Reissuance and Modification of Nationwide Permits

Many commenters supported the reissuance of the general conditions from the 2021 NWPs. Several commenters supported the reissuance of all general conditions without additional unnecessary and burdensome requirements. One commenter stated that there are too many general conditions and requested that the overall number of general conditions be reduced to streamline the NWPs. One commenter stated that additional best management practices or industry standards should be added to regional conditions instead of general conditions. One commenter requested that the general conditions be amended to recognize Tribal designations that correspond to any referenced state or federal designations.

Many commenters stated that the Corps violated the Administrative Procedure Act and CWA by relying on the general conditions to make a determination that the NWPs would have no more than minimal adverse environmental effects. Many commenters stated that the general conditions are insufficient to ensure that adverse impacts to waters of the United States have been minimized and avoided.

The NWP program is an administrative mechanism that allows the Corps to authorize activities with only minimal adverse environmental impacts in a timely manner. The NWP program incentivizes project proponents to design their activities to avoid and minimize adverse impacts to jurisdictional waters and wetlands to qualify for the streamlined NWP authorization. The final permits issued today, including the general conditions, maintain a proper balance between efficiently authorizing activities with minimal individual and cumulative adverse environmental effects and protecting the aquatic environment. If a project proponent does not comply with the general conditions, then the activity is not authorized by an NWP. In such situations, it is an unauthorized activity, and the district engineer will determine the appropriate course of action. District engineers will use available tools and information, such as databases and websites managed by state and local governments and non-governmental organizations, and information made available by tribal governments that may be helpful in determining whether an activity complies with the general conditions to the NWPs and applicable environmental laws. Discussion of Proposed Modifications to Nationwide Permit General Conditions

GC 1. Navigation. The Corps did not propose any changes to this general condition. One commenter recommended that lighted buoys be avoided and stated that smaller markings would be acceptable. One commenter stated that GC 1 should be modified to state that permittees must agree that they will be required to remove structures or work that impairs reserved treaty rights.

The requirements for safety lights and signals are prescribed by the U.S. Coast Guard through their regulations at 33 CFR part 67 and are not under the authority of the Corps. Consistent with GC 17 (Treaty Rights) no activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. If the district engineer determines that work or structure authorized by an NWP impairs reserved treaty rights, the district engineer will determine whether to modify, suspend, or revoke the NWP verification in accordance with 33 CFR 330.5(d).

The general condition is adopted as proposed.

GC 2. Aquatic Life Movements. The Corps did not propose any changes to this general condition. Many commenters stated that the wording of the general condition lacks enforceable or explanatory language. One commenter stated that applicants should be required to submit an engineered design where endangered species are likely to be found.

It is not practicable to avoid all impacts to indigenous aquatic species. Regulated activities are likely to cause some interference to life cycle movements during construction. The intent of this general condition is to ensure that the impacts are no more than minimal, unless the purpose is to impound water. The characteristics of aquatic habitat types and the life cycle movements of indigenous aquatic species vary across the nation therefore, it is not possible to add more specific requirements to this general condition. District engineers will determine compliance with this general condition, on a case-by-case basis, considering any regional conditions, specific characteristics of the indigenous aquatic species, and aquatic habitats in the project area. The district engineer will determine if a proposed activity would cause more than minimal adverse impacts to the environment considering all the general conditions and the criteria in Section D. District Engineer's Decision. Permittees must also comply with general condition 18 (Endangered Species). The district engineer may add conditions to an NWP verification to avoid and minimize impacts to listed species (species proposed for listing) or critical habitat (or habitat proposed for such designation). The Corps declines to require engineered designs for activities authorized by an NWP.

The general condition is adopted as proposed.

GC 3. Spawning Areas. The Corps did not propose any changes to this general condition. Many commenters recommended strengthening and clarifying the language in the general condition. Many commenters assert that the general condition is not adequate to protect spawning areas. One commenter stated that the general condition should be modified to prohibit activities in

spawning areas used for spawning by endangered species.

The district engineer will determine compliance with this general condition on a case-by-case basis, in light of the timing of the activity relative to the spawning season and the characteristics of the spawning areas. It is not practicable or feasible to avoid all impacts to spawning areas. The use of the terms such as “to the maximum extent practicable” affords the district engineer the discretion to consider the benefits and detriments of activities that may require DA authorization, such as restoration activities authorized by NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities) or emergency actions authorized by NWP 37 (Emergency Watershed Protection and Rehabilitation), while ensuring that the activity will have no more than minimal adverse environmental impacts. In accordance with the general conditions, including general conditions 17 (treaty rights) and 18 (endangered species) and any regional conditions, the district engineer will determine if a proposed activity would cause more than minimal adverse impacts to the environment in light of all general conditions and the criteria in Section D. District Engineer's Decision.

The general condition is adopted as proposed.

GC 4. Migratory Bird Breeding Areas. The Corps did not propose any changes to this general condition. Many commenters recommend strengthening and clarifying the language in this general condition. Many commenters assert that this general condition is not adequate to protect breeding areas for migratory birds. One commenter stated that the general condition should be modified to prohibit activities in breeding areas during breeding season.

This general condition establishes a national requirement to avoid impacts to migratory bird breeding areas to the maximum extent practicable. It is not feasible or practicable to completely avoid impacts to migratory bird breeding areas. The use of the terms such as “to the maximum extent practicable” afford the district engineer the discretion to consider the benefits and detriments of activities that may require DA authorization, such as restoration activities authorized by NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities) or emergency actions authorized by NWP 37 (Emergency Watershed Protection and Rehabilitation), while ensuring that the activity will have no more than minimal adverse environmental impacts.

The general condition is adopted as proposed.

GC 5. Shellfish Beds. The Corps did not propose any changes to this general condition. One commenter stated that the general condition should be modified to clarify that habitat restoration in shellfish beds as allowed by the general condition is “oyster” habitat restoration and not general habitat restoration. One commenter recommended that language be added to the general condition to prohibit any activity in areas harvested by tribes with reserved treaty rights.

This general condition applies to oysters, clams, or other native shellfish in any waterbody that contains concentrated shellfish populations. Habitat restoration authorized by NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities) may result in improved habitat quality and increases in shellfish populations. Activities that do not comply with all general conditions, including regional conditions are not authorized by an NWP. In accordance with general condition 17 (treaty rights) no activity is authorized by an NWP if it impairs a reserved treaty right.

The general condition is adopted as proposed.

GC 6. Suitable Material. The Corps did not propose any changes to this general condition. Many commenters stated that the general condition has no ability to regulate chemicals released during spills, leaks, or frac-outs. One commenter stated that suitable material should be defined as construction materials free of all pollutants that could leach or be discharged into waters of the United States.

The Corps agrees that general condition 6 does not convey authority over spills or leaks of chemicals, or releases of drilling muds used in directional drilling activities because these activities do not constitute a discharge of dredged or fill material that require DA authorization. Leaks or spills of chemicals, or releases of drilling mud, are not authorized by any DA permit. Leaks or spills of chemicals, or releases of drilling muds used in directional drilling activities which occur during an activity that requires DA authorization may be subject to Section 401 of the CWA or Section 402 of the CWA which are administered by state agencies, tribes, or EPA. 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. The Corps also does not have authority over leaks or spills of chemicals occurring during the operation of facilities constructed on fills or structures that required DA authorization. Such spills or leaks are more appropriately addressed through federal, state, or local laws that are administered by other federal agencies, or state or local government agencies.

No commenter provided specific standards or criteria to define environmentally suitable construction materials. In the absence of a specific standard or criteria to develop a definition, the general condition prohibits the use of materials that contain toxic pollutants in toxic amounts, such as heavy metals, pesticides, and polycyclic aromatic hydrocarbons, in accordance with Section 307 of the CWA. Pollutants that could affect water quality of waters of the United States are regulated by states, tribes, or EPA through Section 401 of the CWA, whereby certifying authorities determine if the proposed discharge complies with applicable water quality standards.

The general condition is adopted as proposed.

GC 7. Water Supply Intakes. The Corps did not propose any changes to this general condition. Many commenters questioned the effectiveness of this general condition, citing the lack of a definition of “proximity”, the perceived difficulty in accessing information on the location of water supply intakes, and the lack of a PCN requirement for some NWPs. These commenters requested that the general condition be modified to prohibit the use of NWPs in source waters protection areas or waters designated for use as drinking water supplies.

The term “proximity” should be applied using the commonly understood definition of the term (“very near, close” according to Merriam-Webster's Collegiate Dictionary, 10th edition). Therefore, the proposed NWP activity would have to be very near, or close to, the public water supply intake for general condition 7 to apply. We do not agree that all NWP activities should be prohibited in source water protection areas for public water systems. NWP activities can be conducted in those areas with little or no more than minimal adverse effects to water quality. In addition, all NWPs that authorize discharges into waters of the United States require Section 401 water quality certification. States can deny water quality certification for any NWP activity that might result in a discharge that is not in compliance with applicable water quality requirements.

For those NWP activities that require PCNs or when PCNs are voluntarily reported to Corps districts, district engineers will review the PCNs to determine if general condition 7 applies. For those NWP activities that do not require PCNs and are not voluntarily reported to Corps districts, the permittee is responsible for complying with all applicable terms and conditions of the NWP, including general condition 7. District engineers have the authority to determine whether those unreported NWP activities comply with all applicable general and regional conditions. If an activity does not comply with one or more applicable conditions, the district engineer will take appropriate action under 33 CFR part 326. 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 regarding impacts to water supply intakes.

The general condition is adopted as proposed.

GC 8. Adverse Effects From Impoundments. The Corps did not propose any changes to this general condition. Many commenters stated that this condition does not limit adverse impacts to a minimal level because of the inclusion of the phrase “to the maximum extent practicable.”

