The Corps is retaining language that states no compensatory mitigation is required for activities authorized by this NWP.

One commenter recommended defining voluntary restoration to differentiate it from activities associated with compensatory mitigation. One commenter suggested that the Corps establish a new NWP that approves mitigation banking instruments or in-lieu fee program instruments. One commenter supported the use of an ecological reference standard. One commenter opposed allowing project proponents to decide how to establish the goals of the restoration, enhancement or establishment activities. A few commenters recommended requiring applicants to document and justify their selection of the ecological reference(s). One commenter recommended that the report include a discussion of the ecological reference condition(s) relied upon by the project proponent to inform the district engineers' review.

The Corps does not find it necessary to define what constitutes a voluntary restoration activity. This NWP authorizes activities associated with voluntary restoration and with restoration by third party mitigation providers. Both types of restoration activities are subject to the same requirements of this NWP. In a process separate from this NWP, third-party mitigation providers are also subject to any approved mitigation banking instrument or in-lieu fee program instrument (33 CFR 332). Third-party mitigation providers of mitigation banks or in-lieu fee programs which require approval by the Corps will include information on the goals and objectives of the compensatory mitigation, as well as performance standards, in their mitigation banking instrument or in-lieu fee program instrument. Nationwide permits authorize discharges of dredged or fill material into waters of the United States or work and structures in navigable waters of the United States under the authorities of Section 404(e) of the CWA and the implementing regulations at 33 CFR 330. Under the Corps' regulations at 33 CFR 332, the approval of a compensatory mitigation banking instrument or an in-lieu fee program instrument is a separate process and does not authorize the discharge or dredged or fill material or work or structures associated with the restoration, enhancement, or establishment activities.

For voluntary aquatic ecosystem restoration, enhancement, and establishment activities, project proponents can decide on the objectives and whether, and how, they establish goals and ecological performance criteria. To allow the district engineer to assess whether there will be a net increase in aquatic resource functions and services and that the proposed activity will resemble an ecological reference, we have added a provision to the reporting requirement that requires the prospective permittee identify the objectives of the proposed aquatic ecosystem restoration and enhancement and establishment activity. Item (5) of the “Report” section of NWP 27 has been revised to require that the project proponent state the objectives of the proposed aquatic ecosystem restoration enhancement and establishment activity proposed for authorization under NWP 27 and to make clear that the report should describe the methods by which those objectives will be met.

A few commenters recommended allowing some engineered elements in restoration projects while maintaining ecological reference standards, arguing that excluding all artificial components would eliminate most restoration opportunities in developed areas. One commenter supported allowing habitat manipulation that simulates a naturally occurring feature, such as a beaver dam. One commenter recommended developing a separate NWP to authorize low-tech process-based restoration, such as beaver dam analogues (BDAs) and post assisted log structures (PALS) (Wheaton et al. 2019). One commenter suggested adding a reference to the Corps' definition of “restoration.” One commenter stated that restoration should always provide net increases in biological functions.

Nationwide permit 27 does not authorize the construction, maintenance, or expansion of artificial, engineered features that require management because those activities would not resemble ecological references. Examples of such artificial, engineered features that would not resemble ecological references include culverts, bridges, water pumps, and gated water control structures. The removal of such structures, and restoration of the water of the United States may be authorized by NWP 27, it such activity meets the terms and condition of the NWP. Construction, maintenance, or expansion of engineered features that are analogous to natural landscape features, features that occur in nature, may be authorized under NWP 27. Constructed levees or berms that simulate natural landforms which form as a result of a river's natural flooding and sediment deposition processes, constructed or anchored log jams that mimic the movement of large woody debris or beaver dams in a riverine system, and rock grade controls that mimic a rock slide or bedrock sill may be authorized by NWP 27 if they resemble an ecological reference. The proposed modifications to this NWP remove the restriction on conversions of streams and natural wetlands to better allow process-based restoration, including BDAs and PALs.

It is unnecessary to include a reference to the definition of “restoration” in this NWP. The Corps will continue to rely on the definition of “restoration” in Section F. (Definitions), consistent with the definition of “restoration” found in 33 CFR 332.2. Regulated activities proposed for authorization under this NWP must result in net increases in aquatic resource functions and services, and such activities may result in a net increase in biological function, either as a direct or indirect result of the restoration activity.

One commenter requested that the text of this NWP make clear that natural elements that do not currently occur in the project area may still meet the definition of ecological reference standard provided they contribute to overall ecological function and result in a net improvement. Many commenters argued that restoration projects do not universally result in ecological improvements and requested enhanced monitoring requirements. One commenter recommended including a definition of “aquatic ecosystem functions and services” in the NWP.

The Corps agrees that, for activities authorized by this NWP, natural elements that are not currently in the project area may be part of an NWP-specific restoration, enhancement, or establishment activity if they resemble an ecological reference that currently exists or did exist in the region and result in net increases in aquatic ecosystem functions and services. For instance, the restoration of a farmed wetland may include the addition of native wetland vegetation that is not currently in the farmed wetland but that can be found in wetlands currently in the region. The terms of this NWP and the definition of “Ecological Reference” in Section F (Definitions) provide sufficient information about the limits or acceptable elements of an ecological reference.

Monitoring is not required by this NWP. In accordance with 33 CFR 332, third-party mitigation providers must monitor compensatory mitigation banks or in-lieu fee programs sites as established in the mitigation banking instrument or in-lieu fee program instrument. Project proponents of voluntary restoration projects may voluntarily monitor the activity in order to report to federal or state agencies, or entities which may have funded the activity. Permittees who receive an NWP verification letter, either as a result of a PCN submitted in compliance with a general condition or a PCN submitted voluntarily, must certify to the district engineer that the authorized activity has been completed in compliance with the NWP authorization in accordance with general condition 30 (Compliance Certification). If a permittee fails to comply with the terms and conditions of this NWP, the district engineer will address the potential unauthorized activity in accordance with 33 CFR 326. The Corps will rely on the definitions of “functions” and “services” in 33 CFR 332.2 and declines to add a definition of “aquatic ecosystem functions and services” to this NWP.

Many commenters supported removing the list of examples of authorized activities. A few commenters opposed complete removal of the examples list, recommending that the list be included, but adding language to make clear that the list does not limit the activities authorized by this NWP. Some commenters requested that this NWP authorize the removal of fords and in-stream grade control structures. One commenter stated that the Corps should no longer approve restoration that includes Natural Channel Design, Legacy Sediment Removal, connecting to an “Engineered Floodplain”, or Regenerative Stormwater Conveyance Step Pools. Several commenters requested recognition that some projects may provide both restoration and flood management benefits.

The Corps is removing the list of examples of authorized activities as proposed. The removal of low fords is an activity that would likely result in net increases in aquatic ecosystem functions and services and could be authorized by this NWP if the activity results in an aquatic ecosystem that resembles an ecological reference. The removal of in- stream grade control structures, such as irrigation structures, may be more appropriately authorized by NWP 33 (Temporary Construction, Access, and Dewatering).

Certain types of manipulation of the physical or chemical characteristics of a site may restore aquatic resources or downstream waters; however, they must result in an aquatic ecosystem that resembles an ecological reference in order for the regulated activity to be authorized by this NWP. A stream restoration activity that also helps reduce sediment, nutrient, and pollutant inputs to downstream waters and helps meet established Total Maximum Daily Loads (TMDLs) can be authorized by this NWP, provided the restored stream will resemble an ecological reference for that stream type in the region. Activities associated with the restoration, enhancement, and establishment of aquatic ecosystems may have multiple goals or benefits, but those activities authorized by this NWP must result in a net increase in aquatic ecosystem functions and services so that the aquatic ecosystem resembles an ecological reference.

Many commenters supported the removal of the prohibition on conversion. One commenter stated that the terms of an NWP may not be explicit enough to ensure that conversion is allowed. One commenter recommended retaining language stating that wetland plant communities that occur when wetland hydrology is more fully restored is not a prohibited habitat conversion. Several commenters stated that the conversion of open waters areas to wetlands may result in a benefit to the ecosystem and should not be categorized as “conversion.” One commenter supported allowing the relocation of non-tidal waters in authorized projects. Some commenters expressed concern about eliminating the prohibition on conversion, arguing that some conversions result in net functional losses. One commenter recommended only allowing conversions when the project would result in a net increase to the aquatic resource.

The Corps proposed to modify the list of categories of activities not authorized by this NWP to remove the prohibition on conversions of a stream or natural wetlands to another aquatic habitat type or uplands. This NWP retains the prohibition on the conversion of tidal wetlands to open water impoundments and other aquatic uses. The full suite of aquatic ecosystem functions and services must be considered when determining whether the net gains in aquatic resource functions and services required by this NWP will occur. When conducting these evaluations to determine NWP 27 eligibility, there should not be a focus on a specific aquatic resource function, or the ecological service(s) produced from that aquatic resource function. To assist district engineers in making these determinations, prospective permittees considering such activities should provide supporting information in their NWP 27 Reports or PCNs to demonstrate net increases in aquatic resource functions and services.

Changes in wetland plant communities that occur when wetland hydrology is more fully restored during wetland rehabilitation activities are not considered a conversion to another aquatic habitat type. Changes in plant communities resulting from restoring wetland hydrology are still acceptable under this NWP provided the resulting aquatic habitat type resembles an ecological reference. Restoring wetland

hydrology has a high likelihood of changing the plant community, and such changes are usually an objective of those wetland restoration activities. Discharges of dredged or fill material into waters of the United States and work or structures in navigable waters of the United States for the purpose of restoring, enhancing, or establishing aquatic ecosystems must result in a net increase in aquatic ecosystem functions and services in order to be authorized by this NWP. The Corps is modifying the statement that this NWP does not authorize conversions of tidal wetlands to open water impoundments or other aquatic uses, to clarify that such conversions may be authorized if the conversion is solely for the purpose of enhancing the functions of tidal wetlands. The objective of the restoration, enhancement, or establishment activities authorized by this NWP is to provide a net increase in aquatic resource functions and services and this modification allows the district engineer the flexibility to authorize activities that will result in a wider variety of tidal habitats, including other types of special aquatic sites.

Many commenters supported excluding dam removal from NWP 27. Many commenters stated that NWP 27 should authorize dam removal. Many commenters argued that dam removal has a number of ecological benefits, and that removal of smaller dams should be authorized by this NWP. Some of the commenters stated that this NWP should authorize removal of small dams as defined by dam height or acre-feet of storage in the impoundment. Some of these commenters recommended that dam removal could be authorized by NWP 27 after submittal of a PCN.

The Corps is retaining the language stating that this NWP does not authorize discharges of dredged or fill material into waters of the United States and work or structures in navigable waters of the United States associated with any type of dam removal. The removal of small water control structures, dikes, and berms, to the extent DA authorization is needed, and associated restoration of the stream channel associated with the removal of the water control structure may still be authorized by NWP 27 so long as those activities result in net increases in aquatic ecosystem functions and services and resemble an ecological reference. Activities associated with low head dam removal may be authorized by NWP 53 (Removal of Low-Head Dams) and regulated activities associated with the removal of other types of dams may be authorized by regional general permit or an individual permit.

One commenter supported the addition of Bureau of Land Management to the list of federal agencies who can authorize or fund restoration projects. A few commenters recommended revising item (5) of Reporting by moving “and if applicable” from the end of item (5) to the beginning of item (6), to make clear that the prospective permittee must only include the documents listed in item (6) in the Report if they apply to the proposed NWP-specific activity.

The Corps is retaining the language adding the Bureau of Land Management to the list of federal agencies who can authorize or fund projects. The Corps is revising items (5) and (6) under Reporting as suggested to make clear that the prospective permittee must only include the documents in item (6) if the prospective permittee is proposing the activity in accordance with an agreement, documentation, or permit from the listed agencies.

Many commenters supported the removal of a requirement to submit a PCN and replacement with a Report requirement. Many commenters objected to the removal of the requirement to submit a PCN, stating that a PCN should be required for all activities or for all activities in certain regions. One commenter supported the requirement to submit a PCN when required by general condition. Many commenters stated that an individual permit should be required for larger projects. A few commenters recommended that no report be required for small projects.

All activities authorized by this NWP require some form of advance notification to district engineer before commencing authorized activities, to ensure compliance with the NWP. If the district engineers determines that a proposed activity does not qualify for NWP 27 authorization because it is not an aquatic ecosystem restoration, enhancement, or establishment activity or it is not likely to result in net gains in aquatic resource functions and services; or it does not resemble an ecological reference, then the district engineer will notify the project proponent that he or she must apply for a different NWP, a regional general permit, or an individual permit. If a PCN is required by a general condition (e.g., general condition 18 (Endangered Species) or general condition 20 (Historic Properties)), the district engineer will review the PCN for compliance with the terms and general conditions and Section D (District Engineer's Decision). If a PCN is required by a general condition, the project proponent cannot proceed with the activity until he or she receives written notification from the district engineer. The Corps does not agree that an individual permit should be required for regulated activities associated with the restoration, enhancement, or establishment of aquatic ecosystems because the activity will cause no more than minimal adverse effects to the environment by providing a net benefit to the aquatic ecosystem. Likewise, the Corps does not agree that a PCN should be required for all activities authorized by this NWP. The district engineer's review of a report will be sufficient to determine if the case-specific activity will comply with the terms of this NWP. Division engineers may develop regional conditions to require a PCN for this NWP if he or she determines it is necessary to ensure that activities in a region will cause no more than minimal adverse environmental effects out of concern for sensitive areas or tribal rights.

Several commenters requested clarification about procedures following report timeframes and when the project proponent has authorization to proceed. One commenter stated that the district engineer must show through scientific literature how they supported their determination of the adequacy of the restoration. One commenter supported the requirement to submit the report 30-days before commencing activities in waters of the United States. Several commenters stated that the report should be submitted to the district engineer 60-days before commencing activities. A few commenters expressed concern about conflicts between this NWP and state regulatory requirements, such as water quality certification timeframes.

Prospective permittees must submit advance notification to the district engineer. The advance notification takes the form of either: (1) a Report, or (2) a PCN. Prospective permittees must a submit a Report for all activities authorized by this NWP unless a general condition requires submittal of a PCN (e.g., general condition 18 (Endangered species)). When no PCN is required, the project proponent must submit a Report to the district engineer at least 30-days before commencing activities in waters of the United States authorized by this NWP. The district engineer will review the Report to assess whether the case-specific activities will satisfy the terms and conditions of this NWP. The project proponent may proceed with their case-specific activity if 30 days have passed from submittal of the report to the district engineer and the project proponent has not received written notice from the district engineer that the proposed activity does not qualify for

authorization under NWP 27. If the district engineer reviews the Report and determines a PCN is required in order to comply with a general condition, the district engineer must notify the project proponent within 30-days of submittal of the Report. If a specific activity does not comply with the terms and conditions of this NWP, then the district engineer will notify the project proponent within 30 days of the date the Report was submitted to the district engineer indicating that the project proponent must apply for a different NWP, a regional general permit, or an individual permit. The district engineer's documentation of their determination that the case-specific activity is authorized by the NWP 27 does not require detailed analysis of the adequacy of the proposed restoration. The district engineer's review of a Report must only establish that the proposed activity meets the terms and conditions of this NWP. When the district engineer reviews a PCN, he or she will document the district engineer's decision in accordance with Section D (District Engineer's Decision). The Corps believes that 30- days is sufficient time for the district engineer to determine if a case-specific activity will comply with the terms and conditions of this NWP or to notify the project proponent that they must apply for some other type of DA authorization.

