Proposal To Reissue and Modify Nationwide Permits
Federal RegisterSep 15, 2020
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Chapter II
[Docket Number: COE-2020-0002]
RIN 0710-AA84
Proposal To Reissue and Modify Nationwide Permits
AGENCY:
Army Corps of Engineers, DoD.
ACTION:
Notice of proposed rulemaking.
SUMMARY:
Nationwide Permits (NWPs) authorize certain activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The U.S. Army Corps of Engineers (Corps) is proposing to reissue its existing NWPs and associated general conditions and definitions, with some modifications. We are also proposing to issue five new NWPs. Two of those proposed new NWPs would authorize certain categories of mariculture activities (
i.e.,
seaweed and finfish mariculture) that are not authorized by NWP 48. We are proposing to divide the current NWP that authorizes utility line activities (NWP 12) into three separate NWPs that address the differences in how different linear projects are constructed, the substances they convey, and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects. Specifically, we are proposing to modify the current utility line NWP 12 to authorize only oil and natural gas pipeline activities. Two proposed new NWPs would authorize activities associated with the construction, maintenance, repair, and removal of electric utility lines/telecommunication lines and utility lines that convey water, sewage, and other substances. The fifth proposed new NWP would authorize discharges of dredged or fill material into jurisdictional waters for the construction, expansion, and maintenance of water reuse and reclamation facilities. We are proposing these modifications to simplify and clarify the NWPs, reduce burdens on the regulated public, and continue to comply with the statutory requirement that these NWPs authorize only activities with no more than minimal individual and cumulative adverse environmental effects. The Corps is requesting comment on all aspects of these proposed nationwide permits.
DATES:
Submit comments on or before November 16, 2020.
ADDRESSES:
You may submit comments, identified by docket number COE-2020-0002 and/or RIN 0710-AA84, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov
. Follow the instructions for submitting comments.
Email: nationwidepermits2020@usace.army.mil
. Include the docket number, COE-2020-0002, in the subject line of the message.
Mail:
U.S. Army Corps of Engineers, Attn: CECW-CO-R, 441 G Street NW, Washington, DC 20314-1000.
Hand Delivery/Courier:
Due to security requirements, we cannot receive comments by hand delivery or courier.
Instructions:
If submitting comments through the Federal eRulemaking Portal, direct your comments to docket number COE-2020-0002. All comments received will be included in the public docket without change and may be made available on-line at
http://www.regulations.gov,
including any personal information provided, unless the commenter indicates that the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through
regulations.gov
or email. The
regulations.gov
website is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to the Corps without going through
regulations.gov
your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment we recommend that you include your name and other contact information in the body of your comment and with any compact disc you submit. If we cannot read your comment because of technical difficulties and cannot contact you for clarification we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses.
Docket:
For access to the docket to read background documents or comments received, go to
regulations.gov
. All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form.
FOR FURTHER INFORMATION CONTACT:
Mr. David Olson at 202-761-4922 or access the U.S. Army Corps of Engineers Regulatory Home Page at
https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/
.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. General
B. Proposed Actions Under E.O. 13783, Promoting Energy Independence and Economic Growth
C. Proposed Actions Under Executive Order 13777, Enforcing the Regulatory Reform Agenda
D. Proposed Actions Under Executive Order 13921, Promoting American Seafood Competitiveness and Economic Growth
E. The 2018 Legislative Outline for Rebuilding Infrastructure in America
F. Process for Modifying and Reissuing the NWPs
G. Status of Existing Permits
H. Regional Conditioning of Nationwide Permits
II. Summary of Proposal
A. Proposed Removal of the 300 Linear Foot Limit for Losses of Stream Bed
B. Discussion of Additional Proposed Modifications to Existing Nationwide Permits
C. Discussion of Proposed New Nationwide Permits
D. Discussion of Proposed Modifications to Nationwide Permit General Conditions
E. Discussion of Proposed Modifications to Section D, “District Engineer's Decision”
F. Discussion of Proposed Modifications to Section F, “Definitions”
III. Compliance With Relevant Statutes
A. National Environmental Policy Act Compliance
B. Compliance With Section 404(e) of the Clean Water Act
C. 2020 Revisions to the Definition of “Waters of the United States” (
i.e.,
the Navigable Waters Protection Rule)
D. Compliance With the Endangered Species Act
E. Compliance With the Essential Fish Habitat Provisions of the Magnuson-Stevens Fishery Conservation and Management Act
F. Compliance With Section 106 of the National Historic Preservation Act
G. Compliance With Section 401 of the Clean Water Act
H. Section 307 of the Coastal Zone Management Act (CZMA)
IV. Economic Impact
V. Administrative Requirements
VI. References
Authority
Nationwide Permits, Conditions, Further Information, and Definitions
List of Acronyms
CEQ Council on Environmental Quality
CWA Clean Water Act
DA Department of the Army
EFH Essential Fish Habitat
ESA Endangered Species Act
FWS U.S. Fish and Wildlife Service
GC General Condition
NEPA National Environmental Policy Act
NHPA National Historic Preservation Act
NMFS National Marine Fisheries Service
NPDES National Pollutant Discharge Elimination System
NWP Nationwide Permit
PCN Pre-construction Notification
List of Proposed Nationwide Permits and General Conditions
Nationwide Permits (NWPs)
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Oil or Natural Gas Pipeline Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil or Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement 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 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
A. Seaweed Mariculture Activities
B. Finfish Mariculture Activities
C. Electric Utility Line and Telecommunications Activities
D. Utility Line Activities for Water and Other Substances
E. Water Reclamation and Reuse Facilities
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
I. Background
A. General
The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that will result in no more than minimal individual and cumulative adverse environmental effects. Nationwide permits were first issued by the Corps in 1977 (42 FR 37122) to authorize categories of activities that have minimal adverse effects on the aquatic environment, and streamline the authorization process for those minor activities. After 1977, NWPs have been issued or reissued in 1982 (47 FR 31794), 1984 (49 FR 39478), 1986 (51 FR 41206), 1991 (56 FR 59110), 1995 (60 FR 38650), 1996 (61 FR 65874), 2000 (65 FR 12818), 2002 (67 FR 2020), 2007 (72 FR 11092), 2012 (77 FR 10184), and 2017 (82 FR 1860).
Section 404(e) of the Clean Water Act provides the statutory authority for the Secretary of the Army, after notice and opportunity for public hearing, to issue general permits on a nationwide basis for any category of activities involving discharges of dredged or fill material into waters of the United States for a period of no more than five years after the date of issuance (33 U.S.C. 1344(e)). The Secretary's authority to issue permits has been delegated to the Chief of Engineers and his or her designated representatives. Nationwide permits are a type of general permit issued by the Chief of Engineers and are designed to regulate with little, if any, delay or paperwork certain activities in federally jurisdictional waters and wetlands that have no more than minimal adverse environmental impacts (see 33 CFR 330.1(b)). The categories of activities authorized by NWPs must be similar in nature, cause only minimal adverse environmental effects when performed separately, and have only minimal cumulative adverse effect on the environment (see 33 U.S.C. 1344(e)(1)). Nationwide permits can be issued for a period of no more than 5 years (33 U.S.C. 1344(e)(2)), and the Corps has the authority to modify or revoke the NWPs before they expire. Nationwide permits can also be issued to authorize activities pursuant to Section 10 of the Rivers and Harbors Act of 1899 (see 33 CFR 322.2(f)). The NWP program is designed to provide timely authorizations for the regulated public while protecting the Nation's aquatic resources.
There are currently 52 NWPs. These NWPs were published in the January 6, 2017, issue of the
Federal Register
(82 FR 1860) and are currently scheduled to expire on March 18, 2022. Under 33 CFR 330.5(b), anyone may, at any time, suggest to Corps Headquarters that they consider new NWPs or conditions for issuance, or changes to existing NWPs. Independent of receiving suggestions to issue new NWPs or modify existing NWPs, Corps Headquarters has the authority to periodically review the NWPs and their conditions and initiate
the process for proposing to modify, reissue, or revoke the NWPs (see 33 CFR 330.5(b) and 330.6(b)). While the Corps generally updates the nationwide permits every five years, there have been three times where the Corps issued or modified NWPs outside of the normal 5-year cycle. The first time occurred on October 5, 1984 (49 FR 39478) when the Corps modified four NWPs and issued one new NWP to comply with the requirements of a settlement agreement. The second time was on July 27, 1995 (60 FR 38650) when the Corps issued a new NWP for single family housing (NWP 29). The third instance occurred on March 9, 2000, (65 FR 12818) when the Corps issued five new NWPs and modified 6 existing NWPs to replace one of its existing NWPs (
i.e.,
NWP 26, which authorized discharges into headwaters and isolated waters).
On March 28, 2017, the President signed Executive Order (E.O.) 13783, which directed heads of federal agencies to review existing regulations that potentially burden the development or use of domestically produced energy resources. On October 25, 2017, the Assistant Secretary of the Army (Civil Works) issued a report in response to E.O. 13783. That report identified nine NWPs that could be modified to reduce regulatory burdens on entities that develop or use domestically produced energy resources. A copy of the report is available in the docket for this proposed rule (docket number COE-2020-0002). Today's proposal includes potential modifications intended to provide additional consistency and clarity in the NWPs, including the NWPs identified in the E.O. 13783 report, and reduce burdens on the regulated public. This notice of proposed rulemaking initiates the rulemaking process to determine whether to modify these nine NWPs in accordance with the report's recommendations, and to modify a number of other NWPs. More information on the actions being proposed pursuant, in part, to E.O. 13783 can be found in Section I.B below.
In addition to revisions being considered in response to E.O. 13783, the Corps is proposing to reissue the remaining NWPs, so that all of the NWPs remain on the same 5-year approval cycle. The Corps is also proposing to issue five new NWPs discussed below.
In FY 2018, the average processing time for an NWP PCN was 45 days and the average processing time for a standard individual permit was 264 days. This difference in burden can incentivize project proponents that would otherwise require an individual permit under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 to reduce the adverse effects of those activities in order to qualify for NWP authorization. This reduction in adverse effects can reduce a project's impact on the Nation's aquatic resources.
The phrase “minimal adverse environmental effects when performed separately” refers to the direct and indirect adverse environmental effects caused by a specific activity authorized by an NWP. The phrase “minimal cumulative adverse effect on the environment” refers to the collective direct and indirect adverse environmental effects caused by all the activities authorized by a particular NWP during the time period when the NWP is in effect (a period of no more than 5 years) in a specific geographic region. These concepts are defined in paragraph 2 of section D, “District Engineer's Decision.” The appropriate geographic area for assessing cumulative effects is determined by the decision-making authority for the general permit (generally, the district engineer).
Some NWPs include pre-construction notification (PCN) requirements. PCNs give the Corps the opportunity to evaluate certain proposed NWP activities on a case-by-case basis to ensure that they will cause no more than minimal adverse environmental effects, individually and cumulatively. Except activities conducted by non-Federal permittees that require PCNs under paragraph (c) of the “Endangered Species” and “Historic Properties” general conditions (general conditions 18 and 20, respectively), if the Corps district does not respond to the PCN within 45 days of a receipt of a complete PCN the activity is automatically authorized by the NWP (see 33 CFR 330.1(e)(1)).
There are 38 Corps district offices and 8 Corps division offices. The district offices administer the NWP program on a day-to-day basis by reviewing PCNs for proposed NWP activities. The division offices oversee district offices and are managed by division engineers. Division engineers have the authority to modify, suspend, or revoke NWP authorizations on a regional basis to take into account regional differences among aquatic resources and ensure that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse environmental effects in a region (see 33 CFR 330.5(c)). When a Corps district receives a PCN, the district engineer reviews the PCN and determines whether the proposed activity will result in no more than minimal individual and cumulative adverse environmental effects, consistent with the criteria in paragraph 2 of section D, “District Engineer's Decision.” At this point, the district engineer may add conditions to the NWP authorization to ensure that the verified NWP activity results in no more than minimal individual and cumulative adverse environmental effects consistent with processes and requirements set out in 33 CFR 330.5(d). See Section I.H for more information on the regional conditioning process.
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, that the proposed NWP activity will result in no more than minimal adverse environmental effects, the district engineer may grant such a waiver. Following the conclusion of the district engineer's review of a PCN, he/she prepares an official decision document. This document discusses the district engineer's findings as to whether a proposed NWP activity qualifies for NWP authorization, including compliance with all applicable terms and conditions, and the rationale for any waivers granted, and activity-specific conditions needed to ensure that the NWP activity will have only minimal individual and cumulative adverse environmental effects and will not be contrary to the public interest (see § 330.6(a)(3)(i)).
The case-by-case review of PCNs often results in district engineers adding activity-specific conditions to NWP authorizations to ensure that the adverse environmental effects are no more than minimal. These can include permit conditions such as time-of-year restrictions and use of best management practices or compensatory mitigation requirements to offset authorized losses of jurisdictional waters and wetlands so that the net adverse environmental effects are no more than minimal. Any compensatory mitigation required for NWP activities must comply with the Corps' compensatory mitigation regulations at 33 CFR part 332. Review of a PCN may also result in the district engineer asserting discretionary authority to require an individual permit from the Corps for the proposed activity, if he or she determines, based on the information provided in the PCN and other available information, that adverse environmental effects will be
more than minimal, or otherwise determines that “sufficient concerns for the environment or any other factor of the public interest so requires” consistent with 33 CFR 330.4(e)(2)).
During their reviews of PCNs, district engineers assess cumulative adverse environmental effects at an appropriate regional scale. The district engineer uses his or her discretion to determine the appropriate regional scale for evaluating cumulative effects. The appropriate regional scale for evaluating cumulative effects may be a waterbody, watershed, county, state, or a Corps district. The appropriate regional scale is dependent, in part, on where the NWP activities are occurring. For example, for NWPs that authorizes structures and/or work in navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899, the appropriate geographic region for assessing cumulative effects may be a specific navigable waterbody. For NWPs that authorize discharges of dredged or fill material into non-tidal wetlands and streams, the appropriate geographic region for assessing cumulative effects may be a watershed, county, state, or Corps district. The direct individual adverse environmental effects caused by activities authorized by NWPs are evaluated within the project footprint, and the indirect individual adverse environmental effects caused by activities authorized by NWPs are evaluated within the geographic area to which those indirect effects extend. Cumulative effects are the result of the accumulation of direct and indirect effects caused by multiple activities that persist over time in a particular geographic area (MacDonald 2000), such as a watershed or ecoregion (Gosselink and Lee 1989). Therefore, the geographic and temporal scales for cumulative effects analysis are larger than the analysis of the direct and indirect adverse environmental effects caused by specific activities.