District engineers will use their discretion in determining whether specific impoundments authorized by NWP have minimized, to the maximum extent practicable, adverse effects to the aquatic system as a result of accelerated water flows or restricted water flows. The application of the term “maximum extent practicable” is dependent on case- specific circumstances and site conditions.

The general condition is adopted as proposed.

GC 9. Management of Water Flows. The Corps proposed to add “tidal flows” to the text of this general condition to clarify that expected high flows, and normal or high flows, include the flow of water caused by tides. One commenter stated that the general condition should be issued as proposed with no additional changes. Many commenters stated that the general condition does not limit adverse impacts to a minimal level because of the inclusion of the term “to the maximum extent practicable.” One commenter stated that no alteration of the course, current, or cross section of a waterbody should be allowed without engineered drawings, that have been approved by the district engineer or other another qualified engineer. One commenter stated that normal and high flows must be quantified.

District engineers will use their discretion in determining whether a case-specific-activity authorized by NWP meets the requirements of this general condition. The application of the term “maximum extent practicable” is dependent on case-specific circumstances and site conditions. General condition 32 requires that a complete PCN include sketches that are sufficiently detailed to help the district engineer understand the proposed activity. The district engineer reviews the PCN based on the criteria in Section F. District Engineer's Decision to determine whether a case-specific activity would have no more than minimal adverse effects on the environment. The district engineer's review makes no determination whether the case-specific activity meets current engineering standards and assumes that the permittee will comply with other relevant laws, authorizations and requirements. The Corps does not agree that engineered drawings should be required to show compliance with this general condition. It would be impracticable to define normal and high flows since it would depend on the environmental setting of the NWP activity.

The general condition is adopted as proposed.

GC 10. Fills Within 100-Year Floodplains. The Corps did not propose any changes to this general condition. Many commenters stated that floodplains provide important functions and services. Many commenters stated that compliance with FEMA-approved floodplain management requirements is insufficient to ensure no more than minimal adverse environmental effects. Many commenters stated that the Corps cannot rely on compliance with the general condition to ensure that authorized activities will not cause more than minimal effects on flood storage and conveyance. Many commenters stated that the general condition should prohibit the use of NWPs in floodplains. One commenter stated that the general condition should restrict the use of NWPs to authorize above-grade construction in the 100-year floodplain.

The Corps agrees that floodplains provide important ecological functions and services. The NWP program supports the objectives of E.O. 11988 (Floodplain Management) by encouraging minimization of losses of waters of the United States to qualify for NWP authorization, including losses of waters of the United States in 100-year floodplains. The Corps does not have the authority to regulate activities in the 100- year floodplain except for discharges of dredged or fill material into waters of the United States that may be located in those floodplains. Many areas within 100-year floodplains are not subject to CWA jurisdiction, because a large proportion of the area within 100-year floodplains consists of uplands.

The primary responsibility for land use matters, including development in 100-year floodplains, lies with state, local, and tribal governments (see 33 CFR 320.4(j)(2)). For those NWP activities that do not require PCNs and are not voluntarily reported to Corps districts, the permittee is responsible for complying with all applicable terms and conditions of the NWP, including general condition 10. District engineers have the authority to determine whether those unreported NWP activities comply with all applicable general and regional conditions. If an activity does not comply with one or more applicable conditions, the district engineer will take appropriate action under 33 CFR part 326. 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.

One commenter stated that the general condition should require engineered drawings approved by the district engineer or other qualified engineer to prove that the activity would have no adverse impacts to 100-year floodplains. One commenter stated that the Corps may not be able to rely on floodplain management requirements to ensure public safety.

General condition 32 requires that a complete PCN include sketches that are sufficiently detailed to help the district engineer understand the proposed activity. The district engineer reviews the PCN based on the criteria in Section D (District Engineer's Decision) to determine whether a case-specific activity would have no more than minimal adverse effects on the environment. The district engineer's review makes no determination whether the case-specific activity meets current engineering standards and presumes that the permittee will comply with other relevant laws, authorizations and requirements. The Corps does not agree that engineered drawings should be required to show compliance with this general condition. The district engineer reviews a PCN based on the criteria in

Section D (District Engineer's Decision) to determine whether a case- specific activity would have no more than minimal adverse effects on the environment. The district engineer's review makes no determination whether the case-specific activity meets current engineering standards and assumes that the permittee will comply with other relevant laws, authorizations and requirements. General condition 10 requires the permittee comply with applicable FEMA-approved state or local floodplain management requirements. This general condition is consistent with item 2 of Section E, Further Information, which states that 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 uses within floodplains and other areas. Concerns about adverse effects to public safety with respect to floodplains and floodways are more appropriately addressed by the state and local agencies that have the primary responsibility for floodplain management.

The general condition is adopted as proposed.

GC 11. Equipment. The Corps proposed to modify this general condition by adding two new sentences to specify that areas affected by the use of mats must be restored. Several commenters support the proposed changes. A few commenters oppose the proposed changes to the general condition. A few commenters stated that the language “significant soil compaction” is ambiguous. One commenter stated that the language should only require restorative measures to prevent substantial impairment of hydrologic and soil functions. One commenter recommended that the text of the general condition allow the restoration requirements to be waived if the district engineer determines that the area would recover naturally. One commenter stated that this issue would be better addressed through regional conditions.

The purpose of the modification to the general condition is to require that the permittee restore any areas affected by mats to pre- construction elevations and, if appropriate, to revegetate the affected area. The modified condition also encourages the permittee to implement techniques to reverse the adverse effects of soil compaction that may occur as a result of the use of mats. Compacted soils may result in depressional areas that hold surface water and inhibit the recovery of hydrologic and soil functions, as well as the reestablishment of the plant community.

The general condition is adopted as proposed.

GC 12. Soil Erosion and Sediment Controls. The Corps did not propose any changes to this general condition. Many commenters stated that the general condition allows permittees to determine how to apply the general condition. One commenter recommends clarifying that work should not occur during low tides when and where migratory waterbirds are utilizing tidal flats. One commenter recommended requiring that erosion and sediment controls be designed to federal or state design criteria and approved by state or federal personnel. One commenter recommended that the general condition require a time limit for permanent and temporary stabilization activities. Many commenters assert that the phase “at the earliest practicable date” allows exposed soils to erode until it is practicable to stabilize them. One commenter recommended defining low flow conditions.

In order for an activity to be authorized by an NWP, permittees are required to comply with all general conditions to the NWPs. General condition 4 requires that NWP activities avoid breeding areas for migratory birds to the maximum extent practicable. General condition 19 also addresses the applicability of the Migratory Bird Treaty Act to the NWP program, and states that the permittee is responsible for contacting the local office of the U.S. Fish and Wildlife Service to determine if an “incidental take” permit is necessary and available under the Migratory Bird Treaty Act. The appropriate stabilization measures may be dictated by state or local sediment and erosion control regulations. Specific soil erosion and sediment control requirements vary among state and local governments and other entities. Appropriate stabilization measures will vary by site location and activity type.

The Corps agrees that exposed soils are likely to erode until they are permanently stabilized. The purpose of soil erosion and sediment controls that are required to be used and maintained during construction is to limit and contain sediment in the construction area until the area can be permanently stabilized. It would not be practicable to require a time limit for permanent and temporary stabilization activities because many of these requirements may be included in state and local sediment and erosion requirements. In addition, the timeframe for installing temporary and permanent stabilization measures will vary on a case-by-case basis and may depend on weather conditions. The last sentence of this general condition states that permittees are encouraged to conduct NWP activities in waters of the United States during periods of no-flow or low-flow or during low tides. We decline to define what constitutes a low-flow condition at a national level. District engineers will use their discretion to determine what constitutes a low-flow condition depending on the site-specific conditions.

The general condition is adopted as proposed.

GC 13. Removal of Temporary Structures and Fills. The Corps did not propose any changes to this general condition. One commenter recommended modifying the general condition to require the removal of all temporary structures in their entirety rather than “to the maximum extent practicable.” There are circumstances when it might not be feasible to completely remove the structure after its use has been discontinued or circumstances where attempting to remove a temporary structure in its entirety has the potential to cause more substantial adverse environmental effects than leaving a portion of the structure in place. For example, it might not be feasible to remove an entire piling from navigable waters after it is no longer needed, but the project proponent could remove that portion of the piling that extends above the bottom of the waterbody so that it no longer is an obstruction to navigation.

The general condition is adopted as proposed.

GC 14. Proper Maintenance. The Corps did not propose any changes to this general condition. One commenter recommended revising the language of the general condition to prohibit the use of an NWP for emergency purposes when a structure or fill has not been maintained or inspected. Maintenance of structures or fills is a requirement of this general condition. If a project proponent does not comply with the terms and conditions of an NWP, then the case-specific activity is not authorized by the NWP. This general condition establishes no requirement for monitoring or inspection of an authorized structure or fill. If a project proponent conducts activities in waters of the United States without DA authorization, the district engineer will address the potential unauthorized activity in accordance with 33 CFR 326. Emergency projects that are not covered by NWPs or regional general permits may be addressed under the Corps'

emergency permitting procedures at 33 CFR 325.2(e)(4).

The general condition is adopted as proposed.

GC 15. Single and Complete Project. The Corps did not propose any changes to this general condition. The Corps did not receive any comments on this general condition. The general condition is adopted as proposed.

GC 16. Wild and Scenic Rivers. The Corps did not propose any changes to this general condition. One commenter recommended revising this general condition to allow federal permittees to satisfy the requirements of the general condition and provide documentation of such compliance, if a PCN is required by the NWP or another general condition. One commenter recommended that the general condition clarify how a non-federal permittee can comply with this general condition when a federal agency other than the Corps is leading the environmental review.

