Reissuance and Modification of Nationwide Permits

In the 2025 Proposal, the Corps proposed changes to two of the NWP definitions and the Corps proposed to add one definition. As discussed in the proposed rule, the Corps proposed to modify the definitions of “Ecological reference” and “Stream bed.” The Corps proposed to add a definition of “Nature-based solutions.”

Many commenters expressed support for the changes to the definitions. One commenter recommended adding a definition for “soft bank stabilization.” One commenter requested the addition of a definition of “oil or natural gas pipeline” that includes any gaseous or liquid fuel, particularly hydrogen. One commenter recommended adding a definition of “special aquatic sites.” Many commenters stated that the NWPs should not include a definition of “waters of the United States”. Many commenters stated that the Corps should rely on definition of waters of the United States that is in effect at the time of the NWP-specific activity. One commenter recommended adding a definition for “waters of the United States” to differentiate between waters subject to Section 10 of the RHA and waters subject to Section 404 of the CWA.

The Corps does not believe that “soft bank stabilization” requires a definition because there are number of examples of soft bank stabilization listed in Note 2 in NWP 13. The phrase “oil or natural gas pipeline” is defined in NWP 12 and includes any pipe or pipeline for the transportation of any form of oil or natural gas, including products derived from oil or natural gas, such as gasoline, jet fuel, diesel fuel, heating oil, petrochemical feedstocks, waxes, lubricating oils, and asphalt. The Corps declines to include “any liquid or gaseous fuel” in the definition of oil or natural gas pipeline.

NWP 58 authorizes activities associated with utility lines for substances, excluding oil, natural gas, products derived from oil or natural gas, and electricity. The Department of Energy states that hydrogen can be produced from a variety of sources, including natural gas, renewable power, or nuclear power.\4\ The Corps declines to add “any gaseous or liquid fuel,” or hydrogen to the definition of oil or natural gas pipeline. The Corps relies on the definition of special aquatic sites in 33 CFR 320.2(j). Special aquatic sites include wetlands, mudflats, vegetated shallows, coral reefs, riffle and pool complexes, sanctuaries, and refuges. The Corps does not believe it is necessary to replicate the definition of special aquatic sites in Section F. Definitions. The Corps declines to add a definition of waters of the United States to Section F (Definitions) and will continue to rely on the definition of “waters of the United States” in 33 CFR part 328.

\4\ https://www.energy.gov/eere/fuelcells/hydrogen-fuel-basics.

Best management practices (BMPs). The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Compensatory mitigation. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Currently serviceable. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Direct effects. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Discharge. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Ecological reference. The Corps proposed modifications to this definition to align with proposed changes to the second paragraph of NWP 27, which discusses the requirement for aquatic ecosystem restoration, enhancement, and establishment activities associated with activities that require DA authorization to be planned, designed, and implemented to result in aquatic ecosystems that resemble ecological references. The proposed revisions to this definition discuss three types of ecological references: (1) an aquatic ecosystem type or riparian area type that currently exists in the region (i.e., a contemporary ecological reference); (2) an aquatic ecosystem type or riparian area type that existed in the region in the past (i.e., an historic ecological reference); and (3) indigenous and local ecological knowledge that applies to the aquatic ecosystem type or riparian area type (i.e., an ecological reference based on a cultural ecosystem). The Corps also proposed to change this definition to include cultural ecosystems.

Many commenters supported the proposed modifications to this definition. Several of these commenters stated that such provisions recognize the historical role of human management in ecosystem development and provide realistic restoration targets in highly altered landscapes. One commenter opposed changes to this definition, stating that the change could cause confusion regarding the selection of a suitable ecological reference. Many commenters argued that defining ecological references to include ecosystems developed under human management activities contradicts the premise that references should be based on natural systems or may result in project proponents arguing that maintenance activities constitute restoration.

Many commenters expressed concerns that historical references might not be self-sustaining under current landscape conditions and recommended focusing on functioning systems under comparable present conditions. Many commenters stated that the definition of ecological reference should require that the reference be of the highest quality. Many commenters requested clarification regarding how an ecological reference would be implemented. One commenter recommended that the Corps take a broad view of what constitutes an ecological reference. One commenter was concerned that a low value stream that was present in the past would be valued the same as an unaltered stream that is currently present.

Ecological references are based on natural ecosystems. An ecological reference takes into account the range of variation of the aquatic habitat type or riparian area type in the region. Ecological references are based on natural ecosystems which are “developed by natural processes and are self-organizing and self-maintaining” (Society for Ecological Restoration International Science & Policy Working Group 2004). Natural ecosystems are rarely pristine or unimpacted by human influences. Ecological standards are not limited to the highest and best quality of an ecosystem. Most natural ecosystems have been impacted by human influences to varying degrees and may be managed by people to varying degrees.

Understanding that all ecosystems are cultural ecosystems to varying degrees because of pervasive human influences on these ecosystems is important for establishing realistic and achievable goals and objectives for aquatic ecosystem restoration, enhancement, and establishment activities for human influenced ecological references. Realistic objectives for resembling an ecological standard involve establishing a “lift” to the net functions and services, not necessarily an attempt to achieve the highest quality of that aquatic ecosystem. This is consistent with the concepts in the 2008 Compensatory Mitigation Rule's (33 CFR 332.2) definition of “reference aquatic resources,” which are defined as “a set of aquatic resources that represent the full range of variability exhibited by a regional class of aquatic resources as a result of natural processes and anthropogenic disturbances.”

This definition was revised to align with the changes to NWP 27 (Aquatic Ecosystem, Restoration, Enhancement, and Establishment). The permittee must comply with the terms of NWP 27 and the NWP general conditions. The NWP 27 requires that the proposed restoration, enhancement, or establishment associated with activities that require DA authorization resemble an ecological reference, and must also result in net increases in aquatic ecosystem functions and services.

Many commenters approve of the inclusion of cultural ecosystems or indigenous and local knowledge in the use of determining ecological reference standard. Many commenters objected to the inclusion of references to “indigenous knowledge” and encouraged the Corps to delete the term and consider indigenous knowledge as captured by local knowledge.

Ecological references may be based on indigenous knowledge or local ecological knowledge. Recognition of indigenous knowledge does not privilege this type of information above other types or sources of information, it recognizes that the people who have inhabited in an area over a long period of time have accumulated knowledge of that area.

The definition is adopted as proposed.

Enhancement. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Establishment (creation). The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

High Tide Line. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Historic property. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Independent utility. The Corps did not propose any changes to this definition. Many commenters recommended modifying this definition to eliminate the distinction between linear and non-linear projects. Many commenters requested the addition of “linear projects” to this definition.

The concept of independent utility does not apply to individual crossings of waters of the United States for linear projects because each separate and distant crossing of waters of the United States is necessary to transport people, goods, or services from the point of origin to the terminal point. There is a rational basis for distinguishing between linear projects and non-linear projects. For linear projects, impacts to jurisdictional waters and wetlands caused by activities authorized by NWPs are scattered throughout a large landscape that encompasses the point of origin and terminal point of the linear projects, and all of the crossings of jurisdictional waters and wetlands in between the origin and terminus. Under most circumstances, those crossings

impact distinctly different waterbodies, although there may be cases where there are multiple crossings of the same waterbody at separate and distant locations. For a long linear project, a large number of different waterbodies may be impacted by crossings that are a substantial distance from each other. In contrast, for a non-linear project, the impacts to jurisdictional waters and wetlands are concentrated within a much smaller landscape unit (usually a single parcel of land) that is defined by the boundaries of the non-linear project (e.g., the boundaries of the residential or commercial development). For a nonlinear project, the impacts of activities authorized by NWPs or other DA permits usually occur to a single waterbody and its tributaries and adjacent wetlands.

As a general concept, cumulative impacts accrue to a single waterbody as a result of multiple impacts occurring over time, which include direct impacts to the waterbody and the indirect effects of activities occurring in the watershed of that waterbody. For a linear project, the incremental contribution of a linear project crossing of a waterbody to the cumulative impacts for that particular waterbody is small. For a linear project, the sum of the authorized impacts occurs to the various waterbodies crossed by that linear project. A non-linear project may have a larger incremental contribution to the cumulative impacts for a particular waterbody, because all of the authorized impacts will occur in or near that waterbody.

The definition is adopted as proposed.

Indirect effects. The Corps did not propose any changes to this definition. One commenter recommended the removal of this definition, stating that it is too broad. District engineers will review PCNs consistent with paragraph 2 of Section D (District Engineer's Decision), which requires consideration of the direct and indirect impacts caused by the NWP activity, as well as the cumulative effects in order to determine if the activity would cause no more than minimal adverse environmental effects. The NWP activity is the activity subject to DA jurisdiction--the discharge of dredged or fill material into waters of the United States and work and structures in navigable waters of the United States. The Corps believes that the definition of indirect effects should be retained to inform the district engineer's decision.

The definition is adopted as proposed.

Loss of waters of the United States. The Corps did not propose any changes to this definition. Many commenters recommended modifying the definition to include temporary impacts as a loss of waters of the United States. Many commenters recommended that language be added to NWPs to clarify that the acreage impact limit applies to activities or discharges that would result in a complete loss of waters of the United States and not to temporary or long-term impacts to the waters. One commenter recommended revising this definition to state that placement of dredged or fill material that results in an increase in the aquatic resource functions and services of the aquatic resource is not a loss of waters.

Loss of waters of the United States does not include waters of the United States temporarily filled, flooded, excavated, or drained. Permittees must comply with general conditions 11 (Equipment) and 13 (Removal of Temporary Structures of Fills) which require areas to be restored to pre-construction elevations and revegetated, as appropriate. Under Section 404 of the CWA, DA authorization is required for discharges of dredged or fill material into waters of the United States unless exempted by CWA Section 404(f). Discharges of dredged or fill material involve the addition of material within or into waters of the United States, regardless of whether the effect of the discharge is beneficial or adverse. The Corps declines to remove discharges that result in beneficial effects from this definition. Consistent with the District Engineer's Decision (Section D), the district engineer can consider the duration of the effects and whether the regulated activity would result in beneficial effects in their determination whether the NWP activity would cause more than minimal adverse effects to the environmental.

The definition is adopted as proposed.

Nature-based solutions. The Corps proposed to add a definition of “nature-based solutions” to Section F. For the reasons discussed in Section II.D. the definition is adopted as proposed.