General condition 25 (Water Quality) requires a permittee to comply with any conditions of a granted water quality certification. If a certifying authority has not previously granted certification or waived certification, the prospective permittee must obtain an individual water quality certification or waiver in order for an activity to be authorized by this NWP. Nationwide permits do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law.

Many commenters supported the addition of Note 2 and the removal of the requirement to submit a wetland delineation to the district engineer, if a PCN is required for activities authorized under this NWP. Many commenters objected to the removal of the requirement to provide a wetland delineation to the district engineer.

This NWP does not have any quantitative limits, such as acreage limits, which necessitate identifying the precise location of jurisdictional boundaries, such as wetland boundaries, ordinary high water marks, high tide lines, or mean high water marks. A jurisdictional determination is not required in order to receive an NWP verification or conduct activities authorized by an NWP or other permit type. This NWP requires authorized activities to result in net increases in aquatic resource functions and services, which will generally add acreage to the nation's aquatic habitat base. The information required by the Reporting section of this NWP, including baseline information is sufficient for the district engineer to determine if an activity complies with the terms of this NWP and general conditions, including any regional conditions.

A few commenters expressed disagreement with the data and analysis in the national decision document for the NWP 27. The national decision document for this NWP was prepared using estimates of past and future use of an NWP based on information available at the time of document preparation and our best understanding of the state of the science of restoration, enhancement, and establishment activities.

This NWP is reissued with the modifications discussed above.

NWP 28. Modifications of Existing Marinas. The Corps did not propose any changes to this NWP. One commenter stated a PCN should be required for all activities authorized by this NWP. One commenter requested that tribes be notified of actions proposed for authorization by this NWP that would be located in usual and accustomed fishing grounds. One commenter stated that this NWP should require that activities avoid eelgrass, macroalgae, and shellfish habitat. One commenter stated that a review of cumulative impacts should be completed for areas with multiple existing overwater structures. One commenter recommended that the incremental expansion of marina infrastructure be monitored for cumulative impacts to nearshore habitat and access to treaty-protected fisheries.

This NWP authorizes the work and structures in navigable waters of the United States associated with the reconfiguration of existing docking facilities within an authorized marina area. Expansions or additions of any kind are not authorized by this NWP. Permittees must comply with general condition 23 (Mitigation) and design the activity to avoid and minimize impacts to the maximum extent practicable at the site. Division engineers can add regional conditions to this NWP to require PCNs for some or all NWP 28 activities to provide district engineers the opportunity to review these activities on a case-by-case basis and determine whether the activity would cause more than minimal adverse effects on a sensitive aquatic resource or tribal rights.

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 under the Corps' public interest review. Each supplemental document has a cumulative effects analysis for a region, which is typically defined as a state or Corps district. When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief document that explains the decision that the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.

If a permittee conducts work or constructs structures that are not authorized by an issued permit, it is an unauthorized activity, and the Corps district will determine an appropriate course of action under its regulations at 33 CFR part 326. Under Section 10 of the RHA, the removal of any unauthorized structures from navigable waters of the United States “may” be enforced and proper proceedings “may” be instituted under the direction of the Attorney General of the United States.

This NWP is reissued as proposed.

NWP 29. Residential Developments. The Corps did not propose any changes to this NWP. Many commenters stated that this NWP does not authorize activities that are similar in nature and/or have similar effects on the environment. Commenters stated that developments ranging from single-family homes to large multi-unit developments as well as “attendant features” are dissimilar activities. Many commenters stated the NWP contributes significantly to the loss of wetlands in the United States. One commenter recommended modifying NWP 29 to apply separate standards for larger housing developments and for small individual landowners or separate the NWP 29 into two separate NWPs. One commenter stated that this NWP should be withdrawn. Many commenters stated that the term “subdivision” should be defined in the NWP.

We believe that the “categories of activities that are similar in nature” requirement in CWA Section 404(e) is to be interpreted broadly, for practical implementation of this general permit program. This NWP authorizes categories of activities that are similar in nature, that is discharges of dredged or fill material regulated by the Corps that are associated with the construction of

residential development. The requirements of this NWP are appropriate for both regulated activities associated with the construction of single-family homes and multi-unit developments. Residential developments that are part of a larger mixed-use development may by authorized by NWP 29 in combination with other NWPs if consistent with general condition 28 (Use of Multiple Nationwide Permits). This NWP includes a subdivision provision, which states that for residential subdivisions, the aggregate total loss of waters of the United States authorized by this NWP cannot exceed \1/2\-acre, including any loss of waters of the United States associated with the development of individual subdivision lots. Defining the term “subdivision” is unnecessary as there is little confusion surrounding the term.

One commenter recommended changing “aggregate total” to “cumulative total.” One commenter requested that the NWP be modified to clarify that discharges of dredged or fill material into waters of the United States and work and structures into navigable waters of the United States can be authorized by this NWP for activities associated with attendant features may be authorized by this NWP only if they are part of the original development or subdivision. One commenter requested that this NWP be modified to clarify that this NWP does not authorize swimming pools constructed in aquatic resources.

The Corps declines to revise the NWP to replace the term “aggregate” with the term “cumulative” to avoid confusion with the regulatory requirements in the Corps regulations 33 CFR 320.4, which frequently use “cumulative.” This NWP may authorize attendant features associated with residential developments provided they meet the requirements of general condition 15 (single and complete project), and the application of the definition of “single and complete nonlinear project.” The \1/2\-acre limit, the requirement that all activities authorized by this NWP require PCNs, the general conditions that apply to these activities including mitigation requirements in those general conditions, and the district engineers' review of PCNs ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse effects.

Many commenters stated that the Corps should maintain and not decrease the current \1/2\-acre impact limit on the NWP. Many commenters stated that the impact limit should be decreased to less than \1/2\ acre. Many commenters stated that this NWP should be revised to require the use of low-impact construction methods or require the use of nature-based solutions. Many commenters stated that this NWP should not authorize activities within certain locations, including critical habitat. Many commenters recommended requiring climate resiliency screening (sea level rise vulnerability, floodplain modeling) as part of the district engineer's review of the PCN.

The \1/2\-acre limit, plus the requirement that all activities require PCNs and thus get case-by-case review by district engineers, are sufficient to ensure that the NWP authorizes those activities with no more than minimal adverse environmental effects. District engineers will consider the direct, indirect, and cumulative effects of the proposed activity in accordance with paragraph (2) in the District Engineers Decision (Section D.). Division engineers can modify, suspend, or revoke this NWP in geographic areas to ensure that the authorized activities do not cause more than minimal individual and cumulative adverse environmental impacts to sensitive areas

Paragraph (a) of general condition 23, mitigation, requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable on the project site regardless of the construction type or method. This action adds a definition of nature-based solutions to assist in the district engineer's review of the PCN. Prospective permittees are encouraged but not required to incorporate nature-based solutions into their project design. The Corps will not require the use of nature based-solutions because there may be locations where the incorporation of nature-based solutions may not be practicable. Activities authorized by this NWP must comply with general condition 10 (fills within 100-year floodplains). Although the CWA and the RHA do not require the district engineer to screen proposed activities for climate resilience, the use of nature-based solutions may contribute to climate resiliency efforts.

Activities authorized by this NWP must also comply with general condition 18 (Endangered Species). If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) states the non-federal permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA.

Many commenters objected to the removal of the 300 linear foot limit from the NWP, stating that it violates the CWA. A few commenters supported the removal of the 300 linear foot limit. One commenter stated that the NWP should be modified to prohibit the district engineer from waiving impact limits.

The 300 linear foot impact limit was removed from this NWP 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 NWP to ensure that the authorized activities 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)). The ability for district engineers to waive impact limits was not proposed for inclusion in this NWP. The district engineer's discretion to waive the 300-linear foot impact limit was removed for the reasons explained in the 2021 NWPs, which remains the Corps position. When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief document that explains the decision on whether to issue a verification letter for the proposed NWP activity or exercise discretionary authority to require an individual permit for that proposed activity.

One commenter suggested that the NWP require compensatory mitigation for any impacts over \1/10\-acre. One commenter stated that the authority to waive the mitigation requirements should be banned or restricted to a higher level of review. Many commenters stated that reliance on compensatory mitigation to reduce cumulative impacts of NWP 29 does not satisfy CWA requirements. Many commenters stated that compensatory mitigation is not effective at offsetting impacts authorized by this NWP. Many commenters stated that the draft

decision document and NWP 29 itself lacks specific methods for mitigating the effects of residential construction.

General condition 23 requires compensatory mitigation for all wetland losses greater than \1/10\-acre and for all stream losses greater than \3/100\-acre when a PCN is required, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate. District engineers have the discretion to delegate the authority to review PCNs. The district engineer, or delegated authority will make activity-specific determinations whether the compensatory mitigation is sufficient to ensure that the authorized activity results in no more than minimal individual and cumulative adverse environmental effects. The use of compensatory mitigation and other forms of mitigation to ensure that activities authorized by an NWP result in no more than minimal individual and cumulative adverse environmental effects is codified in the Corps' NWP regulations at 33 CFR 330.1(e)(3). Section 404(e) of the CWA does not prescribe how the Corps is to ensure that the categories of activities authorized by general permits such as the NWPs will cause only minimal adverse environmental effects when performed separately and will have only minimal cumulative adverse effect on the environment. Therefore, the Corps has discretion on how to comply with the requirement in the statute.

Compensatory mitigation projects required for activities authorized by the NWPs must comply with the Corps' regulations at 33 CFR part 332, which require monitoring and other actions to ensure that the required compensatory mitigation offsets the permitted wetland or stream losses. The geographic area or watershed where mitigation credits are available to offset adverse impacts to wetlands and streams is determined through the review of the compensatory mitigation proposal in compliance with 33 CFR 332. District engineers will review the PCN to determine if the compensatory mitigation proposed by the prospective permittee is suitable to offset the adverse impacts to aquatic resources, considering the location of the impacts relative to the compensatory mitigation, watershed characteristics, and type of compensatory mitigation. If the district engineer determines that the compensatory mitigation is not suitable, he or she may advise the prospective permittee to revise their mitigation plan or review the proposed activity through the individual permit process.

One commenter expressed concern that the expected amount of compensatory mitigation required by this NWP decreased from the 2021 Rule according to the draft decision document for this NWP. The decision document for this NWP estimates the amount of compensatory mitigation that will be required annually and over the five-years the NWPs in this final action could be in effect. The acres of compensatory mitigation that may be required to offset regulated activities authorized by the NWP in this final action are based on reliable data and resources. These estimates in the national decision documents are updated each time the Corps prepares national decision documents to support the reissuance of an NWP. Estimates of required compensatory mitigation acreage may change from decision document to decision document as a result of a variety of factors, which may include increased reliance on compensatory mitigation banks and in-lieu fee programs, or increased avoidance and minimization sufficient for the district engineer to determine that a case-specific authorized activity results in no more than minimal individual and cumulative adverse environmental effects.

This NWP is reissued as proposed.

NWP 30. Moist Soil Management for Wildlife. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 31. Maintenance of Existing Flood Control Facilities. The Corps did not propose any changes to this NWP. One commenter expressed support for this NWP. Many commenters recommended adding aerial and linear impact limitations to this NWP. Many commenters urged the Corps not to reissue this NWP, stating that it causes significant impacts in violation of 404(e) of the CWA.

This NWP authorizes the discharge of dredged or fill material into waters of the United States or work or structures in navigable waters of the United States for the purpose of maintaining existing flood control facilities. While this NWP does not have a quantitative limit, maintenance activities that require DA authorization are limited to the maintenance baseline that is approved by the district engineer for each existing flood control facility. The NWP does not authorize new construction or expansion of an existing flood control facility. Flood control facilities contain aquatic resources which are adapted to a regime of periodic disturbance and will re-colonize an area after recurring maintenance. Based on the recovery of these resources after maintenance activities, the Corps believes that no quantitative limit is required to ensure that the activities authorized by this NWP will not cause more than minimal adverse environmental effects.

Significant impacts are unlikely to occur as a result of these recurring maintenance activities because of the ecological recovery that occurs between each maintenance activity. That ecological recovery, the recovery of biotic and abiotic components, is likely the reason why recurring maintenance is needed, because the ecological recovery within an existing flood control facility, such as the re- growth of vegetation and the accumulation of sediment, may be diminishing the capacity of the flood control facility to perform its intended flood control functions.

Many commenters stated that the activities authorized by this NWP should be restricted to those that are similar in nature. We believe that the “categories of activities that are similar in nature” requirement in CWA Section 404(e) is to be interpreted broadly, for practical implementation of this general permit program. This NWP authorizes categories of activities that are similar in nature, that is discharges of dredged or fill material regulated by the Corps that are associated with activities related to the maintenance of existing flood control facilities within the established maintenance baseline.

Many commenters recommended that vegetation removal from levees be addressed by a regional approach. Maintenance of an existing flood control facility may require the removal of vegetation, regardless of whether a DA authorization is required for maintenance activities back to the maintenance baseline. This NWP does not impose any specific requirements regarding vegetation on levees, and it does not prescribe any specific management approach to levee vegetation. Division engineers may develop regional conditions to an NWP if he or she determines it necessary to ensure that activities in a region will cause no more than minimal adverse environmental effects. The district engineer will review the PCN and determine if the proposed NWP activity will, after considering permit conditions such as mitigation requirements, result in no more than minimal individual and cumulative adverse environmental effects.

Many commenters recommended that compensatory mitigation be required each time an activity is authorized by this NWP. One commenter urged the Corps to require compensatory mitigation for lost habitat values and,

impacts to anadromous fish and special status species each time the NWP is utilized.

This NWP authorizes only maintenance activities for existing flood control facilities that were previously authorized, or did not require DA authorization at the time they were originally constructed. Mitigation, including compensatory mitigation, may have been required for the original construction of the flood control facility. Mitigation may also be required for the first-time approval of the maintenance activity up to the maintenance baseline by the district engineer. Subsequent recurring maintenance activities to return the existing flood control facility to the maintenance baseline should not require mitigation because those maintenance activities generally have temporary impacts.

If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) states the non-federal permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA.

One commenter expressed concern that the national decision document for this NWP stated that there would be a five-fold increase in the use of this NWP under this final action. No changes have been made to the terms or conditions of this NWP. The estimated impact acreages in the national decision document for this NWP includes both permanent and temporary impacts to waters of the United States. The national decision document for this NWP was prepared using estimates of past and future use of an NWP based on information available at the time of document preparation.