The language in this general condition is based on federal agency regulations and guidance for implementing the Wild and Scenic Rivers Act, and the text of Section 7(a) of the Wild and Scenic Rivers Act. Section 7(a) of the Wild and Scenic Rivers Act requires the federal agency authorizing the water resources project to do the coordination with the federal agency with direct management responsibility for that river. Until the federal agency with direct management responsibility for that river issues its written determination to the district engineer, the project proponent cannot proceed under the NWP authorization.

The general condition is adopted as proposed.

GC 17. Tribal Rights. The Corps did not propose any changes to this general condition. Many commenters recommended that this general condition require PCNs for all NWPs within areas of concern to tribes. Many commenters stated that tribes should be notified and provided opportunities to comment on activities which would impact tribal trust lands or natural and cultural resources important to tribes. One commenter stated that the Corps should require concurrence from potentially affected Tribes. One commenter stated that tribes should determine if general condition 17 is applicable to an activity, instead of the Corps. Once commenter recommended revising the general condition to clarify that it applies to both on- and off-reservation reserved rights. One commenter stated that the text of the general condition diminishes the protections of tribal rights.

The text of this general condition serves as a guide to users when undertaking tribal consultations regarding the application of an NWP to a particular activity, and when developing protocols regarding tribal notification that build upon the existing Department of Defense, Army, and Corps' tribal consultation policies. The CWA Section 404(e) requirement that no activity authorized by an NWP may cause more than minimal adverse effects remains applicable in the context of potential effects to tribal rights, resources, or lands. 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 for proposed activities that might affect treaty rights. 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. District engineers can coordinate with tribes to help make these decisions, including whether a proposed NWP activity complies with general condition 17. District engineers have the final decision-making authority as to whether a proposed NWP activity that requires DA authorization qualifies for NWP authorization. This general condition applies to activities authorized by NWPs both on- and off- reservation reserved tribal rights.

The general condition is adopted as proposed.

GC 18. Endangered Species. The Corps proposed to modify the last sentence of the first paragraph of this general condition by removing language referring to 50 CFR 402.17. In a final rule published in the Federal Register on April 5, 2024 (89 FR 24268), the U.S. Fish and Wildlife Service and National Marine Fisheries Service removed Section 402.17 from their Endangered Species Act (ESA) Section 7 interagency consultation regulations at 50 CFR part 402.

A few commenters objected to the proposed changes. A few commenters supported the proposed changes. A few commenters requested that the Corps consider additional changes in future rulemakings to improve the efficient processing of permits.

Under 33 CFR 330.5(b), anyone may, at any time, suggest that Corps Headquarters consider new NWPs or conditions for issuance, or changes to existing NWPs. Corps Headquarters has the authority to periodically review the NWPs and their conditions and initiate the process for proposing to modify, reissue, or revoke the NWPs (see 33 CFR 330.5(b) and 330.6(b)). The Corps will continue to exercise this authority to evaluate opportunities for more efficient processing of permits and likewise will evaluate future suggestions as part of subsequent rulemakings, including suggestions for timely completion of consultation or conferences sufficient to comply with Section 7 of the ESA.

Many commenters stated that reliance on general condition 18 unlawfully delegates the Corps' ESA responsibilities to permittees. A few commenters stated that when project proponents who do not submit a PCN when required to do so by general condition 18, cause harm to listed species and violate the ESA. One commenter stated that the general condition places the responsibility for identification of the potential presence of listed species or critical habitat on the non- federal permittee.

The Corps complies with Section 7 of the ESA through 33 CFR 330.4(f) and NWP general condition 18. The regulation and general condition 18 require a non-federal permittee to submit a PCN for any activity that might affect listed species or designated critical habitat (or species proposed for listing or habitat proposed for designation). The Corps established the “might affect” threshold in 33 CFR 330.4(f)(2) and in paragraph (c) of general condition 18 because it is more stringent than the “may affect” threshold for Section 7 consultation in the Services regulations at 50 CFR part 402. The “might” threshold is below the threshold that triggers the requirement for ESA Section 7 consultation for the proposed federal action.

When a PCN is submitted, the Corps evaluates the PCN and makes an effect determination for the proposed NWP activity for the purposes of ESA Section 7. If the non-federal project proponent does not comply with 33 CFR 330.4(f)(2) and general condition 18, and does not submit the required PCN when a listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat or critical habitat proposed for such designation, then the activity is not authorized by an NWP. In such situations, it is an unauthorized activity, and the Corps district will determine an appropriate course of action under its regulations at 33 CFR part 326 to respond to the unauthorized activity, if and when the Corps learns about that unauthorized

activity. In accordance with general condition 32, a non-federal project proponent is responsible for providing all the information required for a complete PCN, including the names of those endangered or threatened species (or species proposed for listing) that might be affected by the proposed activity or utilize the designated critical habitat (or critical habitat proposed for such designation) that might be affected by the proposed activity. The district engineer will verify that the appropriate documentation has been submitted.

A few commenters stated that general condition 18 should not include species proposed for listing or critical habitat proposed for such designation. One commenter recommended that the general condition be modified so that a PCN is only required when an activity may affect and is likely to adversely affect listed species or critical habitat.

Section 7(a)(4) of the ESA requires agencies to confer with the Services on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under Section 4 of the ESA or result in the destruction or adverse modification of critical habitat proposed to be designated for such species. The NWP regulations at 33 CFR 330.4(f)(2) impose a PCN requirement for proposed NWP activities by non-federal permittees where listed species (or species proposed for listing) or critical habitat might be affected or are in the vicinity of the proposed NWP activity. Because the Corps is statutorily mandated to consider species and critical habitat proposed for listing, we decline to remove the proposed species and habitat from the PCN requirement.

Similarly, the Corps also declines to modify the general condition to require a PCN only when an activity may affect and is likely to adversely affect a listed species or critical habitat. This is because the Corps must make the “may affect” determination and cannot delegate that decision to a permit applicant. Similarly, a prospective permittee cannot determine if an activity that “may affect” listed species or critical habitat is “not likely to adversely affect” those resources. The Corps is the decision-maker in these circumstances. The Corps will seek any required concurrence from the FWS or NMFS.

Many commenters recommended that the general condition be modified to state that no PCN is required when programmatic consultation has been completed by the district engineer and regional conditions have been developed to mitigate impacts. Several commenters stated that the Corps should complete ESA consultation within 45-days. Many commenters stated that project proponents should be allowed to proceed with their activity 45-days after submitting a PCN. One commenter stated that the Corps and FWS should publish standard avoidance and minimization measures and that project proponents who include these measures into their PCN should be allowed to proceed after 45-days unless the Corps has notified them that the PCN is incomplete.

Corps districts may complete regional programmatic consultation for specific species and develop local procedures to more efficiently complete Section 7 consultation. Similarly, division engineers may approve regional general conditions which incorporate measures to ensure that impacts to listed species (or species proposed for listing) and critical habitat (or critical habitat proposed for designation) are no more than minimal. However, even when a regional programmatic consultation or protective regional conditions apply, the PCN serves to ensure that the Corps can validate that the proposed activity will comply with ESA. This responsibility to validate compliance with ESA cannot be waived if the Corps does not act within a specific timeframe. However, the Corps' review should be completed expeditiously if the Corps determines a regional programmatic consultation or protective regional conditions apply. The outcome of regional programmatic consultation may require that the district engineer modify the NWP for a case-specific activity by adding special conditions to the NWP (33 CFR 330.5).

If the district engineer is required to consult with the Services, the Services may take longer than 45 days to complete the consultation process. The Services' regulations at 50 CFR 402.13 state that the Services' will provide written concurrence or non-concurrence with a federal agency's determination of “may effect, not likely to adversely affect” within 60-days, and will extend the 60-day timeframe upon mutual consent of the Service, the federal agency and the applicant. In accordance with 50 CFR 402.14, formal consultation concludes within 90 days and the Service should provide the biological opinion within 45- days of the conclusion of formal consultation, unless the timeframe is extended. The biological opinion itself does not authorize the project proponent to take species or adversely affect designated critical habitat.

To ensure compliance with ESA, the Corps cannot finalize the agency action to issue the NWP verification until the Section 7 consultation, or a conference is completed for activities that “may affect” listed species (or species proposed for listing) and critical habitat (or critical habitat proposed for designation). Given compliance with the ESA cannot be waived, the prospective permittee cannot proceed with the regulated activity without receiving written verification. The requirement for this written verification is described in both general condition 18 paragraph (c) and paragraph (a)(2) of general condition 32. Proposals for programmatic consideration of common and widespread species listed under ESA should be directed to USFWS or NMFS.

One commenter stated that the general condition should be modified to mandate consultation under the ESA in sensitive areas. Many commenters requested that the general condition be modified to define “in the vicinity.” Many commenters recommended that the phrase “or is in the vicinity of the activity” be deleted from the general condition. One commenter stated that the general condition should be modified to state that permittees may rely on the USFWS Information Planning and Consultation (IPaC) tool to determine if a species is “in the vicinity” of a water crossing. On commenter stated that the general condition should include the entire text of the definition of the “effects of the action.” One commenter stated that consultation should include information about the distance that a project must be located from an endangered species in order to avoid jeopardizing that species.

No activity is authorized by an NWP which “may affect” listed species or designated critical habitat until ESA Section 7 consultation has been completed. The ESA requires a federal agency to consult with the Services when a regulated activity “may affect” a listed species (or species proposed for listing) or critical habitat (or critical habitat proposed for designation). This obligation to consult under Section 7 applies regardless of the location of the NWP-specific activity. In determining whether a case-specific activity “may affect” a listed species (or species proposed for listing) or critical habitat (or critical habitat proposed for designation), the district engineer will consider the “effects of the action” (50 CFR 402.02). The “effects of the action” may include consequences occurring outside the immediate area involved in the action.

