Reissuance and Modification of Nationwide Permits

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under Section 202 of the UMRA, agencies generally must prepare a written statement, including a cost- benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, Section 205 of the UMRA generally requires agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows an agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before an agency establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed, under Section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.

The Corps has determined that these NWPs do not contain a federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. The NWPs are generally consistent with current agency practice, do not impose new substantive requirements and therefore do not contain a federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Therefore, this final action is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, the Corps has determined that the NWPs contain no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the issuance and modification of the NWPs is not subject to the requirements of Section 203 of UMRA.

Executive Order 13045

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, federal agencies must evaluate the environmental health or safety effects of the final rule on children and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.

The NWPs are not subject to this Executive Order because they are not economically significant as defined in Executive Order 12866. In addition, the NWPs do not concern an environmental health or safety risk that the Corps has reason to believe may have a disproportionate effect on children.

Executive Order 13175

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Tribes, on the relationship between the federal government and the Tribes, or on the distribution of power and responsibilities between the federal government and Tribes.”

The issuance of these NWPs does not have tribal implications. It is generally consistent with current agency practice and will not have substantial direct effects on tribal governments, on the relationship between the federal government and the tribes, or on the distribution of power and responsibilities between the federal government and tribes. Therefore, Executive Order 13175 does not apply to this final action. However, in the spirit of Executive Order 13175, the Corps specifically requested comment from tribal officials on the proposed rule. Corps districts conducted government-to-government consultation with tribes who requested such consultation, to identify regional conditions or other local NWP modifications that may be necessary to protect aquatic resources of interest to tribes, as part of the Corps' responsibility to protect trust resources. The Corps' Regulatory Program follows a number of existing Department of Defense, Army, and Corps' tribal consultation policies. Information on these tribal consultation policies are available at: https://www.usace.army.mil/Missions/Civil-Works/Tribal-Nations/.

Many commenters objected to the reissuance of the NWPs. One commenter stated that the Corps has not demonstrated how NWP reissuance would affect tribal treaty rights. Many commenters stated that there is insufficient time for tribes to consult with the Corps on the 2025 Proposal. Several commenters said that the Corps is required to consult and coordinate with the tribes on the proposed rule. One commenter stated that the Corps should extend its comment period 60 days or should withdraw its proposal to allow early tribal engagement.

While the NWPs are issued through rulemaking, we believe the final NWPs will not have substantial direct effects on tribal governments, on the relationship between the federal government and the tribes, or on the distribution of power and responsibilities between the federal government and tribes. We have taken, and will continue to take, measures (such as Corps districts consulting with tribes on specific NWP activities that may have adverse effects on tribal rights) to ensure that the NWPs will not have substantial direct effects on tribal governments, on the relationship between the federal government and the tribes, or on the distribution of power and responsibilities between the federal government and tribes.

General condition 17 (Tribal Rights) states that no NWP activity or its operation may impair reserved tribal rights, including, but not limited to, reserved water rights and treaty fishing and hunting rights. Tribes use NWPs for activities they conduct that require DA authorization under Section 404 of the CWA and/or Section 10 of the RHA. For example, tribes that conduct commercial shellfish aquaculture activities have used NWP 48, and tribes that conduct aquatic habitat restoration activities have used NWP 27.

For the 2026 NWPs, the Corps provided a 30-day comment period on the 2025 Proposal, which we believe is appropriate when considering the minor changes proposed to the NWPs. The Corps has considered comments received from tribes on the 2025 proposal, including letters from 18 tribes or tribal organizations. Corps districts conducted consultations with tribes to identify regional conditions to ensure activities comply with general conditions 17 and 20 (Historic Properties). The Corps has consulted and will continue to consult with tribes consistent with our tribal consultation policies. Division engineers can modify, suspend, or revoke one or more NWPs in a region to protect tribal rights.

During the consultation on regional conditions to the NWPs, district engineers can develop coordination procedures with tribes to provide tribes with opportunities to review proposed NWP activities and provide their views on whether those activities will cause more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands. When a Corps district receives a PCN that triggers a need to consult with one or more tribes, that consultation will be completed before the district engineer makes his or her decision on whether to issue the NWP verification. If, after considering mitigation, the district engineer determines the proposed NWP activity will have more than minimal adverse effects on tribal rights (including treaty rights), protected tribal resources, or tribal lands, he or she will exercise discretionary authority and require an individual permit. A district engineer can modify, suspend, or revoke an NWP to protect tribal rights, protected tribal resources, and tribal lands.

One commenter requested that the Corps develop cooperative agreements with tribes. One commenter stated that the Corps is shifting the responsibility of monitoring and oversight to tribes as a result in changes to jurisdiction. A few

commenters stated that the Corps should engage in co-management with tribes on enforcement and impacts analysis using tribal ecological knowledge. One commenter requested that the Corps provide additional training to staff on tribal trust resources.