This NWP is reissued as proposed.

NWP 32. Completed Enforcement Actions. The Corps did not propose any changes to this NWP. One commenter stated that the Corps should coordinate with affected tribes prior to administering an enforcement action to ensure that tribal treaty resources are protected. District engineers undertake tribal consultations regarding resolution of unauthorized actions (33 CFR part 326) consistent with the existing Department of Defense, Army, and Corps' tribal consultation policies. Activities that are authorized by this NWP must comply with general condition 17 (Tribal Rights).

This NWP is reissued as proposed.

NWP 33. Temporary Construction, Access, and Dewatering. The Corps did not propose any changes to this NWP. Many commenters supported the reissuance of the NWP with no changes. One commenter stated that the NWP should require the permittee to ensure that fish are preserved from areas that are temporarily dewatered. One commenter stated that this NWP should require that any fill brought in from outside the project area for constructing temporary structures be verified to be free from contaminants.

General condition 2 (Aquatic Life Movements) requires that temporary crossings be suitably culverted, bridged, or otherwise designed and constructed to maintain low flows to sustain the movement of those aquatic species. If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non- federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. The permittee is required to comply with any mitigation measures identified during Section 7 ESA consultation. General condition 6 (Suitable Material) requires that all material used for construction be free from toxic pollutants in toxic amounts. The Corps declines to require the permittee use a specific method for verifying that the material is compliant with general condition 6.

One commenter objected to the inclusion of language stating that structures can be left in place after construction if authorized by a separate Section 10 permit, stating that all structures should be removed or should require authorization under both a Section 10 and a CWA Section 404 permit. One commenter stated that this NWP should exempt waterfilled barriers used to create coffer dams/water diversions from requiring a permit under either Section 10 of the RHA or Section 404 of the CWA.

This NWP prohibits any temporary fills from remaining in place and requires that they be removed in their entirety after completion of construction. Permanent structures or fills may be authorized through a separate DA authorization, such as an individual permit, other NWP, or a regional general permit. Structures in navigable waters of the United States require authorization under Section 10 of the RHA and discharges of dredged or fill material into waters of the United States, including navigable waters of the United States, require authorization under Section 404 of the CWA. Many structures do not result in an activity which requires authorization under Section 404. For instance, many pilings are structures that do not result in activity that requires authorization under Section 404 of the CWA (33 CFR 323.3(c)(2)). There may be situations when it would cause more environmental damage to remove a structure in its entirety than it would to leave the structure in place. The Corps declines to specifically exempt waterfilled barriers from requiring authorization under this NWP. District engineers will determine what activities require authorization under DA authorities.

This NWP is reissued as proposed.

NWP 34. Cranberry Production Activities. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 35. Maintenance Dredging of Existing Basins. The Corps did not propose any changes to this NWP. Many commenters recommended that the NWP require dredging projects include sediment contamination testing and adherence to EPA/State cleanup standards. One commenter stated this NWP should include authorization under Section 404 of the CWA. One commenter stated that this NWP should require a PCN so that the district engineer can review the dredge disposal areas associated with the proposed activity for potential effects to historic properties. Many commenters stated that this NWP be modified to require a PCN.

This NWP authorizes dredging in navigable waters of the United States to previously authorized depths or controlling depths for ingress/egress, whichever is less. Discharges of dredged or fill material are not authorized by this

NWP. During dredging activities, sediments may be resuspended in the water column and may carry chemical substances may have adverse effects to water quality. Those adverse effects are likely to be temporary because the suspended sediments are likely to settle back onto the bottom. Under Section 401 of the CWA, certifying authorities may determine that a dredging activity may result in a discharge into waters of the United States and require the project proponent to obtain an individual water quality certification or waiver unless the certifying authority has issued water quality certification for the issuance of a general permit that authorizes the dredging activity. The permittee must comply with general condition 25 (Water Quality). Water quality certifications for activities authorized by this NWP will help ensure that any discharges that may be caused by those dredging activities comply with applicable water quality requirements.

Since it was first issued in 1991 (56 FR 59144), this NWP has been issued only under the authority of Section 10 of the RHA. This NWP has never been issued or reissued under the authority of Section 404 of the CWA. If the project proponent intends to dispose of dredged material into waters of the United States a separate DA authorization, such as another NWP, an individual permit, or a regional general permit is required.

If the dredge activity in navigable waters of the United States might have the potential to affect a historic property or a property eligible for listing on the National Register of Historic Places, in accordance with general condition 20 (historic properties), the prospective permittee must submit a PCN and may not begin construction until he or she receives written authorization from the district engineer. Federal permittees will comply with general condition 20 by following their agency procedures for implementing Section 106 of NHPA.

Division engineers can add regional conditions to this NWP to require PCNs for activities to provide district engineers the opportunity to review these activities on a case-by-case basis and determine if impacts to sensitive areas would cause no more than minimal adverse environmental effects. The activities authorized by this NWP are limited to existing marina basins, access channels to marinas or boat slips, and boat slips. The terms and conditions of this NWP ensure that activities authorized by this NWP cause no more than minimal adverse environmental effects. The Corps declines to require a PCN for this NWP.

This NWP is reissued as proposed.

NWP 36. Boat Ramps. The Corps did not propose any changes to this NWP. One commenter recommended that the NWP 36 be modified to increase the fill limit to 100 cubic yards and the maximum width to 30 feet. One commenter stated that the NWP should not allow the district engineer to issue waivers. One commenter requested that the prohibition on discharging material into special aquatic sites be removed from the NWP. One commenter requested this NWP be modified to require a PCN for all authorized activities out of concern for the potential to affect historic properties.

This NWP authorizes discharges of dredged or fill material into waters of the United States and work and structures in navigable water of the United States for the construction of boat ramps in waters of the United States The terms of the NWP restrict the volume of discharged material to 50 cubic yards and the width of the boat ramp to 20 feet unless waived by the district engineer. Project sites, aquatic resources, and habitats vary across the nation; therefore, this NWP affords the district engineers the discretion to restrict or waive the width and volume limits so long as the activity would cause no more than minimal adverse environmental effects. Paragraph (e) of this NWP prohibits the placement of material into special aquatic sites, which include wetlands and riffles and pools. The Corps believes that the limits of this NWP are appropriate to ensure the NWP activity will result in no more than minimal adverse environmental effects.

If the regulated activity in waters of the United States might have the potential to affect a historic property or a property eligible for listing on the National Register of Historic Places, in accordance with general condition 20 (historic properties), the prospective permittee must submit a PCN and may not begin construction until he or she receives written authorization from the district engineer. Federal permittees will comply with general condition 20 by following their agency procedures for implementing Section 106 of NHPA.

This NWP is reissued as proposed.

NWP 37. Emergency Watershed Protection and Rehabilitation. The Corps did not propose any changes to this NWP. A few of commenters requested the NWP be modified to add “local or state government entity or political subdivision” as a category of emergency watershed protection and rehabilitation work authorized by this NWP. This NWP authorizes work done or authorized by certain federal agencies under their implementing regulations or policies. Federal agencies have known regulations and policies which include requirements to meet environmental standards that the Corps can review to determine that activities authorized by this NWP would cause no more than minimal adverse environmental effects. Local or state governments, or other political subdivisions will have a variety of standards and requirements which may not provide similar environmental controls. The Corps declines to revise this NWP.

This NWP is reissued as proposed.

NWP 38. Cleanup of Hazardous and Toxic Waste. The Corps did not propose any changes to this NWP. No comments were received on the proposed reissuance of this NWP. This NWP is reissued as proposed.

NWP 39. Commercial and Institutional Developments. The Corps did not propose any changes to this NWP. One commenter stated that the activities authorized by this NWP are not similar in nature. One commenter stated that this NWP should not be reissued. One commenter stated that commercial and industrial developments should require an individual permit. One commenter requested the NWP be modified to raise the \1/2\-acre impact limit to one-acre. Many commenters stated that the Corps should maintain or not decrease the current \1/2\-acre impact limit. One commenter requested that the NWP be modified to limit stream bed impacts to 300 linear feet. One commenter stated that the requirement to submit a PCN for this NWP should be removed. One commenter requested the NWP be modified to include a threshold below which no PCN would be required.

Practical implementation of the Corps' general permit program warrants a broad interpretation of the “categories of activities that are similar in nature” requirement in CWA Section 404(e). This NWP authorizes categories of activities that are similar in nature, that is discharges of dredged or fill material regulated by the Corps that are associated with the construction of commercial and institutional developments. The activities authorized by this NWP must not cause the loss of greater than \1/2\-acre of non-tidal waters of the United States. The \1/2\-acre limit, the requirement that all activities authorized by this NWP require PCNs, the general conditions that apply to these activities, including mitigation requirements in those general conditions, and the district engineers' review of PCNs ensures that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse

effects. The 300 linear foot impact limit was removed from this NWP in the 2021 NWPs as explained in the final rule to issue the 2021 NWPs (86 FR 2761-2768) and remains the Corps' position.

A few commenters recommended revising this NWP to include data centers, and artificial intelligence and machine learning facilities as examples of commercial developments. One commenter stated that this NWP should list pharmaceutical storage and pharmaceutical manufacturing facilities as an example of commercial developments.

The Corps agrees that data centers, artificial intelligence and machine learning facilities, pharmaceutical storage facilities, and pharmaceutical manufacturing facilities are types of commercial developments. In response to these comments, this NWP has been modified to include “data centers (to include for example, artificial intelligence and machine learning facilities),” “pharmaceutical manufacturing facilities,” and the broader term “storage facilities” in the list of examples of commercial developments. The list of examples of commercial and institutional developments in this NWP is not intended to be all-encompassing. This NWP authorizes attendant features to commercial and institutional developments, including utility lines, and roads. There are a number of NWPs that also could authorize discharges of dredged or fill material associated with the construction of facilities associated with commercial and institutional developments, such as NWP 12 (Oil and natural gas pipelines), NWP 14 (Linear Transportation Projects), NWP 18 (Minor Discharges), NWP 51 (Land-based Renewable Energy Generation Facilities), NWP 57 (Electric Utility Line and Telecommunication Activities), or NWP 58 (Utility Line Activities for Water and Other Substances). The use of multiple NWPs to authorize a single and complete project must comply with general condition 28 (Use of Multiple Nationwide Permits).

Prospective permittees who submit a PCN in accordance with paragraph (b) of general condition 32 (Pre-Construction Notification) will identify the specific NWP or NWPs that they propose to use. The district engineer will review the PCN and determine if the case specific activity qualifies for the NWP identified in the PCN. If a proposed activity meets the terms of the requested NWP, and any applicable regional conditions, then the district engineer should issue the NWP verification under the NWP identified in the PCN. If the district engineer decides after reviewing the PCN that the proposed activity does not qualify for the NWP identified by the project proponent, he or she does not have to notify the applicant that the PCN is being evaluated under another NWP. If the district engineer decides that the proposed activity does not qualify for authorization under any NWP, he or she will notify the applicant and provide instructions on how to apply for authorization under an individual permit or a regional general permit.

One commenter stated that phased commercial developments may cause cumulative effects that may not be appropriate for authorization under an NWP. A few commenters stated that commercial developments in floodplains, special aquatic sites, or areas important to salmon should not be authorized by this NWP. One commenter stated that this NWP should require compensatory mitigation for any impacts greater than \1/ 10\-acre.

The requirements of general condition 15 (Single and Complete Project), and the application of the definition of “single and complete nonlinear project” will limit the environmental impacts of any phased commercial developments. The \1/2\-acre limit of NWP 39, plus the requirement that all activities require PCNs and thus get case-by-case review by district engineers, are sufficient to ensure that the NWP authorizes those activities that will cause no more than minimal adverse environmental effects, individually and cumulatively. District engineers will consider the direct, indirect, and cumulative effects of the proposed activity in accordance with paragraph (2) in the District Engineers Decision (Section D.). Division engineers can modify, suspend, or revoke this NWP in a region or geographic to ensure that this NWP does not authorize activities that result in more than minimal cumulative adverse environmental effects.

Activities authorized by this NWP must comply with general condition 10 (Fills Within 100-year Floodplains) and with general condition 18 (Endangered Species). If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) states the non-federal permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. If the district engineer reviews the PCN and determines that the proposed activity may adversely affect essential fish habitat, he or she will initiate essential fish habitat consultation with the NMFS. General condition 23 requires compensatory mitigation for all wetland losses greater than 1/10-acre and for all stream losses greater than 3/ 100-acre, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate.

This NWP is reissued with the modifications discussed above.

NWP 40. Agricultural Activities. The Corps did not propose any changes to this NWP. Many commenters stated that the Corps should maintain and not decrease the current \1/2\-acre impact limit on the NWP. One commenter expressed concern over the size of impacts authorized by this NWP. One commenter recommended modifying this NWP to authorize work and structures in navigable waters of the United States under Section 10 of the RHA. One commenter requested language be included to explicitly state that conservation practices that are designed or constructed to meet USDA-NRCS specification be considered agricultural activities.

The Corps has made no change to the \1/2\-acre impact limit in this NWP. This NWP authorizes discharges of dredged or fill material into waters of the United States for agricultural activities. The Corps declines to modify this NWP to authorize activities in navigable waters of the United States, such activities may be authorized by another NWP, a regional general permit, or an individual permit. The NWP provides a list of examples of activities that are considered agricultural activities, but the list is not all-inclusive. This NWP requires that prospective permittees submit a PCN. Upon receipt of the PCN, district engineers will determine if a proposed activity is an agricultural activity. If the district engineer determines that a discharge of dredged or fill material into waters of the United States associated with a conservation practice does not meet the terms and conditions of this NWP, the project proponent can apply for different NWP, for a regional general permit, or for an individual permit.

Many commenters opposed connecting agricultural drainage ditches to fish bearing streams in Washington State, expressing concern about water

quality. One commenter recommended prohibiting use of this NWP in any agricultural, drainage, or irrigation ditches that are used by fish.

Division engineers may develop regional conditions for an NWP if he or she determines it necessary to ensure that activities in a region will cause no more than minimal adverse environmental effects to sensitive areas. Permittees must comply with general condition 25 (Water Quality) and any granted water quality certification. The potential effects of a regulated activity on fish bearing streams in Washington State would be better addressed at the regional level. The district engineer may add conditions to a case-specific NWP which incorporate measures to avoid and minimize impacts to listed species (or species proposed for listing) and critical habitat (or critical habitat proposed for designation). District engineers may also add conditions to NWP authorizations to address EFH Conservation Recommendations made by NMFS during activity-specific EFH consultations. General conditions 2 (Aquatic Life Movements) and 3 (Spawning Areas) require the permittee to maintain low flows and to avoid impacts to spawning areas during spawning seasons, to the maximum extent practicable.

This NWP is reissued as proposed.