The term “in the vicinity” for the purposes of paragraph (c) of this general condition cannot be defined at a national level. What constitutes “in the vicinity” can vary substantially by

species, environmental setting, the medium in which the species lives (e.g., water, air, or in the ground), and other factors. The vicinity is also dependent on the NWP activity and the types of effects that might be caused by that NWP activity. The Corps also declines to remove the term “in the vicinity” from the general condition. The Services' regulations at 50 CFR 402.02 include the definition of the “effects of the action.” In the interest of brevity and to limit any future need to change the language of the general condition should the Services decide to modify the definition, the Corps declines to include the definition in general condition 18.

When reviewing a PCN, the district engineer makes an independent determination of whether the proposed activity “may affect” listed species or designated critical habitat and thus requires ESA Section 7 consultation. The district engineer relies in part on information in the PCN, but he or she will also utilize other information, including local knowledge of the area, and the species and the habitats in which the listed species occurs. Information on listed species under the management of FWS is available to the public through the IPaC system,\1\ an on-line project planning tool developed and maintained by the FWS. The FWS's IPaC tool is just one tool that might provide useful information to prospective permittees about species that might be in the vicinity of proposed activity. Information on species under the management of NMFS may be found on their website.\2\ There may be other tools, such as databases and websites managed by state and local governments and non-governmental organizations that may be helpful in determining whether a proposed NWP activity might affect listed species (or species proposed for listing) or critical habitat (or critical habitat proposed for designation), or if listed species (or species proposed for listing) or critical habitat (or critical habitat proposed for designation) are in the vicinity of a proposed activity.

\1\ https://ipac.ecosphere.fws.gov/.

\2\ http://www.nmfs.noaa.gov/.

Through ESA Section 7 consultation, with the FWS and/or the NMFS as appropriate, the district engineers will ensure that case-specific NWP activities will not jeopardize any threatened and endangered species or adversely modify designated critical habitat. District engineers may add conditions to an NWP that authorizes an activity to avoid, minimize, or offset the effects of the action.

One commenter requested clarification if the second sentence of paragraph (a) of general condition 18 should include the text “or species proposed for listing.” A few commenters stated that the level of information available on species proposed for listing causes uncertainty in the analysis of impacts. A few commenters expressed concern that projects may be delayed if a species is listed midway through a construction activity.

The second sentence of paragraph (a) refers specifically to the requirements to complete consultation under Section 7 of the ESA for listed species or critical habitat which an activity “may affect.” Federal agencies confer with the Services to ensure an activity will not jeopardize a species proposed for listing or adversely modify proposed critical habitat. The Corps has retained the text of paragraph (a) to specify that no activity is authorized by an NWP unless the Corps has complete ESA Section 7 consultation for proposed species and proposed critical habitat. The Corps must comply with Section 7 of the ESA. Permittees and district engineers will use best available data and resources to inform the determination of effects and any mitigation measures. Information on species proposed for listing may be found on the Services' proposed species' web pages. For species administered by the FWS, additional information can also be found in IPaC and in the species status reports in the FWS's Environmental Online System. Prospective permittees are encouraged to use this publicly available information and/or contact the Services to obtain information on listed species (or species proposed for listing) or critical habitat (or critical habitat proposed for designation) in the vicinity of a proposed project.

If the Service lists a species or designates critical habitat, the Service may adopt the conference findings of a case-specific activity if no new significant information is developed for the species or critical habitat and if there are no significant changes to the activity (50 CFR 402.10). Re-initiation of consultation may be required under Section 7 of the ESA if an activity which requires DA authorization has not been completed. In such cases, the division engineer and/or district engineer will consider available information on the species and/or habit and the discretionary options described in 33 CFR 330.5.

One commenter stated that general condition 18 should only require federal agencies to submit a PCN if they have not completed Section 7 consultation under the ESA. One commenter requested clarification if a federal permittee or federally-funded project is required to submit a PCN for an activity that requires consultation under Section 7 of ESA if no PCN is required by the terms and other conditions of the NWP. One commenter stated that the general condition should be revised to state that proponents of a linear project can proceed at crossings and areas outside Corps' jurisdiction where the project proponent has determined that a PCN is not required. One commenter stated that the Corps should designate a non-federal representative conduct Section 7 consultation.

In accordance with general condition 18, federal agencies must follow their own procedures for complying with Section 7 of the ESA. Paragraph (b) of general condition 18 does not contain a requirement for federal agencies to submit a PCN. Federal agencies only need to submit documentation of compliance with Section 7 of the Endangered Species Act (ESA) when the terms and conditions of the NWP, or regional conditions imposed by the division engineer, require the submission of a PCN. If a federal agency is required to submit a PCN, consistent with general condition 32, a complete PCN will include documentation demonstrating the federal agency's compliance with the Endangered Species Act. Corps districts will generally not consult under Section 7 on behalf of another federal agency unless the district engineer has determined that the federal agency has not provided appropriate documentation of compliance with Section 7 of the ESA or the district engineer has agreed to be the lead federal agency for compliance with Section 7 of the ESA (50 CFR 402.07).

The non-federal permittee is responsible for complying with paragraph (c) of general condition 18 and submitting a PCN to the district engineer when a proposed NWP activity triggers one of the PCN thresholds in that paragraph. Generally speaking, a non-federal permittee is a permittee that is not a federal agency. There may be limited circumstances where a non-federal agency might be considered as having ESA Section 7 obligations similar to those of a federal agency. For example, the Federal Highway Administration may assign a state Department of Transportation the responsibility for complying with non- NEPA environmental statutes such as the ESA. When a non-federal permittee is required to submit a PCN by general condition 18, the activity that requires DA authorization is not authorized by

an NWP until the Corps 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. Prospective permittees, including proponents of linear projects must comply with general condition 18. District engineers have the discretion to designate a non-federal representative to conduct informal consultation or prepare a biological assessment in accordance with 50 CFR 402.08.

The general condition is adopted with the modifications discussed above.

GC 19. Migratory Birds and Bald and Golden Eagles. The Corps did not propose any changes to this general condition. One commenter stated that the general condition 19 should be revised to use the text from the 2017 NWPs. One commenter stated that the prospective permittee should be required to prove that they have contacted FWS and the specific measures that they will implement to reduce adverse impacts so those measures can be reviewed by the Corps.

General condition 19 was revised in the 2021 NWPs to clarify that the permittee, with the assistance of the FWS, is the entity responsible for determining what measures, if any, are necessary or appropriate to reduce adverse effects to migratory birds or eagles. This condition also clarifies that the permittee, with FWS assistance, is also responsible for determining what “take” permits, if any, might be required under the Migratory Bird Treaty Act or the Bald and Golden Eagle Protection Act. Compliance with the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act is the responsibility of the permittee.

The general condition is adopted as proposed.

GC 20. Historic Properties. The Corps did not propose any changes to this general condition. A few commenters stated that general condition 20 should require a PCN for most activities authorized by NWPs. A few commenters stated that the requirements of this general condition can result in extended review times and onerous paperwork. Several commenters requested clarification on the terms “might have the potential to cause” and “potentially eligible” stating that districts apply these requirements inconsistently when determining if a PCN is required.

The only activities that are immediately authorized by NWPs without the requirement for a PCN under general condition 20 are activities with “no potential to cause effect” to historic properties. For compliance with Section 106 of the NHPA the Corps complies with the implementing regulations at Appendix C to 33 CFR part 325, and the Corps' “Revised Interim Guidance for Implementing Appendix C of 33 CFR part 325 with the Revised Advisory Council on Historic Preservation Regulations at 36 CFR part 800,” dated April 25, 2005, and amended on January 31, 2007. Paragraph (b) of general condition 20 requires non- federal permittees to submit a PCN to the district engineer if the NWP activity might have the potential to cause effects on any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. The non-federal permittee must not begin the activity until notified by the district engineer either that the activity has no potential to cause effects on historic properties or that NHPA Section 106 consultation has been completed. The terms “might have the potential to cause effects” and “potentially eligible” are thresholds that are intended to provide the district engineer with an opportunity for further review to determine whether a historic property is present.

One commenter stated that the general condition should be modified to define the distance from a jurisdictional feature where a non- federal permittee should consider whether an activity might cause effects to a historic property, such as 300 feet. One commenter suggested changing “historic properties” to “historic resources.”

An area within which an NWP activity “might have the potential to cause effects” for the purposes of paragraph (c) of this general condition cannot be defined at a national level. What constitutes a “potential effect” to a historic property from an NWP activity can vary substantially by the type of NWP activity and the type of historic property, if a historic property is present. The distance between an NWP activity and a historic property where the NWP activity might have the potential to cause effects will depend on the types of effects that might be caused by that NWP activity (e.g., physical destruction or alteration of a historic property in the project area, or visual or noise effects to historic properties outside of the project area), landscape setting, and other factors. The Corps will continue to use the term “historic properties” consistent with the language in Section 106 of the NHPA and the definition in Section F. Definitions. District engineers will review PCNs and determine whether proposed NWP activities have the potential to affect historic properties. Section 106 consultation remains the responsibility of the Corps. The requirements of general condition 20 ensure that Section 106 consultation occurs for NWP activities that have potential to cause effects to historic properties.

A few commenters stated that general condition 20 relies on applicants to make a determination if an activity has the potential to affect historic properties, delegating the responsibility to comply with Section 106 of NHPA on the permittee instead of the Corps. A few commenters recommended that the general condition make clear that the district engineer cannot request additional information about cultural resources in the project area if permittee has determined that the “might have the potential” threshold has not been met. A few commenters stated that the “might have the potential” threshold is higher than the threshold set forth in the ACHP regulations.