Navigable waters. The Corps did not propose any changes to this definition. One commenter recommended revising this definition to clarify that variations of the term “navigable waters” such as ”navigable water,” “navigable waters of the United States,” or “navigable water of the United States” all refer to waters subject to Section 10 of the RHA (i.e., Section 10 waters) as defined in 33 CFR 329. The Corps agrees that the terms listed here all refer to navigable waters of the United States as defined in 33 CFR 329 but finds it unnecessary to add these terms to this definition.

One commenter requested that Corps districts provide a list of navigable waters of the United States subject to Section 10 of the RHA on district websites. Consistent with 33 CFR 329.16, Corps districts maintain a list of navigable waters and the Corps will evaluate the best way to make these lists available to the public.

One commenter stated that the Corps should clarify if waters under the authority of Section 10 of the RHA are also “traditional navigable waters.” “Traditional navigable waters” include but are not limited to “navigable waters” as defined in this definition.

The definition is adopted as proposed.

Non-tidal wetland. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Open water. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Ordinary high water mark. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Perennial stream. The Corps did not propose any changes to this definition. Many commenters expressed opposition to defining this term and recommended its removal from the definitions. This term is used in NWP 40 (Agricultural Activities) and in NWP 43 (Stormwater Management Facilities) as such, the Corps declines to remove this definition. The definition is adopted as proposed.

Practicable. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Pre-construction notification. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Preservation. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Re-establishment. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Rehabilitation. The Corps did not propose any changes to this definition. The Corps did not receive any

comments on the proposed definition. The definition is adopted as proposed.

Restoration. The Corps did not propose any changes to this definition. One commenter requested that the definition use the phrase “and biological” instead of “or biological.” The use of “or” preserves the option to manipulate some but not all characteristics of an aquatic resource to improve natural functions. The Corps declines to make the recommended change in this definition. The definition is adopted as proposed.

Riffle and pool complex. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Riparian areas. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Shellfish seeding. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Single and complete linear project. The Corps did not propose any changes to this definition. Many commenters expressed support for this definition. Many commenters opposed this definition and stated that it should be removed. Many commenters stated that the ability to use multiple NWPs to authorize individual segments of linear projects should be eliminated because that practice violates numerous laws. Many commenters stated that the definition of “single and complete linear project” is used to piecemeal large projects into NWPs.

The term “single and complete project” is defined in the regulations implementing the NWP program that were promulgated in 1991 and are still in effect (33 CFR 330.2(i). The definition in regulation addresses what constitutes a “single and complete project” generally as well as in the context of linear projects. The definitions concerning single and complete projects in the NWPs are consistent with the NWP regulations issued in 1991. The basis for treating each crossing involved in a linear project as a separate activity is that the effects of the activities that can be authorized within the limitations of the applicable NWPs and by definition minor and are typically limited to the waterbody being impacted. For linear projects, impacts to jurisdictional waters and wetlands caused by activities authorized by NWPs are scattered throughout a large landscape that encompasses the point of origin and terminal point of the linear projects, and all of the crossings of jurisdictional waters and wetlands in between the origin and terminus. Under most circumstances, those crossings impact distinctly different waterbodies, although there may be cases where there are multiple crossings of the same waterbody at separate and distant locations. For a long linear project, a large number of different waterbodies may be impacted by crossings that are a substantial distance from each other. This is distinguished from a non- linear project which is more likely to concentrate the effects of multiple activities within a single waterbody or watershed. As an additional backstop against the possibility of impacts compounding across multiple separate crossings, when a PCN is required for an activity associated with a linear project, the PCN must include information on all crossings associated with that linear project which require DA authorization. The district engineer will review the PCN to ensure that the cumulative adverse environmental effects of all crossings associated with linear projects are no more than minimal. As explained in the rulemaking establishing the definition of “single and complete project” in 33 CFR 330.2(i) (see 56 FR 59110, 59113-13), 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. The Corps declines to make any changes to this definition.

The definition is adopted as proposed.

Single and complete non-linear project. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Stormwater management. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Stormwater management facilities. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Stream bed. The Corps proposed to modify the definition of “stream bed” by adding a sentence that states that the substrate of a stream bed may also be comprised, in part, of large and small wood fragments, leaves, algae, and other organic materials. A few commenters requested clarification whether wetlands within the ordinary high water mark are considered part of the stream bed. Several commenters stated that the definition should be corrected to read “bedrock or inorganic particles.” We have corrected the second sentence in the definition to include the word “or.” Wetlands landward, or outside, the ordinary high water marks are not part of the stream bed. Areas waterward, or between, the ordinary high water marks are part of the stream bed. Some areas waterward of the ordinary high water mark may meet the definition of wetland.

The definition is adopted as proposed.

Stream channelization. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Structure. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Tidal wetland. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Tribal lands. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Tribal rights. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Vegetated shallows. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

Waterbody. The Corps did not propose any changes to this definition. The Corps did not receive any comments on the proposed definition. The definition is adopted as proposed.

The Corps has prepared a decision document for each NWP. Each decision document contains an EA to fulfill the

requirements of the NEPA. The EA discusses the anticipated impacts the NWP will have on the human environment. Each decision document also includes a public interest review conducted in accordance with 33 CFR 320.4. If an NWP authorizes discharges of dredged or fill material into waters of the United States, the decision document for that NWP also includes a CWA Section 404(b)(1) Guidelines analysis conducted in accordance with the applicable provisions of 40 CFR part 230, including 40 CFR 230.7 which address the issuance of general permits. These decision documents evaluate the environmental effects of each NWP from a national perspective.

The Corps solicited comments on the draft national decision documents, and any comments received were considered when preparing the final decision documents for the NWPs. The final decision documents for each NWP are available on the internet at: www.regulations.gov (docket ID number COE-2025-0002) as “Supporting and Related Materials” for this final action.

Many commenters stated that the Corps has not met its obligations under NEPA. Many commenters stated the reissuance of the NWPs requires the preparation of Environmental Impact Statement(s). Many commenters stated that the draft decision documents do not support the finding that the NWP Program has not resulted in significant environmental harm. Many commenters stated that the Corps has not taken a hard look at the impacts of the NWP.

The Corps prepared components of the draft and final national decision documents in accordance with NEPA (42 U.S.C. 4321 et seq).The final decision documents prepared by Corps Headquarters for the reissuance of these NWPs provide an analysis of the impacts expected to be caused by the activities authorized by these NWPs during the five- year period they are expected to be in effect, including estimates of the number of times an NWP is anticipated to be used, the anticipated impacts to jurisdictional waters and wetlands, and the compensatory mitigation required to offset losses of jurisdictional waters and wetlands. Those impacts, and the compensatory mitigation, are evaluated against the current environmental setting (i.e., the affected environment).

In the decision document, the Corps evaluated the effects or impacts on the human environment that are reasonably foreseeable and have a reasonably close causal relationship to the activities authorized by these NWPs. The national decision document prepared for each NWP issued by this final action discusses alternatives, examines the effects and impacts of the proposed action (i.e., the issuance of the NWP by Corps Headquarters), including actions not under the authority of the Department of the Army. The national decision documents include an environmental assessment with a finding of no significant impact and satisfy the requirements of NEPA.

Many commenters stated that the Corps is not in compliance with NEPA because the process to reissue the NWPs or review NWP-specific activities does not include sufficient public participation. One commenter requested clarification on the responsibility of districts in communicating with the public if a project requires a PCN. This commenter was concerned that determining a project is non-notifying is final agency decision subject to judicial review under the Administrative Procedure Act.

The Corps solicited comments on the proposed rule to reissue the NWPs, and on the draft national decision documents, and any comments received were considered when preparing the final action and the final decision documents for the NWPs. The Corps considered comments on thresholds for submittal of a PCN in finalizing this action. The NWPs authorize only those activities that have no more than minimal adverse environmental effects, so it is not necessary to issue public notices to announce the tens of thousands of NWP verification letters Corps districts issue each year.

Many commenters stated that the Corps' analysis in the decision documents lacks sufficiently detailed data and analysis of impacts. One commenter stated that the lack of information in the draft decision documents limits the public's ability to provide substantive comments. Many commenters stated that there are unexplained data inconsistencies between the 2021 NWP decision documents and the draft 2026 NWP decision documents. One commenter recommended distinguishing between temporary or permanent impacts in the analysis.

The draft and final decision documents for the NWPs issued in this final action estimate usage, acreage of impacts, and acreage of compensatory mitigation for the 2026 NWPs. The estimated acreage of impacts combines temporary and permanent impacts. The national decision documents assess reasonably foreseeable impacts at a national scale based on reliable data and resources. The impacts are evaluated against the current environmental setting or baseline, in accordance with typical practices for conducting environmental impact analyses. Differences between the estimates for the projected use of the 2021 NWPs in the 2021 national decision documents and the estimated use of the 2021 NWPs in the 2026 national decision documents are based on reliable data and resources available at the time of the analysis. Reasons for changes in the data include, but are not limited to, changes in an industry or economy, improved avoidance and minimization, the exercise of the district engineer's discretion under paragraph (d) of general condition 23 (Mitigation), improvements in available compensatory mitigation, or changes in data collection.

A few commenters said the decision documents imply that the district commander completes an activity-specific NEPA analysis. Many commenters stated that the Corps inappropriately tiers the NEPA analysis.

The Corps Headquarters has prepared national decision documents for each NWP to address the environmental effects of the reissuance of each NWP in accordance with NEPA. Since the Corps fulfills the requirements of NEPA when it issues its national decision document for the reissuance of that NWP, no additional NEPA analysis or documentation is completed for case-specific activities authorized by that NWP. The supplemental documentation prepared by the division engineer and the documentation prepared by the district engineer for NWP-specific activities do not contain a NEPA analysis.

Many commenters stated that the Corps' alternative analysis inappropriately assumes that individual permits would be less protective than the NWP. Many commenters oppose reliance on potential mitigation to offset effects, contrary to NEPA. One commenter stated that the Corps cannot rely on compensatory mitigation to offset impacts without monitoring the completion or success of the compensatory mitigation.

The NWPs incentivize project proponents to design their project to minimize losses of waters to qualify for NWP authorization rather than having to apply for individual permits for authorization that results in larger losses of waters. For example, in FY 2023, 74 percent of the NWP verifications involving discharges of dredged or fill material into waters of the United States had impacts of less than \1/10\-acre, well below the \1/2\-acre limit in numerous NWPs. The use of compensatory mitigation and other forms of mitigation to ensure that activities authorized by

an NWP result in no more than minimal adverse environmental effects is codified in the Corps' NWP regulations at 33 CFR 330.1(e)(3). Compensatory mitigation projects required for activities authorized by the NWPs must comply with the Corps' regulations at 33 CFR part 332, which require monitoring and other actions to ensure that the required compensatory mitigation successfully offsets the permitted wetland or stream losses. General condition 30 (Compliance Certification) requires the permittee to certify that the authorized activity and any required compensatory mitigation is complete.