When the district engineer reviews a PCN and determines that the proposed activity qualifies for NWP authorization, he or she will issue a written NWP verification to the permittee (see 33 CFR 330.6(a)(3)). If an NWP verification includes multiple authorizations using a single NWP (
e.g.,
linear projects with crossings of separate and distant waters of the United States authorized by NWPs 12 or 14) or non-linear projects authorized with two or more different NWPs (
e.g.,
an NWP 28 for reconfiguring an existing marina plus an NWP 19 for minor dredging within that marina), the district engineer will evaluate the cumulative effects of the applicable NWP authorizations within the geographic area that she or he determines is appropriate for assessing cumulative effects caused by activities authorized by that NWP. As discussed above, the geographic area may be a waterbody, watershed, county, state, Corps district, or other geographic area. Since the required NEPA cumulative effects and 404(b)(1) Guidelines cumulative effects analyses are conducted by Corps Headquarters in its decision documents for the issuance of the NWPs, district engineers do not need to do comprehensive cumulative effects analyses for NWP verifications. For an NWP verification, the district engineer needs only to include a statement in the administrative record stating whether the proposed NWP activity, plus any required mitigation, will result in no more than minimal individual and cumulative adverse environmental effects. If the district engineer determines, after considering mitigation, that a proposed NWP activity will result in more than minimal cumulative adverse environmental effects, she or he will exercise discretionary authority and require an individual permit.
There may be activities authorized by NWPs that cross more than one Corps district or a single state. On May 15, 2018, the Director of Civil Works at Corps Headquarters issued a Director's Policy Memorandum titled: “Designation of a Lead USACE District for Permitting of Non-USACE Projects Crossing Multiple Districts or States.”
1
This Director's Policy Memorandum identified lead districts for states that have more than one Corps district and established a policy for designating a lead district for activities that require Department of the Army permits that cross district or state boundaries. Under this policy, when the Corps receives an NWP PCN or individual permit application for such activities, a lead Corps district will be designated by the applicable Corps division office(s) using the criteria in the 2018 Director's Policy Memorandum, and that district will be responsible for serving as a single point of contact for each permit applicant, forming a Project Delivery Team comprising representatives of each of the affected districts, ensuring consistent reviews by the affected districts, and taking responsibility for identifying and resolving inconsistencies that may arise during the review. The list of lead districts for states is also used during the regional conditioning process for the NWPs. For that process the lead district is responsible for coordinating the development of the regional conditions and preparing the supplemental documents required by 33 CFR 330.5(c)(1)(iii). The Corps requests comments on whether there are efficiencies that can be adopted to improve the coordination and regional conditioning processes.
1
This document is available at:
https://usace.contentdm.oclc.org/digital/collection/p16021coll11/id/2757/
(accessed 3/12/2020).
B. Proposed Actions Under E.O. 13783, Promoting Energy Independence and Economic Growth
Section 2(a) of E.O. 13783 requires federal agencies to review their existing regulations that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear resources. For the Corps, the NWPs authorize activities associated with the development or use of domestically produced energy resources. In response to E.O. 13783, the Corps issued a report that reviewed 12 NWPs that authorize activities associated with the development or use of domestically produced energy resources. That report included recommendations for changes that could be made to nine NWPs to support the objectives of E.O. 13783.
The Corps issued its report on October 25, 2017, and in the November 28, 2017, issue of the
Federal Register
(82 FR 56192) published a notice of availability for that report. Section 2(g) of E.O. 13783 states that agencies should, as soon as practicable and as appropriate and consistent with law, publish for notice and comment proposed rules that would implement the recommendations in their reports. Section 2(g) further states that agencies shall endeavor to coordinate the regulatory reforms identified in their reports with their activities undertaken in compliance with E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs.”
The following is a summary of the recommendations provided in the report the Corps issued in response to E.O. 13783:
• Retain the
1/2
-acre limit for the NWPs identified in the report that currently have that limit (
i.e.,
NWP 12 (utility line activities), NWP 21 (surface coal mining activities), NWP 39 (commercial and institutional developments), NWP 50 (underground coal mining activities), NWP 51 (land-based renewable energy generation projects), and NWP 52 (water-based renewable energy generation pilot projects)).
• Remove the 300 linear foot limit for losses of stream bed and rely on the
1/2
-
acre limit and PCN requirements to ensure that activities authorized by these NWPs will result in no more than minimal adverse environmental effects. The 300 linear foot limit currently applies to the following NWPs identified in the report: NWP 21 (surface coal mining activities), NWP 39 (commercial and institutional developments), NWP 50 (underground coal mining activities), NWP 51 (land-based renewable energy projects), and NWP 52 (water-based renewable energy pilot projects).
• NWP 3—Maintenance. Modify this NWP to authorize small amounts of riprap to protect those structures and fills, without a PCN requirement.
• NWP 12—Utility Line Activities. Modify this NWP to simplify the pre-construction notification thresholds, by reducing the number of PCN thresholds from 7 to 2.
• NWP 17—Hydropower Projects. Modify this NWP to change the generating capacity threshold in paragraph (a) from 5,000 kW to 10,000 kW to be consistent with the definition of “small hydroelectric power project” in 16 U.S.C. 2705(d).
• NWP 21—Surface Coal Mining Activities. Remove the 300 linear foot limit for losses of stream bed. Remove the provision requiring the permittee to receive a written authorization from the Corps before commencing with the activity, to be consistent with the other NWPs requiring PCNs and allowing default authorizations to occur if the Corps district does not respond to the PCN within 45 days of receipt of a complete PCN.
• NWP 39—Commercial and Institutional Developments. Modify this NWP to remove the 300 linear foot limit for losses of stream bed.
• NWP 49—Coal Remining Activities. Remove the provision requiring the permittee to receive a written authorization from the Corps before commencing with the activity, to be consistent with the other NWPs requiring PCNs and allowing default authorizations to occur if the Corps district does not respond to the PCN within 45 days of receipt of a complete PCN.
• NWP 50—Underground Coal Mining Activities. Remove the 300 linear foot limit for losses of stream bed. Remove the provision requiring the permittee to receive a written authorization from the Corps before commencing with the activity, to be consistent with the other NWPs requiring PCNs and allowing default authorizations to occur if the Corps district does not respond to the PCN within 45 days of receipt of a complete PCN.
• NWP 51—Land-Based Renewable Energy Generation Projects. Remove the 300 linear foot limit for losses of stream bed.
• NWP 52—Water-Based Renewable Energy Generation Pilot Projects. Remove the 300 linear foot limit for losses of stream bed.
The Corps is proposing to implement all of the recommendations discussed above. These proposed changes are discussed in greater detail below.
C. Proposed Actions Under Executive Order 13777, Enforcing the Regulatory Reform Agenda
On February 24, 2017, the President signed E.O. 13777, “Enforcing the Regulatory Reform Agenda,” which required agencies to evaluate existing regulations and make recommendations to the agency head regarding their repeal, replacement, or modification, consistent with applicable law. The E.O. specified that agencies must attempt to identify regulations that eliminate jobs or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; or meet other criteria identified in that Executive Order. Pursuant to this E.O., in the July 20, 2017, issue of the
Federal Register
(82 FR 33470) the Corps published a notice seeking public input from state, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations on its existing regulations that may be appropriate for repeal, replacement, or modification. Some of the changes to the NWPs in this proposal are intended to address some of the comments received in response to the July 20, 2017,
Federal Register
notice.
D. Proposed Actions Under Executive Order 13921, Promoting American Seafood Competitiveness and Economic Growth
On May 7, 2020, the President signed Executive Order 13921 on Promoting American Seafood Competitiveness and Economic Growth. Section 6(b) of the E.O., “Removing Barriers to Aquaculture Permitting,” requires the Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works, to “develop and propose for public comment, as appropriate and consistent with applicable law,” NWPs authorizing finfish aquaculture activities and seaweed aquaculture activities in marine and coastal waters, including ocean waters beyond the territorial sea within the exclusive economic zone of the United States. Section 6(b) of the E.O. also requires the Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works, to develop and propose for public comment, as appropriate and consistent with applicable law, a proposed NWP authorizing multi-species aquaculture activities in marine and coastal waters, including ocean waters beyond the territorial sea within the exclusive economic zone of the United States. Instead of proposing a new, separate NWP for authorizing structures in coastal waters and federal waters on the outer continental shelf for multi-species aquaculture activities, the Corps is proposing to include provisions allowing additional species to be cultivated with seaweed mariculture activities authorized under proposed new NWP A and finfish mariculture activities authorized under proposed new NWP B. In addition, the Corps is soliciting public comment on whether a separate NWP should be issued to authorize structures or work regulated by the Corps for multi-species mariculture activities.
In this proposed rule, the Corps is proposing to issue two new NWPs: NWP A to authorize seaweed mariculture activities in navigable waters of the United States, including federal waters on the outer continental shelf, and NWP B to authorize finfish mariculture activities in these waters. These proposed new NWPs would authorize structures and work in navigable waters of the United States under Section 10 of the Rivers and Harbors Act of 1899. These proposed new NWPs would also authorize seaweed and finfish mariculture structures attached to the seabed on the outer continental shelf. Section 4(f) of the Outer Continental Shelf Lands Act of 1953 as amended (43 U.S.C. 1333(e)), extended the Corps' Rivers and Harbors Act of 1899 section 10 permitting authority to artificial islands, installations, and other devices located on the seabed, to the seaward limit of the outer continental shelf (see 33 CFR 320.2(b)). On the outer continental shelf, the seaweed and finfish mariculture structures may be anchored to the seabed, and thus require section 10 authorization as devices located on the seabed. Each of these proposed NWPs includes a provision on multi-trophic species mariculture activities in marine and coastal waters, including federal waters on the outer continental shelf. This proposed provision for multi-trophic species mariculture gives flexibility to these
NWPs, to allow mariculture operators to propagate additional species, such as mussels, on their seaweed or finfish mariculture structures. Including this proposed provision in NWPs A and B is an alternative to developing a separate NWP for multi-trophic species mariculture activities, and it would provide NWP authorization that is responsive to the E.O. The Corps recognizes that some mariculture operators may choose to produce seaweeds or finfish exclusively.
Section 6(b) of the E.O. also requires the Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works to “assess whether to develop” NWPs for finfish aquaculture activities and seaweed aquaculture activities in other waters of the United States. Section 6(b) also requires the Secretary of the Army, acting through the Assistant Secretary of the Army for Civil Works, to assess whether to develop a United States Army Corps of Engineers NWP authorizing multi-species aquaculture activities in other waters of the United States.
In this proposal to issue and reissue NWPs, the Corps is not proposing to issue new NWPs for finfish aquaculture activities, algal aquaculture activities, or multi-species aquaculture activities in other waters of the United States (
i.e.,
waters of the United States that are not subject to the ebb and flow of the tide) Examples of these other waters of the United States include lakes and ponds. The Corps is considering whether to develop one or more NWPs in the future to authorize aquaculture activities in these waters. To assist in our assessment, the Corps invites interested parties to submit comments on whether the Corps should propose new NWPs for freshwater aquaculture activities, including aquaculture for finfish (
e.g.,
catfish) or algae in future revisions to the NWPs. The Corps also invites comments on whether it should propose new NWPs for aquaculture for other freshwater species, such as crawfish. These comments should be submitted to the docket for this proposed rule at
www.regulatons.gov
(docket number COE-2020-0002), or by email to
nationwidepermits2020@usace.army.mil
.
E. The 2018 Legislative Outline for Rebuilding Infrastructure in America
On February 12, 2018, the Administration issued its “Legislative Outline for Rebuilding Infrastructure in America.” In Part 3 (Infrastructure Permitting Improvement), Principle I.C.1 recommends reforms for eliminating redundancy, duplication, and inconsistency in the application of clean water provisions. One of those reforms would be to make statutory changes to authorize Federal agencies to select and use NWPs without additional review by the Corps. Principle I.C.1 recommends allowing Federal agencies to move forward on NWP projects without submitting PCNs to the Corps. That principle also states that removing PCN requirements for Federal agencies would allow the Corps to focus on projects that do not qualify for NWPs, such as activities that require individual permits that have greater environmental impacts.
Consistent with the recommendation included in the Legislative Outline, the Corps is considering whether it can use its existing authority to create specific procedures or conditions by which Federal agencies that currently require a NWP would not need to submit a PCN, consistent with applicable law. Under such a mechanism, the Corps would retain under its authority for district engineers to modify, suspend, or revoke NWP authorizations (see 33 CFR 330.5(d)), the right to take action to address situations where the Federal agency incorrectly determined that the NWP terms and conditions were met.
The Corps is considering exempting Federal agencies from PCN under the theory that Federal agencies may employ staff who are environmental experts and who already review these projects before submitting PCNs to the Corps to determine whether they meet the criteria for the applicable NWP. These environmental staff are responsible for ensuring that the agencies' proposed activities comply with applicable federal laws, regulations, and policies, as well as relevant Executive Orders. However, the Corps understands that non-Federal permittees that want to use the NWPs often hire consultants to help them secure NWP authorization in compliance with applicable federal laws, regulations, and policies and that these consultants may have similar expertise to staff at Federal agencies. These consultants may provide general services to assist in securing NWP authorizations on behalf of their clients, or they may specialize in complying with specific laws and regulations, such as Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, and the Essential Fish Habitat provisions of the Magnuson-Stevens Act. Non-federal permittees are not bound to comply with Executive Orders.
Federal agency environmental staff come from a diverse range of education and professional training, as do environmental consultants that work for the various industries and individuals that hire them for their expertise in securing individual permits, NWP verifications, and regional general permit verifications. Some companies that need to secure DA permits for their projects may also have in-house environmental experts whose responsibilities include ensuring compliance with applicable environmental laws. Some permit applicants may attempt to obtain DA permits without hiring a consultant. The Corps is not aware of any studies that have examined whether there are any substantial differences in proficiency between federal agency environmental staff and environmental consultants in achieving environmental compliance and securing DA permits. Such studies would be helpful in deciding whether to modify the NWPs to implement Principle I.C.1. If any commenters are aware of such studies, the Corps would like to receive citations for those studies or copies of the studies themselves, to assist with decision-making for the final NWPs.
Consistent with this legislative principle, we are seeking comment on whether to modify the NWPs that require pre-construction notification to limit the PCN requirement to non-federal permittees. We request that commenters provide their views on whether they support or oppose having different PCN requirements for Federal and non-Federal permittees, with supporting information to explain their views. The NWPs that require PCNs, in addition to the NWPs identified in the E.O. 13783 report discussed above, are:
• NWP 7, Outfall Structures and Associated Intake Structures.
• NWP 8, Oil and Gas Structures on the Outer Continental Shelf.
• NWP 13, Bank Stabilization.
• NWP 18, Minor Discharges.
• NWP 31, Maintenance of Existing Flood Control Facilities.
• NWP 33, Temporary Construction, Access, and Dewatering.
• NWP 34, Cranberry Production Activities.