Corps districts are encouraged by regulations at 33 CFR 320.4(j)(6) to consult with tribes to establish procedures for establishing official communications with tribes within their districts. The Corps cannot require permits or monitoring of activities in aquatic resources that are not waters of the Unites States. Corps districts are responsible for enforcing compliance with NWP conditions unless the state or eligible tribe has assumed the responsibility of the Section 404 permit program in certain waters of the United States in accordance with Section 404(g) of the CWA. Consistent with general conditions 17 and 20, Corps districts will consult with tribes when evaluating use of an NWP for resolution of enforcement actions that might impact tribal rights or historic properties. The Corps provides regular training to staff on the responsibilities of the federal government to uphold the tribal trust responsibility.

Nationwide Permits 1. Aids to Navigation 2. Structures in Artificial Canals 3. Maintenance 4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities 5. Scientific Measurement Devices 6. Survey Activities 7. Outfall Structures and Associated Intake Structures 8. Oil and Gas Structures on the Outer Continental Shelf 9. Structures in Fleeting and Anchorage Areas 10. Mooring Buoys 11. Temporary Recreational Structures 12. Oil or Natural Gas Pipeline Activities 13. Bank Stabilization 14. Linear Transportation Projects 15. U.S. Coast Guard Approved Bridges 16. Return Water From Upland Contained Disposal Areas 17. Hydropower Projects 18. Minor Discharges 19. Minor Dredging 20. Response Operations for Oil or Hazardous Substances 21. Surface Coal Mining Activities 22. Removal of Vessels 23. Approved Categorical Exclusions 24. Indian Tribe or State Administered Section 404 Programs 25. Structural Discharges 26. [Reserved] 27. Aquatic Ecosystem Restoration, Enhancement, and Establishment Activities 28. Modifications of Existing Marinas 29. Residential Developments 30. Moist Soil Management for Wildlife 31. Maintenance of Existing Flood Control Facilities 32. Completed Enforcement Actions 33. Temporary Construction, Access, and Dewatering 34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins 36. Boat Ramps 37. Emergency Watershed Protection and Rehabilitation 38. Cleanup of Hazardous and Toxic Waste 39. Commercial and Institutional Developments 40. Agricultural Activities 41. Reshaping Existing Drainage and Irrigation Ditches 42. Recreational Facilities 43. Stormwater Management Facilities 44. Mining Activities 45. Repair of Uplands Damaged by Discrete Events 46. Discharges in Ditches 47. [Reserved] 48. Commercial Shellfish Mariculture Activities 49. Coal Remining Activities 50. Underground Coal Mining Activities 51. Land-Based Renewable Energy Generation Facilities 52. Water-Based Renewable Energy Generation Pilot Projects 53. Removal of Low-Head Dams 54. Living Shorelines 55. Seaweed Mariculture Activities 56. [Reserved] 57. Electric Utility Line and Telecommunications Activities 58. Utility Line Activities for Water and Other Substances 59. Water Reclamation and Reuse Facilities 60. Activities to Improve Passage of Fish and Other Aquatic Organisms Nationwide Permit General Conditions 1. Navigation 2. Aquatic Life Movements 3. Spawning Areas 4. Migratory Bird Breeding Areas 5. Shellfish Beds 6. Suitable Material

7. Water Supply Intakes 8. Adverse Effects from Impoundments 9. Management of Water Flows 10. Fills Within 100-Year Floodplains 11. Equipment 12. Soil Erosion and Sediment Controls 13. Removal of Temporary Fills 14. Proper Maintenance 15. Single and Complete Project 16. Wild and Scenic Rivers 17. Tribal Rights 18. Endangered Species 19. Migratory Birds and Bald and Golden Eagles 20. Historic Properties 21. Discovery of Previously Unknown Remains and Artifacts 22. Designated Critical Resource Waters 23. Mitigation 24. Safety of Impoundment Structures 25. Water Quality 26. Coastal Zone Management 27. Regional and Case-by-Case Conditions 28. Use of Multiple Nationwide Permits 29. Transfer of Nationwide Permit Verifications 30. Compliance Certification 31. Activities Affecting Structures or Works Built by the United States 32. Pre-Construction Notification District Engineer's Decision Further Information Nationwide Permit Definitions Best management practices (BMPs) Compensatory mitigation Currently serviceable Direct effects Discharge Ecological reference Enhancement Establishment (creation) High Tide Line Historic property Independent utility Indirect effects Loss of waters of the United States Nature-based solutions Navigable waters Non-tidal wetland Open water Ordinary high water mark Perennial stream Practicable Pre-construction notification Preservation Re-establishment Rehabilitation Restoration Riffle and pool complex Riparian areas Shellfish seeding Single and complete linear project Single and complete non-linear project Stormwater management Stormwater management facilities Stream bed Stream channelization Structure Tidal wetland Tribal lands Tribal rights Vegetated shallows Waterbody