The NWPs are issued in accordance with Section 404(e) of the CWA and 33 CFR part 330. These NWPs authorize categories of activities that are similar in nature. The similar in nature requirement does not mean that activities authorized by an NWP must be identical to each other. The phrase “categories of activities that are similar in nature”, “as determined by the Secretary,” is best read to confer broad discretion on the Secretary to facilitate the practical implementation of this general permit program.

Nationwide permits, as well as other general permits, are intended to reduce administrative burdens on the Corps and the regulated public while maintaining environmental protection, by efficiently authorizing activities that have no more than minimal adverse environmental effects, consistent with Congressional intent in the 1977 amendments to the Federal Water Pollution Control Act. The NWPs incentivize project proponents to minimize impacts to jurisdictional waters and wetlands to qualify for NWP authorization instead of having to apply for individual permits. Keeping the number of NWPs manageable is a key component for making the NWPs protective of the environment and streamlining the authorization process for those general categories of activities that have no more than minimal individual and cumulative adverse environmental effects.

These 404(b)(1) Guidelines analyses in the national decision documents were conducted in accordance with 40 CFR part 230.7. The 404(b)(1) Guidelines analyses in the national decision documents also include cumulative effects analyses done in accordance with 40 CFR 230.7(b) and 230.11(g).

Before the 2026 NWPs go into effect, division engineers will issue supplemental documents to evaluate environmental effects on a regional basis (e.g., a state or Corps district) and to determine whether regional conditions are necessary to ensure that the NWPs will result in no more than minimal individual and cumulative adverse environmental effects on a regional basis. The supplemental documents are prepared by Corps districts but must be approved and issued by the appropriate division engineer, since the NWP regulations at 33 CFR 330.5(c) state that the division engineer has the authority to modify, suspend, or revoke NWP authorizations in a specific geographic area within his or her division. For some Corps districts, their geographic area of responsibility covers an entire state. For other Corps districts, their geographic area of responsibility may be based on watershed boundaries.

For some states, there may be more than one Corps district responsible for implementing the Corps' Regulatory Program, including the NWP program. In states with more than one Corps district, there is a lead Corps district responsible for preparing the supplemental documents for all of the NWPs. The supplemental documents will discuss regional conditions imposed by division engineers to protect the aquatic environment, compliance with other applicable federal laws, and ensure that any adverse environmental effects resulting from NWP activities in that region will be no more than minimal both individually and cumulatively.

For the NWPs, the assessment of cumulative effects under the Corps' public interest review occurs at three levels: National, regional, and the verification stage. Each national NWP decision document includes a national-scale cumulative effects analysis under the Corps' public interest review. Each supplemental document has a cumulative effects analysis conducted for a region, which is typically defined as a state or Corps district. When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief decision document. That decision document explains whether the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.

If the NWP is not suspended or revoked in a state or a Corps district, the supplemental document includes a certification that the use of the NWP in that district, with any applicable regional conditions, will result in no more than minimal cumulative adverse environmental effects.

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

The various terms and conditions of these NWPs, including the NWP regulations at 33 CFR 330.1(d) and 330.4(e), allow district engineers to exercise discretionary authority to modify, suspend, or revoke NWP authorizations or to require individual permits, and ensure compliance with Section 404(e) of the CWA. For each NWP that may authorize discharges of dredged or fill material into waters of the United States, the national decision documents prepared by Corps Headquarters include a 404(b)(1) Guidelines analysis. The supplemental documents prepared by division engineers will discuss regional circumstances, to provide the basis for division engineers to add regional conditions to the NWPs to address relevant factors in the 404(b)(1) Guidelines.

One commenter stated that the decision document should include the NEPA analysis, the 404(b)(1) guidelines analysis, the public interest review, and the discussion of reasonably foreseeable effects. Many commenters stated that

the NWPs do not comply with the 404(b)(1) guidelines. Many commenters stated that the proposal is not compliant with the regulations that govern NWPs nor with the CWA. Many commenters stated that the Corps has failed to justify that NWPs have no more than minimal adverse effects on the environment individually and cumulatively.

The national decision documents for each NWP include a NEPA analysis and a public interest review, including a discussion of reasonably foreseeable effects. For each NWP that authorizes discharges of dredged or fill material into waters of the United States, the decision document contains a 404(b)(1) Guidelines analysis. Section 230.7(b) of the 404(b)(1) Guidelines requires a “written evaluation of the potential individual and cumulative impacts of the categories of activities to be regulated under the general permit.” When we issue the NWPs, we fully comply with the requirements of the 404(b)(1) Guidelines at 40 CFR 230.7, which govern the issuance of general permits under Section 404 of the CWA. Since the required evaluation must be completed before the NWP is issued, the analysis is predictive in nature. The estimates of potential individual and cumulative impacts, as well as the projected compensatory mitigation that will be required, are based on the data from the Corps district offices, including the past use of NWPs.

In our decision documents, we also used reliable national data on the status of wetlands and other aquatic habitats in the United States, and the foreseeable impacts of the NWPs on those waters. In the national decision document, the Corps addressed the elements required for a CWA Section 404(b)(1) Guidelines analysis for the issuance of a general permit, including a cumulative effects analysis conducted in accordance with 40 CFR 230.7(b)(3) and concluded that the reissuance of the NWPs would not cause or contribute to significant degradation of the aquatic environment. The Corps has determined that the NWPs would cause no more than minimal adverse effects to the environment, both individually and cumulatively.

Many commenters stated that the NWPs have authorized activities that caused cumulative effects to ecosystems and waterways. Many commenters said that the Corps has not completed any meaningful analysis of effects of the NWPs. A few commenters stated that the cumulative effects analysis is appropriate. Many commenters stated that the Corps defers cumulative effects analysis to the activity-specific analysis completed by the district engineer. One commenter stated that the Corps has not provided a cumulative effects analysis since 2001. Many commenters stated that the Corps cannot complete its cumulative impact analysis in reliance on mitigation that is imposed by the district engineer after case-specific review of each NWP activity. Several commenters stated that the cumulative impacts do not include temporary impacts. One commenter stated that the district engineer should not have the discretion to issue waivers because analysis has not been conducted to determine if the cumulative impacts are minimal.

Section 404(e) of the CWA recognizes that activities authorized by general permits, including NWPs, will result in adverse environmental impacts. One requirement of Section 404(e) of the CWA is that general permits, including NWPs, authorize only those activities that result in no more than minimal adverse environmental effects, individually and cumulatively. The terms and conditions of the NWPs, such as acreage limits and the mitigation measures in some of the NWP general conditions, are imposed to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment and other public interest review factors. The national decision documents consider the reasonably foreseeable impacts compared to the baseline condition, estimating the number of times the NWP is anticipated to be used during the five-year period it will be in effect, the estimated impacts to jurisdictional waters and wetlands, and the compensatory mitigation required to offset losses of jurisdictional waters and wetlands. The national decision documents prepared for this final action provide the analysis to support the Corps' determination that the NWPs will cause no more than minimal adverse environmental effects, both individually and cumulatively. Division engineers prepare supplemental documentation which provide the cumulative effects analysis for a region, which is usually a state or Corps district. When a district engineer issues a verification letter in response to a PCN or a voluntary request for an NWP verification, the district engineer prepares a brief document that explains the decision that the proposed NWP activity, after considering permit conditions such as mitigation requirements, will result in no more than minimal individual and cumulative adverse environmental effects.

The Corps Regulatory Program's automated information system (ORM) tracks NWP verifications issued, regional general permit verifications issued, and individual permits issued, including the types of activities authorized by those general permits and individual permits and the Corps uses this information to inform our cumulative effects analysis. The Corps, including divisions and districts, will use available information, which may include ORM data, to complete the cumulative effects analysis.

For some NWPs, when submitting a PCN, an applicant may request a waiver for a particular limit specified in the NWP's terms and conditions. If the applicant requests a waiver of an NWP limit and the district engineer determines, after coordinating with the resource agencies under paragraph (d) of NWP general condition 32 (Pre- Construction Notification), that the proposed NWP activity will result in no more than minimal individual and cumulative adverse environmental effects, the district engineer may grant such a waiver. Following the conclusion of the district engineer's review of a PCN, he or she prepares an official, publicly available document. This document discusses the district engineer's findings as to whether a proposed NWP activity qualifies for NWP authorization, including compliance with all applicable terms and conditions, and the rationale for any waivers granted, and activity-specific conditions needed to ensure that the activity being authorized by the NWP will have no more than minimal individual and cumulative adverse environmental effects and will not be contrary to the public interest (see 33 CFR 330.6(a)(3)(i)). We have retained the district engineer's discretion to waive particular limits when he or she determines that the authorized activity will cause no more than minimal adverse environmental effects.

Many commenters suggested that Corps districts publish permit, impact, and mitigation data, and other permit-related information on Corps district websites to provide more detail about cumulative impacts at a regional level. Many commenters stated that the Corps' cumulative impacts tool should be publicly available. One commenter stated that the Corps should make all project records available without a Freedom of Information Act (FOIA) request.

Data which is relied upon to complete the NEPA analysis, 404(b)(1) Guidelines analysis, and public interest review are published in the national decision documents. This data includes the estimated annual use of NWPs, estimated annual impacts authorized by

NWPs and estimated annual required compensatory mitigation. This data is published in this final action and in the national decision documents. The Corps makes information on other permit types available on our website. Congress established the Freedom of Information Act as the means for the public to access records from federal agencies, unless the information is exempt from release.

Many commenters stated that the NWPs do not authorize categories of activities that are similar in nature. Many commenters stated that the NWPs authorize activities that are similar in nature.

Section 404(e) of the CWA does not specify how broadly or narrowly the Corps has to identify any category of activities for the issuance of a general permit, including the NWPs. Section 404(e) only requires that the activities in that category are similar in nature. Likewise, under the Corps' definition of general permit in its Section 10 regulations at 33 CFR 322.2(f), there are no standards regarding how broad or narrow the category has to be. We believe that the “categories of activities that are similar in nature” requirement in CWA Section 404(e) is to be interpreted broadly, for practical implementation of this general permit program.