• NWP 36, Boat Ramps.
• NWP 37, Emergency Watershed Protection and Rehabilitation.
• NWP 38, Cleanup of Hazardous and Toxic Waste.
• NWP 45, Repair of Uplands Damaged by Discrete Events.
• NWP 46, Discharges in Ditches.
• NWP 53, Removal of Low-Head Dams.
• NWP 54, Living Shorelines.
If, after evaluating the comments received in response to this proposed rule, we decide to remove the PCN
requirement for Federal permittees, it may be beneficial to add a definition of “non-federal permittee” to Section E, “Definitions.” The phrase “non-federal permittee” would be added to the “Notification” provision of each NWP that requires pre-construction notification within the terms of the NWP. We are seeking comment on the following definition of “non-federal permittee”:
Non-federal permittee: Any person, organization (other than an agency or instrumentality of the United States federal government), or tribal, state, or local government agency that wants to use an NWP to conduct an activity that requires Department of the Army authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. State transportation agencies to which the Federal Highway Administration (FHWA), Federal Railway Administration (FRA), or Federal Transit Administration (FTA) has assigned its NEPA responsibilities pursuant to 23 U.S.C. 326 and 23 U.S.C. 327, or which are carrying out regulated activities for projects when FHWA, FRA, or FTA is the lead federal agency, are considered, for the purposes of the NWP Program, to be federal permittees with respect to those highway projects for which they have assigned NEPA responsibilities or for which FHWA is the lead federal agency.
This definition of “non-federal permittee” would exclude state departments of transportation that have been assigned the responsibility for complying with NEPA under 23 U.S.C. 326 and 327 by the Federal Highways Administration (FHWA), Federal Railway Administration (FRA), or Federal Transit Administration (FTA) with respect to those projects for which they have assigned NEPA responsibilities only. This exclusion would have the effect of allowing those state agencies to be considered to be federal permittees for the purposes of the PCN requirements for the NWPs for specific projects. In some instances FHWA may assign NEPA responsibility to the state for all federal highway projects in the state. In other instances the FHWA may assign NEPA responsibility to the state only for specific federal highway projects. The exclusion of the state agency from the PCN requirements would only apply to federal highway projects in those states for which FHWA has assigned the state NEPA responsibility for all federal highway projects in the state. In addition, with respect to compliance with other non-NEPA environmental statutes (
e.g.,
Section 7 of the Endangered Species Act and Section 106 of the National Historic Preservation Act) the assignment of responsibility for compliance with those non-NEPA environmental statutes is at the discretion of FHWA. In other words, while a state Department of Transportation may have been assigned NEPA responsibility, the FHWA may not have assigned responsibility for ESA section 7 or NHPA section 106 compliance, and the prospective permittee (
i.e.,
the state DOT) would therefore be considered a non-federal permittee with respect to paragraph (c) of general conditions 18 (endangered species) and 20 (historic properties).
If the NWPs are modified so that PCNs are no longer required for federal permittees, district engineers would still retain the authority to review any activity authorized by an NWP to determine whether that activity complies with the terms and conditions of the NWP (see 33 CFR 330.1(d)). In addition, under 33 CFR 326.4, district engineers may take reasonable measures to inspect permitted NWP activities to ensure that those activities comply with the terms and conditions of the NWPs. If federal permittees are no longer required to submit PCNs, district engineers would also still retain their authority to modify, suspend, or revoke NWP authorizations on a case-by-case basis by following the procedures in 33 CFR 330.5(d). District engineers would continue to exercise this discretionary authority to modify NWP authorizations when they find that proposed activities will have more than minimal individual and cumulative adverse environmental effects or otherwise may be contrary to the public interest (33 CFR 330.1(d)). Through their discretionary authority, district engineers may also instruct federal permittees to apply for individual permits if the NWP authorization cannot be modified to reduce or eliminate adverse environmental effects to qualify for NWP authorization.
If the NWPs are modified so that PCNs are no longer required for federal permittees, for the purposes of determining compliance with the requirement that NWPs can only authorize activities that result in no more than minimal individual and cumulative adverse environmental effects, the Corps would take into account the NWP activities undertaken by federal permittees without PCNs in the same manner as it takes into account other activities authorized by NWPs that do not require PCNs. Under 40 CFR 230.7(b)(3) of the 404(b)(1) Guidelines, the Corps is required to predict cumulative effects. This prediction of cumulative effects includes the number of activities expected to be authorized by the NWP during the period it remains in effect. For NWP activities that do not require PCNs, this requires the Corps to estimate the number of times the NWP would be used during the period it remains in effect (usually 5 years). The Corps would also estimate the losses of waters of United States anticipated to occur during the period the NWP remains in effect. While some of the NWP activities conducted by federal permittees may include compensatory mitigation to offset losses of waters and wetlands, that compensatory mitigation would not be incorporated into the NWP authorization through legally-binding permit conditions in accordance with 33 CFR 332.3(k) because the Corps would not be reviewing and approving the compensatory mitigation plan for these non-PCN activities. Therefore, the Corps would not be estimating the amount of compensatory mitigation required for these activities because the Corps would not be imposing those compensatory mitigation requirements. The estimates developed for these non-PCN activities would help inform the Corps during the next NWP reissuance process, and in any interim decisions to modify, suspend, or revoke a particular NWP.
F. Process for Modifying and Reissuing the NWPs
The NWPs that were reissued on December 21, 2016, went into effect on March 19, 2017. Those NWPs expire on March 18, 2022. The process for modifying and reissuing the NWPs for the next five-year cycle starts with today's publication of the proposed NWPs in the
Federal Register
for a 60-day comment period and may include a public hearing. Requests for a public hearing must be submitted in writing to the address in the
ADDRESSES
section of this notice. These requests must explain the reason or reasons why a public hearing should be held. If the Corps determines that a public hearing or hearings would assist in making a decision on the proposed NWPs, general conditions, and definitions, a 30-day advance notice will be published in the
Federal Register
to advise interested parties of the date(s) and location(s) for the public hearing(s). Any announcement of public hearings would also be posted as a supporting document in docket number COE-2020-0002 at
www.regulations.gov
as well as the Corps Regulatory Program home page at
http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx
.
Shortly after the publication of this
Federal Register
notice, Corps district offices will issue public notices to solicit comments on proposed Corps regional conditions. In their district
public notices, consistent with 33 CFR 330.5(b)(2)(ii), district engineers may also propose to suspend or revoke some or all of these NWPs if they have issued, or are proposing to issue, regional general permits, programmatic general permits, or section 404 letters of permission for use instead of some or all of these NWPs. The comment period for these district public notices will be 45 days. See Regional Conditioning of Nationwide Permits below for more information on this process.
After the publication of this
Federal Register
notice, Corps district offices will send letters to Clean Water Act Section 401 certifying authorities (
i.e.,
states authorized tribes, and where appropriate, EPA) to request water quality certification (WQC) for those NWPs that may result in a discharge from a point source into waters of the United States. The certifying agencies will have 60 days to act on the certification request, consistent with the “reasonable period of time” established in the Corps' regulations for the purposes of Clean Water Act Section 401(a)(1) (see 33 CFR 330.4(c)(6) and 325.2(b)(1)(ii)).
We believe that 60 days is sufficient for certifying agencies to complete their WQC decisions for the proposed NWPs. The Corps' regulations at 33 CFR 330.4(c)(1) states that issuance of water quality certification, or a waiver, is required prior to the issuance or reissuance of NWPs authorizing activities which may result in a discharge into waters of the United States. Corps districts provide a 60-day period for certifying authorities to act on a certification request for NWPs (including reviewing any regional conditions being proposed by the districts). Under section 401(a)(2), a federal agency must notify the EPA Administrator after it receives a certification and application for a federal permit. The EPA Administrator then has 30 days to determine, at his or her discretion, whether a discharge from a certified project may affect the waters quality of a neighboring jurisdiction.
This process is consistent with current WQC procedures, where certifying authorities conduct their evaluations on a proposed federal permit, so that any necessary WQC conditions can be incorporated into the federal permit before it is issued. It is also consistent with the Clean Water Act Section 401 Certification Rule that was signed by EPA on June 1, 2020, and published in the
Federal Register
on July 13, 2020 (85 FR 42210).
After the publication of this
Federal Register
notice, Corps district offices will send letters with consistency determinations pursuant to the Coastal Zone Management Act to the state agencies responsible for coastal zone management. Each letter will request that the state agency review the Corps district's consistency determination and, if necessary, provide conditions based on specific enforceable coastal zone management policies that would allow the state agency to concur with the Corps district's consistency determination (see 15 CFR 930.31(d)). The state agency will have at least 90 days to review the Corps district's consistency determination unless the state agency and Corps agree to an alternative notification schedule (see 15 CFR 930.36(b)). This review period can be extended if the Corps and the state agency agree to an alternative notification schedule. If the state issues a consistency concurrence with conditions, the division engineer will make those conditions regional conditions for the NWP in that state, unless he or she determines that the conditions do not comply with the provisions of 33 CFR 325.4 (see 33 CFR 330.4(d)(2)). If the division engineer determines the conditions identified by the state do not comply with the provisions of 33 CFR 325.4, project proponents who want to use those NWPs will need to obtain individual CZMA consistency concurrences or presumptions of concurrence.
During the period between the issuance of the final NWPs and their publication in the
Federal Register
, Corps districts will prepare supplemental documents and proposed regional conditions for approval by division engineers before the final NWPs go into effect. The supplemental documents address the environmental considerations related to the use of NWPs in a Corps district, state, or other geographic region. The supplemental documents will certify that the NWPs, with any regional conditions or geographic suspensions or revocations, will authorize only those activities that result in no more than minimal individual and cumulative adverse effects on the environment or any relevant public interest review factor. The Corps' public interest review factors are listed in 33 CFR 320.4(a)(1) and are discussed in more detail in subsequent paragraphs in § 320.4.
G. Status of Existing Permits
Activities authorized by the 2017 NWPs currently remain authorized by those NWPs until March 18, 2022. Under 33 CFR 330.6(a)(3)(ii), if the NWP is reissued without modification or the activity complies with any subsequent modification of the NWP authorization, the NWP verification letter (
i.e.,
the written confirmation from the district engineer that the proposed activity is authorized by NWP) should include a statement that the verification will remain valid for a period of time specified in the verification letter. The specified period of time is usually the expiration date of the NWP. In other words, for the 2017 NWPs, if the previously verified activity continues to qualify for NWP authorization after the NWP is reissued or modified, that verification letter continues to be in effect until March 18, 2022, unless the district engineer specified a different expiration date in the NWP verification letter. For most activities authorized by the 2017 NWPs, where the district engineer issued an NWP verification letter, the verification letter identified March 18, 2022, as the expiration date for those NWPs. As long as the verified NWP activities comply with the terms and conditions of the modified and reissued 2020 NWPs, those activities continue to be authorized by the applicable NWP(s) until March 18, 2022, unless the district engineer modifies, suspends, or revokes a specific NWP authorization.
Under 33 CFR 330.6(b), Corps Headquarters may modify, reissue, or revoke the NWPs at any time. Activities that were authorized by the previous set of NWPs which have commenced (
i.e.,
are under construction) or are under contract to commence in reliance upon an NWP will remain authorized provided the activity is completed within twelve months of the date of an NWP's expiration, modification, or revocation, unless discretionary authority has been exercised by a division or district engineer on a case-by-case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e) and 33 CFR 330.5(c) or (d). This provision applies to activities that were previously verified by the district engineer as qualifying for NWP authorization, but no longer qualify for NWP authorization under the modified or reissued NWP.
To avoid having two sets of NWPs in effect at the same time and to comply with § 330.6(b), we may change the expiration date of the 2017 NWPs if we issue the final NWPs after we consider the comments received in response to this proposed reissuance and modification of NWPs. We may change the expiration date of the 2017 NWPs so that they expire the day before the 2020 NWPs go into effect. We are soliciting comment on whether to change the expiration date of the 2017 NWPs to the day before the 2020 NWPs go into effect. The actual date will be specified when
we issue the final NWPs because we are uncertain when the final NWPs will be issued and published in the
Federal Register
.
An activity completed under the authorization provided by a 2017 NWP continues to be authorized by that NWP (see 33 CFR 330.6(b)) regardless of whether the Corps finalizes the 2020 NWPs. If we change the expiration date for the 2017 NWPs, project proponents will have time to complete those activities under the terms and conditions of the 2017 NWPs (see 33 CFR 330.6(b)). As discussed above, that amount of time is dependent on whether the activity qualifies for authorization under the reissued or modified NWP. If the activity qualifies for authorization under the reissued or modified NWP, the original NWP verification letter will continue to be valid under March 18, 2022, unless the district engineer identified a different expiration date in that verification letter. If the activity no longer qualifies for NWP authorization under the reissued or modified NWP, the project proponent would have 12 months to complete the authorized activity as long as that activity is under construction or under contract to commence construction before the reissued or modified NWP goes into effect. If the project proponent does not have the activity under construction or under contract to commence construction before the reissued or modified NWP goes into effect, he or she will need to seek another form of DA authorization. After that 12 month period, if those activities no longer qualify for NWP authorization because they do not meet the terms and conditions of the 2020 NWPs (including any regional conditions imposed by division engineers), the project proponent will need to obtain an individual permit, or seek authorization under a regional general permit, if such a general permit is available in the applicable Corps district and can be used to authorize the proposed activity.
H. Regional Conditioning of Nationwide Permits
Under Section 404(e) of the Clean Water Act, NWPs can only be issued for those activities that result in no more than minimal individual and cumulative adverse environmental effects. For activities that require authorization under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), the Corps' regulations at 33 CFR 322.2(f) have a similar requirement. Since it can be difficult for the Corps to draft national NWPs in such a way that they account for regional differences, an important mechanism for ensuring compliance with these requirements is regional conditions imposed by division engineers to address local environmental concerns. Effective regional conditions help protect local aquatic ecosystems and other resources and help ensure that the NWPs authorize only those activities that result in no more than minimal individual and cumulative adverse effects on the aquatic environment and are not contrary to the public interest.
There are two types of regional conditions: (1) Corps regional conditions and (2) water quality certification/Coastal Zone Management Act consistency concurrence regional conditions. Corps regional conditions are added to the NWPs by division engineers in accordance with the procedures at 33 CFR 330.5(c). Water quality certification and Coastal Zone Management Act consistency concurrence regional conditions are also added to the NWPs if an appropriate certifying authority issues a water quality certification or CZMA consistency concurrence with special conditions prior to the effective date of the issued, reissued, or modified NWPs.
Examples of Corps regional conditions include:
• Restricting the types of waters of the United States where the NWPs may be used (
e.g.,
fens, bogs, bottomland hardwood forests, etc.) or prohibiting the use of some or all of the NWPs in those types of waters or in specific watersheds.