The Corps complies with Section 106 of the NHPA through the NWP regulations at 33 CFR 330.4(g) and NWP general condition 20. Those regulations prohibit authorization of an activity by an NWP that may have the potential to cause effects to historic properties unless the requirements of Section 106 have been satisfied. General condition 20 is applicable to every activity which may be authorized by an NWP as permittees are required to comply with all general conditions to the NWPs. District engineers will review PCNs and may request additional information to inform their determination if an activity may have the potential to cause effects on properties listed, or eligible for listing, in the National Register of Historic Places. Paragraph (c) of general condition 20, requires a non-federal permittee to submit a PCN for any activity that might have the potential to cause effects on any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. The “might” threshold is below the threshold that triggers the requirement for Section 106 consultation for the proposed federal action. The purpose of the “might have the potential to cause effects” threshold is to require submittal of PCNs for proposed NWP activities that might have a possibility of causing effects to historic properties, so that the district engineer can determine whether Section 106 consultation is required for a proposed NWP activity.

The district engineer is responsible for evaluating the PCN and making an effect determination for the proposed NWP activity for the purposes of Section 106 of the NHPA. If the district engineer determines that the proposed NWP activity has no potential to cause effects on historic properties, Section 106 consultation is not required. 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. 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 Corps district will determine an appropriate course of action under its regulations at 33 CFR part 326, if and when the Corps learns about that unauthorized activity.

One commenter stated that tribes should determine if general condition 20 is applicable to an activity, instead of the Corps. One commenter requested that the general condition define the roles and responsibilities of the permittee and the Corps in consulting with tribes on efforts to identify of historic properties. One commenter requested that the general condition be modified to stipulate that tribes should be consulted before identification efforts are conducted and to require that cultural resource surveys be completed after the submittal of a PCN. One commenter stated that tribes are the expert on traditional cultural properties/landscapes and requested 30 days to review PCNs.

The division engineer has the authority to determine if an NWP- specific activity meets the terms and conditions of an NWP. When a district engineer reviews a PCN and determines that consultation under Section 106 of the NHPA is required, the district engineer will consult with consulting parties identified under 36 CFR 800.2(c). Consulting parties include the Indian tribes and the prospective permittee. The district engineer will complete Section 106 consultation in accordance with implementing regulations at 36 CFR part 800, 33 CFR 325 Appendix C, and the Corps' “Revised Interim Guidance for Implementing Appendix C of 33 CFR part 325 with the Revised Advisory Council on Historic Preservation Regulations at 36 CFR part 800,” dated April 25, 2005, and amended on January 31, 2007. The Corps declines to modify this general condition to specify the roles of the consulting parties or to prohibit actions that the permittee may take before submittal of the PCN and beginning of the federal action. Division engineers may modify this NWP on a regional basis in accordance with the procedures at 33 CFR 330.5(c) to impose regional conditions to require PCNs for proposed activities that might affect historic properties, including traditional cultural properties that are or are eligible to be listed on the National Register of Historic Places. District engineers will determine whether an activity may have the potential to cause effects on properties listed, or eligible for listing, in the National Register of Historic Places using available information, including information may be shared by tribes.

A few commenters recommended that no changes be allowed to scopes of work for historic properties investigations once reviews are complete. A few commenters recommended that district offices inform prospective permittees of the scope of any required historic properties investigations before a PCN is submitted. A few commenters supported the language in the general condition that clarifies that identification efforts will be commensurate with potential impacts. One commenter stated that it is unclear if general condition 20 requires the Corps to consult with consulting parties when making a determination of effects or after the determination of effect is made. One commenter stated that general condition 20 should be revised to clarify that the Corps follows 36 CFR 800 when Section 106 consultation is required.

The NHPA does not require non-federal prospective permittees to consult with a State Historic Preservation Officer or a Tribal Historic Preservation Officer, or with tribes. Prospective permittees are encouraged to engage with Corps districts in pre-application consultations at the earliest practical time in the planning process so that the district engineer may discuss measures to comply with general condition 20 and 33 CFR 330.4(g). When reviewing PCNs, district engineers will comply with the current procedures for addressing the requirements of Section 106 of the National Historic Preservation Act, including implementing regulations at 36 CFR part 800, 33 CFR 325 Appendix C, and the Corps' “Revised Interim Guidance for Implementing Appendix C of 33 CFR part 325 with the Revised Advisory Council on Historic Preservation Regulations at 36 CFR part 800,” dated April 25, 2005, and amended on January 31, 2007.

The district engineer, in consultation with consulting parties, is responsible for ensuring compliance with Section 106 of the NHPA and will require the project proponent to provide the information necessary to inform the determination of eligibility and determination of effects. The district engineer will conduct consultation with consulting parties identified under 36 CFR 800.2(c) when he or she makes any of the following effect determinations for the purposes of Section 106 of the NHPA: no historic properties affected, no adverse effect, or adverse effect.

One commenter requested clarification if a federal permittee or federally-funded project that fulfilled the requirements of Section 106 of the NHPA must submit a PCN if no PCN is required by the terms or other conditions of the NWP. A few commenters stated that non-federal permittees should not have to submit a PCN if the district engineer has completed regional consultation and developed regional conditions to mitigate impacts to historic properties. A few commenters recommended that the Corps adhere to the 45-day review time or as an alternative change paragraph (c) of this general condition so that the district engineer's review of the PCN does not exceed 90 days.

In accordance with general condition 20, federal agencies must follow their own procedures for complying with Section 106 of the NHPA. Paragraph (b) of general condition 20 does not contain a requirement for federal agencies to submit a PCN. Federal agencies only need to submit documentation of compliance with Section 106 of the NHPA when the terms and conditions of the NWP, or regional conditions imposed by the division engineer, require the submission of a PCN. Corps districts may develop a program alternative and develop local procedures to more efficiently satisfy the requirements of Section 106 of the NHPA. Paragraph (d) of general condition 20 states that for non-federal permittees, the district engineer will notify the prospective permittee within 45 days of receipt of a complete PCN whether NHPA Section 106 consultation is required. District engineers must consult with the SHPO, tribes and other consulting parties to satisfy Section 106 of the NHPA. There are no mandatory timelines for the completion of the Section 106 process. The Section 106 consultation process may take longer than 45 days. The NWP verification cannot be issued and the project applicant cannot proceed with the

proposed activities under Corps' jurisdiction until the Section 106 consultation process has been completed.

A few commenters suggested adding language to paragraph (c) of the general condition to require that the person who would make the determination that non-federal permittees must submit a PCN for the purposes of complying with general condition 20 would need to satisfy the Secretary of the Interior's Standards for Professional Qualifications in Archaeology and Historic Preservation.

It is not appropriate to add text to this general condition to stipulate the qualifications of people determining if a PCN is required for the purposes of compliance with general condition 20. Non-federal permittees are responsible for determining if an activity “might have the potential to cause effects to historic properties.” Determinations whether an activity has the potential to cause effects to historic properties may be made by a variety of agency officials, including Corps district staff. The Corps is ultimately responsible for determining compliance with the requirements of Section 106 of the National Historic Preservation Act.

The general condition is adopted as proposed.

GC 21. Discovery of Previously Unknown Remains and Artifacts. The Corps did not propose any changes to this general condition. A few commenters supported reissuing this general condition with no substantive changes. Many commenters stated that the general condition does not limit impacts to a no more than minimal level because of the inclusion of the text “to the maximum extent practicable.” One commenter recommended editing the first sentence of the general condition to improve readability.

The application of the term “maximum extent practicable” is dependent on case-specific circumstances and site conditions, and gives the district engineer the discretion to determine what is necessary to comply with the general condition for each circumstance in which inadvertent discoveries occur. We recognize that in some circumstances it may not be possible to avoid further construction activities that might affect the remains and artifacts, because those construction activities may have to be completed for safety or minimizing erosion and sedimentation. The language of the general condition is sufficiently clear in its current form, and we decline to make any changes to this general condition.

The general condition is adopted as proposed.

GC 22. Designated Critical Resource Waters. The Corps did not propose any changes to this general condition. Many commenters expressed concern that the general condition did not provide protection against indirect or secondary impacts from upstream NWP activities on the critical resource waters. One commenter requested that this general condition be modified to prohibit the use of NWP 12 in critical resource waters.

Activities authorized by an NWP which occur upstream from critical resource waters must comply with the general conditions to the NWPs and any regional conditions. Through compliance with general conditions and regional conditions, activities subject to an NWP would cause no more than minimal individual and cumulative adverse environmental effects. The district engineer will review PCNs for activities consistent with Section E (District Engineer's Decision) and will consider the direct and indirect effects of the activity. The district engineer will also consider site specific factors, such as the environmental setting in the vicinity of the NWP activity. The district engineer may add site specific conditions to address specific environmental concerns. Paragraph (a) of this general condition prohibits the use of NWP 12 to authorize discharges of dredged or fill material into waters of the United States located within or directly affecting critical resource waters and wetlands adjacent to such waters.

The general condition is adopted as proposed.

GC 23. Mitigation. The Corps did not propose any changes to this general condition. Many commenters stated that this general condition should be strengthened to require that prospective permittees take all practicable steps to avoid and minimize adverse impacts. One commenter stated that mitigation is no substitute for avoidance of impacts. Many commenters stated that the first sentence of paragraph (a) of the general condition should be revised to require avoidance and minimization of adverse effects to any wetland and waterbody rather than waters of the United States. One commenter stated that the NWPs cause no more than minimal individual and cumulative environmental impacts, therefore general condition 23 should be eliminated. One commenter stated that requiring the district engineer to consider the need for compensatory mitigation places an unnecessary burden on the district and results in delays and unnecessary costs.