Many commenters stated that the NWPs are contrary to the public interest. Many commenters stated that the Corps disregards impacts of activities authorized by the NWPs which occur beyond the aquatic environment or outside the Corps' jurisdiction.

The Corps prepared a national decision document for each NWP which includes a public interest review. If a proposed NWP authorizes discharges of dredged or fill material into waters of the United States, the decision document also includes an analysis conducted pursuant to the CWA Section 404(b)(1), in particular 40 CFR part 230.7. These decision documents evaluate, from a national perspective, the public interest review factors and the environmental effects of each NWP. The final national decision documents conclude that the reissuance of the NWPs is not contrary to the public interest. The Corps evaluates reasonably foreseeable impacts of the actions within DA jurisdiction. The Corps does not have the authority to take actions to control potential impacts that may occur which are far attenuated from the action subject to DA jurisdiction.

The Corps has carefully evaluated its Endangered Species Act (ESA) obligations for the issuance of these NWPs. The Corps has determined that finalizing this action issuing these NWPs has no effect on any listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) due to the terms and requirements of 33 CFR 330.4(f)(2) and general condition 18. The basis for this determination is outlined in an October 15, 2012, letter from the Corps' Chief Counsel to the FWS and NMFS (the Services), as further described below. The no effect determination is further supported by a biological assessment prepared by the Corps to support this rulemaking action. Requirements of the ESA

Section 7 of ESA requires each federal agency to insure, through consultation with the Services, that “any action authorized, funded, or carried out” by that agency is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat (16 U.S.C. 1536(a)(2)). Section 7 consultation is a procedural process. This process for satisfying this procedural requirement is set out in regulation at 50 CFR part 402. Those regulations require the action agency to consult with the appropriate Service when the action “may affect” listed species or critical habitat (50 CFR 402.14). The regulations also require an action agency to confer with the appropriate Service if the action is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat (50 CFR 402.10(a)). If the action agency determines that the action would have no effect on listed species or designated critical habitat, then no consultation or conference is necessary (Section 3.5 of Section 7 Consultation Handbook, March 1998). Requirements and Limitations Imposed by General Condition 18 and 33 CFR 330.4(f)

The issuance or reissuance of the NWPs by the Chief of Engineers imposes express limitations on activities authorized by the NWPs. These limitations are imposed by the NWP terms and conditions, including the general conditions that apply to all NWPs regardless of whether PCN is required. With respect to listed species and critical habitat, general condition 18 expressly prohibits any activity “which `may affect' a listed species or critical habitat, unless Section 7 consultation addressing the effects of the proposed activity has been completed.” General condition 18 also states that if an activity “might affect” a listed species (or a species proposed for listing) or critical habitat (or critical habitat proposed for such designation) 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, a non-federal applicant must submit a PCN and “shall not begin work on the activity until notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized.”

Similarly, 33 CFR 330.4(f)(2) imposes a PCN requirement for proposed NWP activities by non-federal permittees where listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) might be affected or are in the vicinity of the proposed NWP activity. Section 330.4(f)(2) also prohibits those permittees from beginning the NWP activity until notified by the district engineer that the requirements of the ESA have been satisfied, and that the activity is authorized. Permit applicants that are federal agencies should follow their own requirements for complying with the ESA (see 33 CFR 330.4(f)(1)), and if their proposed NWP activities require PCNs, then their PCNs must include documentation demonstrating their compliance with the ESA (see paragraph (b)(7) of general condition 32).

General condition 18 and 33 CFR 330.4(f) establish a more stringent threshold than the threshold set forth in the Services' ESA Section 7 regulations for initiation of Section 7 consultation. While Section 7 consultation must be initiated for any activity that “may affect” listed species or critical habitat, for non-federal permittees general condition 18 requires submission of a PCN to the Corps if “any listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed for such designation) might be affected or is in the vicinity of the activity, or if the activity is located in designated critical habitat” and prohibits work until “notified by the district engineer that the requirements of the ESA have been satisfied and that the activity is authorized.” (See paragraph (c) of general condition 18.) The PCN must “include the name(s) of the endangered or threatened species (or species proposed for listing) that might

be affected by the proposed work or that utilize the designated critical habitat (or critical habitat proposed for such designation) that might be affected by the proposed work.” (See paragraph (b)(7) of general condition 32.)

In other words, those regulations and general condition 18 require non-federal permittees to submit PCNs if any 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. The district engineer then evaluates the PCN and makes an effect determination for the proposed NWP activity for the purposes of ESA Section 7. The requirements and limitations imposed by the NWP regulations at 33 CFR 330.4(f) and NWP general condition 18 (Endangered Species) mean that the promulgation of these NWPs by the Chief of Engineers do not have any effect on listed (or proposed) species or designated (or proposed) critical habitat.

The text of paragraph (e) of general condition 18 is clear: an NWP does not authorize the “take” of an endangered or threatened species. Activities authorized by an NWP may not result in “take” of a listed species unless the district engineer or other federal agency completes consultation, receives an incidental take statement from the FWS or NMFS and incorporates reasonable and prudent measures as conditions to the NWP in the NWP verification.

Paragraph (e) of general condition 18 also states that a separate authorization (e.g., an ESA Section 10 permit or a biological opinion with an “incidental take statement”) is required to take a listed species. In addition, paragraph (a) of general condition 18 states that no activity is authorized by NWP which is likely to “directly or indirectly jeopardize the continued existence of a threatened or endangered species or a species proposed for such designation” or “which will directly or indirectly destroy or adversely modify designated critical habitat or critical habitat proposed for such designation.” Such activities would require district engineers to exercise their discretionary authority and subject the proposed activity to the individual permit review process, because an activity that would jeopardize the continued existence of a listed species, or a species proposed for listing, or that would destroy or adversely modify designated critical habitat or critical habitat proposed for such designation would not result in no more than minimal adverse environmental effects and thus cannot be authorized by an NWP.

The Corps' NWP regulations at 33 CFR 330.1(c) state that an “activity is authorized under an NWP only if that activity and the permittee satisfy all of the NWP's terms and conditions.” Thus, if a project proponent moves forward with an activity that “might affect” an ESA listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) without complying with the PCN requirement or other requirements of general condition 18, the activity is not authorized under Section 404 of the CWA or Section 10 RHA. In this case, the project proponent could be subject to enforcement action and penalties under 33 CFR 326. In addition, if the unauthorized activity results in a “take” of listed species as defined by the ESA and its implementing regulations, then the person conducting that activity could be subject to penalties, enforcement actions, and other actions by the FWS or NMFS under Section 11 of the ESA.

In summary, the issuance or reissuance of NWPs has “no effect” on listed species or critical habitat because (1) no NWP can or does authorize an activity that may affect a listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) absent an activity-specific ESA Section 7 consultation, conference, or an applicable regional programmatic ESA Section 7 consultation, and because (2) any activity that may affect listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) must undergo an activity-specific consultation, conference, or be in compliance with a regional programmatic ESA Section 7 consultation before the district engineer can verify that the activity is authorized by an NWP. Accordingly, the action being “authorized” by the Corps (i.e., the issuance or re-issuance of the NWPs themselves) has no effect on listed species or critical habitat. Chief Counsel's Letter Explaining the Basis for the No Effect Determination

On October 15, 2012, the Chief Counsel for the Corps sent a letter to the Services clarifying the Corps' legal position regarding compliance with Section 7 of the ESA for the NWPs. That letter explained that the issuance or reissuance of the NWPs, along with compliance with ESA Section 7 through NWP general condition 18 (which applies to every NWP, and which relates to endangered and threatened species) and 33 CFR 330.4(f), results in “no effect” to listed species or critical habitat, and therefore the reissuance/issuance action itself does not require ESA Section 7 consultation. Although the reissuance/issuance of the NWPs itself has no effect on listed species or their critical habitat and thus requires no ESA Section 7 consultation, the terms and conditions of the NWPs, including general condition 18 and 33 CFR 330.4(f), ensure that ESA consultation will take place on an activity-specific basis wherever appropriate at the field level of the Corps, and the Services. The principles discussed in the Corps' October 15, 2012, letter apply to this issuance/reissuance of NWPs.

Although section 7 has not been amended, the Services have amended the regulations implementing Section 7 of ESA (50 CFR part 402) several times since the 2012 Chief Counsel letter was written. Those changes in regulation do not affect the analysis and conclusion reached in the letter.

Revisions made in in 2015 (80 FR 26832) defined two types of programmatic ESA Section 7 consultations and discussed the circumstances under which providing an incidental take statement with a biological opinion for a programmatic Section 7 consultation is appropriate. The two types of programmatic Section 7 consultations are: framework programmatic actions and mixed programmatic actions. While programmatic consultations are designed to cover large-scale programmatic actions, they are not required or appropriate for all national programmatic actions. In some cases, it is more appropriate to address consultation at a regional or local level. Indeed, in the preamble to the 2015 final rule, the Services identified the Corps' NWP program as an example of a framework action at a national scale that can address ESA Section 7 consultation requirements at a later time as appropriate, as specific activities are authorized, funded, or carried out (see 80 FR 26835). In their 2015 final rule, the Services also stated that this regulatory change does not imply that Section 7 consultation is required for a framework programmatic action that has no effect on listed species or critical habitat (see 80 FR 26835).

As discussed in this final action, the NWP program has been structured, through the requirements of NWP general condition 18 and 33 CFR 330.4(f), to focus ESA Section 7 compliance at the activity- specific and regional scales. Each year, Corps districts initiate thousands of formal

and informal ESA Section 7 consultations for specific NWP activities (see below), and many Corps districts have worked with the Services to develop formal and informal regional programmatic consultations.

Additional revision made in 2019 (84 FR 44976) and 2024 (89 FR 24268) modified definitions and elements of the consultation process. These amendments changed how agencies determine the “effects of the action” that must be considered when making an effects determination or reaching a “no effect” conclusion. However, this change does not alter the analysis in the 2012 Chief Counsel letter nor in the operation of NWP general condition 18 and 33 CFR 330.4(f) because general condition 18 covers any direct or indirect effect and explicitly incorporates the current definition of “effects of the action” from 50 CFR 402.02. Biological Assessment Making a “No Effect” Determination

Although not required by the statute, the Corps has prepared a biological assessment for this rulemaking action. The biological assessment includes the list of active and pending regional programmatic ESA Section 7 consultations that can be used for NWP activities. The biological assessment concludes that the issuance or reissuance of NWPs has “no effect” on listed species and designated critical habitat and does not require ESA Section 7 consultation. This conclusion was reached because no activities authorized by any NWPs “may affect” listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) without first completing an activity-specific ESA Section 7 consultation (or conference) with the Services, as required by general condition 18 and 33 CFR 330.4(f). A copy of the biological assessment is available at: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Nationwide-Permits/ (at the link titled “Biological Assessment for the 2026 Nationwide Permits”).