• Restricting or prohibiting the use of NWPs in an area covered by a Special Area Management Plan, where regional general permits are issued to authorize activities consistent with that plan that have only minimal adverse environmental effects.
• Revoking certain NWPs in a watershed or other type of geographic area (
e.g.,
a state or county).
• Adding PCN requirements to NWPs to require notification for all activities or lowering PCN thresholds, in certain watersheds or other types of geographic areas, or in certain types of waters of the United States.
• Reducing NWP acreage limits in certain types of waters of the United States (
e.g.,
streams) or specific waterbodies, or in specific watersheds or other types of geographic regions.
• Restricting activities authorized by NWPs to certain times of the year in a particular waterbody, to minimize the adverse effects of those activities on fish or shellfish spawning, wildlife nesting, or other ecologically cyclical events.
• Conditions necessary to facilitate compliance with the “Endangered Species” general condition, to appropriately enhance protection of listed species or critical habitat under the Endangered Species Act.
• Conditions necessary to facilitate compliance with the “Tribal Rights” general condition, to appropriately enhance protection of tribal trust resources, including natural and cultural resources and Indian lands.
• Conditions necessary for ensuring compliance with the “Historic Properties” general condition, to appropriately protect historic properties.
• Conditions necessary to ensure that NWP activities have no more than minimal adverse effects to Essential Fish Habitat.
Corps regional conditions approved by division engineers cannot remove or reduce any of the terms and conditions of the NWPs, including general conditions. Corps regional conditions cannot lessen PCN requirements. In other words, Corps regional conditions can only be more restrictive than the NWP terms and conditions established by Corps Headquarters when it issues or reissues an NWP.
The Corps' regulations for establishing WQC regional conditions for the NWPs are located at 33 CFR 330.4(c)(2). If, prior to the issuance or reissuance of NWPs, a state, authorized tribe, or EPA issues a Clean Water Act section 401 water quality certification with conditions, the division engineer will make those water quality certification conditions regional conditions for the applicable NWPs, unless he or she determines those conditions do not comply with 33 CFR 325.4 (see 33 CFR 330.4(c)(2)). For more information on compliance with Section 401 of the CWA, refer to Section II.G.
If the division engineer determines those water quality certification conditions do not comply with 33 CFR 325.4, then the conditioned water quality certification will be considered denied, and the project proponent will need to request a water quality certification for the proposed discharge from the certifying authority. That certification request must satisfy the requirements of 40 CFR 121.5(b). The certifying authority may issue or deny water quality certification for an individual license or permit for an activity that “may result in a specific discharge or set of discharges into waters of the United States” (85 FR 42281). In its final rule, EPA does not define the term “individual license or permit” and because 40 CFR part 121 applies to all federal permits subject to Section 401 of the Clean Water Act the term “individual license or permit” it is
reasonable to infer that it refers to any type of federal permit that authorizes an activity that results in a discharge from a point source into waters of the United States. Therefore, applying the recently issued amendments to 40 CFR part 121 to the Corps Regulatory Program would mean that an individual permit or license in the section 401 context refers to any DA individual permit or general permit (including an NWP) that authorizes an activity that results in specific discharge into waters of the United States for a specific project.
A similar process applies to a CZMA consistency concurrence issued by a state for the issuance of an NWP (see 33 CFR 330.4(d)(2)). If the division engineer determines those CZMA concurrence conditions do not comply with 33 CFR 325.4, then the conditioned CZMA consistency certification will be considered an objection, and the project proponent will need to request an activity-specific CZMA consistency concurrence from the state (see 15 CFR 930.31(d)) under subpart D of 15 CFR part 930.
Corps regional conditions may be added to NWPs by division engineers after a public notice and comment process and coordination with appropriate federal, state, and local agencies, as well as tribes. After Corps Headquarters publishes in the
Federal Register
the proposal to issue, reissue, or modify NWPs, district engineers issue local public notices to advertise the availability of the proposed rule for comment and to solicit public comment on proposed regional conditions and/or proposed revocations of NWP authorizations for specific geographic areas, classes of activities, or classes of waters (see 33 CFR 330.5(b)(1)(ii)). Comments on proposed regional conditions should be sent to the Corps district that issued the public notice. The process for adding Corps regional conditions to the NWPs is described at 33 CFR 330.5(c). The regulations for the regional conditioning process were promulgated in 1991, with the proposed rule published in the
Federal Register
on April 10, 1991 (56 FR 14598) and the final rule published in the
Federal Register
on November 22, 1991 (56 FR 59110).
As discussed above, regional conditions are an important tool for taking into account regional differences in aquatic resources and their local importance and for ensuring that the NWPs comply with the requirements of Section 404(e) of the Clean Water Act, especially the requirement that activities authorized by NWPs may only result in no more than minimal individual and cumulative adverse environmental effects. Regional conditions are modifications of the NWPs that are made by division engineers. Regional conditions can only further condition or restrict the applicability of an NWP (see 33 CFR 330.1(d)). Under 33 CFR 330.5(c)(1)(i), the first step of the Corps' regional conditioning is for district engineers to issue public notices announcing proposed regional conditions, and solicit public comment on those proposed regional conditions, usually for a 45-day comment period. That public notice also solicits suggestions from interested agencies and the public on additional regional conditions that they believe are necessary to ensure that the NWPs authorize only those activities that have no more than minimal adverse environmental effects. The district public notices are issued shortly after Corps Headquarters publishes the proposed NWPs in the
Federal Register
for a 60-day comment period.
In response to the district's public notice, interested parties may suggest additional Corps regional conditions or changes to Corps regional conditions. Interested parties may also suggest suspension or revocation of NWPs in certain geographic areas, such as specific watersheds or waterbodies. Such comments should include data to support the need for the suggested modifications, suspensions, or revocations of NWPs.
After the public comment period ends for the district public notices, the Corps district evaluates the comments and begins preparing the supplemental documents required by 33 CFR 330.5(c)(1)(iii). Each supplemental document will evaluate the NWP on a regional basis (
e.g.,
by Corps district geographic area of responsibility or by state) and discuss the need for regional conditions for that NWP. Each supplemental document will also include a statement by the division engineer that will certify that the NWP, with approved regional conditions, will authorize only those activities that will have no more than minimal individual and cumulative adverse environmental effects. The supplemental documents may cover a Corps district, especially in cases where the geographic area of responsibility for the Corps district covers an entire state. If more than one Corps district operates in a state, the lead district is responsible for preparing the supplemental documents and coordinating with the other Corps districts. The supplemental documents include an evaluation of public and agency comments, with responses to those comments, to show that the views of potentially affected parties were fully considered (33 CFR 330.5(c)(1)(ii)). The supplemental document also includes a statement of findings demonstrating how substantive comments were considered. After the supplemental documents are drafted by the district, they are sent to the division engineer for review along with the district's recommendations for regional conditions. The division engineer may approve the supplemental documents or request changes to those supplemental documents, including changes to the regional conditions recommended by the district.
After the division engineer approves the regional conditions and signs the supplemental documents, the district issues a public notice announcing the final Corps regional conditions and when those regional conditions go into effect (see 33 CFR 330.5(c)(1)(v)). The district's public notice is posted on its website. Copies of the district's public notice are also sent to interested parties that are on the district's public notice mailing list via email or the U.S. mail. The public notice will also describe, if appropriate, a grandfathering period as specified by 33 CFR 330.6(b) for those who have commenced work under the NWP or are under contract to commence work under the NWP (see 33 CFR 330.5(c)(1)(iv)). A copy of all Corps regional conditions approved by the division engineers for the NWPs are forwarded to Corps Headquarters (see 33 CFR 330.5(c)(3)).
Under the current regulations, Corps Headquarters does not have a role in the development and approval of Corps' regional conditions by division engineers. Corps Headquarters provides templates for the supplemental documents required by § 330.5(c)(1)(iii), to promote consistency in those supplemental documents. If requested by district and division offices, Corps Headquarters also provides advice on appropriate Corps regional conditions for the NWPs. The Corps is a highly decentralized organization, with most of the authority for administering the regulatory program delegated to the 38 district engineers and 8 division engineers (see 33 CFR 320.1(a)(2)). District engineers are responsible for the day-to-day implementation of the Corps' Regulatory Program, including the evaluation of applications for individual permits, evaluating PCNs for proposed NWP activities, evaluating notifications for activities authorized by regional general permits, responding to requests for approved and preliminary jurisdictional determinations, conducting compliance and enforcement actions, and other tasks. Division engineers are responsible for
overseeing implementation of the Regulatory Program by their districts, and making permit decisions referred to them by district engineers under the circumstances identified in 33 CFR 325.9(c). Under that section of the Corps' regulations, a division engineer can refer certain permit applications to the Chief of Engineers for a decision. Other than making permit decisions under the circumstances listed in § 325.9(c), Corps Headquarters is responsible for development of regulations, guidance, and policies.
In response to our July 20, 2017,
Federal Register
notice (82 FR 33470) issued for E.O. 13777, “Enforcing the Regulatory Reform Agenda,” we received numerous comments regarding regional conditioning of the NWPs. These comments are summarized below.
Several commenters stated that there should be greater uniformity in regional conditions for the NWPs, to provide consistent availability of NWPs across Corps districts. Most of these commenters implied that the desired consistency should be achieved at a national level to provide the same level of NWP availability across all Corps districts. One commenter acknowledged the need for regional conditions to tailor the NWP program to address local resources, but said that some of the regional conditions are too broad and unnecessarily restrict use of the NWPs. Another commenter indicated that there needs to be more consistency in regional conditions, especially for regional conditions that change NWP PCN requirements.
Since the purpose of regional conditions is to tailor the NWPs to account for regional differences in aquatic resource types, the functions they provide, and their value to the region so that the NWPs in a particular geographic area authorize only those activities that result in no more than minimal individual and cumulative adverse environmental effects, requiring consistency among regional conditions at a national level would be contrary to the purpose of regional conditions and would reduce the utility of the NWPs. In other words, the ability to add restrictions to one or more NWPs at a regional level to ensure that those activities result in no more than minimal individual and cumulative adverse environmental effects allows the national terms and conditions to be less restrictive, and thereby potentially appropriate, in other areas of the country. This ability to tailor the NWP program in specific areas of the country allows the NWPs to cover more activities than would be possible if the need for greater restrictions in one part of the country had to be applied to the nation as a whole. We agree that regional conditions should be written clearly and provide only the additional restrictions that are necessary to ensure that NWP activities in that region result only in minimal individual and cumulative adverse environmental effects, consistent with the requirements of Section 404(e) of the Clean Water Act.
Under the Corps' current regulations at 33 CFR 330.5(c), the authority to approve Corps regional conditions is assigned to division engineers. A division engineer can take steps to provide consistency in Corps regional conditions for the districts within his or her division. However, it should also be noted that the eight Corps divisions encompass large geographic regions and there can be substantial differences in aquatic resource types, functions, and values within a Corps division. For example, the Corps' Northwestern Division extends from the northwest coast to the Midwest, with oceanic and estuarine waters along the coasts of Oregon and Washington, to inland wetlands and rivers in Missouri and Nebraska. As another example, the Mississippi Valley Division extends from Louisiana, with its extensive coastal wetlands and bottomland hardwood forests to Minnesota, which has many lakes, bogs, marshes, and swamps. In addition, there are usually also substantial differences in other resources that are subject to regional conditions, to facilitate compliance with other applicable federal laws, such as Section 7 of the Endangered Species Act, the Essential Fish Habitat provisions of the Magnuson-Stevens Fishery Conservation and Management Act, Section 106 of the National Historic Preservation Act, and the Wild and Scenic Rivers Act. The presence and ranges of endangered and threatened species, and the locations of designated critical habitat often vary substantially within a Corps division. Most coastal Corps districts have essential fish habitat in their geographic areas of responsibility, whereas inland districts do not. Therefore, because of the substantial variation of aquatic resources and other resources both nationally and within Corps divisions, consistency in regional conditions necessary to ensure that NWPs only authorize activities that have no more than minimal adverse environmental effects cannot be practicably achieved at a national or division level without reducing the availability of NWPs in other areas.
Several commenters requested that the Corps establish a single, national website where all proposed and final regional conditions for the NWPs could be posted, to facilitate public review of the proposed regional conditions. This national website would help awareness of the final regional conditions and help project proponents plan their NWP activities. A few of these commenters also asked that this national website include proposed and final general WQC and general CZMA consistency concurrences for the NWPs.
In response to these comments, we will be posting copies of the district public notices soliciting input for proposed regional conditions in the
www.regulations.gov
docket for this rulemaking action (docket number COE-2020-0002), under Supporting and Related Material. In addition, when these NWPs are finalized, we will post copies of all district public notices announcing the final regional conditions in the
www.regulations.gov
docket for this rulemaking action, so that copies of all these district public notices are available in a single location. This docket is intended to provide a central location for interested parties to obtain information on the Corps regional conditions being proposed by Corps districts, and for states where there is a lead Corps district to provide consistency in Corps regional conditions within a state. Comments on proposed Corps regional conditions will still have to be sent to the Corps district identified in the public notice, not to Corps Headquarters.
At present, districts manage their own processes for soliciting public comment on their regional conditions. In general, they make solicitations of public comment available on their own website and do not always make the comments they receive publically available. To further improve the transparency on the regional conditioning process, the Corps is considering whether to require the districts to post and solicit public comment on notices proposing regional conditions in separate dockets at
www.regulations.gov
. We solicit public comment on whether to implement this or a similar requirement relating to the regional conditioning process and any factors we should consider.
When a state, authorized tribe, or EPA issues a WQC for the issuance of an NWP and that WQC includes conditions, those conditions become WQC regional conditions if, after recommendation by the district engineer, the division engineer determines that those conditions are acceptable under 33 CFR 330.4(c)(2). When a state issues a general CZMA consistency concurrence with conditions for an NWP, those conditions become CZMA regional conditions if,
after recommendation by the district engineer, the division engineer determines those conditions are acceptable under 33 CFR 330.4(d)(2). The processes for states, approved tribes, and EPA to issue WQCs for the issuance of the NWPs, and for states to issue general CZMA consistency concurrences for the NWPs are separate from the Corps' regional conditioning process under 33 CFR 330.5(c), and are governed by state, tribal, EPA, or Department of Commerce regulations. Individuals who are interested in providing comments specific to WQCs and CZMA consistency determinations for the issuance of NWPs should submit their comments directly to the appropriate state, authorized tribe, or EPA regional office. Because these processes are separate from the Corps' regional conditioning process, the public notices issued by states, authorized tribes, and EPA regions during the WQC and CZMA consistency determination processes will not be included in the national website for proposed and final Corps regional conditions for the NWPs.