Mitigation includes avoidance, minimization, and compensatory mitigation. Paragraph (a) of general condition 23 requires the NWP activity to be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (i.e., on site). The Corps does not have authority to require mitigation to address impacts that occur as a result of activities in areas that are not regulated under the CWA or RHA. The purpose of compensatory mitigation is to offset unavoidable adverse impacts to jurisdictional waters and the compensatory mitigation should be considered after all appropriate and practicable avoidance and minimization has been achieved.

The NWPs only authorize activities that have no more than minimal adverse environmental affects both individually and cumulatively. An activity is not authorized under an NWP unless the activity complies with both the terms and all applicable conditions to ensure that an activity will have no more than minimal adverse environmental effects. Where the district engineer determines that mitigation is required to ensure no more than minimal adverse environmental effects, the activity will be authorized within the 45-day PCN review period, unless the 45- day timeframe does not apply due to requirements of a general condition (e.g., general condition 18 (Endangered Species) or general condition 20 (Historic Properties)), with activity-specific conditions that specify the mitigation requirements. Work cannot proceed in waters of the United States until the district engineer has approved a specific compensatory mitigation plan or has determined that a mitigation plan is not practicable or necessary to ensure timely completion of the require compensatory mitigation.

One commenter stated mitigation should not be used to justify that an activity would have less than minimal impacts. Many commenters stated that compensatory mitigation should be required at a ratio of greater than one-to-one. Many commenters stated that the existing thresholds for compensatory mitigation in paragraphs (c) and (d) of the general condition should retained. Many commenters stated that the acreage thresholds for requiring compensatory mitigation in the NWPs should be increased. One commenter stated that the Corps should require compensatory mitigation for any amount of acreage of wetlands and streams when a PCN is required while retaining the district engineer's discretion to make a case-specific

determination if compensatory mitigation is appropriate.

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). Compensatory mitigation will not be used to increase the acreage losses allowed by the acreage limits of the NWPs. The terms and conditions of the NWPs, such as acreage limits and the mitigation, are considered by the district engineer to determine if an activity would result in no more than minimal adverse effects on the aquatic environment. Since the NWPs authorize activities across the country, paragraphs (c) and (d) of this general condition establish a national threshold for stream compensatory mitigation, but there is flexibility in the general condition to allow district engineers to make activity-specific determinations on whether compensatory mitigation should be required for activities that result in the loss of waters of the United States.

When an NWP requires a PCN, district engineers may require compensatory mitigation for activities which do not exceed the acreage thresholds in general condition 23 when he or she determines compensatory mitigation is necessary to ensure that the adverse environmental effects are no more than minimal. District engineers also have the discretion to determine, on a case-by-case basis that either some other form of mitigation would be more environmentally appropriate or the adverse environmental effects of the proposed activity are no more than minimal. Division engineers can add regional conditions to the NWPs to establish a lower threshold for requiring compensatory mitigation. For all DA permits, including the NWPs, compensatory mitigation requirements are determined on a case-by-case basis.

Many commenters stated that the practice of giving the district engineer discretion to make a case-specific determination if compensatory mitigation is required follows longstanding agency practice to prevent no more than minimal adverse environmental effects. One commenter recommended retaining language in the general condition which gives the district engineer the discretion to determine whether compensatory mitigation is required. Several commenters stated that the district engineer should not have discretion to determine the type of mitigation or to waive the requirement to provide compensatory mitigation. One commenter stated that giving the district engineer the discretion to waive compensatory mitigation fails to prevent direct, indirect, and cumulative effects. Many commenters stated that the district engineer should not have the discretion to accept riparian area mitigation in lieu of wetland compensatory mitigation for losses of wetlands.

A few commenters stated that compensatory mitigation for stream bed losses should not be required when a PCN is required by an NWP condition that is not related to aquatic resource impacts, such as when a PCN is required by general condition 20 (historic properties). A few commenters stated that the general condition should list circumstances when compensatory mitigation for stream bed losses may be waived, including when the activity would not change the ecological function of the stream bed. A few commenters stated that compensatory mitigation should not be required if the activity incorporates the U.S. Fish and Wildlife Service's best management practices, or when the prospective permittee will incorporate conservation measures required to satisfy Section 7 consultation for aquatic habitats subject to the ESA.

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. District engineers impose compensatory mitigation requirements on specific activities authorized by NWPs to ensure that those activities result in no more than minimal individual and cumulative adverse environmental effects, including direct and indirect effects. This discretion is appropriate because the district engineer can evaluate the case- specific circumstances of an activity to consider factors such as the quality and ecological function of the waters being lost, the benefits of the regulated activity to the aquatic ecosystem, and similar considerations. Just as some circumstances may warrant a greater mitigation ratio than that specified as the minimum, other circumstances may justify less mitigation.

The district engineers' discretion to determine mitigation requirements on a case-by-case basis also provides the necessary flexibility to adjust to the on-the-ground realities that may not make specific types of mitigation possible or beneficial in all cases. In some cases, a different type of mitigation (e.g., wetland instead of riparian) may be the only practical option or may provide a greater environmental benefit. When a district engineer exercises his or her discretion to deviate from the recommended mitigation, it may be necessary to require mitigation at a higher ratio to ensure the environmental effects are no more than minimal.

The flexibility in general condition 23 allows district engineers to consider the impacts of the case-specific activity, and other site- specific activities required by other agencies, such as mine reclamation, when determining whether to require compensatory mitigation for NWP activities. District engineers evaluate stream compensatory mitigation proposals and should be provided the flexibility to consider a variety of potential stream restoration or rehabilitation approaches.

Many commenters objected to the requirement in paragraph (d) that losses of stream bed that exceed \3/100\-acre will require compensatory mitigation. One commenter stated that paragraph (d) is inconsistent with Executive Orders 14219, “Ensuring Lawful Governance and Implementation of the President's `Department of Government Efficiency' Deregulatory Agenda,” and E.O. 14192, “Unleashing Prosperity through Deregulation.” A few commenters supported the retention of the \3/ 100\-acre stream bed loss threshold. One commenter stated that the \3/ 100\-acre threshold did not create a new requirement but converted the threshold from a linear measurement to an area measurement.

Many commenters stated that the \3/100\-acre threshold should be removed, and the district engineer should have the discretion to determine whether to require compensatory mitigation for stream bed losses. Many commenters requested that the Corps change the threshold for compensatory mitigation for stream bed losses from \3/100\-acre to 300 linear feet. One commenter stated that mitigation should be required based on both aerial and linear impacts thresholds. Several commenters stated that the threshold for requiring compensatory mitigation for impacts to streams should be raised to \1/10\-acre. A few commenters expressed concern that the \3/100\-acre threshold would allow greater impacts to stream beds. One commenter requested that the \3/100\-acre threshold to require compensatory mitigation should only apply to perennial streams impacted by permanent fill.

Paragraph (d) of general condition 23 requires compensatory mitigation at a

minimum one-for-one ratio for all losses of stream bed that exceed \3/ 100\-acre and require a PCN. The rationale for establishing the \3/ 100\-acre threshold for stream compensatory mitigation for NWP activities was explained in the final rule to issue the 2021 NWPs (86 FR 2744). The rationale remains valid and justifies the retention of the \3/100\-acre threshold. This threshold is intended to be conservative based on the complexities of riverine systems, the substantial variation in riverine systems across the country, and the subjectivity inherent in the threshold for the NWPs (i.e., no more than minimal individual and cumulative adverse environmental effects). Paragraph (d) applies to any loss of stream bed which exceeds \3/100\- acre, when the stream bed is part of a water of the United States and is permanently adversely affected by filling, flooding, excavation, or drainage because of the regulated activity. District engineers retain the discretion to determine on a case-by-case basis whether to require compensatory mitigation for losses of stream bed authorized by NWPs.

Many commenters recommended that paragraph (e) of the general condition retain language on the width of riparian buffers. A few commenters stated that paragraph (e) should require riparian buffers wider than 25 to 50 feet.

The Corps' compensatory mitigation regulations at 33 CFR 332.3(i) allow district engineers to require the restoration, establishment, enhancement, and preservation, as well as the maintenance, of riparian areas and/or buffers around aquatic resources where necessary to ensure the long-term viability of those resources. The recommended riparian area width of 25 to 50 feet was established in the NWP program in 2000 (65 FR 12833) because riparian areas of that width can provide important aquatic habitat functions and water quality benefits. The rationale remains valid and continues to support this recommended riparian width. The general condition gives the district engineer the discretion to require wider riparian buffers to address concerns for water quality or habitat loss at a specific location.

Many commenters stated that districts vary in the types of compensatory mitigation required to offset wetlands impacts and encouraged the Corps to focus on improving consistency among districts regarding the application of mitigation requirements. Many commenters recommended that the Corps adhere to the 2008 Mitigation rule (33 CFR 332) and revise the NWP program when a new mitigation rule is finalized. Many commenters stated that the district engineer should have the flexibility to consider how to apply the mitigation hierarchy described in 33 CFR 332.3(b). One commenter stated that a qualified engineer should submit mitigation plans and those plans should be approved by the district engineer.

Compensatory mitigation can be provided through the restoration, enhancement, establishment, and protection of aquatic resources to offset losses of those functions caused by activities authorized by the NWPs and other types of DA permits. The district engineer reviews compensatory mitigation plans for compliance with the compensatory mitigation regulations at 33 CFR 332. District engineers will review case-specific activities, including proposed compensatory mitigation, in compliance with the applicable environmental regulations in place at that time and will consider any changes to 33 CFR 332 or other regulations that may occur in the future. As stated in paragraph (f)(1) of GC 23, the use of mitigation bank and in-lieu fee program credits to provide compensatory mitigation for NWP activities is preferred, not required. This preference is based on the hierarchical framework for considering compensatory mitigation options for NWPs and other DA permits that is provided in 33 CFR 332.3(b). The district engineer's acceptance of mitigation only validates that the mitigation complies with the requirements of 33 CFR 332 and GC 23. It is the responsibility of the permittee to ensure that the work complies with other applicable laws, authorizations and requirements, including any applicable engineering standards. As such, it's not necessary to require that mitigation plans be submitted by a qualified engineer.