The Corps recognizes that this procedural process is different than the programmatic ESA Section 7 consultations the Corps conducted for the 2007 and 2012 NWPs as voluntary consultations. The voluntary programmatic consultation conducted with the NMFS for the 2012 NWPs resulted in a biological opinion issued on February 15, 2012, which was replaced by a new biological opinion issued on November 24, 2014. A new biological opinion was issued by NMFS after the proposed action was modified and triggered re-initiation of that programmatic consultation. The programmatic consultation on the 2012 NWPs with the FWS did not result in a biological opinion. Those consultations were not mandated by section 7 of the ESA. Rather, the Corps voluntarily consulted with the Services to further bolster the protectiveness of the NWPs generally. The Services have since confirmed that it can be appropriate to address ESA Section 7 procedural requirements at a later time, rather than at the initial national framework action level (see 80 FR 26835). For the 2017 or 2021 NWPs, Corps Headquarters did not request a national programmatic consultation, nor did the Directors. For the 2021 NWPs, Corps Headquarters prepared a biological assessment concluding that the issuance or reissuance of NWPs through the rulemaking process had no effect on listed species and designated critical habitat. Neither the Director of FWS nor the Director of NMFS has requested the Corps to enter into consultation for this action, as they are authorized to do under 50 CFR 402.12(a) if they identify any action of an agency that may affect listed species or critical habitat and for which there has been no consultation. Regional and Action-Specific Implementation

During the process for developing regional conditions, Corps districts coordinate or consult with FWS and/or NMFS regional or field offices to identify regional conditions to protect listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) and ensure that an NWP for a specific activity only authorizes no more than minimal individual and cumulative adverse environmental effects. Regional conditions must comply with the Corps' regulations at 33 CFR 325.4 for adding permit conditions to DA authorizations. Division engineers decide whether suggested regional conditions identified during this coordination are appropriate for the NWPs. Such regional conditions may add PCN requirements to one or more NWPs in areas inhabited by listed species (or species proposed for listing) or where designated critical habitat (or habitat proposed for such designation) occurs. Regional conditions may also establish time-of-year restrictions when no NWP activity can take place to ensure that individuals of listed species are not adversely affected by such activities. Furthermore, after review of a PCN and conclusion of any ESA Section 7 consultation, a district engineer can add activity-specific conditions to an NWP verification to ensure the effects of the activity on listed species, species proposed for listing, critical habitat, or habitat proposed for such designation, are no more than minimal.

Through regional consultations, local initiatives, or other cooperative efforts, district engineers consider additional information and measures to ensure protection of listed species and critical habitat, consistent with the requirements established by general condition 18 (which apply to all uses of all NWPs), and other provisions of the Corps' regulations. Corps district offices meet with local representatives of the Services to establish or modify existing procedures, where necessary, to ensure that the Corps has the latest information regarding the existence and location of any threatened or endangered species or their critical habitat. Corps districts can also establish, through local procedures or other means such as regional programmatic consultations or standard local operating procedures, additional safeguards that ensure that NWP activities will not jeopardize any threatened and endangered species or result in the destruction or adverse modification of designated critical habitat.

The Corps collects data on all individual permit applications, all NWP PCNs, all voluntary requests for NWP verifications where the NWP or general conditions do not require PCNs, and all verifications of activities authorized by regional general permits. For all written authorizations issued by the Corps, the collected data includes authorized impacts and required compensatory mitigation, as well as information on all consultations conducted under Section 7 of the ESA. Every year, the Corps evaluates approximately 25,000 NWP PCNs and voluntary requests for NWP verifications for activities that do not require PCNs and provides written verifications for those activities when district engineers determine those activities result in no more than minimal adverse environmental effects. During the review of a PCN, district engineers assess potential impacts to listed species and critical habitat and conduct Section 7 consultations whenever they determine proposed NWP activities “may affect” listed species or critical habitat. District engineers will exercise discretionary authority and require individual permits when proposed NWP activities will result in more than minimal adverse environmental effects.

Each year, the Corps conducts thousands of ESA Section 7

consultations with the Services for activities authorized by NWPs. In FY 2024 (October 1, 2023 to September 30, 2024), Corps districts conducted 217 formal consultations and 2,647 informal consultations under ESA Section 7 for NWP PCNs and verification requests. During that time period, the Corps also used regional programmatic consultations for 4,667 NWP PCNs and verification requests to comply with ESA Section 7. Therefore, during FY 2024 more than 7,500 ESA Section 7 consultation actions were completed for NWP PCNs or voluntary verification requests where either formal or informal consultations were conducted or existing regional programmatic ESA Section 7 consultations (formal and informal) were utilized to comply with ESA Section 7.

For a linear project authorized by NWPs 12, 14, 57, or 58, where the district engineer determines that one or more crossings of waters of the United States that require Corps authorization “may affect” listed species or designated critical habitat, the district engineer initiates a single Section 7 consultation with the FWS and/or NMFS for all of those crossings that she or he determines “may affect” listed species or designated critical habitat. The number of Section 7 consultations provided above represents the number of NWP PCNs that required some form of ESA Section 7 consultation, not the number of single and complete projects authorized by NWPs that may be included in a single PCN. A single NWP PCN may include more than one single and complete project, especially if it is for a linear project such as a utility line or road with multiple separate and distant crossings of jurisdictional waters and wetlands from its point of origin to its terminal point.

Section 7 consultation is only required when a Corps district makes a “may affect” determination. Regional conditions, standard local operating procedures for endangered species (i.e., SLOPES), and regional programmatic consultations protect listed species and critical habitat and tailor the NWP program to address specific species, their habitats, and the stressors that affect those species.

This layered approach of implementing successively more specific protections for listed species and designated critical habitat facilitates the efficient permitting of those activities that could not possibly affect those protected resources while ensuring that activities that might affect those resources are appropriately evaluated at the activity-specific level. Response to Comments

The Corps received numerous comments regarding compliance with the Endangered Species Act for both the rulemaking process for issuing, reissuing, and modifying the NWPs by Corps Headquarters, and compliance for specific activities authorized by NWPs. Comments concerning hypothetical specific activities authorized by these NWPs is beyond the scope of this rulemaking.

Many commenters stated that the reissuance of the NWPs violate the ESA because the Corps did not complete programmatic Section 7 consultation. Many commenters stated that programmatic consultation is necessary in order to consider the cumulative effects of all activities authorized by NWPs on protected species. Many commenters stated the reissuance of the NWPs result in adverse effects to listed species.

One commenter opposed the authorization of activities in critical habitat. Many commenters support the Corps' determination that the reissuance of the NWPs will have “no effect.” One commenter stated that the Corps should request written concurrence from the Services on the determination that no programmatic consultation is required. Many commenters stated that the Corps cannot rely on general condition 18 to satisfy the requirements of the ESA because the Corps has authorized activities using an NWP for case-specific activities without completing consultation.

The NWP issuance or reissuance has no effect on listed species or critical habitat and any proposed NWP activity that “may affect” listed species (or species proposed for listing) or designated critical habitat (or critical habitat proposed such designation) will undergo an activity-specific ESA Section 7 consultation, conference, or an applicable regional programmatic ESA Section 7 consultation therefore there is no requirement that the Corps undertake programmatic consultation for the NWP program. Regional programmatic consultations may be conducted voluntarily by Corps districts and regional or local offices of the FWS and/or NMFS to tailor regional conditions and procedures to ensure the “might affect” threshold is implemented consistently and effectively.

The only activities that potentially could be immediately authorized by NWPs, assuming they meet all other applicable NWP conditions, are activities that would have “no effect” on listed species or designated critical habitat within the meaning of Section 7 of the ESA and its implementing regulations at 50 CFR part 402. In accordance with general condition 18, (Endangered Species) non-federal prospective permittees may not begin work until the district engineer has completed consultation with the Services for activities that “may affect” listed species or critical habitat. Federal permittees must follow their own regulations for complying with Section 7 of the ESA. Activities which will jeopardize listed species (or species proposed for listing) or cause adverse modification to critical habitat (or habitat proposed for such designation) are not authorized by any NWP.

The NWP regulations at 33 CFR 330.4(g) and general condition 20 (Historic Properties) ensure that all activities authorized by NWPs comply with Section 106 of the NHPA. General condition 20 requires non- federal permittees to submit PCNs for any activity that might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties. The Corps established the “might have the potential to cause effects” criterion under its own regulatory authorities in paragraph (c) general condition 20 to require PCNs for those activities to provide an additional layer of protection for cultural resource values. Upon receipt of the PCN, the district engineer will evaluate the proposed NWP activity and make a threshold determination under 36 CFR 800.3(a)(1) whether the activity has no potential to cause effects to historic properties or whether it has potential to cause effects to historic properties and thus require NHPA Section 106 consultation.

If the project proponent is required to submit a PCN and the proposed activity might have the potential to cause effects to historic properties, the activity is not authorized by an NWP until either (1) the Corps district makes a “no potential to cause effects” determination or (2) completes NHPA Section 106 consultation.

When evaluating a PCN, the Corps will either make a “no potential to cause effects” determination or a “no historic properties affected,” “no adverse effect,” or “adverse effect” determination. If the Corps makes a “no historic properties affected,” “no adverse effect,” or “adverse effect” determination, the district engineer will notify the non-federal applicant and the

activity is not authorized by an NWP until NHPA Section 106 consultation has been completed. If the non-federal project proponent does not comply with 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 to address the unauthorized activity under its regulations at 33 CFR 326.

The only activities that are immediately authorized by NWPs are “no potential to cause effect” activities under Section 106 of the NHPA, its implementing regulations at 36 CFR part 800, 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. Therefore, the issuance or reissuance of NWPs does not require NHPA Section 106 consultation because no activities that might have the potential to cause effects to historic properties can be authorized by an NWP without first completing activity-specific NHPA Section 106 consultations, as required by general condition 20. Programmatic agreements (see 36 CFR 800.14(b)) may also be used to satisfy the requirements of general condition 20 if a proposed NWP activity is covered by that programmatic agreement.

NHPA Section 106 requires a federal agency that has authority to license or permit any undertaking, to take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register, prior to issuing a license or permit. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. Thus, in assessing application of NHPA Section 106 to NWPs issued or reissued by the Corps, the proper focus is on the nature and extent of the specific activities “authorized” by the NWPs and the timing of that authorization.