When the final WQCs and CZMA consistency concurrences are issued and after the final NWPs are issued, division engineers will review those WQCs and CZMA consistency concurrences in accordance with 33 CFR 330.4(c)(2) and (d)(2), respectively, and determine which conditions are WQC/CZMA regional conditions for the final NWPs. Division engineers will also finalize any Corps regional conditions. After division engineers finalize Corps regional conditions, Corps districts will issue public notices announcing the final regional conditions and the final WQCs and CZMA consistency concurrences for the issuance of the NWPs. We will post copies of the district public notices announcing the final Corps regional conditions and final WQC/CZMA regional conditions in the
regulations.gov
docket (docket number COE-2020-0002), under “Supporting and Related Material.” after
A number of commenters said that the only regional conditions that should be approved by division engineers are those permit conditions that are truly necessary to ensure compliance with the statutory requirement that the NWPs may only authorize activities that result in no more than minimal individual and cumulative adverse environmental effects. One commenter said that excessive and unnecessary regional conditions conflict with the goal of the NWP Program to provide timely authorizations while protecting the Nation's aquatic resources. One commenter asserted that Corps Headquarters should provide further guidance on what is appropriate for NWP regional conditions. A few commenters recommended that Corps Headquarters establish a process that requires division engineers to secure Corps Headquarters concurrence before approving NWP regional conditions, and another commenter said that the approving authority for regional conditions should be Headquarters, not the division engineer. A couple of commenters suggested reducing the ability of division and district engineers to exercise discretionary authority to modify, suspend, or revoke the NWPs.
In response to the concerns about overly broad and numerous regional conditions being imposed on the NWPs, Corps Headquarters will encourage that division engineers approve only those Corps' regional conditions that are necessary to ensure that the NWPs authorize only those activities that have no more than minimal individual and cumulative adverse environmental effects. Regional conditions should not be an impediment to fulfilling the objective of the NWP Program, which is to “regulate with little, if any, delay or paperwork certain activities having minimal impacts.” (33 CFR 330.1(b).) Division engineers should carefully analyze all proposed Corps regional conditions, as well as additional Corps regional conditions suggested by other agencies and the public, and determine which of those Corps regional conditions are absolutely necessary to ensure that the NWPs in a particular region only authorize those activities that have no more than minimal individual and cumulative adverse environmental effects.
If, during implementation of the NWPs, new information arises that warrants new or modified Corps regional conditions to comply with the no more than minimal adverse environmental effects requirement for NWPs, Corps division engineers may approve new or modified regional conditions after following the procedures in 33 CFR 330.5(c). This includes a public notice and comment process. Information on regional conditions and the suspension or revocation of one or more NWPs in a particular area can be obtained from the appropriate district engineer.
Regarding suggestions that the Corps establish a process that requires division engineers to secure Corps Headquarters concurrence before approving NWP regional conditions, implementing such an approach would require conducting rulemaking to amend the NWP regulations at 33 CFR part 330. Those regulations identify the division engineer as the approving authority for regional conditions. While revising those regulations is outside the scope of this action, the Corps is considering whether to update those regulations. Another commenter said that the approving authority for Corps regional conditions can seek the advice of Corps Headquarters on whether to approve Corps regional conditions, but securing concurrence from Corps Headquarters is not required by the current regulations.
With respect to the WQC/CZMA regional conditions, the Corps has to accept the conditions added to a general WQC by the certifying authority (see 40 CFR 121.7(d)) or added to a general CZMA consistency concurrence by the state agency (see 15 CFR 930.31(d)), unless the division engineer determines that any of those conditions do not comply with the provisions of 33 CFR 325.4 (see 33 CFR 330.4(c)(2) and (d)(2), respectively). Section 325.4 addresses conditions for individual permits and general permits. The WQC and CZMA reviews are separate and independent administrative review processes for the NWPs. Public comments on state, tribal, or EPA WQC conditions that could become WQC regional conditions under 33 CFR 330.4(c)(2) should be sent directly to the appropriate certifying agency. Public comments on state CZMA consistency concurrence that could become CZMA regional conditions under 33 CFR 330.4(d)(2) should be sent directly to the state. The public should not send comments on proposed WQC/CZMA conditions to the Corps.
If the state, approved tribe, or EPA region issues a conditioned general WQC for the NWPs, the division engineer will review those conditions and make them WQC regional conditions unless he or she determines that those conditions do not comply with the provisions of 33 CFR 325.4 (see 33 CFR 330.4(c)(2)). If the division engineer determines that any of the WQC conditions do not comply with 33 CFR 325.4, he or she will consider WQC to be denied and any project proponent that wants to use the affected NWPs will need to obtain a WQCs or waiver for an activity that may result in a specific discharge or set of discharges that requires NWP authorization. To request WQC, the project proponent will need to submit a certification request that satisfies the requirements of 40 CFR 121.5(b) to the appropriate certifying authority.
If the state issues a conditioned CZMA consistency concurrence for the NWPs, the division engineer will review those conditions and make them CZMA regional conditions unless she or he
determines that those conditions do not comply with 33 CFR 325.4 (see 33 CFR 330.4(d)(2)). If the division engineer determines that any of the CZMA general consistency concurrence conditions do not comply with 33 CFR 325.4, he or she will consider CZMA consistency concurrence to be denied and project proponents that want to use the affected NWPs will need to obtain individual CZMA consistency concurrences or presumptions of concurrence in accordance with the applicable procedures in subpart D of 15 CFR part 930 (see 15 CFR 930.31(d)).
After the division engineer reviews the final WQCs and general CZMA consistency concurrences issued by the appropriate authorities for the Corps' issuance of the NWPs, as well as compliance with § 325.4 for any conditions added to those final determinations, each Corps district will issue a public notice that announces the availability of WQCs and, if applicable, general CZMA consistency concurrences for the issued NWPs. The public notice will also announce any final WQC/CZMA regional conditions. The final public notices will also announce the final status of water quality certifications and CZMA consistency determinations for the NWPs.
In cases where a Corps district has issued a regional general permit that authorizes similar activities as one or more NWPs, during the regional conditioning process the district will clarify the use of the regional general permit versus the NWP(s). For example, the division engineer may revoke the applicable NWP(s) so that only the regional general permit is available for use to authorize those activities.
Through this proposed rule, the Corps is soliciting comments on whether rulemaking should be done to amend 33 CFR 330.5(c) to clarify and improve the regional conditioning process and what specific revisions the Corps should consider making. For example, are there actions that the Corps should take to improve transparency, clarity, and efficiency of regional conditions and the process by which they are established? Also, should copies of the final WQCs issued by states, tribes and EPA for the issuance of the NWPs, and final general CZMA consistency concurrences issued by states for the issuance of the NWPs also be posted in the
www.regulations.gov
docket for the issuance or reissuance of NWPs, along with the final Corps regional conditions? Are there other process improvements that the Corps should consider in regards to the regional conditioning process?
II. Summary of Proposal
In this proposed rule, the Corps proposes to reissue the 52 existing NWPs with some modifications and to issue five new NWPs. The new NWPs, if issued, would authorize seaweed mariculture activities, finfish mariculture activities, and electric utility line/telecommunications activities, utility line activities for water and other substances, and discharges associated with water reclamation and reuse facilities.
The proposal to issue two new NWPs for mariculture activities would complement the existing NWP on shellfish mariculture and provide NWP authorization for all three major sectors of mariculture in coastal waters: Shellfish, seaweed, and finfish. The proposed NWP for finfish mariculture activities would apply only to offshore finfish mariculture operations in marine and estuarine waters. The proposed NWP for finfish mariculture activities would not authorize the construction of land-based finfish mariculture facilities such as ponds to produce carp and other finfish.
We are proposing to modify NWP 12, which has authorized various types of utility lines since 1977, to limit that NWP to oil and natural gas pipeline activities, and proposing to issue two new NWPs to authorize electric utility line and telecommunications activities and activities for other types of utility lines that are not covered by either the proposed modifications to NWP 12 or the proposed new NWP for electric utility line and telecommunications activities. For the proposed modification of NWP 12 and for the proposed two new NWPs for other types of utility lines, we are inviting comments on national best management practices that could be added as terms to any of these NWPs to help ensure that a particular type of utility line results in no more than minimal individual and cumulative adverse environmental effects. For example, there may be national best management practices used by the oil or natural gas pipeline industries that could be added to the proposed NWP 12 to address relevant environmental or logistical questions specific to oil or natural gas pipelines, where those pipelines cross waters of the United States. There may be other national best management practices that apply solely to electric utility lines/telecommunications lines that would ensure that electric utility line and telecommunication line crossings of waters of the United States and electric/telecommunication substations constructed in waters of the United States cause no more than minimal adverse environmental effects.
We are proposing to authorize discharges of dredged or fill material into jurisdictional waters for the construction, expansion, and maintenance of water reuse and reclamation facilities. At present, many of these activities are already authorized by NWPs 29, 39, 40, and 42. However, we are proposing the new NWP since having the requirements in a single place may add needed clarity and simplify the application process. We are inviting comment on whether to issue an NWP to authorize discharges of dredged or fill material into waters of the United States for the construction and expansion of water reclamation and reuse facilities. Alternatively, we are inviting comment on whether we should continue to authorize those activities as attendant features of activities authorized by NWPs 29, 39, 40, and 42.
We are proposing to revise the text of some of the NWPs, general conditions, and definitions so that they are clearer and can be more easily understood by the regulated public, government personnel, and interested parties while retaining terms and conditions that help protect the aquatic environment. Making the text of the NWPs clearer and easier to understand will also facilitate compliance with these permits, which will benefit the aquatic environment. The NWP program allows the Corps to authorize activities with only minimal adverse environmental impacts in a timely manner. Thus, the Corps is able to better protect the aquatic environment by focusing its limited resources on more extensive evaluations through the individual permit process, to provide more rigorous evaluation of activities that have the potential for causing more severe adverse environmental effects.
Through the NWPs, the aquatic environment may also receive additional protection through regional conditions imposed by division engineers and activity-specific conditions added to NWPs by district engineers. These regional conditions and activity-specific conditions further minimize adverse environmental effects, because these conditions can only further restrict use of the NWPs. Nationwide permits also allow Corps district engineers to exercise, on a case-by-case basis, discretionary authority to require individual permits for proposed activities that may result in more than minimal individual and cumulative adverse environmental effects. Nationwide permits help protect the aquatic environment because they
provide incentives to permit applicants to reduce impacts to jurisdictional waters and wetlands to meet the restrictive requirements of the NWPs and receive authorization more quickly than they would through the individual permit process. Regional general permits issued by district engineers provide similar environmental protections and incentives to project proponents.
We are proposing to reissue the general conditions, with some modifications. We are soliciting comment on all changes to the nationwide permits, general conditions, and definitions discussed below. Minor grammatical changes, the removal of redundant language, and other small administrative changes are not discussed in the preamble below. Therefore, commenters should carefully read each proposed NWP, general condition, and definition in this notice.
A. Proposed Removal of the 300 Linear Foot Limit for Losses of Stream Bed
In accordance with the recommendations in the report we issued in response to E.O. 13783 on ways to streamline the NWPs, we are proposing to remove the 300 linear foot limit for losses of stream bed from the NWPs 21 (Surface Coal Mining Activities), 39 (Commercial and Institutional Developments), 50 (Underground Coal Mining Activities), 51 (Land-Based Renewable Energy Generation Facilities), and 52 (Water-Based Renewable Energy Generation Pilot Projects) and to instead rely on the
1/2
-acre limit and PCN requirements to ensure that activities authorized by these NWPs result in no more than minimal adverse environmental effects. To provide consistency in the NWP Program, we are also proposing to remove the 300 linear foot limit for losses of stream bed from NWPs not mentioned in the report that also have that limit (
i.e.,
NWPs 29 (Residential Developments), 40 (Agricultural Activities), 42 (Recreational Facilities), 43 (Stormwater Management Facilities), and 44 (Mining Activities)) and to similarly rely on the
1/2
-acre limit and PCN requirements. The text of the proposed NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 are provided near the end of this proposed rule document, and the 300 linear foot limit has been removed from the text of these proposed NWPs.
In conjunction with the proposal to remove the 300 linear foot limit for losses of stream bed, we are also proposing to remove the provisions in these NWPs regarding the ability of district engineers to waive the 300 linear foot limit for losses of intermittent and ephemeral stream bed when the applicant submits a PCN and requests a waiver of that 300 linear foot limit. On April 21, 2020, EPA and the Department of the Army published a final rule to define “waters of the United States” entitled the Navigable Waters Protection Rule (85 FR 22250). On June 22, 2020, the Navigable Waters Protection Rule became effective in all states and jurisdictions except for the State of Colorado due to a court-issued stay in that state. The rule revised the definition of “waters of the United States” at 33 CFR 328.3 such that ephemeral streams are categorically excluded from jurisdiction under the Clean Water Act. Therefore, there would be no need to request waivers for losses of ephemeral stream bed (regardless of length) since NWP authorization (or any other form of DA authorization) will not be needed to authorize discharges of dredge or fill material into ephemeral streams. See Section II.C, for more discussion on the potential impact of the Navigable Water Protection Rule on the NWPs.
In addition, we are proposing to remove the agency coordination process for seeking input from federal and state agencies on whether the district engineer should grant the waiver of the 300 linear foot limit requested by an applicant for an NWP verification. Removing the waiver provision may reduce costs to permittees by reducing the amount of time the district engineer needs to make her or his decision. For example, the district engineer would not have to wait up to 25 days (see paragraph (d)(3) of the “pre-construction notification” general condition (GC 32) to make the decision on whether to issue the NWP verification. Removal of the agency coordination for these activities is also likely to reduce administrative costs to the Corps, by reducing the amount of staff time to send copies of PCNs to the agencies and summarizing and responding to agency comments. Removal of the waiver provision and associated agency coordination would also free up additional time for Corps staff to review other PCNs, other permit applications, and other regulatory actions such as jurisdictional determinations and compliance activities. As mentioned above, under the Navigable Waters Protection Rule, ephemeral streams are not “waters of the United States.” Therefore, it should be noted that this would likely reduce the current number of waivers and required interagency coordination process from state and federal agencies, since the current waivers apply only to certain intermittent streams.
Under the current NWPs, the Corps uses a variety of approaches to quantify losses of stream beds and assessing impacts to those stream beds. Losses of stream bed can be quantified in acres or linear feet, and for some NWPs, discharges of dredged or fill material into stream beds may be quantified in cubic yards. For NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52, the loss of stream bed, plus any other losses of waters of the United States, cannot exceed
1/2
-acre. Nationwide permits 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 also currently have 300 linear foot limits for losses of stream bed, and the district engineer has the authority to waive the 300 linear foot limit for losses of intermittent stream bed, when, after reviewing the PCN and conducting agency coordination under paragraph (d) of general condition 32, he or she issues a written determination that the NWP activity would result in no more than minimal individual and cumulative adverse environmental effects. The district engineer cannot issue a waiver authorizing the loss of greater than
1/2
-acre of stream bed or other waters of the United States. Therefore, when determining whether to issue a waiver of the 300 linear foot limit for losses of intermittent stream bed, the district engineer must also calculate the acreage of stream bed that would be lost as a result of the proposed NWP activity, to ensure that the loss of stream bed, plus any other losses of waters of the United States, does not exceed
1/2
-acre.