One commenter stated that many districts have regional conditions that address the loss of functions of forested wetlands and recommended revising paragraph (i) of the general condition to require compensatory mitigation for the permanent conversion of forested wetlands in all cases.

Consistent with paragraph (i) of this general condition, if a proposed NWP activity involves mechanized land clearing in a forested wetland, and it requires a PCN, the district engineer can require compensatory mitigation to ensure the proposed activity results in no more than minimal individual and cumulative adverse environmental effects. The district engineer also has discretion to require compensatory mitigation on a case-by-case basis for the conversion of forested wetlands to ensure the activity results in no more than minimal adverse environmental effects both individually and cumulatively.

The general condition is adopted as proposed.

GC 24. Safety of Impoundment Structures. The Corps did not propose any changes to this general condition. One commenter stated that a qualified dam safety engineer should submit the plans for impoundment structures and the plans should be approved by a qualified engineer. The general condition states that the district engineer may require non-federal permittees to demonstrate that impoundment structures have been designed by qualified permits. The general condition also states that the district engineer may require documentation that the design has been reviewed by a similarly qualified person.

The general condition is adopted as proposed.

GC 25. Water Quality. The Corps proposed to modify the text of this general condition to clarify that the proposed activity which may result in any discharge from a point source would have to be into a water of the United States in order to trigger the requirement for water quality certification. This proposed change would make the text of this general condition consistent with EPA's current water quality certification regulations at 40 CFR part 121, which defines “license or permit” as consistent with See 40 CFR 121.1(f).

One commenter supported the change to the general condition. One commenter opposed the revision, stating that the change is unnecessary because the language in 40 CFR 121.2 clearly states the threshold requirement for a 401 water quality certification. Several commenters suggested changing the language in the general condition from “may” to “will.” One commenter stated that the general condition should mandate water quality reviews. One commenter stated that district engineers are inconsistently applying the standard for when a water quality certification may be required. Several commenters stated that the proposed revised language in the general condition is not consistent with the language in the current regulation. The commenters recommend revising “discharge from a point source” to “any discharge.” One commenter stated that the general condition should reinforce that water quality certification is required only when an activity would result in a discharge from a point source into waters of the United States. One commenter requested that text be added to the general condition to state that

where a permittee has already received a FERC license and an associated water quality certification, the permittee is not required to obtain a duplicate water quality certification to satisfy general condition 25.

The current regulations at 40 CFR 121.2 state that a certification is required for any federal permit that “authorizes any activity which may result in any discharge from a point source into waters of the United States.” The revised language in the general condition is consistent with the current regulation. Discharges of dredged or fill material into waters of the United States are not authorized by an NWP until the certifying authority has granted or waived water quality certification. The certifying authority makes the determination if an activity which requires DA authorization would result in a discharge that requires a water quality certification or waiver, and reviews certification requests in accordance with 40 CFR 121. The Corps is responsible for complying with the requirements of Section 401 of the CWA even if there is another federal agency making a decision on a federal license or permit which also requires review under Section 401 of the CWA.

If a certifying authority has not previously certified compliance of an NWP with CWA Section 401, the permittee must obtain an individual water quality certification or waiver for a proposed activity which may result in a discharge from a point source into waters of the United States. In accordance with 33 CFR 330.4(c)(3), if a state denies a water quality certification for an activity that otherwise meets that NWP, a district engineer may provisionally notify the prospective permittee that the district engineer has completed his or her review, but the activity is not authorized pending the completion of the processes required by 40 CFR 121.

The general condition is adopted as proposed.

GC 26. Coastal Zone Management. The Corps did not propose any changes to this general condition. The Corps did not receive any comments on this general condition. The general condition is adopted as proposed.

GC 27. Regional and Case-by-Case Conditions. The Corps did not propose any changes to this general condition. The Corps did not receive any comments on this general condition. The general condition is adopted as proposed.

GC 28. Use of Multiple Nationwide Permits. The Corps proposed modifications to this GC to clarify the standards that must be met to comply with this general condition.

Several commenters expressed support for the proposed changes to the general condition. Several commenters stated that the general condition should limit the total acreage limit to the lowest specified acreage limit. Several commenters recommended that the general condition limit the number of NWPs that can be used to authorize an activity to two to minimize cumulative impacts. Several commenters asked that the general condition clarify how temporary and cumulative effects are considered in the thresholds of this general condition. One commenter stated that there should be a waiver to this general condition when restoration activities are proposed which would be authorized under NWP 27.

The purpose of the revision to this general condition is to clarify the longstanding requirement to limit the total acreage impacts to the highest total acreage limit of each NWP being used for a single and complete project. The text in paragraph (a) will limit the use of NWPs with no acreage limits, including NWP 27. The general condition limits the acreage loss of waters of the United States to the highest specified acreage limit, and it does not allow the acreage limit of an NWP with a specified lower acreage limit to be exceeded. The general condition applies acreage impact limits to losses of waters of the United States. The definition of loss of waters of the United States is restricted to activities that cause permanent adverse effects to waters of the United States and does not include temporary or cumulative impacts. When the district engineer receives a PCN, his or her review will consider the direct, indirect, and cumulative effects of the single and complete project, in accordance with paragraph 2 of Section D (District Engineer's Decision).

The general condition is adopted as proposed.

GC 29. Transfer of Nationwide Permit Verifications. The Corps did not propose any changes to this general condition. One commenter stated that this general condition only addresses the transfer of an NWP verification is situations where the property ownership is transferred between landowners, and recommended that it be expanded to allow the transfer of a permit verification when responsibility over the project is transferred even if the activities authorized by the NWP occur on lands not owned by the permittee, such as government owned lands.

The language in the general condition was taken from Appendix A of 33 CFR 325, which is the standard form for Department of the Army permits. This language is found at general condition 4 of Appendix A of 33 CFR 325. We believe that the language in this general condition should be consistent with our standard permit language. Permittees with questions about the transfer of an NWP verifications should contact the district engineer in the district where the activity is located.

The general condition is adopted as proposed.

GC 30. Compliance Certification. The Corps proposed to modify the second sentence of this general condition to refer to the “successful completion” of any required permittee-responsible mitigation instead of the “success” of any required permittee-responsible mitigation. One commenter supported the proposed change.

The general condition is adopted as proposed.

GC 31. Activities Affecting Structures or Works Built by the United States. The Corps did not propose any changes to this general condition. One commenter expressed support for the reissuance of this general condition. One commenter stated that the Corps should clarify how the NWPs in this action would affect the timelines of Section 408 reviews of federal projects.

A PCN is required for proposed NWP activities that also require Section 408 permissions so that the appropriate coordination can occur between district staff involved in the NWP evaluation and Section 408 permission processes. The Corps acknowledges that it may take longer for NWP verification to be issued by the district engineer when a 408 permission is required, because the NWP verification cannot be issued before the Section 408 permission process is completed.

The general condition is adopted as proposed.

GC 32. Pre-Construction Notification. The Corps proposed to modify paragraph (a)(2) of this general condition, to make it consistent with paragraph (c) of general condition 18 (Endangered Species). In paragraph (b)(5) of this general condition, the Corps proposed to simplify the first sentence to state that the PCN must include a delineation of waters, wetlands, and other special aquatic sites on the project site. The Corps proposed to remove references to “other waters” such as lakes and ponds and perennial and intermittent streams because those features would be covered by the term “waters.” The Corps also proposed to modify paragraph (b)(5) of this general condition by adding a new sentence at the end of this paragraph which points

permittees using NWP 27 (Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities) to proposed new Note 2 in NWP 27.

Many commenters stated that PCNs should be required for all activities authorized by NWPs. Several commenters stated that both federal and non-federal permittees should be required to submit PCNs for every activity authorized by an NWP. One commenter stated that the project proponent should determine if a PCN is required for each single and complete crossing. One commenter stated that the Corps should clarify when a PCN is required for activities that impact protected resources. Many commenters said that no additional information requirements should be added to the PCN process that would further complicate or burden the process.

The Corps establishes PCN thresholds for those NWP activities that have the potential to cause more than minimal adverse environmental effects, to provide the opportunity for district engineer to conduct an activity-specific review and to exercise discretionary authority and require individual permits for activities that will have more than minimal adverse environmental effects. The PCN process provides an opportunity for the district engineer to do a site- and activity- specific evaluation of a proposed NWP activity and take into account the characteristics of the project site and proposed activity, to determine whether the proposed NWP activity will cause no more than minimal individual and cumulative adverse environmental effects. Certain general conditions (e.g., general conditions 18 (endangered species) and 20 (historic properties)) require submittal of a PCN when an activity that requires DA authorization may impact protected resources. Division engineers may also modify NWPs to require a PCN to address regional concerns for protected resources. We are retaining the language in general conditions 18 and 20 which direct federal agencies to follow their own procedures for complying with Section 7 of the ESA and Section 106 of the NHPA. The Corps has not added any information requirements beyond the clarifying language that was proposed in the 2025 Proposal.