NWP 41. Reshaping Existing Drainage and Irrigation Ditches. The Corps did not propose any changes to this NWP. A few commenters recommended that this NWP be modified to require a PCN for all activities. One commenter stated that this NWP should be modified to limit the length and frequency of the activities authorized by this NWP. One commenter requested that projects in a region on the eastern seaboard require an individual permit. One commenter recommended adding a statement requiring “as-builts” be provided to verify original capacity and dimensions. One commenter stated that activities authorized by this NWP may impact historic properties. One commenter recommended modifying the NWP to prohibit authorization of this NWP in any agricultural, drainage, or irrigation ditches that are used by fish at any time of the year. This NWP authorizes discharges of dredged or fill material in non-tidal waters of the United States to reshape drainage or irrigation ditches. The Corps does not believe that length or frequency limits are necessary to ensure that this NWP causes no more than minimal adverse environmental effects, individually or cumulatively. In geographic areas where there are regional concerns about impacts to a sensitive aquatic resource, division engineers have the discretionary authority to require a PCN for proposed NWP- activities in a region or location. Permittees who receive a verification letter certify compliance with the NWP terms and general conditions, in accordance with general condition 30 (Compliance Certification).

If a non-federal permittee proposes an activity that might have the potential to affect a historic property or a property eligible for listing on the National Register of Historic Places, in accordance with general condition 20 (historic properties), the prospective permittee must submit a PCN and may not begin construction until they receive written authorization from the district engineer. The district engineer may add conditions to a case-specific NWP which incorporate measures to avoid and minimize impacts to listed species (or species proposed for listing) and critical habitat (or critical habitat proposed for designation). District engineers may also add conditions to NWP authorizations to address EFH Conservation Recommendations made by NMFS during activity-specific EFH consultations. General conditions 2 (Aquatic Life Movements) and 3 (Spawning Areas) require the permittee to maintain low flows and to avoid impacts to spawning areas during spawning seasons, to the maximum extent practicable. If the district engineer receives a PCN, he or she may add conditions to a case- specific NWP verification to ensure that the activity would cause no more than minimal adverse environmental effects.

This NWP is reissued as proposed.

NWP 42. Recreational Facilities. The Corps did not propose any changes to this NWP. One commenter expressed opposition to the reissuance of this NWP and stated that the activities under this NWP result in more than minimal impacts. One commenter stated that impacts to \1/2\-acre of non-tidal waters or over 1,000 feet of stream channel are not minimal. Many commenters stated the Corps should maintain and not decrease the current \1/2\-acre impact limit on this NWP.

This NWP requires a PCN for all activities. District engineers will review the PCN and to determine if the proposed discharge of dredged or fill material into waters of the United States will result in no more than minimal individual and cumulative adverse environmental effects and may include activity-specific conditions in the NWP authorization. Activities authorized by this NWP must not cause the loss of more than \1/2\-acre of non-tidal waters of the United States. Losses of streams will count toward the \1/2\-acre limit. The terms and conditions of this NWP, including the \1/2\-acre limit and the requirement that all activities require PCNs, will ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse environmental effects.

One commenter stated that use of this NWP should be prohibited in areas important to listed species or essential fish habitat. One commenter stated that the NWP should require compensatory mitigation for any impacts over \1/10\ acre.

If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) states non-federal permittees cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA.

District engineers may also add conditions to NWP authorizations to address EFH Conservation Recommendations made by NMFS during activity- specific EFH consultations or to ensure that the activity would cause no more than minimal adverse environmental effects. General conditions 2 (Aquatic Life Movements) and 3 (Spawning Areas) require the permittee to maintain low flows and to avoid impacts to spawning areas during spawning seasons, to the maximum extent practicable. General condition 23 requires compensatory mitigation for all wetland losses greater than \1/10\-acre and for all stream losses greater than \3/100\-acre that require PCNs, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate.

This NWP is reissued as proposed.

NWP 43. Stormwater Management Facilities. The Corps proposed to modify this NWP to reference the broader term of “nature-based solutions” instead of the narrower terms of “green infrastructure” and “low-impact development integrated management features.” The nature-based solutions associated with regulated activities authorized by this NWP include features that can be constructed and maintained to manage

stormwater and reduce inputs of pollutants, including sediments and nutrients, to downstream waters. To provide additional clarity to potential permittees, the Corps also proposed to add more examples to the text of this NWP of nature-based solutions for stormwater management and reducing pollution loads to waters and wetlands. Other nature-based solutions and other features that are conducted to meet pollutant reduction targets established under TMDLs set under the CWA may also be authorized by this NWP provided they comply with the applicable terms and conditions of this NWP.

Many commenters recommended retaining the \1/2\-acre impact threshold in this NWP. Many commenters recommended clarifying that the \1/2\-acre impact threshold does not apply to temporary or long-term impacts to waters. A few commenters stated that changes to other aquatic resource types should be considered loss of waters and considered in the determination of minimal adverse impacts. Many commenters recommended ensuring the cumulative effects of repeated maintenance dredging and vegetation removal are evaluated. One commenter recommended adding language explicitly authorizing routine maintenance activities to ensure continued function.

The activities authorized by this NWP must not cause the loss of greater than \1/2\-acre of non-tidal waters of the United States. The “loss of waters of the United States” refers to permanent adverse effects to waters of the United States as a result of filling, flooding, excavation, or drainage because of the activities subject to Corps' authority, and does not include temporary impacts. The definition of “loss of waters of the United States” is in Section F of this action (Definitions). This NWP does not authorize any activities in non-tidal wetlands adjacent to tidal waters or in tidal waters.

This NWP does not authorize discharges of dredged or fill material for the construction of new stormwater management facilities in perennial streams. When a PCN is required, the district engineer will determine if a proposed activity would cause more than minimal individual and cumulative adverse effects to the environment in light of all the general conditions and the criteria in Section D, District Engineer's Decision. The district engineer will consider the direct, indirect, and cumulative effects of the action on waters of the United States. The Corps' CWA authority over aquatic resources is limited to waters of the United States. The second paragraph of this NWP states that “to the extent that a section 404 permit is required, discharges of dredged or fill material into non-tidal waters of the United States for the maintenance of stormwater management facilities” is authorized by this NWP.

Several commenters expressed support for the proposed language that nature-based solutions can be authorized under this NWP. One commenter stated that this NWP should authorize nature-based solutions.

To the extent that nature-based solutions require DA authorization and are associated with stormwater management facilities, regulated activities associated with nature-based solutions may be authorized by NWP 43. The district engineer will review the PCN and make a case- specific determination whether such structures, are authorized by this NWP.

Many commenters stated that stormwater management facilities should be prohibited in a variety of areas, including wetlands and critical habitat. One commenter opposed use of this NWP in natural streams or areas used by fish. One commenter opposed converting natural resources into stormwater management facilities. One commenter stated that facilities located in a floodplain should require an individual permit. Many commenters recommended tribal coordination within salmon-bearing watersheds or usual and accustomed fishing areas.

It is not always possible or desirable to site stormwater management facilities in upland areas, and locating them in jurisdictional wetlands or other waters of the United States may be the only practicable option for effectively managing stormwater. This NWP authorizes the construction of these facilities in non-tidal jurisdictional wetlands and waters, as long as those activities result in no more than minimal individual and cumulative adverse environmental effects. This NWP does not authorize discharges of dredged or fill material into perennial streams for the construction of new stormwater management facilities.

Except for certain maintenance activities, all activities authorized by this NWP require submittal of a PCN. For those activities that require PCNs, the district engineer will evaluate potential impacts to fish and determine if the proposed activity may affect listed species (or species proposed for listing) or critical habitat (or habitat proposed for such designation) and complete any required ESA Section 7 consultation. Activities authorized by this NWP must comply with general condition 10 (Fills in 100-Year Floodplains). If, during the review of a PCN, the district engineer determines the proposed activity may adversely affect EFH, she or he will initiate EFH consultation with the NMFS. Division engineers may add regional conditions to this NWP to protect other sensitive areas. The district engineer will review all PCNs for compliance with general condition 17 (Tribal Rights).

One commenter stated that the activities authorized by this NWP should not be considered restoration. One commenter stated that compensatory mitigation should not be required for activities authorized by this NWP because stormwater management facilities improve and protect aquatic resources. One commenter recommended the Corps retain discretionary authority to require mitigation.

Stormwater management facilities are an important tool for fulfilling the objective of the CWA, by protecting and restoring the physical, chemical, and biological integrity of our Nation's waters. Some activities authorized by this NWP will not meet the definition of “restoration,” but they may still provide benefits to the aquatic ecosystem. General condition 23 requires compensatory mitigation for all wetland losses greater than \1/10\-acre and for all stream losses greater than \3/100\-acre that require PCNs, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate.

One commenter expressed support for the current PCN threshold. Many commenters stated that the district engineer should consider low impact development alternatives and changing rainfall intensity or flood risk. Many commenters stated that the prospective permittee should have to submit a long-term maintenance plan as part of the PCN.

General condition 23 requires the prospective permittee to design the activity to avoid and minimize adverse effects to waters of the Untied Stated to the maximum extent practicable at the project site. The use of nature-based approaches may contribute to avoidance and minimization and could address changing climate factors. This NWP does not require the inclusion of nature-based solutions in the design of a stormwater management facility. Activities authorized by this NWP that are associated with the maintenance of stormwater facilities do not require a PCN if they are limited to restoring the original design capacities of the stormwater management facility. The Corps has determined that these

activities will cause no more than minimal adverse environmental effects if completed in compliance with the terms of this NWP and all applicable general conditions.

One commenter stated that NWP 43 should authorize a broader category of activities which improve water quality rather than specifying that the NWP authorizes activities that are conducted to meet TMDLs set under the CWA. One commenter stated that the Corps should recognize that prospective permittees must comply with requirements of states, municipalities, and tribes. One commenter stated that the final decision on what is most appropriate to meet public safety needs should be made by the local agency responsible for stormwater management. One commenter stated that monitoring may be required for certain activities where there are limits on allowable degradation, performance standards, or potential violations of water quality standards.

This NWP authorizes discharges of dredged or fill material into non-tidal waters of the United States for the construction of stormwater management facilities, maintenance of such stormwater facilities and nature-based solutions for managing stormwater and reducing inputs of sediments, nutrients, and other pollutants into waters. This NWP authorizes regulated activities which include, but are not limited to, activities which are conducted to meet TMDLs. The Corps agrees that states and municipalities may require, under their authorities, the construction and implementation of facilities to meet water quality criteria, designated uses, and compliance with post- construction stormwater requirements. If the construction and maintenance of those facilities involves discharges of dredged or fill material into waters of the United States, this NWP can be used to authorize those activities. If a certifying authority grants a water quality certification with conditions, those conditions become regional conditions to the NWP. Section E of this action (Further Information) states the NWPs do not obviate the need to obtain other federal, state, or local permits, approvals, or authorizations required by law. Project proponents are responsible for complying with other licenses or permits.

This NWP is reissued as proposed.

NWP 44. Mining Activities. The Corps did not propose any changes to this NWP. Many commenters stated that the Corps should maintain and not decrease the current \1/2\-acre impact limit on this NWP. One commenter stated that \1/2\-acre of impacts to a small stream is not minimal. One commenter recommended using a sliding acreage cap for impacts based on project size. One commenter stated that the \1/2\-acre impact limit should be expanded to at least 3 acres. One commenter recommended a new NWP permit only for aggregates with a higher acreage impact limit.

The terms and conditions of this NWP, including the \1/2\-acre limit and the requirement that all activities require PCNs, will ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse environmental effects. District engineers will review these PCNs, and can add conditions to the NWP authorization, including mitigation requirements, to ensure that the authorized activity will cause no more than minimal adverse environmental effects. If a proposed activity will result in more than minimal adverse environmental effects, after considering the mitigation proposal provided by the prospective permittee, the district engineer will exercise discretionary authority and require an individual permit.

Division engineers may also add regional conditions to this NWP to change the PCN threshold or restrict activities in sensitive waters or locations. This NWP authorizes aggregate mining activities, and the Corps does not believe a separate NWP for those activities is warranted. Activities that are not authorized by this NWP may be authorized by a regional general permit or individual permit.

One commenter stated that mining activities, especially within a fish bearing stream, should not be covered under an NWP. One commenter objected to the use of this NWP when activities occur in streams, floodplains, or are adjacent to non-tidal waters occupied by anadromous salmon.

All activities authorized by this NWP require a PCN. District engineers will review PCNs for case specific activities and determine whether they may affect ESA-listed species (or species proposed for listing) or designated critical habitat (or habitat proposed for such designation). If the district engineer determines a proposed NWP activity may affect listed species (or species proposed for listing) or designated critical habitat (or habitat proposed for designation), he or she will conduct ESA Section 7 consultation with the U.S. Fish and Wildlife Service's (FWS) or National Marine Fisheries Service's (NMFS) as appropriate. If, during the review of a PCN, the district engineer determines the proposed activity may adversely affect EFH, she or he will initiate EFH consultation with the NMFS. Division engineers may add regional conditions to this NWP to protect other special status species.

This NWP is reissued as proposed.

NWP 45. Repair of Uplands Damaged by Discrete Events. The Corps did not propose any changes to this NWP. One commenter stated that any repairs should not include structures waterward of the new ordinary high water mark unless there is an immediate threat to a primary structure or associated infrastructure. One commenter suggested this NWP be modified to authorize beach restoration, up to 25 cubic yards, conducted by a local government or hydropower owner with a FERC license.

This NWP only authorizes restoration of the damaged upland areas up to the contours or ordinary high water mark that existed prior to the occurrence of the damage. We do not agree that the restoration should be limited to the post-damage ordinary high water mark. The purpose of this NWP is to authorize regulated activities to repair uplands that have been damaged by a discrete event. It may not be practicable to limit fills to the new ordinary high water mark where the ordinary high water mark was changed by a discrete event.

Use of this NWP to authorize beach nourishment has been prohibited since 2012 (77 FR 10227) and we continue to maintain this position. The FERC license is not sufficient to replace the review by the district engineer to ensure that the activity would cause no more than minimal adverse environmental effects. The Corps declines to modify this NWP to authorize beach nourishment. Beach nourishment or restoration activities may be authorized by individual permits or regional general permits.

One commenter stated the requirement to submit the PCN within one year from the date of damage is too short due to engineering and regulatory processes that need to be followed. This commenter recommended the timeframe be extended to two years.

The Corps agrees that 12 months may be too short a timeframe to submit a PCN for activities authorized by this NWP. The Corps is modifying this NWP to require submittal of a PCN within 18-months and retaining the district engineer's discretion to waive the 18-month deadline if the prospective permittee can demonstrate funding, contract, or similar delays. Such delays can occur after major storm events if the entities responsible for making decisions regarding disbursement of funds or issuing contracts are short staffed or receive more requests than can be handled in a timely manner. The

Corps is retaining the requirement that the activity be under contract to commence or commence construction within two years of the date of the damage, and retaining the district engineer's discretion to waive the two-year timeframe.