Many of the NWPs have quantitative limits to constrain the quantity of waters of the United States that may be lost as a result of an NWP activity to help ensure that the authorized NWP activity results in no more than minimal individual and cumulative adverse environmental effects. Numeric limits provide predictability and transparency to the regulated public through clear limits for NWP activities. Proposed activities that exceed those limits require authorization by individual permits. The quantitative limits help prospective permittees plan and design regulated activities to qualify for NWP authorization. The numeric limits of NWPs are established at a national level to authorize most activities that are expected to result in adverse environmental effects that are no more than minimal, individually and cumulatively. Division engineers may add regional conditions to an NWP to reduce the quantitative limit or limits to ensure that use of that NWP in a particular geographic region results in
activities that have no more than minimal individual and cumulative adverse environmental effects.
The numeric limits of NWPs may be quantified as acres, linear feet, or cubic yards. The appropriate unit of measure for a quantitative limit for an NWP is dependent on the type of activity being authorized by the NWP and the potential types of direct impacts authorized activities may have on jurisdictional waters and wetlands. For example, some NWP activities have quantitative limits based on acres, because the discharge of dredged or fill material into jurisdictional waters or wetlands is placed in those waters generally converts an aquatic area to dry land (
e.g.,
for constructing a building pad or road, or growing crops). An area-based numeric limit may also be appropriate for NWP activities that raise the bottom elevation of the waterbody (
e.g.,
to construct a boat ramp to safely launch boats). Some NWPs have cubic yard limits, such as NWP 19 for minor dredging activities, because the authorized activity removes a volume of sediment from a waterbody, and the area directly affected by the removal of a volume of material may vary depending on how that activity is conducted. Some NWPs have linear foot limits to constrain the length of the authorized activity along a shoreline or river bank (
e.g.,
the 500 linear foot limit for bank stabilization activities authorized by NWP 13) or the encroachment of structures or fills into navigable waters (
e.g.,
the 30 foot limit from the mean low water line in tidal waters for the construction of living shorelines authorized by NWP 54).
The severity of impacts to stream beds caused by discharges of dredged or fill material authorized by NWPs can be evaluated through the use of rapid assessment tools, such as functional or condition assessments. The Corps' regulations at 33 CFR 332.2 define “functions” as “the physical, chemical, and biological processes that occur in ecosystems.” A functional assessment evaluates the relative degree to which a stream or other aquatic resource performs various physical, chemical, and biological processes. A condition assessment evaluates the relative ability of a stream or other type of aquatic resource to support and maintain a community of organisms having a species composition, diversity, and functional organization comparable to reference aquatic resources in the region (see the definition of “condition” at 33 CFR 332.2). Functional or condition assessments generally use indicators that can be observed through site visits or remote sensing (Stein et al. 2009). Indicators are observable characteristics that correspond to identifiable variable conditions in a wetland, stream, or other aquatic resource type, or the surrounding landscape (Smith et al. 1995). Indicators have to be sensitive to changes in function or condition to provide meaningful results that can be used for management decisions, such as evaluating the severity of impacts to aquatic resources or determining improvements in aquatic resource function or condition for compensatory mitigation credits produced by mitigation banks, in-lieu fee projects, or permittee-responsible mitigation.
For functional assessments, indicators are used to estimate the degree to which a particular function is performed by an aquatic resource relative to reference aquatic resources in the region. Indicators are also used to evaluate aquatic resource condition, which is also assessed relative to reference aquatic resources in the region. The indicators used for functional or condition assessments are generally not dependent on a particular quantitative metric, such as acres or linear feet, since most indicators are physical attributes that can be readily identified through either field visits or remote sensing. These indicators are usually evaluated qualitatively when the rapid assessment tool is being used by Corps district staff or a consultant. Functional or condition assessments can be used by district engineers to assist in determining whether a proposed NWP activity will result in no more than minimal individual and cumulative adverse environmental effects (see paragraph 2 of Section D, District Engineer's Decision).
Compensatory mitigation may be required to offset losses of waters of the United States authorized by DA permits, including the NWPs. The Corps' regulations at 33 CFR part 332 address compensatory mitigation requirements for DA permits, and how compensatory mitigation credits can be quantified. Section 332.3(f) addresses the amount of compensatory mitigation to be required for DA permits. Section 332.3(f)(1) states that the amount of required compensatory mitigation must be, to the extent practicable, sufficient to replace lost aquatic resource functions. Paragraph (f)(1) of that section also says that when appropriate functional or condition assessment methods or other suitable metrics are available, these methods should be used where practicable to determine how much compensatory mitigation should be required for the individual permit or general permit. If a functional or condition assessment or other suitable metric is not used, § 332.3(f)(1) states that a minimum one-to-one acreage or linear foot compensation ratio must be used. Section 332.3(f) does not require any particular metric to be used for quantifying impacts to stream bed or quantifying compensatory mitigation credits produced by stream compensatory mitigation projects, if a functional or condition assessment is not used to quantify authorized impacts or required compensatory mitigation. In other words, the current rule text provides flexibility to district engineers to determine appropriate metrics for quantifying permitted impacts and compensatory mitigation requirements.
Sections 332.8(o)(1) and (2) of the Corps' compensatory mitigation regulations address units of measure and the use of assessment methods, respectively, for mitigation bank credits and in-lieu fee program credits, and the debits (impacts) those credits are intended to offset. The term “credit” is defined at 33 CFR 332.2 as “a unit of measure (
e.g.,
a functional or areal measure or other suitable metric) representing the accrual or attainment of aquatic functions at a compensatory mitigation site.” The term “debit” is defined at 33 CFR 332.2 as “a unit of measure (
e.g.,
a functional or areal measure or other suitable metric) representing the loss of aquatic functions at an impact or project site.” The definition of “credit” also states that the “measure of aquatic functions is based on the resources impacted by the authorized activity.”
Furthermore, § 332.8(o)(1) states that the principal units for credits and debits are acres, linear feet, functional assessment units, or other suitable metrics of particular resource types, and that functional assessment units or other suitable metrics may be linked to acres or linear feet. This section does not require the use of a particular metric or unit of measure for wetland or stream credits or debits. For streams, the preamble to the 2008 mitigation rule states that compensatory mitigation credits can be quantified using linear feet, area, or other appropriate units of measure (73 FR 19633) when functional or condition assessments are not available or are not practicable to use. Regarding the use of assessment tools to calculate credits and debits, section 332.8(o)(2) states that where practicable, an appropriate assessment method or other suitable metric must be used to assess and describe the aquatic resource types that will be restored, established, enhanced and/or preserved by the mitigation bank or in-lieu fee project. Section 332.8(o)(2) does not require the use of a particular assessment method or
metric for wetlands, streams, or any other category of waters.
The quantitative limits for the NWPs and the methods and metrics used to quantify credits and debits for the purposes of compensatory mitigation serve different purposes. The quantitative limits for the NWPs provide a clear ceiling on the impacts authorized by an NWP; impacts that exceed the quantitative limits of the NWPs usually require individual permits. Quantitative limits for the NWPs also provide predictability and transparency to the regulated public, are often used by project proponents to design their activities to quality for NWP authorization. The metrics used to quantify the values of compensatory mitigation credits and debits are used to ensure that the amount of compensatory mitigation credits required by the district engineer are sufficient to replace lost aquatic resource functions (33 CFR 332.3(f)(1)). In circumstances where an appropriate and practicable functional or condition assessment method cannot be used, or is unavailable for use, acres, linear feet, or other suitable metrics may be used to quantify compensatory mitigation credits, as a surrogate representing the accrual of aquatic resource functions at a compensatory mitigation project. The Corps' regulations at 33 CFR part 332 do not identify specific credit or debit metrics that must be used for specific categories of aquatic resources, such as wetlands, streams, or submerged aquatic vegetation beds. There is substantial flexibility in the regulations in determining appropriate metrics for credits or debits for specific categories of aquatic resources.
Functional or condition assessments may be used by district engineers to help determine whether proposed NWP activities will result in no more than minimal individual and cumulative adverse environmental effects (see paragraph 2 of Section D, District Engineer's Decision). However, there are no national assessment tools available that can be used in place of acreage or other quantitative limits for the NWPs. Assessment tools have to be developed on a regional basis because these tools need to be developed for a geographic area that is relatively homogenous in terms of geomorphology, soils, climate, geology, physiography, and other factors that can influence how wetlands, streams, or other categories of waters function (Smith et al. 2013), so that differences in aquatic functions or condition due to human activities rather than regional influences can be ascertained. There are insufficient numbers of regional functional or condition assessments to assist district engineers in determining whether proposed NWP activities will result in no more than minimal individual and cumulative adverse environmental effects. Therefore, the use of functional and condition assessments to help inform the district engineer's decision is on a limited case-by-case basis. For a national level program such as the Corps' NWP Program, quantitative limits such as the
1/2
-acre limit are the only practicable, national-scale option for drawing a clear line between the activities that potentially qualify for NWP authorization and the activities that will require individual permits.
In this section, we present a number of reasons for these proposed changes to NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. Our rationale comprises six categories of considerations: (1) The Corps employs a number of tools in the NWP Program to ensure that NWP activities result only in no more than minimal individual and cumulative adverse environmental effects; (2) using acres or square feet instead of linear feet is a more accurate approach to quantifying losses of stream bed and also serves as a better surrogate for losses of stream functions when a functional assessment method is not available or practical to use; (3) removing the 300 linear foot limit would provide consistency across the numeric limits used by the NWP Program for all categories of non-tidal waters of the United States (
i.e.,
wetlands, streams, ponds, and other non-tidal waters), and (4) it would further the objective of the NWP Program stated in 33 CFR 330.1(b) (
i.e.,
to authorize with little, if any, delay or paperwork certain activities having minimal impacts), by providing equivalent quantitative limits for wetlands, streams, and other types of non-tidal waters, and NWP authorization for losses of stream bed that have no more than minimal individual and cumulative adverse environmental effects. These reasons are discussed in further detail below.
(1) Several tools are used to comply with the requirements of section 404(e) of the Clean Water Act.
The first reason for our proposed changes is that the Corps employs several tools in the NWP Program to ensure that NWP activities result only in no more than minimal individual and cumulative adverse environmental effects. When Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) was amended in 1977 to add section 404(e), the statutory text did not provide any direction on how general permits, including NWPs, are to achieve compliance with the requirement that general permits will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment. Therefore, section 404(e) gives the Corps substantial discretion in developing and implementing the NWPs and other general permits to comply with the requirements in that provision of the Clean Water Act. This discretion extends to the tools the Corps uses to ensure that the NWPs authorize only those activities that have no more than minimal individual and cumulative adverse environmental effects.
The first NWPs were issued on July 19, 1977 (42 FR 37122), before the Clean Water Act was amended on December 27, 1977, to add section 404(e). During subsequent reissuances of the NWPs, the Corps developed a variety of tools to comply with the statutory requirement that NWPs may authorize only categories of activities that have no more than minimal individual and cumulative adverse environmental effects. Those tools included acreage and other numeric limits on the losses of waters of the United States that could be authorized by NWP, qualitative terms of the NWPs that limit the types of activities authorized by NWP or limit the types of waters in which the NWP could be used to authorize regulated activities, the pre-construction notification process, the requirements of the “Mitigation” general condition for the NWPs, the ability of division engineers to modify, suspend, or revoke NWPs on a regional basis (33 CFR 330.5(c)), and the ability of district engineers to modify, suspend, or revoke NWP authorizations for specific activities (33 CFR 330.5(d)).
An example of the numeric limits on losses of waters of the United States authorized by NWPs include the
1/2
-acre limit in NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52. We are proposing to retain this limit for these NWPs. Another example of a numeric limit is the volume of dredged or fill material that can be discharged into waters of the United States, such as the 25 cubic yard limit in NWP 18. An example of qualitative terms of the NWPs that limit the types of activities authorized by NWP is the term for NWP 10, which authorizes the installation of non-commercial, single-boat mooring buoys. An example of a qualitative term that limits the types of waters in which an NWP may be used to authorize regulated activities is the term in NWP 29 that prohibits the use of that NWP to authorize discharges of dredged or fill
material into non-tidal wetlands adjacent to tidal waters.
The PCN process is a critical tool, because it provides flexibility for district engineers to take into account the activity-specific impacts of the proposed activity and the effects those activities will have on the specific waters and wetlands affected by the NWP activity. It also allows the district engineer to take into account to what degree the waters and wetlands perform functions, such as hydrologic, biogeochemical cycling, and habitat functions, and to what degree those functions will be lost as a result of the regulated activity. If the district engineer reviews the proposed activity, and after considering mitigation proposed by the applicant determines that the proposed activity will have more than minimal adverse environmental effects, he or she will exercise discretionary authority and require an individual permit for that activity unless it can be authorized by a regional general permit. Except for NWP 51, all of the NWPs with the 300 linear foot limit for losses of stream bed require pre-construction notification for all authorized activities. Nationwide permit 51 requires pre-construction notification for losses of greater than
1/10
-acre of waters of the United States.
The PCN process was first adopted in the NWP Program in 1982. A form of pre-construction notification was required for NWP 21, which authorized discharges of dredged or fill material into waters of the United States associated with surface coal mining activities (see 47 FR 31833). The project proponent could not proceed with the proposed discharges into waters of the United States until she or he obtained confirmation from the district engineer that the activity was authorized by NWP 21. The 1982 NWP 21 required the prospective permittee to obtain, before commencing the proposed activity, a determination from the district engineer that the proposed activity would have “minimal individual and cumulative adverse effects on the environment.” This advance review would “afford the district engineer the opportunity to insure that the activity needing a Corps permit would have minimal impacts and thus qualify for the nationwide permit.” (See 47 FR 31799.) None of the other NWPs issued in 1982 had PCN requirements.