One commenter opposed allowing permittees to proceed if the district engineer does not respond to a PCN within 45 days. One commenter stated that the NWPs are issued based on the finding that they would cause no more than minimal individual and cumulative impacts, therefore it is redundant to require submittal of a PCN based on thresholds that are lower than the limits to the loss of waters authorized by an NWP. Several commenters stated that allowing permittees to proceed with their activity after 45 days without Corps review does not comply with Section 404(e). One commenter stated that requiring the district engineer to review a PCN causes unnecessary work, delay and cost. One commenter stated that permittees should be allowed to submit reports documenting the completion of an activity rather than a requiring submittal of PCN to allow for the district engineers' review.

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. The permittee is responsible for reading the NWPs and all of the general conditions and regional conditions to determine whether he or she is required to submit a PCN before proceeding with an authorized activity. The PCN process provides flexibility in the NWP program and ensures that NWP activities have no more than minimal individual and cumulative adverse environmental effects and comply with the Section 404(e) of the CWA. The PCN process also gives the district engineer the opportunity to add activity-specific conditions to the NWP authorization to satisfy the “no more than minimal adverse environmental effects” requirement for the NWPs. There are exceptions to the 45-day review period, such as when district engineers have to complete ESA Section 7 consultation, NHPA Section 106 consultations, or for other specified purposes to satisfy federal law.

One commenter stated that the general condition should state that work can proceed in water crossings outside Corps' jurisdiction where a project proponent has determined that a PCN is not required. One commenter stated that the prospective permittees for activities associated with linear projects should not be required to report activities for which no PCN is required. Several commenters stated that the Corps does not have the resources to ensure activities comply with the NWPs if it does not have the resources to respond to PCNs within 45 days.

The Corps has no authority over activities in waters outside Corps' jurisdiction. In the absence of a jurisdictional determination, when reviewing a PCN, the district engineer will assume that all waters in the project area are jurisdictional. If a project proponent has determined that no PCN is required, the proponent must comply with the NWP and general conditions to the NWPs if order for the activity to be authorized by an NWP. Paragraph (b)(i) states that prospective permittees submitting a PCN for linear projects must include information on other separate and distant crossings that require DA authorization but do not require a PCN. The requirement to submit information on the non-PCN activities does not change those activities into ones which are subject to a PCN. The district engineer will review the PCN and information about activities which do not require a PCN to determine if the regulated activity will have no more than minimal individual and cumulative adverse effects to the environment. The Corps declines to remove the requirement to provide information about linear crossings for which no PCN is required. District engineers have the discretion to manage district workloads.

One commenter stated that it is not clear how the Corps determines when the 45-day time period has started. Many commenters stated that the Corps should determine if a PCN is complete within 15 days.

The 45-day time period begins upon the district engineer's receipt of a complete PCN. If the prospective permittee does not receive a request for additional information within 30-days of the date of receipt, the permittee can begin the activity 45 days from the district engineer's receipt of the PCN. There are exceptions to the 45-day timeframe, such as for activities conducted by non-federal permittees that require PCNs under paragraph (c) of general conditions 18 and 20 (Endangered Species and Historic Properties, respectively), activities that require PCNs under general conditions 16 and 31, activities proposed for authorization under NWP 49 (Coal Remining Activities), and when the proposed activity requires a written waiver to exceed specified limits of an NWP, or if the district engineer takes action under 33 CFR 330.5(d) to modify, suspend, or revoke the NWP authorization. We believe that 30 days is necessary to make completeness determinations for PCNs.

Many commenters stated that the permittee should not be allowed to proceed with their activity until the district engineer has provided written notification that the activity qualifies for an NWP. Many commenters stated that prospective permittees should receive expedited permit processing if the Corps fails to meet the 45-day timeline in general condition 32. One commenter

stated that the 45-day timeline does not allow for adequate time for tribal review. Many commenters recommended that district engineers adhere to the general rule to request additional information only one time and limit requests to information that is reasonable and avoids unnecessary delay. One commenter recommended that district engineers use their discretionary authority to expedite certain time-sensitive maintenance and inspection projects associated with energy projects.

District engineers have the responsibility to review a PCN. After the Corps district receives a PCN, the prospective permittee cannot begin the activity until either: (1) He or she is notified in writing by the district engineer that the activity may proceed under the NWP with any special conditions imposed by the district or division engineer; or (2) 45 calendar days have passed from the district engineer's receipt of the complete PCN and the prospective permittee has not received written notice from the district or division engineer. The Corps declines to add a provision requiring that all project proponents receive written authorization from the Corps prior to commencing the authorized activity. The terms and conditions of the NWPs describe the circumstances (e.g., when Section 7 ESA or Section 106 NHPA consultation is required) when a project proponent must wait for a written response from the Corps prior to commencing the activity. We agree that district engineers, as a general rule should request information necessary to make a PCN complete only one time. District engineers may make additional requests for information when the project proponent has not provided the requested information to the district engineer. District engineers manage their workload, including actions associated with energy projects, consistent with applicable policy.

One commenter recommended that paragraph (b) be revised to clarify that the 45-day time period does not begin until the district engineer receives a delineation report which meets a recommended minimum standard. Many commenters requested that wetland delineations be accepted when they are sufficiently detailed, rather than requiring a field wetland delineation. Many commenters recommended that the Corps clarify that paragraph (b)(5) only applies to jurisdictional waters. One commenter stated that the term “project site” is not clear and should be replaced with the term “proposed limits of construction” because the term “project site” results in the expense of delineating of waters that are on a property but distant from the area where work is proposed.

General condition 32 paragraph (b)(5) requires a delineation of waters, wetlands, and special aquatic sites prepared in accordance with the current method required by the Corps. In accordance with CWA Section 404(e), the NWPs are intended to authorize activities with little, if any, delay or paperwork. Prospective permittees are not required to submit a delineation report compliant with a recommended standard. The recommended minimum standards for reports that accompany a delineation are not mandatory. These recommended minimum standards have been developed as a tool to assist prospective permittees in providing information in a manner that could expedite reviews of jurisdictional determinations and permit applications. The delineation only needs to identify wetlands, other special aquatic sites, and other waters on the site and their approximate boundaries, so that the district engineer can evaluate the proposed activity's impacts to those wetlands, other special aquatic sites, and other waters.

Field verification of a delineation by the Corps district is not required for a complete PCN. If the district engineer finds errors in the delineation, he or she may make corrections to the delineation or require the applicant to make those corrections, but those corrections should not delay the decision on the NWP verification or the decision to exercise discretionary authority. An approved jurisdictional determination is not required for a complete PCN. If the project proponent did not obtain and/or does not wish to obtain an approved jurisdictional determination for the project site, 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. General condition 23 clarifies that project site means “on site”.

One commenter stated that paragraph (b) should be revised to require the prospective permittee's email address, information about essential fish habitat that might be affected by the activity, and to specify information about any required individual water quality certification request.

The Corps declines to modify paragraph (b) Contents of a PCN. Paragraph (c) encourages prospective permittees use the NWP PCN form (ENG 6082) to submit their PCN information or provide the required information in a letter. Prospective permittees may also submit their PCN and all supplemental information electronically through the Corps' Regulatory Request System \3\ (RRS). Both ENG Form 6082 and RRS encourage the prospective permittee to provide their email address. Essential fish habitat (EFH) is generally confined to coastal waters and anadromous waters. District engineers in areas where EFH has been identified may require information regarding essential fish habitat to be included in the PCN through the development of regional conditions. General condition 25 (Water Quality) requires the prospective permittee to provide any issued or waived water quality certification for the proposed discharge authorized by a specific NWP activity, to the district engineer when the certifying authority previously denied the certification request for the issuance of the NWPs. Consistent with 33 CFR 330.4(c), an NWP is denied without prejudice until a project proponent provides an individual water quality certification or waiver.

\3\ Regulatory Request System (RRS) is a web-based national online application portal and management platform created to modernize the Corps' Regulatory Program permitting process and meet user expectations by providing a straightforward transparent process for the submittal of permit requests. RRS provides general information on the Regulatory Program and allows the public to submit pre-application meeting requests, jurisdictional determination requests, and individual and general permit applications and other necessary information electronically. RRS can be accessed at the following address: rrs.usace.army.mil/rrs.

One commenter stated that the NWPs should limit how many times an NWP can be used to prevent piecemealing and causing more than minimal impacts. Many commenters stated that the term “separate and distant” requires clarification and is used inconsistently by the Corps, allowing for piecemealing of projects.

Section 404(e) of the CWA does not require NWPs to have quantified acreage or other limits to ensure that authorized activities result in no more than minimal individual and cumulative adverse effects. General condition 28 (Use of Multiple Nationwide Permits) limits the amount of loss of waters of the United States for each single and complete project and each single and complete linear project. The definition of “single and complete linear project” does not allow piecemealing. 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. When the district engineer reviews the PCN, he or she considers the cumulative effects of both the NWP activities that

require PCNs and the NWP activities that do not require PCNs when deciding if the activity will cause no more than minimal adverse effects.

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. Application of the definition of “separate and distant” crossings is more appropriately determined by district engineers on a case-by-case basis. Separate and distant crossings of waters of the United States associated with linear projects can be authorized by separate NWPs consistent with longstanding practice that has been codified in the Corps' regulations at 33 CFR 330.2(i) since 1991 (see 56 FR 59110).

One commenter stated that paragraph (d) should allow agencies 45 days to respond to agency coordination. With some exceptions (e.g., requirements of general conditions 18 (Endangered Species Act) or 20 (Historic Properties), paragraph (a)(2) allows permittees to begin their activity 45 days after the district engineer receives a PCN. When agency coordination is required, the agencies have a total of 25 days to provide substantive comments on a PCN. This 25-day timeframe is necessary so that the district engineer can fully consider the concerns of the resource agency during review of the PCN with sufficient time to determine if the NWP-specific activity must by modified, suspended, or revoked in order to ensure that the regulated activity will cause no more than minimal adverse environmental effects.

The general condition is adopted as proposed.