This NWP is reissued with the modifications discussed above.

NWP 46. Discharges in Ditches. The Corps did not propose any changes to this NWP. One commenter expressed concern with the scale of impacts authorized by this NWP. A few commenters objected to the use of this NWP to authorize activities in ditches occupied by fish.

The Corps is retaining the one-acre limit that was established for this NWP when it was first issued in 2007. The one-acre limit has been effective in ensuring that discharges of dredged or fill material into the non-tidal ditches that satisfy four criteria in the first paragraph of this NWP result in no more than minimal individual and cumulative adverse environmental effects. Division engineers can add regional conditions to this NWP to impose an acreage limit that is less than one-acre, to ensure that activities authorized in the region will have no more than minimal individual and cumulative adverse environmental effects. During the review of PCNs for proposed NWP 46 activities, district engineers can require compensatory mitigation to offset losses of waters of the United States, in accordance with general condition 23 (Mitigation).

This NWP requires prospective permittees to submit a PCN. When the district engineer reviews the PCN, he or she will consider potential impacts to salmon and other fish species. General condition 2 (Aquatic Life Movements), prohibits activities which could disrupt the necessary life cycle movements of aquatic species and general condition 3 (Spawning Areas) prohibits the destruction of important spawning areas. If deemed appropriate, this NWP can be regionally conditioned by division engineers to limit or restrict the use of this NWP in waters accessible to anadromous salmonid species. The text of this NWP states that it does not authorize discharges into streams, or streams that have been relocated into uplands.

One commenter requested clarification if activities in ditches that receive groundwater inputs are excluded from this NWP. One commenter requested that this NWP be modified to allow activities in ditches that receive water from sources other than waters of the United States.

This NWP authorizes discharges of dredged or fill material into ditches that are waters of the United States so long as the ditches (1) are constructed in uplands, (2) receive water from an area determined to be a water of the United States prior to the construction of the ditch, and (3) divert water to an area determined to be a water of the United States prior to the construction of the ditch. Although criterion (2) requires that the ditch must receive water from a water of the United States that existed prior to the construction of the upland ditch, the terms of the NWP do not require that the ditch only receive water from a water of the United States prior to the construction of the ditch. The ditch may also receive water from other sources, such as precipitation or groundwater. This NWP does not authorize discharges of dredged or fill material into ditches constructed in streams or other waters of the United States, or in streams that have been relocated in uplands. To the extent that ditches are determined to be waters of the United States, this permit provides authorization for discharges of dredged or fill material into them provided all terms and conditions of this NWP are met.

This NWP is reissued as proposed.

NWP 48. Commercial Shellfish Mariculture Activities. Federal court decisions in The Coalition to Protect Puget Sound v. U.S. Army Corps of Engineers (U.S. District Court, Western District Court of Washington at Seattle and U.S. Court of Appeals for the Ninth Circuit) vacated the 2017 NWP 48 in waters within Washington State. As a result, project proponents in Washington state have since sought authorization for regulated activities, work, or structures under a standard individual permit or letter of permission. Due to the low volume of PCNs received under the 2021 NWPs for activities proposed within waters in Washington State, the Corps proposed to modify NWP 48 to exclude its use in waters within Washington State. The Corps proposed to modify Note 1 and to add a Note (designated as Note 4) in this NWP. Language was added to each Note to clarify the intent of each Note. Note 1 was modified to identify information that should be provided to USCG and to provide contact information for USCG. New Note 4 identifies information that should be provided to NOS and provides contact information for NOS. The Corps provides a summary of the comments received on revised Note 1 and new Note 4 and responses to comments in Section II.D of this final action.

One commenter recommended that a PCN be required for all activities authorized by this NWP. One commenter opposed NWP 48 and recommended all covered activities require an individual permit. One commenter suggested prohibiting the use of this NWP and requiring an individual permit in high-value subsistence and cultural zones. One commenter recommended that the NWP be withdrawn until it can be demonstrated that the impacts of shellfish mariculture on the aquatic environment are minimal in nature. One commenter supported the revocation of NWP 48 in Washington State but disagreed with the use of Letters of Permission for authorizing mariculture operations in the state.

The terms and conditions of this NWP, including its PCN requirement, will ensure that commercial shellfish mariculture activities authorized by this NWP will result in no more than minimal individual and cumulative adverse environmental effects. If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non-federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed.

Division engineers may impose regional conditions to require PCNs or revoke this NWP for proposed activities that might affect treaty rights, submerged aquatic vegetation, or other concerns. Regional conditions can help ensure compliance with general condition 17, (Tribal rights) so that no NWP 48 activity will cause more than minimal adverse effects on reserved tribal rights (including treaty rights), protected tribal resources, or tribal lands.

When reviewing a PCN, if the district engineer determines that the proposed activity, after considering mitigation proposed by the prospective permittee, will result in more than minimal individual and cumulative adverse environmental effects, he or she will exercise discretionary authority and require an individual permit for that activity. The district engineer has the discretion to determine what type of individual permit may be appropriate

for authorizing the proposed activity, a Letter of Permission or a standard individual permit.

One commenter expressed concerns that the NWP could cause more than minimal adverse impacts to submerged aquatic vegetation. One commenter expressed concern that no compensatory mitigation will be required to offset the impacts from the authorized activities. One commenter stated that commercial shellfish mariculture activities improve habitat, increase species richness, and increase species diversity of aquatic resources. One commenter disagreed with the Corps' claim that the placement of oyster shells is a permanent discharge of dredged or fill material and can bury submerged aquatic vegetation. One commenter expressed concern that this NWP has no acreage impact limitation.

Prospective permittees must submit a PCN for commercial mariculture operations that impact more than \1/2\-acre of submerged aquatic vegetation. This PCN threshold is sufficient for the purposes of ensuring that a project will have no more than minimal individual or cumulative adverse environmental effect. Division engineers may restrict or prohibit use of this NWP in geographic regions or specific waterbodies where more than minimal individual or cumulative adverse environmental effects may occur. District engineers will review the PCN and determine if the case-specific activity will cause more than minimal adverse effects on the environment. Placement of oyster shells in waters of the United States, either temporarily or permanently, can impact submerged aquatic vegetation. The length of time it takes for submerged aquatic vegetation to reestablish in an area can vary by species and habitat. District engineers will review PCNs to determine what activities result in a loss of waters of the United States and if the effects of the discharge are more than minimal.

One commenter requested clarification if the commercial shellfish operator would need to reapply every five years for continued authorization of the regulated activities. The commenter stated that requiring prospective permittees to reapply every NWP cycle is excessive and puts an extreme burden on districts where mariculture is prevalent.

General permits, including NWPs, must be reissued at least every five years. Commercial shellfish mariculture activities typically involve on-going discharges of dredged or fill material into waters of the United States and structures and work in navigable waters of the United States throughout the five-year period a general permit is in effect. When that general permit expires, the on-going activities must be reauthorized in order for the regulated activities to continue to be authorized by general permit, assuming the general permit is reissued by the appropriate permitting authority (i.e., Corps Headquarters for an NWP, a district engineer for a regional general permit or a programmatic general permit). Commercial shellfish mariculture operators can choose to utilize NWP 48 or other general permits to provide DA authorization for their activities, or they can apply for standard individual permits or letters of permission for those activities and if they would like to request that Corps districts issue standard individual permits or Letters of Permission for those activities that would be in effect for periods longer than five years.

One commenter requested that the NWP define which activities require authorization under Section 404 of the CWA and which activities require authorization under Section 10 of the RHA. Structures or work in navigable waters of the United States require authorization under Section 10 of the RHA and discharges of dredged or fill material into waters of the United States require authorization under Section 404 of the CWA. The majority of the activities associated with commercial shellfish mariculture require authorization under Section 10 of the RHA. Some activities associated with seeding, cultivating and harvesting activities will require authorization under Section 404 of the CWA. District engineers will determine what specific activities are subject to each of these laws.

One commenter asserted that mechanical harvest, harrowing and shell dispersal do not constitute a discharge of dredged or fill material and insisted that those activities should be covered under the normal farming exemption.

Discharges of dredged or fill material require DA authorization under Section 404 of the CWA unless exempted by Section 404(f) of the CWA. In accordance with the 1989 Memorandum of Agreement Between the Department of the Army and the U.S. EPA Concerning the Determination of the Section 404 Program and the Application of the Exemptions under Section 404(f) of the CWA, the U.S. EPA has the authority to establish policies on which activities are eligible for the CWA Section 404(f) exemptions. There are no work or structures in navigable waters of the United States that are exempted from regulation under Section 10 of the RHA.

This NWP is reissued as proposed.

NWP 49. Coal Remining Activities. The Corps did not propose any changes to this NWP. One commenter stated mining activities should not be covered under an NWP. All activities authorized by this NWP must result in net increases in aquatic resource functions. Regulated activities associated with remining activities reduce acid mine drainage and sedimentation, which help manage cumulative effects on a watershed basis. The reduction in acid mine drainage and/or sedimentation in downstream segments of stream channels has resulted in functional improvements in many watersheds.

This NWP is reissued as proposed.

NWP 50. Underground Coal Mining Activities. The Corps did not propose any changes to this NWP. Many commenters opposed reissuance of this NWP and stated that the activities authorized under the NWP have significant and harmful impacts on the environment. One commenter stated mining activities should require an individual permit. Many commenters opposed the use of this NWP in the Appalachian Regions due to impacts from previous mining.

The Corps Headquarters has prepared a national decision document to address the environmental effects of the reissuance of this NWP in accordance with NEPA and the CWA. The national decision document evaluates cumulative impacts in accordance with the CWA Section 404(b)(1) Guidelines at 40 CFR 230.7 for the issuance of general permits. In the national decision document for this NWP, the Corps Headquarters has made a finding of no significant impact.

In addition to the national analysis, the division engineer will prepare supplemental documentation and can exercise discretionary authority and modify the NWP by imposing regional conditions to ensure that activities authorized by this NWP in a region cause no more than minimal adverse environmental effects. The prospective permittee must submit a PCN to the district engineer for all activities proposed for authorization by this NWP. When the district engineer reviews the PCN, he or she will consider the direct and indirect effects of the NWP- specific activity in accordance with Section D (District Engineer's Decision) and determine if the activity will cause no more than minimal adverse environmental effects, both individually and cumulatively. If the district engineer reviews the PCN and determines that the proposed activity, after considering any mitigation proposal submitted by the applicant,

will result in more than minimal adverse environmental effects, he or she will assert discretionary authority and require an individual permit for that activity.

Many commenters stated that the Corps should maintain the current \1/2\-acre impact limit on this NWP. Many commenters stated that the \1/2\-acre impact limit should only apply to permanent impacts to waters. Many commenters opposed the \1/2\-acre impact limit. Many commenters opposed the provision that allows the permittee to proceed 45-days after submittal of the PCN to the district engineer.

This NWP prohibits the loss of greater than \1/2\-acre of non-tidal waters of the United States. The \1/2\-acre limit for this NWP, as well as the requirement that all activities require PCNs, will ensure that this NWP authorizes activities that result in no more than minimal adverse environmental effects, individually and cumulatively. The “loss of waters of the United States” refers to permanent adverse effects to waters of the United States as a result of filling, flooding, excavation, or drainage because of the activities subject to Corps' authority, and does not include temporary impacts. The district engineer will review the PCN and consider the impacts of the regulated activities, including the duration of the adverse effects (temporary or permanent) in accordance with Section D (District Engineer's Decision). Activities that qualify for the default authorization that occurs 45- days after the district engineer receives a complete PCN must comply with all terms and conditions of the NWP, including the general conditions and any applicable regional conditions imposed by the division engineer.

Many commenters expressed concern that this NWP would significantly increase sediment loads into waters of the United States Many commenters stated that the activities authorized by this NWP would harm endangered species.

Permittees must comply with the general conditions of this NWP, including general condition 25 (Water Quality) and general condition 12 (Soil Erosion and Sediment Controls), which require the permittee to comply with any conditions to granted water quality certifications and to implement appropriate soil erosion and sediment controls. Paragraph (c) of general condition 25 acknowledges that the district engineer or certifying authority may require additional water quality management measures to ensure that the authorized activity does not result in more than minimal degradation of water quality.

If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. Federal permittees must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. No activity is authorized by an NWP if it is likely to directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation.

This NWP is reissued as proposed.

NWP 51. Land-Based Renewable Energy Generation Facilities. The Corps did not propose any changes to this NWP. One commenter expressed support for this NWP. One commenter expressed concern with the scale of impacts authorized by this NWP. A few commenters stated these activities should not be covered under an NWP. Many commenters stated that the Corps should maintain the current \1/2\-acre impact limit on this NWP. Many commenters stated that the \1/2\-acre impact limit should only apply to permanent impacts to waters. One commenter stated that a PCN should be required for all activities authorized by this NWP citing concerns for impacts to historic properties.

This NWP authorizes discharges of dredged or fill material into waters of the United States for the construction, expansion, or modification of land-based renewable energy facilities. The authorized discharge must not cause the loss of greater than \1/2\-acre of non- tidal waters of the United States. The “loss of waters of the United States” refers to permanent adverse effects to waters of the United States as a result of filling, flooding, excavation, or drainage because of the activities subject to Corps' authority, and does not include temporary impacts (Section F. Definitions). The \1/2\-acre limit, along with the PCN requirements and compliance with the NWP general conditions, will ensure that the activities authorized by this NWP will result in no more than minimal individual and cumulative adverse environmental effects. PCN is required if the discharge results in the loss of greater than \1/10\-acre of waters of the United States. The district engineer will review the PCN and he or she will consider the impacts of the discharges of dredged or fill material into waters of the United States, including the duration of the adverse effects (temporary or permanent) in accordance with Section D (District Engineer's Decision).

If a non-federal permittee proposes an activity that might have the potential to affect a historic property or a property eligible for listing on the National Register of Historic Places, in accordance with general condition 20 (historic properties), the prospective permittee must submit a PCN and may not begin construction until they receive written authorization from the district engineer. Federal agencies must follow their own procedures for complying with Section 106 of the NHPA.

One commenter requested that the NWP be expanded to provide authorization for battery storage projects. There is overlap in some activities authorized by certain NWPs and battery storage projects, such as battery energy storage systems, may be authorized by this NWP, as well as by NWP 39 (Commercial and Institutional Developments) or NWP 57 (Electric Utility Line and Telecommunications Activities) provided they comply with the terms and conditions of the NWP.

One commenter suggested the NWP be modified to restrict its use in critical habitat, recovery units or areas known to be of importance to migratory birds, bald eagles, and golden eagles. One commenter stated that this NWP causes more than minimal impacts to areas important to fish. One commenter stated that compensatory mitigation should be required for impacts that cannot be avoided.