With subsequent reissuances of the NWPs, more NWPs required PCNs for some or all proposed activities. The first regulations for notification procedures for the NWP program were added to the Corps' regulations in 1984 (see 49 FR 39484), when the Corps added 33 CFR 330.7 to provide regulatory text for the pre-discharge notification procedures for NWP 7 (outfall structures and associated intake structures), NWP 17 (small hydropower projects), NWP 21 (surface coal mining activities), and NWP 26. (In the 1996 NWPs (see 61 FR 65909), the Corps changed the term “pre-discharge notification” to “pre-construction notification” because some NWPs require pre-construction notification for structures or work in navigable waters of the United States that require authorization under Section 10 of the Rivers and Harbors Act of 1899.) Nationwide permit 26 was issued in that final rule to authorize discharges of dredged or fill material into: (a) Non-tidal rivers, streams, and their lakes and impoundments, including adjacent wetlands, located above the headwaters, and (b) non-tidal waters and adjacent wetlands that are not part of a tributary system to interstate waters or navigable waters. The notification procedures established in 1982 required the project proponent to wait 20 days for a response from the district or division engineer before proceeding with the proposed activity. The district engineer was required to review all pre-construction notifications, and could refer certain pre-construction notifications to the division engineer for review. The division engineer had the authority to exercise discretionary authority and require an individual permit for a proposed activity.
In the 1986 NWPs, the pre-construction notification requirement continued to apply to NWPs 7, 17, 21, and 26 (see 51 FR 41258). In the 1991 NWPs (56 FR 59110), the Corps amended its NWP regulations at 33 CFR part 330, including the procedures that applied to pre-construction notifications. The Corps also changed its regulations regarding discretionary authority, that is the division and district engineer's authorities to modify, suspend, or revoke NWP authorizations on a regional or activity-specific basis (see 33 CFR 330.1(d), 330.4(e), and 330.5(c) and (d)). The Corps retained the PCN requirements for NWPs 7, 17, 21, and 26. The Corps also added PCN requirements to the following existing and new NWPs: NWP 13 (bank stabilization), NWP 14 (road crossing), NWP 18 (minor discharges), NWP 22 (removal of vessels), NWP 33 (temporary construction, access, and dewatering), NWP 34 (cranberry production activities), NWP 37 (emergency watershed protection and rehabilitation), and NWP 38 (cleanup of hazardous and toxic waste). In the NWP regulations issued in 1991, the PCN review period was increased from 20 days to 30 days (33 CFR 330.1(e)(1), as published in the
Federal Register
on November 22, 1991 (56 FR 59135)).
In the 1996 NWPs, the PCN review period for NWP 26 was increased to 45-days (see paragraph (a)(3) of the 1996 “Notification” general condition (61 FR 65920)). The other NWPs that required PCNs for some or all proposed activities retained a 30-day review period for the district engineer's review of PCNs. For the 1996 NWPs, PCNs were required for the following new and existing NWPs: NWP 5 (scientific measuring devices), NWP 7 (outfall structures), NWP 8 (oil and gas structures), NWP 12 (utility line discharges), NWP 13 (bank stabilization), NWP 14 (road crossings), NWP 17 (hydropower projects), NWP 18 (minor discharges), NWP 21 (surface coal mining activities), NWP 22 (removal of vessels), NWP 26 (headwaters and isolated waters discharges), NWP 27 (wetland and riparian restoration and creation activities), NWP 29 (single family housing), NWP 31 (maintenance of existing flood control facilities), NWP 33 (temporary construction, access, and dewatering), NWP 34 (cranberry production activities), NWP 37 (emergency watershed protection and rehabilitation), NWP 38 (cleanup of hazardous and toxic waste), and NWP 40 (farm buildings).
In the 2000 NWPs, the PCN review period in the “Notification” general condition was increased to 45-days for all NWPs that required PCNs (see 65 FR 12894). In a final rule published in the
Federal Register
on January 29, 2013 (78 FR 5733), 33 CFR part 330, including § 330.1(e)(1), was amended to change the 30-day PCN review period to 45 days, consistent with the current NWPs and general condition 32 (pre-construction notification).
The 2002 NWPs (67 FR 2020), 2007 NWPs (72 FR 11092), 2012 NWPs (77 FR 10184), and 2017 NWPs (82 FR 1860) retained the 45-day PCN review period. Since the PCN process was added to the NWP program in 1982 and expanded to other new and existing NWPs during subsequent reissuances of the NWPs, it has been successful in helping to ensure that the NWPs comply with the requirements of Section 404(e) of the Clean Water Act, specifically that the NWP can authorize only those activities that result in no more than minimal individual and cumulative environmental effects. As the NWP program has expanded over the past 38 years, the PCN process has provided a mechanism where district engineers are given the opportunity to review certain proposed NWP activities before they
take place, to determine whether the proposed activities will result in no more than minimal individual and cumulative adverse environmental effects. The PCN process also gives the district engineer the opportunity to add activity-specific conditions to the NWP authorization, including mitigation requirements, to comply with the “no more than minimal individual and cumulative adverse environmental effects” requirement. When a district engineer reviews a PCN for a proposed activity, and determines that the activity is likely to result in more than minimal adverse environmental effects after considering a mitigation proposal submitted by the applicant (see 33 CFR 330.1(e)(3), he or she may exercise discretionary authority and require an individual permit for the proposed activity. The PCN process provides flexibility in the NWP program by requiring case-specific review of certain proposed activities, and authorizing those activities (with or without special conditions) instead of requiring individual permits. By using NWPs to authorize activities that have no more than minimal adverse effects, the Corps can focus a greater proportion of its finite resources on evaluating individual permit applications.
Under the current and past NWPs, the Corps has authorized tens of thousands of activities each year. Over the years, Corps districts have reviewed hundreds of thousands of NWP PCNs and issued hundreds of thousands of NWP verification letters in response to those PCNs. In litigation that has arisen from time to time challenging NWP verifications issued in response to PCNs, federal courts have generally upheld such verifications as consistent with the Clean Water Act and otherwise applicable law (
e.g.,
Snoqualmie Valley Preservation v. USACE, 683 F.3d 1155 (9th Cir. 2012);
Sierra Club
v.
Bostick
, 787 F.3d 1043 (10th Cir. 2015);
Sierra Club
v.
U.S. Army Corps of Engineers
, 803 F.3d 31 (D.C. Cir. 2015)). The continued operation of the NWP Program, and its reliance on the PCN process over the past 38 years to ensure that activities authorized by NWPs result in no more than minimal individual and cumulative adverse environmental effects, demonstrates the importance and success of the PCN process as a tool to efficiently authorize activities that require authorization under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899.
The mitigation requirements in the NWPs are another tool to comply with the requirements of Section 404(e) of the Clean Water Act. During the PCN review process, district engineers will evaluate compliance with the mitigation requirements for the NWPs in the “Mitigation” general condition (general condition 23 in this proposal). Paragraph (a) of the “Mitigation” general condition requires the NWP activity to be designed and constructed to avoid and minimize adverse effects, both temporary and permanent, to waters of the United States to the maximum extent practicable at the project site (
i.e.,
on site). Under this general condition and 33 CFR 330.1(e)(3), the district engineer may require additional mitigation, including compensatory mitigation, so that the authorized work has no more than minimal individual and cumulative adverse environmental effects.
Regional conditions are another tool to ensure that activities authorized by NWPs result in no more than minimal individual and cumulative adverse environmental effects. Under 33 CFR 330.5(c), division engineers have the authority to assert discretionary authority to modify, suspend, or revoke NWP authorizations for a specific geographic area, class of activity, or class of waters within his or her division, including on a statewide basis. If the 300 linear foot limit for losses of stream bed is removed from these NWPs, division engineers can impose regional conditions to put a smaller acreage limit on losses of stream bed, if such a lower limit is needed to satisfy the requirement that NWPs may authorize only activities that have no more than minimal individual and cumulative adverse environmental effects.
Activity-specific permit conditions may be imposed by district engineers during the review of an NWP PCN to comply with the no more than minimal adverse environmental effects requirements for the NWPs. Under 33 CFR 330.4(e)(2), a district engineer has the authority to exercise discretionary authority for a proposed NWP activity whenever he or she determines that the proposed activity would have more than minimal individual or cumulative adverse effects on the environment or otherwise may be contrary to the public interest. Prior to requiring another form of DA authorization for the proposed activity, the district engineer may provide the applicant with the opportunity to propose mitigation to reduce the adverse environmental effects so that they are no more than minimal. If such mitigation is necessary to qualify for NWP authorization, the district engineer will add conditions to the NWP authorization to require those mitigation measures, which may include compensatory mitigation, to ensure that the NWP activity results in no more than minimal individual and cumulative adverse environmental effects.
We are proposing to replace the 300 linear foot limit for losses of stream bed with a different tool to encourage minimization of losses of stream bed and comply with the requirements of section 404(e) of the Clean Water Act. Since 2007, the NWPs have had a
1/10
-acre threshold for requiring wetland compensatory mitigation for NWP activities that require PCNs (see 72 FR 11195). This compensatory mitigation threshold has been an important tool for driving avoidance and minimization of wetland impacts.
The
1/10
-acre threshold for requiring wetlands compensatory mitigation has been an effective tool for minimizing wetland losses authorized by NWPs. In the “Mitigation Rule Retrospective: A Review of the 2008 Regulations Governing Compensatory Mitigation for Losses of Aquatic Resources” published by the Corps' Institute of Water Resources in 2015 (Report 2015-R-03), an analysis of the Corps' permit data from 2010 to 2014 demonstrated that a substantial majority of fill impacts authorized by NWPs and other general permits were less than
1/10
-acre in size (see Figure 5 of that report). These authorized fill impacts were for wetlands, streams, and other waters. Project proponents likely designed their projects to minimize losses of jurisdictional waters and wetlands to qualify for general permit authorization and avoid the cost of providing compensatory mitigation to offset the authorized losses. We believe that adding a compensatory mitigation requirement for losses of greater than
1/10
-acre of stream bed can be equally effective in minimizing losses of stream bed under the NWP authorization process.
More recent (FY 2018) permit data demonstrate that this minimization has continued in the 2017 NWPs. According to Figure 5.1 of the draft Regulatory Impact Analysis, which is provided in the docket for this proposed rule (docket number COE-2020-0002) as supplementary information for this proposed rule, 82 percent of all of the verified NWP impacts involving discharges of dredged or fill material into waters of the United States were less than
1/10
-acre.
To apply this mitigation tool to the NWPs, we are proposing to modify paragraph (d) of the “Mitigation” general condition to require compensatory mitigation for losses of greater than
1/10
-acre of stream bed that
require pre-construction notification. This proposed modification is similar to the wetland compensatory mitigation provision in paragraph (c) of the “Mitigation” general condition. Consistent with the current paragraph (c), which we are not proposing to change, the proposed modifications to paragraph (d) would give the district engineer the discretion to waive the requirement to provide compensatory mitigation for losses of greater than
1/10
-acre of stream bed if she or he makes a written determination that some other form of mitigation would be more environmentally appropriate. The district engineer may also waive the compensatory mitigation requirement if he or she determines that the adverse environmental effects of the proposed activity are no more than minimal without compensatory mitigation, and issues an activity-specific waiver of the compensatory mitigation requirement. We believe the proposed addition of a
1/10
-acre threshold for requiring stream compensatory mitigation will have a similar effect of encouraging minimization of stream bed impacts authorized by NWPs, including NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52.
(2) More accurate quantification of losses authorized by NWPs.
Another reason for these proposed changes is that quantifying losses of stream bed in acres to count towards the
1/2
-acre limit most accurately represents the amount of stream bed lost as a result of filling or excavation, and the subsequent functions that are expected to be lost. Using linear feet to quantify stream impacts and stream compensatory mitigation credits does not take into account the scale of the stream reach being impacted by an authorized activity or restored for compensatory mitigation (Doyle et al. 2015, Lave 2014). Accurately quantifying the amount of stream bed lost, and the degree to which those functions are lost (
e.g.,
total versus partial loss, permanent versus temporary loss), informs the minimal adverse effects determinations made by district engineers.
Within a watershed, the sizes and channel morphologies (shapes) of river and stream channels throughout the tributary network vary significantly, from the headwaters to where the mouth of the river drains into the ocean, lake, or other body of water. As one moves from the headwaters to stream and river channels further down in the watershed, stream and river channels get progressively larger to accommodate the increasing amount of water that is transported by the tributary network (Leopold 1994). Downing et al. (2012) examined the mean width of streams in various locations in the tributary network, using the Strahler (1957) classification system for stream order. A headwater stream at the top of the stream network is a 1st order stream under the Strahler (1957) classification system. The stream order number increases as tributaries join together further down in the watershed. For example, the Ohio River is an 8th order stream. The largest river in the United States, the Mississippi River, is a 10th order stream.
According to Downing et al. (2012), the mean width of a first order headwater stream is 6.3 feet. The mean width of a third order stream is 25 feet, and the mean width of a fifth order stream is 240 feet. An eighth order stream has a mean width of 1,688 feet and a tenth order stream has a mean width of 3,392 feet. Because of this substantial variation in stream width throughout a tributary network, using linear feet to quantify stream impacts does not accurately reflect the amount of stream bed filled, excavated, or otherwise directly affected by construction activities, dredging activities, and other activities that can physically alter river and stream beds, as well as their banks. If all rivers and streams had relatively uniform width, then linear feet could be an accurate method for quantifying stream bed impacts. For example, if the activities authorized by NWPs or other types of DA permits were limited to headwater streams, then linear feet could be an effective way to quantify stream bed impacts to inform permit decisions by district engineers. However, NWPs and other DA permits authorize activities throughout the stream network, and quantifying those impacts accurately is important for making permit decisions. In this section, we discuss our proposal to quantify losses of stream bed authorized by NWP in acres.
BenDor and others (2009) examined the spatial distribution of stream impacts authorized by DA permits in North Carolina. They found that stream impacts occurred throughout a watershed, but were concentrated in urban and suburban areas where development activities are occurring. In urban and suburban areas, stream impacts are not limited to headwater streams and they observed that the restoration of headwater streams was often used to provide compensatory mitigation to offset impacts to streams of various sizes (BenDor et al. 2009).
Losses of stream bed authorized by NWPs and other DA permits can occur in a proportion of the stream bed (
e.g.,
bank stabilization where the loss of stream bed occurs near the bank while the remainder of the stream bed along the affected stream reach is not filled or excavated). Losses of stream bed authorized by NWPs and other DA permits can also occur to the entire stream bed within the affected stream reach, such as piping and filling the stream to create land to build upon. When the loss of stream bed is quantified using the area of stream bed filled or excavated, the verified impacts reflect whether only a portion of the stream bed was filled or excavated, or whether the entire stream bed along that stream reach was filled or excavated. In contrast, when the loss of stream bed is quantified in linear feet, the verified impacts do not distinguish between partial or complete filling or excavation of the stream bed along the affected stream reach. The uncertainty associated with using linear feet to quantify losses of stream bed makes it more challenging for district engineers to make consistent, transparent, and defensible NWP verification decisions.