The issuance or reissuance of the NWPs by the Chief of Engineers imposes express limitations on activities authorized by those NWPs. These limitations are imposed by the NWP terms and conditions, including the general conditions that apply to all NWPs regardless of whether preconstruction notification is required. With respect to historic properties, general condition 20 expressly prohibits reliance on an NWP authorization for any activity that “may have the potential to cause effects to properties listed, or eligible for listing, in the National Register of Historic Places,” until the requirements of NHPA Section 106 have been satisfied. General condition 20 also states that if an activity “might have the potential to cause effects” to any historic properties, a non-federal applicant must submit a PCN and “shall not begin the activity until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that consultation under Section 106 of the NHPA has been completed.” Permit applicants that are federal agencies should follow their own requirements for complying with Section 106 of the NHPA (see 33 CFR 330.4(g)(1) and paragraph (b) of the general condition 20 (Historic Properties)).

Thus, because no NWP can or does authorize an activity that may have the potential to cause effects to historic properties, and because any activity that may have the potential to cause effects to historic properties must undergo an activity-specific NHPA Section 106 consultation (unless that activity is covered under a programmatic agreement) before the district engineer can verify that the activity is authorized by an NWP, the issuance or reissuance of NWPs has “no potential to cause effects” on historic properties. Accordingly, the action being “authorized” by the Corps, which is the issuance or re- issuance of the NWPs by Corps Headquarters, has no potential to cause effects on historic properties.

To help ensure protection of historic properties general condition 20 establishes an additional layer of protection for cultural resource values occurring prior to any later threshold determination set forth in the Advisory Council's NHPA Section 106 regulations for initiation of Section 106 consultation. Specifically, while NHPA Section 106 consultation must be initiated for any activity that “has the potential to cause effects to historic properties, assuming such historic properties were present,” for non-federal permittees general condition 20 requires submission by the non-Federal permittee of a PCN to the Corps preceding any assessment under Section 106, if “the NWP activity might have the potential to cause effects to any historic properties listed on, determined to be eligible for listing on, or potentially eligible for listing on the National Register of Historic Places, including previously unidentified properties.”

General condition 20 also prohibits the proponent from conducting the activity in reliance upon an NWP “until notified by the district engineer either that the activity has no potential to cause effects to historic properties or that consultation under Section 106 of the NHPA has been completed.” (See paragraph (d) of general condition 20.) The PCN must “state which historic property might have the potential to be affected by the proposed activity or include a vicinity map indicating the location of the historic property.” (See paragraph (b)(8) of general condition 32, Pre-Construction Notification.)

In emergency situations, consistent with 33 CFR 325.2(e)(4), 33 CFR 325 Appendix C, paragraph 14, and 36 CFR 800.12 if an activity has the potential to cause effects to historic properties, the district engineer will make reasonable efforts to obtain comments from the State Historic Preservation Officer and the Advisory Council on Historic Preservation. The district engineer will comply with the provisions of 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, “to the extent that time and the emergency situation allows.”

During the process for developing regional conditions, Corps districts can coordinate or consult with State Historic Preservation Officers, Tribal Historic Preservation Officers, and tribes to identify regional conditions that can provide additional assurance of compliance with general condition 20 and 33 CFR 330.4(g)(2) for NWP activities undertaken by non-federal permittees. Such regional conditions can add PCN requirements to one or more NWPs where historic properties occur. Corps districts will continue to consider through regional consultations, local initiatives, or other cooperative efforts and additional information and measures to ensure protection of historic properties, the requirements established by general condition 20 (which apply to all uses of all NWPs), and other provisions of the Corps' regulations and guidance ensure full compliance with NHPA Section 106.

Based on the fact that NWP issuance or reissuance has no potential to cause effects on historic properties and that any activity that “has the potential to cause effects” to historic properties will undergo activity-specific NHPA Section 106 consultation, there is no requirement that the Corps undertake programmatic consultation for the NWP program. Regional programmatic agreements can be established by Corps districts and State Historic Preservation

Officers and/or Tribal Historic Preservation Officers to comply with the requirements of Section 106 of the NHPA.

One commenter opposes the reissuance of the NWPs citing the lack of consultation with SHPOs, THPOs, Tribes, and other consulting parties. Many commenters support the development of a programmatic agreement for all general permits.

During the process for developing regional conditions, Corps districts can coordinate or consult with State Historic Preservation Officers, Tribal Historic Preservation Officers, and tribes to identify regional conditions that can provide additional assurance of compliance with general condition 20 and 33 CFR 330.4(g)(2) for NWP activities undertaken by non-federal permittees. Such regional conditions can add PCN requirements to one or more NWPs where historic properties occur. Corps districts will continue to consider through regional consultations, local initiatives, or other cooperative efforts and additional information and measures to ensure protection of historic properties, the requirements established by general condition 20 (which apply to all uses of all NWPs), and other provisions of the Corps' regulations and guidance ensure full compliance with NHPA Section 106.

Many commenters stated that the Corps cannot use Appendix C to comply with Section 106 of the NHPA. A few commenters supported the Corps' reliance on Appendix C. One commenter stated that the Corps does not have the authority to promulgate Section 106 procedures codified in general condition 20 and at 33 CFR 330.4(g).

Section 110(a)(2)(E)(i) of the NHPA and 36 CFR 14(a) states that federal agencies can develop their own procedures for complying with section 106 as long as those procedures are consistent with the regulations issued by the Advisory Council on Historic Preservation. Neither of those provisions require ACHP to approve program alternatives. The Corps' regulations for complying with Section 106 of the NHPA are found at Appendix C to 33 CFR part 325. Appendix C remains in effect as a counterpart regulation to 36 CFR part 800, and no federal court has invalidated Appendix C. The Corps continues to use Appendix C and the 2005 and 2007 interim guidance, in addition to 36 CFR 800, to comply with Section 106 of the NHPA.

Section 404(e) of the CWA gives the Corps the authority to develop NWPs. The Corps has issued or reissued the NWPs, including general condition 20 and the regulations at 33 CFR 330.4 in accordance with the Administrative Procedures Act in accordance with the authority delegated to the Chief of Engineers through Section 404 of the CWA and Section 10 of the RHA. General condition 20 and/or 33 CFR 330.4 were not developed as alternative procedures to 36 CFR 800, rather they set the requirements for the NWP program to comply with Section 106 of the NHPA.

Many commenters stated that most NWPs should require a PCN in order for the district engineer to review the activity for potential to effect historic properties.

Non-federal permittees must submit a PCN 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 threshold that triggers submittal of a PCN under paragraph (c) of general condition 20 is that the activity “might have the potential to cause effects.” The actions by the non-federal permittee to submit a PCN occur before the Section 106 process begins. Upon receipt of a PCN, the district engineer will determine if there is potential to cause effects, and whether he or she has further obligations under Section 106 of NHPA.

The NWP Program's compliance with the essential fish habitat (EFH) consultation requirements of the Magnuson-Stevens Fishery Conservation and Management Act is achieved through EFH consultations between Corps districts and NMFS regional offices. This approach continues the EFH Conservation Recommendations provided by NMFS Headquarters to Corps Headquarters in 1999 for the NWP Program. Corps districts that have EFH designated within their geographic areas of responsibility will coordinate with NMFS regional offices, to the extent necessary, to develop NWP regional conditions that conserve EFH, are consistent with NMFS regional EFH Conservation Recommendations, and are approved by division engineers under the procedures at 33 CFR 330.5(c). District engineers may also add conditions to NWP authorizations to address EFH Conservation Recommendations made by NMFS during activity-specific EFH consultations. Corps districts will conduct consultations in accordance with the EFH consultation regulations at 50 CFR 600.920.

One commenter said that there will be cumulative impacts to EFH as a result of impacts authorized by NWPs. In those Corps districts where EFH has been designated, district engineers review PCNs for proposed NWP activities to determine whether those proposed activities may adversely affect EFH. If the district engineer determines a proposed NWP activity may adversely affect EFH, she or he initiates EFH consultation with the NMFS. Division engineers can add PCN requirements via regional conditions to those NWPs that do not require PCNs for all activities to ensure that EFH consultation is conducted for proposed activities that may adversely affect EFH.

A water quality certification granted by a state, authorized tribe, or EPA (certifying authority), or a waiver thereof, is required by Section 401 of the CWA, for an activity authorized by NWP which may result in a discharge from a point source into waters of the United States. Water quality certifications (WQC) may be granted without conditions, granted with conditions, denied, or waived for specific NWPs.

Nationwide permits 15, 16, 17, 18, 21, 25, 29, 30, 34, 39, 40, 41, 42, 43, 46, 49, 50, and 59 authorize activities that may result in discharges and therefore 401 WQC or waiver is required for those NWPs. Nationwide permits 3, 4, 5, 6, 7, 12, 13, 14, 19, 20, 22, 23, 27, 31, 32, 33, 36, 37, 38, 44, 45, 48, 51, 52, 53, 54, 57, 58, and 60 authorize various activities, some of which may result in a discharge and require 401 WQC or waiver, and others which may not. Nationwide permits 1, 2, 9, 10, 11, 24, 28, 35, and 55 authorize work or structures which, in the opinion of the Corps, could not reasonably be expected to result in a discharge into waters of the United States and therefore do not require 401 WQC or waiver. However, the final decision of whether WQC is needed for any of the activities authorized by these nine NWPs (NWPs 1, 2, 9, 10, 11, 24, 28, 35, and 55) rests with the certifying authority. In the case of NWP 8, it only authorizes activities seaward of the territorial seas where the CWA does not apply and therefore does not require WQC.

Prior to the issuance of this final action, certifying authorities made their decisions on whether to grant, grant with conditions, deny, or waive WQC for the issuance of the NWPs. If a certifying authority granted WQC or

granted WQC with conditions for the issuance of these NWPs, district engineers reviewed the WQCs in accordance with 40 CFR 121.8. If the district engineer determined that any WQC for the issuance of the NWPs did not comply with the requirements of 33 U.S.C. 1341 and/or 33 CFR 330.4(c)(2), district engineers declined to rely on the WQC and considered the WQC to be denied. In such cases, the district engineer notified the certifying authority. The conditions in the WQC for the issuance of the NWP became become conditions of the NWP authorization in accordance with Section 401(d) of the CWA and 33 CFR 330.4(c)(2). The 401(a)(2) process occurred per current requirements at 40 CFR 121.12 and 121.13.