In accordance with general condition 19 (Migratory Birds and Bald and Golden Eagles), project proponents are responsible for complying with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non-federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. If a

PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. Activities authorized by this NWP must comply with general condition 10 (Fills Within 100-year Floodplains). Division engineers can regionally condition this NWP to restrict or prohibit its use in waters of the United States, where the discharges of dredged or fill material are likely to result in more than minimal adverse effects on the aquatic environment. During the review of PCNs for case-specific activities, district engineers can require compensatory mitigation to offset the permitted losses of waters of the United States, in accordance with general condition 23 (Mitigation).

This NWP is reissued as proposed.

NWP 52. Water-Based Renewable Energy Generation Pilot Projects. The Corps proposed to modify Note 3 and to add a Note (designated as Note 6) in this NWP. Language was added to each Note to clarify the intent of each Note. Note 3 was modified to identify information that should be provided to NOS and to provide contact information for NOS. New Note 6 identifies information that should be provided to USCG and to provide contact information for USCG. The Corps provides a summary of the comments received on revised Note 3 and new Note 6 and responses to comments in Section II.D of this final action.

One commenter supported NWP 52 and the proposed changes. One commenter objected to the reissuance of this NWP and stated that all covered activities should require an individual permit. Many commenters stated that the Corps should maintain the current \1/2\-acre impact limit on this NWP. Many commenters stated that the \1/2\-acre impact limit should only apply to permanent impacts to waters. Many commenters stated that the number of units allowed by this NWP should be reduced from 10 to 3. One commenter stated that authorizing these activities in streams, wetlands or other critical areas would result in more than minimal adverse environmental impact. Several commenters expressed concern with shading or light reduction caused by solar panels. Many commenters stated that activities authorized by this NWP impact treaty rights and tribal treaty fishing rights.

The terms and conditions of this NWP, including the \1/2\-acre limit, and the ten-unit limit will ensure that this NWP authorizes only those activities with minimal adverse effects on the aquatic environment. All activities authorized by this NWP require a PCN, which provides district engineers an opportunity to review each proposed activity and determine whether the adverse effects on the aquatic environment will be minimal. District engineers may add activity- specific conditions to the NWP authorization which require actions to mitigate adverse environmental effects. The Corps is retaining the \1/ 2\-acre limit and the requirement that all authorized activities require PCNs. The “loss of waters of the United States” refers to permanent adverse effects to waters of the United States as a result of filling, flooding, excavation, or drainage because of the activities subject to Corps' authority, and does not include temporary impacts.

This NWP is also subject to general condition 22 (Designated Critical Resource Waters), which prohibits using this NWP to authorize discharges of dredged or fill material into critical resource waters and wetlands adjacent to such waters. Critical resource waters include marine sanctuaries and marine monuments managed by the National Oceanic and Atmospheric Administration, and National Estuarine Research Reserves, and waters designated by the district engineer after notice and opportunity for comment. Division engineers may also impose regional conditions to restrict or prohibit the use of this NWP in specific categories of waters or in certain geographic areas. Division engineers will review the PCN and make a project-specific determination that the adverse effects on navigation, the aquatic environment, and other public interest review factors would be minimal, individually and cumulatively. During review of a PCN, district engineers may exercise discretionary authority and require an individual permit if the proposed activity will result in more than minimal adverse effects on the aquatic environment. Division engineers can add regional conditions to this NWP to help ensure compliance with general condition 17 (Tribal Rights).

Many commenters objected to the Corps relinquishing its authority to the FERC for activities proposed under this NWP. Note 4 states that hydrokinetic renewable energy generation projects that require authorization by the FERC under the Federal Power Act of 1920 do not require separate authorization from the Corps under Section 10 of the RHA. Note 4 is based on current law and must remain in the NWP. If the water-based renewable energy generation activity results in discharges of dredged or fill material into waters of the United States, then Section 404 authorization is required for the proposed activity. In situations when FERC authorizes a structure in a navigable water of the United States, this NWP can authorize the discharge of dredged or fill material if the proposed activity complies with the NWP terms and all general conditions.

One commenter stated that pilot projects should be temporary. Many commenters stated that permanent installation of hydrokinetic units should require an individual permit because they are based on new technologies.

This NWP does not authorize activities associated with permanent installation of water-based renewable energy generation pilot projects. The construction of permanent water-based renewable energy generation facilities would require separate authorization under a regional general permit or individual permit.

This NWP is reissued as proposed.

NWP 53. Removal of Low-Head Dams. The Corps did not propose any changes to this NWP. One commenter supported reissuance of this NWP. A few commenters suggested that this NWP be expanded to authorize the removal of other dams using criteria based on size or storage volume.

This NWP, defines “low-head dam” as a “dam or weir built across a stream to pass flows from upstream over all, or nearly all, of the width of the dam crest and does not have a separate spillway or spillway gates, but it may have an uncontrolled spillway.” The definition further states that low-head dams in all cases, provide little or no storage function. The Corps declines to modify this NWP to expand the activities covered by this NWP based on a dam height or storage capacity, as those criteria could result in a greater range of potential impacts to aquatic resources. The definition of “low head dam” in this NWP limits the use of this NWP to dams that have the key features presented in the definition. The definition of “low head dam,” in addition to the PCN requirement, ensures that activities authorized by this NWP cause no more than minimal adverse environmental effects.

If the proposed dam removal activity does not qualify for authorization under this NWP or NWP 27, then an individual permit will be required unless the Corps district has issued a regional general permit that could be used to authorize the proposed activity. District engineers can also issue regional general permits to authorize the removal of other types of dams, such as run-of-the-river dams. The removal of fords or in-stream grade-control structures might also be authorized by NWP 27 as a long

as the activity results in a net increase in aquatic ecosystem functions and services and complies with the other terms and conditions of the NWP.

One commenter recommended revising this NWP to allow placement of demolition debris from the low head dam below the ordinary high water mark within 200 linear feet of the structure. One commenter recommended that the Corps create a single permit to authorize dam removal, restoration, and bank stabilization activities.

This NWP requires that the material of the removed low-head dam structure be deposited and retained in an area that has no waters of the United States unless otherwise specifically approved by the district engineer under separate authorization. The terms and conditions of the NWP ensure that the authorized activities cause no more than minimal adverse effects to the environment. We decline to modify this NWP to expand the list of activities authorized by this NWP. Bank stabilization activities may be authorized by NWP 13 (Bank Stabilization), restoration of the stream in the vicinity of the dam may be authorized by NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment) or other DA permits, such as a regional general permit. Activities authorized by one or more NWPs must comply with all general conditions, including general permit 28 (Use of Multiple Nationwide Permits). The district engineer will review the PCN and determine if the proposed activity can be authorized by one or more NWPs. If a prospective permittee cannot comply with the terms of the NWP and the general conditions, the district engineer may advise the project proponent to apply for a regional general permit or individual permit.

This NWP is reissued as proposed.

NWP 54. Living Shorelines. The Corps proposed to modify the first paragraph of this NWP to state that a portion of a living shoreline can consist of an unvegetated cobble or sand beach, which can be considered a pocket beach.

Many commenters supported reissuance of this NWP, noting that it streamlined the permitting process for bank stabilization projects which provide ecological enhancement. One commenter supported the retention of the PCN requirement and the language in the NWP. One commenter objected to the reissuance of this NWP and stated that all covered activities should require an individual permit. One commenter stated that these activities could result in more than minimal adverse environmental impacts. One commenter stated that the applicant must demonstrate that the proposed activity will not impact waters of the United States.

This NWP authorizes structures and work in navigable waters of the United States and discharges of dredged or fill material into waters of the United States associated with the construction and maintenance of living shorelines. The permittee must comply with the terms and general conditions of this NWP, including general conditions which require avoidance and minimization of effects to spawning areas. A PCN is required for all NWP 54 activities. The district engineer will review the PCN and, if the proposed activity will result in more than minimal individual and cumulative adverse environmental effects after considering mitigation proposed by the applicant, the district engineer will exercise discretionary authority and require an individual permit.

One commenter expressed concern that permittees will not be required to avoid or minimize impacts to waters of the United States. One commenter stated that the applicant should demonstrate why the proposed activity is necessary. One commenter stated that the applicant must provide assurances that the structure will not become a hazard. One commenter stated that the NWP should prohibit the introduction of non-native or invasive species.

Paragraph (a) of general condition 23 (Mitigation) and paragraphs (e) and (f) of this NWP require structures and fills in jurisdictional waters and wetlands, including navigable waters, to be minimized to the maximum extent practicable on the project site. It is up to the landowner to decide how he or she wants to protect his or her property from erosion. This NWP authorizes the construction or maintenance of living shorelines in order to offer landowners an alternative general permit authorization to the various types of bank stabilization activities authorized by NWP 13 (Bank Stabilization). Paragraph (h) of this NWP requires that the permittee maintain the living shoreline, including making repairs after discrete events. Paragraph (d) of this NWP requires that the permittee use native plants.

One commenter stated that the activities authorized by this NWP should not be used as compensatory mitigation. One commenter stated that the permittee should be required to comply with water quality standards.

When the prospective permittee submits a PCN and compensatory mitigation is required by general condition 23 (Mitigation), the district engineer will review the proposed compensatory mitigation and determine if it is sufficient to offset the adverse environmental effects of a regulated activity. Consistent with general condition 25 (water quality) the permittee must comply with any conditions of a granted water quality certification for any activity that may result in a discharge from a point source into waters of the United States.

One commenter suggested that this NWP be modified to limit the use of cobble and gravel fill materials by adding “where appropriate and consistent with the characteristics of the natural shoreline.” Many commenters stated that the NWP should avoid improper use of larger rocks in living shorelines. A few commenters suggested modifying this NWP to authorize small-scale beach nourishment.

The terms of this NWP, in combination with the general conditions, appropriately limit the types of structures or fill materials that are authorized by this NWP. Cobble, sand, and rock sills may all be part of a living shoreline as long as the footprint is made up of mostly native material and incorporates vegetation or other living, natural “soft” elements, and the activity meets the other requirements of this NWP. We have not included beach nourishment in this NWP because these projects do not have a living component such as fringe wetland vegetation, or oysters or mussels, and are not considered living shorelines. When using the term “beach nourishment,” we are referring to larger scale beach fill projects, which usually occur on open coasts. There may be a portion of the living shoreline that consists of unvegetated sandy substrate (e.g., a micro-beach or pocket-beach within or next to the fringe wetland). In addition, we recognize that some movement of sand fill may be necessary to maintain the living shoreline. The district engineer will review the required PCN to determine of a specific activity may be authorized by this NWP, another NWP, a regional general permit, or if the activity will require an individual permit.

One commenter suggested modifying this NWP to allow fills and structures to be placed more than 30 feet from the mean low water line or the ordinary high water mark or to allow activities more than 500 feet in length without a waiver from the district engineer. One commenter objected to allowing the district engineer the discretion to waive the 30-foot or 500-foot limits.

The Corps is retaining the 30-foot and 500 linear foot limits and retaining the district engineer's discretion to waive

these limits on a case-by-case basis, after reviewing the PCN and coordinating that PCN with the resource agencies. For a waiver to occur, the district engineer must issue a written determination with a finding that the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects.

A few commenters stated that use of this NWP should be limited in the State of Washington. One commenter stated that this NWP has the potential to result in impacts to tribal treaty natural resources and fishing activities.

Division engineers may also impose regional conditions to restrict or prohibit the use of this NWP in specific categories of waters or in certain geographic areas. Division engineers can add regional conditions to this NWP to help ensure compliance with general condition 17 (Tribal Rights). District engineers may also include project- specific conditions with any NWP verification to ensure the activity results in no more than minimal adverse environmental effects.

One commenter suggested that language allowing temporary structures during construction, similar to language found in NWP 13 (Bank Stabilization), be added to NWP 54. We agree with the suggested change and have added language after paragraph (h) of this NWP to authorize temporary structures, fills, and work, including the use of temporary mats, necessary to construct the living shoreline.

This NWP is reissued with the modifications discussed above.

NWP 55. Seaweed Mariculture Activities. The Corps proposed to modify Note 1 and to add a Note (designated as Note 4) in this NWP. Language was added to each Note to clarify the intent of each Note. Note 1 was modified to identify information that should be provided to USCG and to provide contact information for USCG. New Note 4 identifies information that should be provided to NOS and provides contact information for NOS. The Corps provides a summary of the comments received on revised Note 1 and new Note 4 and responses to comments in Section II.D of this final action.

Many commenters urged the Corps to revoke NWP 55 due to concerns that the activities covered could cause more than minimal impacts. A few commenters suggested prohibiting the use of this NWP and requiring an individual permit. One commenter stated that the use of this NWP should be prohibited in areas important to tribes.

The work and structures in navigable waters of the United States authorized by this NWP are associated with seaweed mariculture, which is expected to have a relatively small, if not beneficial, impact on marine ecosystems. This NWP includes terms and conditions, including the requirement to submit a PCN for all proposed NWP 55 activities, to ensure the NWP authorizes only those regulated activities associated with seaweed mariculture that result in no more than minimal individual and cumulative adverse environmental effects. In response to a PCN, district engineers will apply the criteria listed in paragraph 2 of Section D, District Engineer's Decision to determine whether the proposed activity can be authorized by NWP 55, with or without additional permit conditions, or exercise their discretionary authority to require an individual permit. Division engineers may modify, suspend, or revoke this NWP on a regional basis in accordance with the procedures at 33 CFR 330.5(c).

Division engineers may impose regional conditions to require PCNs or revoke this NWP for proposed activities that might affect treaty rights, submerged aquatic vegetation, or other concerns. Regional conditions can help ensure compliance with general condition 17, (Tribal rights) so that no NWP 55 activity will cause more than minimal adverse effects on reserved tribal rights (including treaty rights), protected tribal resources, or tribal lands.

This NWP is reissued as proposed.

NWP 56. Finfish Mariculture Activities. The Corps proposed to not reissue this NWP. Under this final action, NWP 56 will expire on March 14, 2026. Section I.D. of this action (and 33 CFR 330.6(b)) provides information about the time within which permittees must complete activities authorized by this NWP. After this expiration date, project proponents who want to construct structures in navigable waters of the United States for finfish mariculture activities will need to obtain individual permits (i.e., standard individual permits or letters of permission) for those activities unless the Corps district has issued a regional general permit or a programmatic general permit to authorize regulated structures associated with finfish mariculture. Many commenters supported the Corps' decision not to reissue this NWP. This NWP is not reissued.

NWP 57. Electric Utility Line and Telecommunications Activities. The Corps proposed to modify Note 1 and to add a Note (designated as Note 8) in this NWP. Language was added to each Note to clarify the intent of each Note. Note 1 was modified to identify information that should be provided to NOS and to provide contact information for NOS. New Note 8 identifies information that should be provided to USCG and to provide contact information for USCG. The Corps provides a summary of the comments received on revised Note 1 and new Note 8 and responses to comments in Section II.D of this final action.

Many commenters support the reissuance of this NWP as proposed. One commenter stated that NWP 57 will have no more than minimal adverse effects on the environment. One commenter recognizes that impacts that are not discharges of dredged or fill material are outside of the Corps' regulatory authority under Section 404 of CWA. One commenter opposes the reissuance of NWP 57, stating that it will result in more than minimal impacts. Several commenters stated that a PCN should be required when a project includes mechanized land clearing. One commenter stated that activities authorized by NWP 57 should be required to avoid marine aquatic vegetation areas.

The \1/2\-acre impact limit, PCN requirements and other requirements of this NWP, and general conditions, are sufficient to ensure that the activities authorized by this NWP cause no more than minimal adverse environmental effects. Utility line installations must not cause changes to pre-construction contours in waters of the United States. Changes to pre-construction contours constitute a loss of waters of the United States. A PCN is required for the loss of greater than \1/10\-acre of waters of the United States. If a PCN is required, district engineers can add conditions to the NWP authorization, including mitigation requirements, to ensure that the authorized activity will cause no more than minimal adverse environmental effects.

Paragraph (a) of general condition 23 (Mitigation), requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable. General condition 23 requires compensatory mitigation for all wetland losses greater than \1/10\-acre and for all stream losses greater than \3/100\-acre for all activities authorized under this NWP, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate. The district engineer may, consistent with paragraph (i) of general condition 23, require compensatory mitigation for

conversions of wetlands in utility rights-of-way to offset adverse environmental effects of such conversions.

If after reviewing a PCN, the district engineer determines the proposed activity will result in more than minimal adverse environmental effects, after considering the mitigation proposal provided by the prospective permittee, he or she will exercise his or her discretionary authority and require an individual permit. Division engineers may also add regional conditions to this NWP to change the PCN threshold or restrict activities in sensitive waters or locations. The Corps declines to add a PCN threshold for mechanized land clearing to this NWP.

One commenter suggested that the requirements for access roads be consistent between NWPs 57 and 14. One commenter recommended that the phrase “near as possible” be revised to “maximum extent practicable.”

This NWP requires access roads to be constructed as near as possible to pre-construction contours and elevations. The additional avoidance and minimization required by the more restrictive “near as possible” is necessary and still allows flexibility to deviate from preconstruction contours. The Corps declines to modify this NWP to allow access roads in tidal waters or wetlands adjacent to tidal waters. Temporary access roads in tidal waters may be authorized by NWP 33 (Temporary Construction, Access, and Dewatering).

Many commenters oppose Note 2 in NWP 57, stating that reliance on the definition of “single and complete linear project” is unlawful. The practice for providing NWP authorization for single and complete linear projects, where each separate and distant crossing of waters of the United States may qualify for its own NWP authorization, is consistent with the Corps' NWP regulations at 33 CFR 330.2(i), which were published in the November 22, 1991, issue of the Federal Register. This NWP has been issued in compliance with Section 404(e) of the CWA (including the Section 404(b)(1) Guidelines). District engineers will review PCNs to determine whether proposed crossings of waters of the United States are to be considered together or as separate and distant on a case-by-case basis, after evaluating site and regional characteristics. If one crossing of waters of the United States associated with the construction of a linear transportation project requires an individual permit, then 33 CFR 330.6(d) applies, and the district engineer will determine which activities require individual permits and which activities can be authorized by an NWP. Section 330.6(d) of the Corps' NWP regulations, as well as Note 2 of NWP 57, remain in effect. Section 330.6(d) and Note 2 maintain the Corps' long- standing process regarding the use of NWPs and individual permits to authorize linear projects.

One commenter requested that this NWP be expanded to provide authorization for battery storage projects. Battery storage projects, such as battery energy storage systems, may be authorized by this NWP, as well as by NWP 39 (Commercial and Institutional Developments) or NWP 51 (Land-Based Renewable Energy Generation Facilities) provided they comply with the terms and conditions of the NWP. There is overlap in activities authorized by certain NWPs.

This NWP is reissued as proposed.

NWP 58. Utility Line Activities for Water and Other Substances. The Corps proposed to modify Note 1 and to add a Note (designated as Note 7) in this NWP. Language was added to each Note to clarify the intent of each Note. Note 1 was modified to identify information that should be provided to NOS and to provide contact information for NOS. New Note 7 identifies information that should be provided to USCG and to provide contact information for USCG. The Corps provides a summary of the comments received on revised Note 1 and new Note 7 and responses to comments in Section II.D of this final action.

Many commenters expressed general support for NWP 58. Many oppose the reissuance of this NWP and stated that this NWP would authorize more than minimal adverse environmental impacts. A few commenters stated that a district engineer's decision that activities from the same pipeline have no more than minimal cumulative effects should be in writing and made publicly available. Many commenters assert that NWP 58 fails to comply with NEPA and is therefore unlawful.

This NWP has been issued in compliance with Section 404(e) of the CWA (including the Section 404(b)(1) Guidelines). The terms and conditions of this NWP are appropriate for limiting authorized activities associated with utility lines activities for water and other substances so that they have a no more than minimal individual and cumulative adverse effect on the aquatic environment. Certain activities require pre-construction notification to the district engineer. District engineers will review PCNs for proposed NWP 58 activities, and may add permit conditions, including mitigation requirements, to the NWP authorization to help ensure that the authorized activities cause no more than minimal adverse environmental effects. District engineers can also exercise discretionary authority and require an individual permit if the proposed activity may result in more than minimal adverse environmental effects. Following the conclusion of the district engineer's review of a PCN, he or she prepares an official, publicly-available decision document. This document discusses the district engineer's findings as to whether a proposed NWP activity qualifies for NWP authorization, including compliance with all applicable terms and conditions, and activity- specific conditions needed to ensure that the activity being authorized by the NWP will have no more than minimal individual and cumulative adverse environmental effects. As explained in Section III.A. of this final action, the reissuance of the NWP complies with NEPA.

One commenter requested that this NWP be modified to specifically list CO2 pipelines as example of a substance that could be transported by utility lines installed under this NWP. One commenter suggested creating a separate NWP for CO2 pipelines with limits on the size of such projects.

This NWP authorizes discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States for construction, maintenance, repair, and removal of utility lines for water and other substances, excluding oil, natural gas, products derived from oil or natural gas, and electricity. Carbon dioxide is not derived from oil or natural gas but is emitted when oil or natural gas are burned. NWP 58 defines “utility lines” as any pipe or pipeline for the transportation of any gaseous, liquid, liquescent, or slurry substance, for any purpose that is not oil, natural gas, or petrochemicals. Carbon dioxide is transported as a liquid. The Corps agrees that this NWP may authorize regulated activities associated with the construction, maintenance, repair, or removal of pipelines for pipelines that convey carbon dioxide, hydrogen or methanated hydrogen, industrial products that are not petrochemicals, wastewater, brine, irrigation water, sewage or stormwater. The Corps declines to create a separate NWP specifically for carbon dioxide pipeline activities because regulated activities associated with carbon dioxide pipelines are authorized by this NWP.

Many commenters expressed concern over the use of this NWP to authorize activities associated with pipelines that transport carbon dioxide or hydrogen.

One commenter stated that the decision document of NWP 58 fails to include analysis of carbon dioxide pipelines and is therefore in violation of the CWA and NEPA. Many commenters stated that carbon dioxide pipelines should require an individual permit.

The Corps does not have jurisdiction over the construction or siting of any pipeline, the products transported by any pipeline, nor over inadvertent returns, leaks, or spills that may occur during the installation or operation of pipelines. The siting of pipelines falls under the authority of the FERC or state agencies. Pipeline safety, including carbon dioxide or hydrogen pipelines, falls under the authority of the Pipeline and Hazardous Materials Safety Administration. The Corps has authority over discharges of dredged or fill material into waters of the United States and structures or work in navigable waters of the United States.

As discussed in Section III. A. and B. of this final action, this NWP was issued in compliance with NEPA and the CWA. Through the national decision document, the Corps has determined that this NWP will cause no more than minimal adverse environmental effects. The division engineer can exercise discretionary authority and modify the NWP by imposing regional conditions, that will help ensure that the NWP authorizes only those activities with minimal individual and cumulative adverse effects on the aquatic environment. District engineers can exercise discretionary authority and require an individual permit if he or she determines the proposed activity will result in more than minimal adverse environmental effects.

One commenter recommended revising the last sentence of the seventh paragraph of this NWP to be consistent with Note 4 and similar text in NWP 12 (Oil or Natural Gas Pipelines). The Corps agrees with this suggestion and has added the word “may” after “discharge of dredged or fill material” to acknowledge that some structures over navigable waters of the United States will not require authorization under Section 10 of the RHA. Pipelines over navigable waters of the United States are bridges and may require a permit from the USCG.

Many commenters opposed Note 2 in NWP 58, stating that reliance on the definition of “single and complete linear project” is unlawful. One commenter stated that specific direction should be provided to the district engineer on the use of discretionary authority to ensure that the NWP is not used to approve large-scale projects.

The practice for providing NWP authorization for single and complete linear projects, where each separate and distant crossing of waters of the United States may qualify for its own NWP authorization, is consistent with the Corps' NWP regulations at 33 CFR 330.2(i), which were published in the November 22, 1991, issue of the Federal Register. This NWP has been issued in compliance with Section 404(e) of the CWA (including the Section 404(b)(1) Guidelines). District engineers will review PCNs to determine whether proposed crossings of waters of the United States are to be considered together or as separate and distant on a case-by-case basis, after evaluating site and regional characteristics. If one crossing of waters of the United States associated with the construction of a linear transportation project requires an individual permit, then 33 CFR 330.6(d) applies, and the district engineer will determine which activities require individual permits and which activities can be authorized by an NWP. Section 330.6(d) of the Corps' NWP regulations, as well as Note 2 of NWP 57, remain in effect. Section 330.6(d) and Note 2 maintain the Corps' long- standing process regarding the use of NWPs and individual permits to authorize linear projects.

Several commenters recommended modifying the NWP to require a PCN for proposed mechanized land clearing. One commenter suggested that activities authorized by this NWP must avoid marine aquatic vegetation areas. One commenter stated that the Corps should exercise more oversight of projects authorized by this NWP rather than relying on information from the prospective permittee.

Mechanized land clearing in waters of the United States may result in a discharge of dredged material which requires DA authorization under Section 404 of the CWA. To be regulated under Section 404 of the CWA, a discharge of dredged material involves any addition, including redeposit other than incidental fallback, of dredged material, including excavated material, into waters of the United States that is incidental to any activity, including mechanized land clearing, ditching, channelization, or other excavation (see 33 CFR 323.2(d)(1)(iii)). The \1/2\-acre impact limit, PCN requirements and other requirements of this NWP, and general conditions, are sufficient to ensure that the activities authorized by this NWP cause no more than minimal adverse environmental effects.

Utility line installations must not cause changes to pre- construction contours in waters of the United States. Changes to pre- construction contours constitute a loss of waters of the United States. A PCN is required for the loss of greater than \1/10\-acre of waters of the United States. If a PCN is required, district engineers can add conditions to the NWP authorization, including mitigation requirements, to ensure that the authorized activity will cause no more than minimal adverse environmental effects. Paragraph (a) of general condition 23 (Mitigation), requires permittees to avoid and minimize adverse effects to waters of the United States to the maximum extent practicable. General condition 23 requires compensatory mitigation for all wetland losses greater than \1/10\-acre and for all stream losses greater than \3/100\-acre for all activities authorized under this NWP, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate.

The district engineer may, consistent with paragraph (i) of general condition 23, require compensatory mitigation for conversions of wetlands in utility rights-of-way to offset adverse environmental effects of such conversions. If after reviewing a PCN, the district engineer determines the proposed activity will result in more than minimal adverse environmental effects, after considering the mitigation proposal provided by the prospective permittee, he or she will exercise his or her discretionary authority and require an individual permit. Division engineers may also add regional conditions to this NWP to change the PCN threshold or restrict activities in sensitive waters or locations. The Corps declines to add a PCN threshold for mechanized land clearing to this NWP.

The district engineer will rely on information provided by the prospective permittee and other reliable data and resources when making a decision whether the NWP-specific activity will result in no more than minimal adverse environmental effects. Permittees who receive an NWP verification letter, either as a result of a PCN submitted in compliance with a general condition or a PCN submitted voluntarily, must certify to the district engineer that the authorized activity has been completed in compliance with the NWP authorization in accordance with general condition 30 (Compliance Certification). If a permittee fails to comply with the terms and conditions of this NWP, the district engineer will evaluate the potential unauthorized activity in accordance with 33 CFR 326.

One commenter suggested that the requirements for access roads be consistent between NWPs 58 and 14.

One commenter recommended that the phrase “near as possible” be revised to “maximum extent practicable.”

This NWP requires access roads to be constructed as near as possible to pre-construction contours and elevations. The additional avoidance and minimization required by the more restrictive “near as possible” is necessary and still allows flexibility to deviate from preconstruction contours. The Corps declines to modify this NWP to allow access roads in tidal waters or wetlands adjacent to tidal waters. Temporary access roads in tidal waters may be authorized by NWP 33 (Temporary Construction, Access, and Dewatering).

This NWP is reissued with the modifications discussed above.

NWP 59. Water Reclamation and Reuse Facilities. The Corps did not propose any changes to this NWP. Several commenters expressed general support for NWP 59. A few commenters oppose the \1/2\-acre limitation for NWP 59, citing that the acreage limitation severely limits the practical use of this NWP. One commenter requested clarification if reuse water pipelines such as those used for extractive industries (natural gas hydraulic fracturing) would fall under NWP 58 or NWP 59.

The \1/2\-acre limit in NWP 59 is consistent with other NWPs and is necessary to ensure that regulated activities cause no more than minimal adverse environmental effects. This NWP authorizes discharges of dredged or fill material into waters of the United States to construct, expand, or maintain water reclamation and reuse facilities as attendant features of other activities authorized by NWP, such as NWP 29 (residential developments), NWP 39 (commercial and institutional developments), NWP 40 (agricultural activities), and NWP 42 (recreational facilities). There may be overlap with NWP 58 for some activities authorized by this NWP. There are a number of activities that may be authorized by more than one NWP, and such redundancy is not problematic because the statutory requirement for all NWPs and other general permits is the same: those general permits can only authorize activities that have no more than minimal individual and cumulative adverse environmental effects. If the district engineer, after review of the PCN, determines that an activity cannot be authorized by NWP 59, he or she will advise the applicant whether the activity qualifies for another NWP or regional general permit, or if an individual permit is required.

This NWP is reissued as proposed.

NWP A. Activities To Improve Passage of Fish and Other Aquatic Organisms. The Corps proposed this new NWP to authorize structures and work in navigable waters of the United States and discharges of dredged or fill material into waters of the United States for activities that restore or enhance the passage of fish and other aquatic organisms through river and stream networks as well as other types of waters.