If a certifying agency denied WQC for the issuance of an NWP, then the proposed discharges are not authorized by that NWP unless and until a project proponent obtains WQC for the specific discharge from the certifying authority, or a waiver of WQC occurs.

Many commenters supported the reasonable period of time of six months. A few commenters objected to requests to make decisions to grant, waive, or deny water quality based on the 2025 Proposal rather than the final action. One commenter expressed concern that granted water quality certifications may be made invalid by changes to the NWP from the 2025 Proposal to this final action. One commenter requested that district engineers include all conditions from granted water quality certifications in the same manner as regional and general conditions. Some commenters stated that conditions to granted water quality certifications are unlawful and burdensome.

Section 401 of the CWA states that no permit shall be issued until water quality certification has been obtained or waived. Therefore, the water quality certification process must be completed before the final NWPs are issued. That process is consistent with the Corps' NWP regulations at 33 CFR 330.4(c)(1), which says that “water quality certification pursuant to Section 401 of the CWA, or waiver thereof, is required prior to the issuance or reissuance of NWPs authorizing activities which may result in a discharge into waters of the United States.” As discussed above, certifying authorities must act on certification requests before the Corps can issue the final NWPs.

The process to request water quality certification for the NWPs in this action is consistent with Section 401 of the CWA and EPA's final certification regulation at 40 CFR part 121. Corps districts sent certification requests to certifying authorities soon after the 2025 Proposal was published in the Federal Register (90 FR 26100), in June 2025. As stated in general condition 25 (Water Quality) and reiterated in the Note to Section C. (Nationwide Permit General Conditions) permittees must comply with the conditions of granted water quality certifications. The Corps has limited authority to review conditions to water quality certifications that were granted in accordance with EPA's certification regulation.

After the final NWPs are issued and division engineers have approved the final regional conditions for the NWPs, Corps districts will issue public notices announcing the final regional conditions for the NWPs and the disposition of WQC for the final NWPs. The Corps will post copies of these district public notices in the www.regulations.gov docket for this rulemaking action (docket number COE-2025-0002). It is the certifying authorities' responsibility to develop conditions for their WQCs for the issuance of the NWPs.

Any state with a federally-approved CZMA program must concur with the Corps' determination that activities authorized by NWPs which are within or will have reasonably foreseeable effects on any land or water uses or natural resources of the state's coastal zone, are consistent with the CZMA program to the maximum extent practicable. CZMA consistency concurrences may be issued without conditions, issued with conditions, or denied for specific NWPs.

Prior to the issuance of this final action, states made their decisions on whether to concur with or object to the Corps' CZMA consistency determination for the issuance of the NWPs. If a state issued a concurrence with conditions for the issuance of these NWPs, district engineers reviewed the conditions in those consistency concurrences to determine whether they comply with the Corps' regulations for permit conditions at 33 CFR 330.4(d)(2). If a state objected to the Corps' CZMA consistency determination for the issuance of an NWP, then the activity is not authorized by that NWP unless and until a project proponent obtains a consistency concurrence from the state or a presumption of concurrence occurs.

The Corps' CZMA consistency determination only applied to NWP authorizations for activities that are within, or affect, any land, water uses or natural resources of a State's coastal zone. A state's coastal zone management plan may identify geographic areas in federal waters on the outer continental shelf, where activities that require federal permits conducted in those areas require consistency certification from the state because they affect any coastal use or resource. In its coastal zone management plan, the state may include an outer continental shelf plan. An outer continental shelf plan is a plan for “the exploration or development of, or production from, any area which has been leased under the Outer Continental Shelf Lands Act” and regulations issued under that Act (see 15 CFR 930.73).

Activities requiring federal permits that are not identified in the state's outer continental shelf plan are considered unlisted activities. If the state wants to review an unlisted activity under the CZMA, then it must notify the applicant and the federal permitting agency that it intends to review the proposed activity. Nationwide permit authorizations for activities that are not within or would not affect a state's coastal zone do not require the Corps' CZMA consistency determinations and thus are not contingent on a State's concurrence with the Corps' consistency determinations.

If a state objects to the Corps' CZMA consistency determination for an NWP, then the affected activities are not authorized by an NWP within that state until a project proponent obtains an individual CZMA consistency concurrence, or sufficient time (i.e., six months) passes after requesting a CZMA consistency concurrence for the applicant to make a presumption of consistency, as provided in 33 CFR 330.4(d)(6). However, when applicants request NWP verifications for activities that require individual consistency concurrences, and the Corps determines that those activities meet the terms and conditions of the NWP, in accordance with 33 CFR 330.6(a)(3)(iii) the Corps will issue provisional NWP notification letters.

A provisional notification letter will contain general and regional conditions as well as any activity-specific conditions the Corps determines are necessary for the NWP authorization. The Corps will notify the applicant that he or she must obtain an activity-specific CZMA consistency concurrence or a presumption of concurrence before he or she is authorized to start work in waters of the United States. That is, NWP authorization will be contingent upon obtaining the necessary CZMA consistency concurrence from the state, or a presumption of concurrence. Anyone wanting to perform such activities where PCN to the Corps is not

required has an affirmative responsibility to present a CZMA consistency determination to the appropriate state agency for concurrence. Upon concurrence with such CZMA consistency determinations by the state, the activity would be authorized by the NWP. This requirement is provided at 33 CFR 330.4(d).

After the final NWPs are issued and division engineers have approved the final regional conditions for the NWPs, Corps districts will issue public notices announcing the final regional conditions for the NWPs and the disposition of CZMA concurrences for the final NWPs. The Corps will post copies of these district public notices in the www.regulations.gov docket for this rulemaking action (docket number COE-2025-0002). It is the states' responsibility to develop conditions for their WQCs for the issuance of the NWPs.

After the final NWPs are issued and division engineers have approved the final regional conditions for the NWPs, Corps districts will issue public notices announcing the final regional conditions for the NWPs and the disposition of CZMA concurrences for the final NWPs. The Corps will post copies of these district public notices in the www.regulations.gov docket for this rulemaking action (docket number COE-2025-0002). It is the states' responsibility to develop conditions for their WQCs for the issuance of the NWPs.

The NWPs are expected to increase the number of regulated activities eligible for NWP authorization and reduce the number of regulated activities that require individual permits. The Corps estimates that these NWPs will authorize an additional 123 individual activities each year. Subsequently, 123 fewer activities each year would require individual permits. By authorizing more activities by NWP, this final action will reduce burden for the regulated public primarily in the form of compliance costs. The changes will increase the number of categories of activities authorized by NWP and subsequently reduce the number of activities that require individual permits. By increasing the number of activities that can be authorized by NWPs, the changes will decrease compliance costs for permit applicants since, as discussed below, the compliance costs for obtaining NWP authorization are less than the compliance costs for obtaining individual permits.

In addition, the NWPs incentivizes project proponents to minimize impacts to jurisdictional waters and wetlands in exchange for receiving the required Department of the Army authorization in less time compared to the amount of time required to obtain individual permits. In fiscal year 2024, the average time to receive an NWP verification was 55 days from the date the Corps district received a complete PCN, compared to 253 days to receive a standard individual permit after receipt of a complete permit application (see table 1.2 of the regulatory impact analysis for this final action, which is available in the www.regulations.gov docket (docket number COE-2025-0002)).

As discussed in the Regulatory Impact Analysis for this final action, the Corps estimates that a permit applicant's compliance cost for obtaining NWP authorization in 2024$ (2024 dollars) ranges from $5,289 to $17,631 (The 2001 compliance cost estimates were originally made using 1999$, which the Corps adjusted to 2024$ to account for inflation using the GDP deflator approach).\5\ The Corps estimates that a permit applicant's compliance costs for obtaining an individual permit for a proposed activity impacting up to 3 acres of wetland ranges from $21,157 to $42,314 in 2024$. Considering how these NWPs will increase the number of activities authorized by an NWP each year, the Corps estimates that the NWPs authorized by this final action, when compared with the 2021 NWPs, will decrease compliance costs for the regulated public by approximately $3.5 million per year. The Corps invited comment on the assumptions and methodology used to calculate the compliance costs and burden in general associated with the NWP.

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

One commenter stated that the Corps should conduct research to update the data on the average costs of NWPs compared to standard permits, as well as costs of compliance. The Corps uses reliable data and resources to prepare the Regulatory Impact Analysis.

Nationwide permit(s) Changes Anticipated impacts

NWP 12............. Revised Note No change in number

recommending of NWP

permittee provide authorizations.

information to

National Oceanic

and Atmospheric

Administration

(NOAA), National

Ocean Service (NOS)

for charting. Added

Note recommending

permittee contact

USCG about project.

NWP 13............. Added new paragraph May increase number

clarifying that of activities

this NWP authorizes authorized by NWP

nature-based and decrease number

solutions to of activities

provide habitat and requiring

other ecosystem individual permits.

functions and (Prior versions of

services with bank NWP 13 could have

stabilization authorized bank

activities. Added a stabilization

new Note to activities

reference the incorporating

Corps' regulations nature-based

about selecting solutions.)

bank stabilization

approaches, and

examples of the

factors to be

considered.

NWP 15............. Added General Bridge No change in number

Act of 1946 as an of NWP

applicable authorizations.

statutory authority

for bridges

authorized by the

U.S. Coast Guard.

NWP 23............. Modify paragraph (a) No change in number

to reference of NWP

sections 106, 109, authorizations.

and 111(1) of NEPA.

Modified text to

state that any

changes to approved

categorical

exclusions

applicable to this

NWP will be

announced in the

Federal Register.

NWP 24............. Removed Florida from No change in number

list of states that of NWP

have assumed the authorizations.

Clean Water Act

Section 404 permit

program.

NWP 27............. Changed title of Increased number of

NWP. Revised activities

ecological authorized by NWP;

reference decreased number of

requirement to activities

include historic requiring

ecosystems, individual permits.

cultural Decreased number of

ecosystems, and PCNs.

indigenous and

local ecological

knowledge. Removed

list of examples.

Required reports

for all activities

and modify report

requirements.

Removed PCN

thresholds.

Excluded dam

removal activities.

Added new Note to

address delineation

requirement when

NWP 27 activities

require PCNs

because of general

conditions or

regional conditions

imposed by division

engineers.

NWP 39............. Added “data centers No change in number

(to include for of NWP

example, artificial authorizations.

intelligence and

machine learning

facilities),

pharmaceutical

manufacturing

facilities,” and

“storage

facilities” to

list of examples of

commercial

facilities

authorized by this

NWP.

NWP 43............. Replaced “green No change in number

infrastructure” of NWP

and “low impact authorizations.

development

integrated

management

features” with

“nature-based

solutions” and

provided additional

examples of nature-

based solutions

related to

stormwater

management.

NWP 45............. Modified No change in number

“Notification” of NWP

paragraph to extend authorizations.

timeframe within

which the permittee

must submit a PCN

to the district

engineer from 12 to

18 months of the

date of the damage.

NWP 48............. Excluded marine and No change in number

estuarine waters of NWP

within Washington authorizations

State. Revised Note because commercial

recommending shellfish

permittee contact mariculture

USCG about project. activities in

Added Note Washington State

recommending are currently being

permittee provide authorized by

information to individual permits.

National Oceanic

and Atmospheric

Administration

(NOAA), National

Ocean Service (NOS)

for charting.

NWP 52............. Revised Note No change in number

recommending of NWP

permittee provide authorizations.

information to

National Oceanic

and Atmospheric

Administration

(NOAA), National

Ocean Service (NOS)

for charting. Added

Note recommending

permittee contact

USCG about project.

NWP 54............. Added gravel and No change in number

cobble to types of of NWP

substrate used for authorizations

living shorelines. because using

Clarify that small cobble and gravel

pocket beaches can for living

be authorized. Add shorelines was not

text to NWP to prohibited and

specify that also small portions of a

authorizes living shoreline

temporary could be without

structures, fills, living components.

and work, including

the use of

temporary mats,

necessary to

construct the

living shoreline

activity.

NWP 55............. Revised Note No change in number

recommending of NWP

permittee contact authorizations.

USCG about project.

Add Note

recommending

permittee provide

information to

National Oceanic

and Atmospheric

Administration

(NOAA), National

Ocean Service (NOS)

for charting.

NWP 57............. Revised Note No change in number

recommending of NWP

permittee provide authorizations.

information to

National Oceanic

and Atmospheric

Administration

(NOAA), National

Ocean Service (NOS)

for charting. Added

Note recommending

permittee contact

USCG about project.

NWP 58............. Revised Note No change in number

recommending of NWP

permittee provide authorizations.

information to

National Oceanic

and Atmospheric

Administration

(NOAA), National

Ocean Service (NOS)

for charting. Added

Note recommending

permittee contact

USCG about project.

Added clarifying

language to correct

inconsistency in

language about

activities which

require

authorization under

Section 10 of RHA.

NWP 60............. Issued new NWP to Increased number of

authorize activities

activities to authorized by NWP;

improve passage of decreased number of

fish and other activities

aquatic organisms. requiring

individual permits.

General condition Added “including No change in number

9, Management of Water tidal flows” to of NWP

Flows. clarify that tidal authorizations.

flows should be

considered as

“expected high

flows”.

General condition Added a sentence No change in number

11, Equipment. requiring affected of NWP

areas to be authorizations.

returned to pre-

construction

elevations, and

revegetated as

appropriate to

rectify soil

compaction that may

occur from using

mats.

General condition Removed the No change in number

18, Endangered Species. reference to 50 CFR of NWP

402.17 because that authorizations.

section was removed

by a final rule

issued by the

Services in 2024.

General condition Added “into waters No change in number

25, Water Quality. of the United of NWP

States” after authorizations.

“discharge” to

make it clear that

the discharge must

be into waters of

the United States.

General condition Modified general No change in number

28, Use of Multiple NWPs. condition to of NWP

clarify application authorizations.

to NWPs with

different numeric

limits.

General condition Modified general No change in number

30, Compliance conditions to of NWP

certifications. change authorizations.

“successful” to

“successful

completion” to

clarify that any

required permittee-

responsible

mitigation has to

be successfully

completed by the

permittee.

General condition Modified paragraph No change in number

32, Pre-Construction (a)(2) to include of NWP

Notification. species proposed authorizations.

for listing and

critical habitat

proposed for

designation. Modify

paragraph (b)(5) to

refer to Note 2 of

NWP 27 when an NWP

27 activity

requires a PCN.

The paperwork burden associated with the NWP relates exclusively to the preparation of the PCN. While different NWPs require that different information be included in a PCN, the Corps estimates that a PCN requires, on average, 11 hours to complete. The NWPs would slightly increase the total paperwork burden associated with this program because the Corps estimates that under this final action 44 more PCNs would be required each year. This increase is primarily due to the modification to NWP 13 to incorporate nature-based solutions into bank stabilization activities and the issuance of NWP 60 to authorize activities to improve the passage of fish and other aquatic organisms. Both of these changes are expected to result in a reduction in the number of activities requiring individual permits. The paperwork burden associated with these NWPs is expected to increase by approximately 1,034 hours per year from 237,193 hours to 238,227 hours.

The following table summarizes the projected changes in paperwork burden from the 2021 NWPs to the NWPs issued in this final action.

Estimated

Estimated changes in

Number of Number of NWP Estimated changes in number of Estimated hours Estimated cost

NWP PCNs activities not changes in number of standard to prepare NWP to prepare NWP

per year requiring PCNs NWP PCNs authorized NWP individual PCNs per year PCNs per year

per year per year activities permits per (2024$ millions)

year

2021 NWPs................................... 21,563 31,690 ........... ............... ........... 237,193 $379 2026 NWPs................................... 21,657 31,719 +44 +123 -123 238,227 381

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. For the Corps' Regulatory Program under Section 10 of the RHA, Section 404 of the CWA, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information collection requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003).

Executive Order 12866

This action is a significant regulatory action under Executive Order 12866 (58 FR 51735, October 4, 1993) that was submitted to the Office of Management and Budget (OMB) for review.

Executive Order 13132

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The issuance and modification of NWPs does not have federalism implications. The Corps does not believe that the final NWPs will have substantial direct effects on the States, on the relationship between the federal government and the States, or on the distribution of power and responsibilities among the various levels of government. These NWPs will not impose any additional substantive obligations on state or local governments. Therefore, Executive Order 13132 does not apply to this final action.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the final action will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of the issuance and modification of NWPs on small entities, a small entity is defined as: (1) a small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

The statutes under which the Corps issues, reissues, or modifies NWPs are Section 404(e) of the CWA (33 U.S.C. 1344(e)) and Section 10 of the RHA (33 U.S.C. 403). Under Section 404, Department of the Army (DA) permits are required for discharges of dredged or fill material into waters of the United States. Under Section 10, DA permits are required for any structures or other

work that affect the course, location, or condition of navigable waters of the United States. Small entities proposing to discharge dredged or fill material into waters of the United States and/or install structures or conduct work in navigable waters of the United States must obtain DA permits to conduct those activities, unless a particular activity is exempt from those permit requirements. Individual permits and general permits can be issued by the Corps to satisfy the permit requirements of these two statutes. NWPs are a form of general permit issued by the Chief of Engineers.

NWPs automatically expire and become null and void if they are not modified or reissued within five years of their effective date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the CWA states that general permits, including NWPs, can be issued for no more than five years. If the current NWPs are not modified or reissued, they will expire on March 14, 2026, and small entities and other project proponents would be required to obtain alternative forms of DA permits (i.e., standard permits, letters of permission, or regional general permits) for activities involving discharges of dredged or fill material into waters of the United States or structures or work in navigable waters of the United States. Regional general permits that authorize similar activities as the NWPs may be available in some geographic areas, but small entities conducting regulated activities outside those geographic areas would have to obtain individual permits for activities that require DA permits.

The issuance of NWPs to authorize activities under Section 404 of the CWA and Section 10 of the RHA reduces the burden of regulation because if the NWPs are not issued, project proponents would be required to obtain individual permits for those activities unless Corps districts issue regional general permits or programmatic general permits to authorize those activities. Each year, the NWPs authorize approximately 55,000 activities that result in no more than minimal individual and cumulative adverse environmental effects. In FY 2024, the average time for the Corps to process an application for a standard individual permit from date of receipt of a complete application to date of issuance was 253 days. During FY 2024, the average time for the Corps to process an NWP verification request was 55 days from date of receipt of a complete pre-construction notification to the issuance date. The shorter review period for NWP activities versus activities requiring standard individual permits reduces regulatory burdens on members of the public that need to obtain Department of the Army authorization for their activities.

When compared with the compliance costs for individual permits, most of the terms and conditions of the NWPs are expected to result in decreases in the costs of complying with the permit requirements of Sections 10 and 404. For this final action, the Corps has prepared a Regulatory Impact Analysis in accordance with OMB Circular A-4 (2003). The Regulatory Impact Analysis is available in the www.regulations.gov docket for this rulemaking action (docket number COE-2025-0002, under “Supporting and Related Materials”). In the Regulatory Impact Analysis, the Corps estimates that under the 2026 NWPs, the estimated annual direct compliance costs (in 2024$) would be between $382,000,000 and $652,000,000 per year, $3.5 million to $10.2 million per year less than the baseline direct compliance costs (i.e., the estimated annual direct compliance costs under the 2021 NWPs). The direct compliance costs of the 2026 NWPs represent the cost savings achieved by the final NWPs compared to the baseline of the 2021 NWPs. The anticipated decrease in compliance cost results from the lower cost of obtaining NWP authorization instead of standard permits. Unlike standard permits, NWPs authorize activities without the requirement for public notice and comment on each proposed activity.

Another requirement of Section 404(e) of the CWA is that general permits, including NWPs, authorize only those activities that result in no more than minimal adverse environmental effects, individually and cumulatively. The terms and conditions of the NWPs, such as acreage limits and mitigation measures, are imposed to ensure that the NWPs authorize only those activities that result in no more than minimal adverse effects on the aquatic environment and other public interest review factors.

After considering the economic impacts of the issuance of these NWPs on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. Small entities may obtain required DA authorizations through the NWPs, in cases where there are applicable NWPs authorizing those activities and the proposed work will result in only minimal adverse effects on the aquatic environment and other public interest review factors. The terms and conditions of the NWPs finalized in this action will not impose substantially higher costs on small entities than those of the existing NWPs. If an NWP is not available to authorize a particular activity, then another form of DA authorization, such as an individual permit or a regional general permit authorization, must be secured. However, as noted above, the Corps expects a slight to moderate increase in the number of activities than can be authorized through NWPs, because the Corps made some modifications to the NWPs to authorize additional activities. Because those activities required authorization through other forms of DA authorization (e.g., individual permits or regional general permits) the Corps expects a concurrent decrease in the numbers of individual permit authorizations required for these activities.