Many commenters expressed support for the addition of this NWP. Several commenters stated that this NWP authorizes activities that are similar in nature. One commenter supported the statements in the 2025 Proposal stating that prospective permittees have the flexibility to use engineered components or nature-based solutions. One commenter opposed this NWP. One commenter recommended that this NWP authorize replacement of low-head irrigation dams with permanent structures such as weirs and vanes as well as replacing culverts in favor of low water crossings. A few commenters recommended that this NWP authorize the removal of in-stream structures such as dams, weirs, fords or other grade control structures.

Many commenters recommended limiting the activities authorized by this NWP to those associated with nature-like fishways, culvert and low-head dam removal and related restoration, and fish screens, stating that all other activities should require an individual permit. One commenter stated that placement of gravel for enhancing spawning habitat should be authorized by this NWP. One commenter supported the prohibition to use this NWP to authorize dam removal. One commenter stated that bridges should be mentioned in every instance where culverts are mentioned. One commenter requested clarification that this NWP authorizes installation and modification of culverts that are incidental to the fish passage elements of a project.

This new NWP can be used to authorize discharges of dredged or fill material in waters of the United States and work and structures in navigable waters of the United States associated with the construction, maintenance, modification, removal, or expansion of structures, devices, or fills that increase the ability of fish and other aquatic organisms to pass through, or around, infrastructure and other built features. The structures, devices, or fills may be engineered and may include nature-based solutions. This NWP is written to authorize regulated activities associated with a variety of options for improving the passage of fish and other organisms and is not limited to nature- like fishways, fish screens and culvert removal.

This new NWP does not authorize the removal of dams of any size. Regulated activities associated with the removal of low head dams may be authorized by NWP 53 (Removal of Low-Head Dams). Regulated activities associated with the removal of any other type of dam will require evaluation through the individual permit process. There are some diversion structures that are not dams and regulated activities associated with the removal of these structures, including weirs and vanes, may be covered by this new NWP, if such removal improves passage of fish and other organisms.

Regulated activities associated with the removal of existing in- stream structures, such as weirs, fords, and other grade control structures, are authorized by this NWP when they restore or enhance the ability of fish and other aquatic organisms to move through the aquatic ecosystem. This NWP also authorizes regulated activities associated with the removal or replacement of existing culverts along with other structures, including but not limited to culverted fishways, low-water crossings, or bridges. Unless otherwise exempt, discharges of dredged or fill material associated with the construction of bridges in waters of the United States, including navigable waters of the United States, require authorization under Section 404 of the CWA. Bridges that cross navigable waters of the United States require a separate authorization from the U.S. Coast Guard under Section 9 of the RHA.

We have modified the text of the NWP to change the examples of activities that may be authorized by this NWP to replace “culverts” with “structures.” This modification clarifies there is flexibility in the types of structures that may be replaced, or which may replace existing culverts in order to enhance the movement of fish or aquatic organisms.

This new NWP authorizes the construction, maintenance, modification, or expansion of culverts and other structures if they are associated with the improvement of passage of fish and other aquatic organisms. Such activities include, but are not limited to, replacement of culverts that are perched or undersized or the construction or installation of additional culverts near existing culverts (e.g. installing an additional culvert next to an existing single culvert in a stream channel to reduce water velocities through the existing culvert sufficient to allow fish to swim

upstream). We have added language to clarify that this NWP does not authorize the construction or installation of new culverts where there are not existing culverts. In other words, the construction or installation of new culverts where no culvert is present at the waterbody crossing or no culvert is in, or adjacent to, the waterbody crossing is not authorized by this NWP. In situations where there is no existing culverted crossing or if there is an existing in-stream grade control structure which lacks a culvert, this NWP does not authorize the discharge of dredged or fill material or construction or installation of a new culvert. Installation of new culverts where a culvert does not exist may be authorized by other NWPs, such as NWP 14 if the activity is associated with a linear transportation project, and such culverts may include measures to improve passage of fish and other organisms.

One commenter requested additional clarification on types of fish passages that may qualify for authorization under this NWP. Many commenters recommended additional examples of activities that could be authorized by this NWP, including the removal of culverts for the purpose of daylighting streams, the addition of behavioral guidance and deterrence features that leverage attraction or avoidance behavioral responses of fish; the creation of seasonal floodways; the installation of fish lifts, fish by-pass pipes, and/or fish screens on water supply intakes; and/or or the addition of gravel to spawning habitat. Several commenters requested that examples of activities authorized by this NWP that fall under the category of “other ecological process” be added.

We have modified the text of the proposed NWP to expand the list of examples of activities and types of structures or devices that may be authorized by this NWP. We have added text to clarify that fishways may be conventional/technical, to make clear that either term is appropriate for use to describe fishways that may be authorized by this NWP. We have modified the text to clarify that this NWP may be used to authorize modification of existing structures or fills, in addition to the construction, maintenance, expansion or removal of existing structures or fills to enhance passage of fish and other aquatic organisms. We have added some additional examples to the list in the NWP, namely devices to minimize entrainment and entrapment of fish and other aquatic organisms, such as fish screens; and fish lifts and fish by-pass pipes. We have also added devices to guide fish and other aquatic organisms through passage features as an example of a structure that could be authorized by this NWP.

The list of examples in the NWP is not exhaustive. We agree that removing culverts, daylighting culverts, or creating seasonal floodways are activities that may be authorized by this NWP if they restore or enhance the passage of fish and other aquatic organisms and comply with the other terms of this NWP and the NWP general conditions. The enhancement of spawning habitat would not be authorized by this new NWP unless such activity restores or enhances the ability of fish and other aquatic organisms to move through the aquatic ecosystem. The placement of gravel for enhancing fish spawning habitat may be authorized by NWP 18 (Minor Discharges) or NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment).

Many commenters expressed support of the one-acre impact limit in this NWP. Many commenters opposed the one-acre impact limit. One commenter suggested changing the impact limit of this NWP from one-acre of loss of waters to 1/5-acre of conversion of waters of the United States to uplands. One commenter recommended that all activities authorized by this NWP be considered temporary impacts.

The Corps is retaining the one acre loss of waters of the United States limit in this NWP. The “loss of waters of the United States” refers to permanent adverse effects to waters of the United States as a result of filling, flooding, excavation, or drainage because of the activities subject to Corps' authority, and does not include temporary impacts. For activities that are intended to improve the passage of fish and other aquatic organisms through river or stream networks or other components of the aquatic environment, permanent fills in rivers and streams or other aquatic habitats may occur through the placement of boulders, cobbles, large wood and other materials to construct a nature-like fishway or the construction of a conventional fishway, or the replacement of a culvert. The construction of bypass channels around dams or weirs could involve filling or excavating wetlands or river or stream channels. Activities that are planned, designed, and constructed to improve the ability of fish and other aquatic organisms to pass through or around barriers are unlikely to result in the conversion of aquatic habitats to dry land. However, the placement of rocks, wood, or other fill material into a stream segment would result in a permanent discharge of fill material into to waters of the United States and would be considered a “loss of waters of the United States.”

One commenter requested clarification if this NWP authorizes activities in wetlands adjacent to waters of the United States. One commenter requested that language be added to the new NWP to inform the prospective permittee that some activities may be exempt from requiring DA authorization under Section 404(f) of the CWA.

Activities in jurisdictional wetlands adjacent to other waters of the United States may be authorized by this NWP provided the regulated activity increases or enhances the passage of fish and other aquatic organisms. Discharges of dredged or fill material associated with maintenance activities are exempted from regulation under Section 404(f) of the CWA, unless they modify the character, scope, or size of the original fill design. The RHA contains no language which exempts work or structures in navigable waters of the United States from regulation. The Corps declines to add text to this NWP to inform the prospective permittee that some activities may be exempt from regulation under Section 404 of the CWA because the activities authorized by this NWP are likely to modify the character of the original structure or fill.

Many commenters expressed support for the \1/10\th acre threshold limit for submittal of a PCN. Many commenters stated that a PCN should be required for all activities. One commenter recommended raising the PCN threshold to one-acre. One commenter expressed concern that certain activities, such as culvert replacement, modification of in-stream structures, and construction or expansion of fish bypass channels, could result in more than minimal damage to the aquatic ecosystem. Many commenters expressed concern that cumulative impacts would not be adequately evaluated under this NWP.

This new NWP requires a PCN for activities resulting in the loss of greater than \1/10\-acre of waters of the United States. This PCN threshold is implemented so that, in combination with the other terms and NWP general conditions, this NWP will result in no more than minimal adverse environmental impact, both individually and cumulatively. Through the national decision document, the Corps has determined that this NWP will cause no more than minimal adverse environmental effects. The division engineer can exercise discretionary authority and modify the NWP by imposing regional conditions to

help ensure that the NWP authorizes only those activities with minimal individual and cumulative adverse effects on the aquatic environment. The district engineer will review the PCN and determine if compensatory mitigation or other special conditions are necessary to ensure that the NWP-specific activity will result in no more than minimal adverse environmental impact.

Several commenters recommended requiring activities to meet specified design criteria. Several commenters recommended that this NWP should require that any authorized activity will improve the movement of wood, water, and sediment, in addition to fish.

There are numerous techniques to design features that improve passage of fish and aquatic organisms. Some of those techniques were discussed in the resources that were referenced in the 2025 Proposal. Activities which enhance the passage of fish and other aquatic organisms will vary by site, by species, and by waterbody. The Corps declines to set specific design criteria to allow for flexibility in the type of activity that is selected by the project proponent and to avoid prohibiting the application of new and emerging technologies. District engineers can generally discuss potential options to improve passage of fish and aquatic resources with project proponents. District engineers do not design or approve the design used to improve passage of fish and aquatic resources for activities which require NWP authorization. It is the prospective applicant's responsibility to ensure that the project is designed by someone with appropriate expertise in the design of such features. The district engineer's review will be limited to whether the proposed project meets the terms and conditions of the NWP and the criteria in Section D. (District Engineer's Decision). This NWP authorizes regulated activities associated with activities that restore or enhance the ability of fish and other aquatic organisms to move through aquatic ecosystems. There may be other benefits to such actions, such as the movement of wood, water, and sediment, that also benefit the aquatic ecosystem although they are not the focus of the activities authorized by this NWP.

Several commenters stated that the terms of this NWP do not ensure that a proposed activity will improve fish passage. Several commenters stated that this NWP should require monitoring and an adaptive management framework to ensure the projects are meeting ecological goals. One commenter stated that the NWP should require monitoring to demonstrate net ecosystem benefits.

This NWP only authorizes activities that improve or enhance the passage of fish and other organisms. Permittees must submit a PCN for activities that would cause greater than 1/10-acre of loss of waters of the United States. Permittees who receive a verification letter from the Corps are required to certify their compliance with the NWP in accordance with general condition 30 (Compliance Certification). If a permittee fails to comply with the terms and conditions of this NWP, the district engineer will address the potential unauthorized activity in accordance with 33 CFR 326. This new NWP does not require that the regulated activities result in net ecosystem benefits. Losses of waters may occur as a result of activities to improve the passage of fish and other organisms.

Several commenters expressed concern that the NWP would allow the movement of invasive or non-native species. One commenter suggested a regional or activity specific permit condition to prevent the spread of invasive species.

Enhancing the passage of native fish and aquatic organisms may also allow the movement of invasive species or non-native species. Project proponents should consider the benefits and detriments of enabling invasive species to access waterways where they do not currently exist. Fishways can be designed to reduce the ability of large-bodied predatory fish or non-native species to move through the fishway, such as designing the fishway to have shallow water depths that larger individuals cannot pass through (Tamario et al. 2018). Under the discretionary authority provision at 33 CFR 330.1(d) and other provisions of the NWP regulations at 33 CFR part 330, division and district engineers can further condition or restrict the applicability of an NWP for cases where they have concerns for the aquatic environment.

Many commenters stated that this NWP does not comply with the ESA, stating that consultation is required for beneficial effects to listed species. One commenter recommended that the Corps identify activities authorized by this NWP that may require consultation under Section 7 of ESA. One commenter stated that authorizing improvements to fish passage could impact salmonids.

All permittees must comply with general condition 18 (Endangered Species). If the regulated activity might affect, or is in the vicinity of a species listed (or proposed for listing) or designated critical habitat (or habitat proposed for such designation) under the ESA, general condition 18 (Endangered Species) requires non-federal permittees to submit a PCN and states the permittee cannot begin work until the district engineer has provided notification that the proposed activity will have “no effect” on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation), or until ESA Section 7 consultation or conference has been completed. If a PCN is required for the proposed NWP activity, the Federal permittee must provide the district engineer with the appropriate documentation to demonstrate compliance with the ESA. The Corps acknowledges that consultation is required by Section 7 regardless of whether the effect is beneficial or detrimental (see paragraph (c) of general condition 18). Federal permittees must comply with their own implementing regulations for ESA.

If salmonids are listed under the ESA, the district engineer will review the PCN and determine if the NWP-specific activity will have “no effect” on the listed species or critical habitat or complete any appropriate consultation under Section 7 of the ESA. If essential fish habitat has been designated for the salmonid species, district engineers will complete consultation in accordance with the Magnuson- Stevens Fishery Conservation and Management Act at 50 CFR 600.920. Corps districts will conduct consultations in accordance with the EFH consultation regulations. District engineers may add conditions to NWP authorizations in order to ensure the effects of the activity on listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) are no more than minimal. Conditions may also be added to address EFH Conservation Recommendations made by NMFS during activity-specific EFH consultations.

Several commenters stated that the Corps should issue a public notice for each NWP-specific activity. One commenter stated that regional conditions should be added to the permit to address water quality concerns.

The public was provided an opportunity to comment on the Corps' proposal to issue, reissue, or modify an NWP when Corps Headquarters published its proposed rule in the Federal Register (90 FR 26100) to start the public comment period. However, after an NWP is issued, there is no public comment process for specific NWP activities. Consistent with general condition 25 (water quality) the

permittee must comply with any conditions of a granted water quality certification for any activity that may result in a discharge from a point source into waters of the United States. Division engineers may develop regional conditions for an NWP if he or she determines it necessary to ensure that activities in a region will cause no more than minimal adverse environmental effects to sensitive areas, which may include areas with water quality concerns.

One commenter stated that NWP should be modified to clarify that compensatory mitigation is not required for activities authorized by this NWP. One commenter stated that compensatory mitigation may be required for this NWP.

Compensatory mitigation may be required for losses of waters authorized by this NWP. General condition 23 (Mitigation) requires compensatory mitigation for all wetland losses greater than 1/10-acre and for all stream losses greater than 3/100-acre for all activities authorized under this NWP, unless the district engineer determines that some other form of mitigation would be more environmentally appropriate. The district engineer will consider the benefits of the NWP-specific activity in determining the need for compensatory mitigation to offset the impacts to waters which would result from the regulated activities authorized by this NWP. The district engineer will review the PCN and determine if the NWP-specific activity will, after considering permit conditions such as mitigation requirements, result in no more than minimal individual and cumulative adverse environmental effects.

The Corps is issuing this NWP with the modifications discussed above. Proposed new NWP A is issued as NWP 60.