In Section D of the 2012 NWPs (see 77 FR 10287), District Engineer's Decision, we added a list of nine factors district engineers should consider when evaluating PCNs to determine whether a proposed NWP activity will result in no more than minimal individual and cumulative adverse environmental effects. In the 2017 NWPs (see 82 FR 2005), we added a tenth factor for the district engineer to consider when making his or her decision for an NWP PCN. The ten factors in paragraph 2 of Section D, “District Engineer's Decision,” for making minimal adverse environmental effects determinations are:
(1) The direct and indirect effects caused by the NWP activity;
(2) the cumulative adverse environmental effects caused by activities authorized by NWP and whether those cumulative adverse environmental effects are no more than minimal;
(3) the environmental setting in the vicinity of the NWP activity;
(4) the type of resource that will be affected by the NWP activity;
(5) the functions provided by the aquatic resources that will be affected by the NWP activity;
(6) the degree or magnitude to which the aquatic resources perform those functions;
(7) the extent that aquatic resource functions will be lost as a result of the NWP activity (
e.g.,
partial or complete loss);
(8) the duration of the adverse effects (temporary or permanent);
(9) the importance of the aquatic resource functions to the region (
e.g.,
watershed or ecoregion); and
(10) mitigation required by the district engineer.
In the “District Engineer's Decision” section of the NWPs, we also stated that if an appropriate functional assessment method is available and practicable to use, that assessment method may be used by the district engineer to assist in the minimal adverse environmental effects determination.
Three of the 10 factors in paragraph 2 of the “District Engineer's Decision” section relate to the impacts the proposed NWP activity would have on aquatic resource functions: (1) The functions provided by the aquatic resources that will be affected by the NWP activity, (2) the degree or magnitude to which the aquatic resources perform those functions, and (3) the extent that aquatic resource functions will be lost as a result of the NWP activity (
e.g.,
partial or complete loss). To assist in applying these factors, it is important to accurately quantify the proposed impacts, because the amount of aquatic resources affected by the proposed NWP activity is often used as a surrogate for the aquatic resource functions affected by that activity. In the absence of an appropriate functional or condition assessment for streams, the amount of stream bed filled or excavated can be a surrogate for the stream functions lost as a result of the permitted activity. It may not be practicable to apply a functional or condition assessment to a proposed NWP activity (if an appropriate functional or condition assessment is available) within the timeframes of the PCN review process.
Currently, NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 can be used to authorize discharges of dredged or fill material into all non-tidal rivers and streams throughout a watershed. For the reasons discussed in this section, and for effective and more defensible implementation of the NWP program, we believe that stream bed losses authorized by NWPs should be quantified in acres, not linear feet, when a functional or condition assessment is not available or not practicable to use.
Losses of stream bed authorized by NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 can occur along a couple of continuums: (1) The proportion of the river or stream reach is impacted by the NWP activity (
e.g.,
from a small partial loss along a stream bank to a complete filling or excavation of the river or stream bed) and (2) the range of non-tidal river and stream sizes within a watershed. Quantifying losses of stream bed via linear feet does not provide any ability to differentiate the amount of stream bed lost along these two continuums.
With respect to the first continuum, some activities authorized by NWP may only fill or excavate stream bed next to the stream bank while the remaining stream bed along that stream reach is not filled or excavated. Other activities authorized by NWP may fill or excavate the entire stream bed along the affected stream reach. When only a portion of the stream bed is filled or excavated, the portion of the stream bed that is not filled or excavated can continue performing its physical, chemical, and biological processes. In situations where only a portion of the stream bed is filled, there will likely be only a partial loss of stream functions because the areas of stream bed near the authorized activity that have not been filled will continue to provide some degree of stream functions. For example, a bank stabilization activity along a river bank will fill only a portion of the stream bed up to the ordinary high water mark and the river will continue to flow past the stabilized bank, whereas filling the entire stream bed often results in a complete loss of stream functions. Using linear feet to quantify the impacts of these two different types of impacts does not distinguish between the substantially different effects on stream functions in the two different scenarios, whether those effects are no more than minimal and thus qualify for NWP authorization, or if the effects are more than minimal and require individual permits.
When assessing the impacts of NWP activities on rivers and streams, it is important to consider the relative extent of the filling or excavation of the stream bed. When using linear feet to quantify stream impacts, the filling or excavation of 100 feet of a small headwater stream has the same value as the filling or excavation of 100 feet of a larger stream in the middle of the stream network within watershed (
e.g.,
a 4th order stream under the Strahler (1957) classification method), even though the actual amount of stream bed filled or excavated is substantially larger for the 4th order stream than for the headwater stream. Therefore, quantifying impacts in linear feet does not always accurately represent the actual amount of stream bed filled or excavated because it does not take into account the width of the stream bed filled or excavated. Furthermore, quantifying stream bed losses in linear feet is not an effective surrogate for quantifying the amount of stream functions lost because of a permitted activity. In-stream ecological functions occur over the area of stream bed present within a stream reach.
Regarding the second continuum, within a watershed, streams can vary substantially in size, depending on stream order under the Strahler (1957) classification system. In addition, stream reaches can vary in the functions they provide, depending on their location in the stream network or in the watershed and other factors. Headwater streams, mid-watershed streams, and lowland streams exhibit different structure, functions, and dynamics. Impacts to streams of different stream orders for the same amount of linear foot impact can have substantially different outcomes in terms of the acres or square feet of stream bed actually filled or excavated, and the amount of aquatic resource functions that may be lost as a result of the permitted activity. In general, headwater streams are 1st and 2nd order streams under the Strahler (1957) stream classification system. In their global examination of the abundance and size distribution of streams, Downing et al. (2012) found that the mean widths of 1st and 2nd order streams are 6.2 feet and 8.5 feet, respectively. Moving down a watershed from headwater streams to mid-watershed streams and lowland streams, mean stream width (and the size of the river or stream bed) increases substantially. According to Downing et al. (2012), a 3rd order stream has a mean width of 24.6 feet, a 4th order stream has a mean width of 90.2 feet, and a 5th order stream has a mean width of 238.5 feet.
For example, under the current 300 linear foot limit for losses of stream bed, the quantity of stream bed filled or excavated and the subsequent loss of stream functions is likely to vary substantially by stream order, if all other factors are considered equal. Using the mean stream widths found by Downing et al. (2012), filling or excavating 300 linear feet of a 1st order headwater stream with an average width of 6 feet results in the loss of 1,800 square feet (0.04 acre) of stream bed and the associated functions it provides. For a typical 2nd order stream, which has an average width of 9 feet, filling or excavating 300 linear feet of that stream bed would result in the loss of 2,700 square feet (0.06 acre) of stream bed. Filling or excavating 300 linear feet of a 3rd order stream, which has an average width of 25 feet, would result in a loss of 7,500 square feet of stream bed (0.17 acre). Filling or excavating 300 linear feet of a 4th order mid-watershed stream with an average width of 90 feet results in the loss of 27,000 square feet (0.62 acre) of stream bed. (The latter
example is provided for illustrative purposes even though it could not be authorized by any of these NWPs because the loss of waters of the United States would exceed
1/2
-acre.)
These examples demonstrate the potentially large range of impacts to streams that can occur for a specific number of linear feet of stream bed impacted, compared with the number of square feet of stream bed impacted. In other words, there can be large differences in losses of stream bed that can result from filling or excavating 300 linear feet of stream bed in different stream orders within a stream network within a watershed. To more accurately quantify losses of stream bed authorized by NWPs and associated losses of stream functions, we are proposing to rely on the
1/2
-acre limit and other tools described above to comply with the requirement that the NWPs may only authorize activities that have no more than minimal individual and cumulative adverse environmental effects. Therefore, using an acreage limit for losses of stream bed instead of a linear foot limit will more accurately quantify losses of stream bed, since a linear foot limit does not take into account the width of the stream bed.
In developing this proposal, we have also drawn upon information that has appeared in the scientific literature. A linear foot metric for quantifying stream impacts or stream compensatory mitigation does not properly take into account the scale or size of the affected stream reach (Lave et al. 2010) or act as an effective surrogate for the amount of stream functions performed within that stream reach. In situations where it is not practicable or feasible to assess or measure stream functions (
e.g.,
minor activities authorized by NWPs general permits), using square feet to quantify the ability of a stream to perform ecological functions has a sounder scientific basis than using linear feet (Doyle et al. 2015).
In 33 CFR 332.2, the Corps defines “functional capacity” as “the degree to which an area of aquatic resource performs a specific function.” In other words, the amount of space occupied by a wetland, stream, or other aquatic resource, plus the degree to which that wetland, stream, or other aquatic resource performs certain functions, determine the amount of functions provided by the wetland, stream, or other aquatic resource. For example, if a wetland or stream performs functions at an 80 percent level, a larger wetland or stream will contribute more functions to the watershed than a smaller wetland or stream. (The larger wetland or stream will have a higher functional capacity than the smaller wetland or stream, if both the larger and smaller wetland or stream perform functions at the same level.) For rivers and streams, a larger amount of stream bed provides more physical space for aquatic habitat, more substrate for biogeochemical cycling functions, and greater capacity for hydrologic functions. Therefore, actual amount of wetland, stream, or other type of aquatic resource impacted as a result of a proposed NWP activity is critical for determining whether that activity will result in no more than minimal individual and cumulative adverse environmental effects. Using linear feet to quantify impacts to streams does not provide an adequate surrogate for the functions lost as a result of a regulated activity because it does not accurately represent the physical space in which the hydrologic, biogeochemical, and habitat functions are being performed by that stream.
(3) Provide consistency in the numeric limits for these NWPs for all non-tidal waters of the United States.
The proposed removal of the 300 linear foot limit for losses of stream bed would also provide more equivalency in protection for all non-tidal waters of the United States. Currently, under NWPs 21, 29, 39, 40, 42, 43, 44, 50, 51, and 52 losses of non-tidal wetlands and other non-tidal waters that are not streams are limited to
1/2
-acre. In the 2017 NWPs, losses of stream bed are limited to 300 linear feet, unless the district engineer waives the 300 linear foot limit for losses of intermittent and ephemeral stream bed (as explained above, under the Navigable Waters Protection Rule ephemeral streams are no longer subject to Clean Water Act jurisdiction). Under the 300 linear foot limit, many streams in a stream network are subject to a more stringent quantitative limit than non-tidal wetlands, ponds, or lakes. For example, for a first order headwater stream with an average width of 6.2 feet (Downing et al. 2012), under the 300 linear foot limit 0.043 acre of stream bed can be filled or excavated. As another example, for a third order stream with an average width of 34.6 feet (Downing et al. 2012), under the 300 linear foot limit 0.238 acre of stream bed can be filled or excavated. Therefore, the 300 linear foot limit for losses of stream bed is more restrictive than the
1/2
-acre limit for losses of non-tidal wetlands and other non-tidal waters, and decreases the utility of the NWPs for losses of stream bed that result in no more than minimal individual adverse environmental effects.
The Clean Water Act Section 404(b)(1) Guidelines at 40 CFR 230.1(d) states that from “a national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines.” Under the 404(b)(1) Guidelines, special aquatic sites include sanctuaries and refuges (40 CFR 230.40), wetlands (§ 230.41), mud flats (§ 230.42), vegetated shallows (§ 230.43), coral reefs (§ 230.44), and riffle and pool complexes (§ 230.45). The 404(b)(1) Guidelines do not rank special aquatic sites in order of importance, or provide differing degrees of protection to the various types of special aquatic sites. The evaluation process is the same for all special aquatic sites, which gives the district engineer or other permitting authority substantial discretion in determining whether a proposed discharge complies with the Guidelines. Other regulations for implementing Section 404 of the Clean Water Act do not grant special status to streams over other types of waters of the United States, such as lakes and ponds.
The 404(b)(1) Guidelines at 40 CFR 230.45 define “riffle and pool complexes” as:
Steep gradient sections of streams are sometimes characterized by riffle and pool complexes. Such stream sections are recognizable by their hydraulic characteristics. The rapid movement of water over a coarse substrate in riffles results in a rough flow, a turbulent surface, and high dissolved oxygen levels in the water. Pools are deeper areas associated with riffles. Pools are characterized by a slower stream velocity, a steaming flow, a smooth surface, and a finer substrate. Riffle and pool complexes are particularly valuable habitat for fish and wildlife.
Rivers and streams exhibit a variety of morphologies, and riffle and pool complexes are just one of several morphologies. Montgomery and Buffington (1997) developed a classification system for stream channel reach morphology in mountain watersheds. For alluvial stream channels, they identified five types of channel bed morphologies: Cascade channels, step-pool channels, plane-bed channels, riffle-pool channels, and dune-ripple channels. Streams in mountain drainage basins also occur as colluvial channels and bedrock channels (Montgomery and Buffington 1997). Lowland rivers typically exhibit braided channel morphology (Chalov 2001). Lowland rivers may also have an anastomosing morphology, which consists of multiple river channels separated by islands that have been cut from the floodplain (Knighton and Nanson 1993).
Therefore, riffle and pool complexes are only a subset of the stream channel types typically found in a stream network within a watershed. Riffle and pool complexes occur in perennial stream channels that have bed material that is larger in grain size than coarse sand (Leopold 1994). According to Allan and Castillo (2007), riffle and pool complexes are usually found in unconfined stream channels with moderate to low gradients where the bed material is mostly gravel. Step-pool complexes are usually found in mountain areas where the stream bed material consists of boulders and large rocks, with a channel morphology of nearly vertical steps and short pools (Leopold 1994). Cascade channels, step-pool channels, plane-bed channels, dune-ripple channels, colluvial channels, bedrock channels, braided rivers and streams, and anastomosing rivers are not special aquatic sites under the 404(b)(1) Guidelines, and are not subject to the more restrictive regulations that apply to special aquatic sites such as wetlands and riffle and pool complexes.
Section 230.1(d) of the 404(b)(1) Guidelines states that from a “national perspective, the degradation or destruction of special aquatic sites, such as filling operations in wetlands, is considered to be among the most severe environmental impacts covered by these Guidelines.” Under the current NWPs, project proponents can discharge dredged or fill material into non-tidal waters of the United States, excluding non-tidal wetlands adjacent to tidal waters, that cause the loss of up to
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-acre of wetlands. Under the current limits of these NWPs, a project proponent can fill or excavate no more than 300 linear feet of perennial stream bed (which may or may not have riffle and pool complexes), which for headwater streams would usually be substantially less than
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-acre. When taking into account the regulatory approach in the 404(b)(1) Guidelines, and other regulations and policies for implementing Section 404 of the Clean Water Act, there does not seem to be a the legal, regulatory, or policy justification for a more restrictive numeric limit for losses of stream bed compared with other types of waters of the United States.
Headwater streams and rivers and larger streams perform important ecological roles in riverine systems. Examples of the ecological roles of headwater streams include: Storing and transporting water, retaining and transforming nutrients and contaminants, collecting and transforming organic matter that supports the production of aquatic organisms such as invertebrates and fish, influencing water temperature, and providing habitats for various species of fish, amphibians, and invertebrates (Meyer and Wallace 2001). Large rivers and their floodplains support diverse biological communities through the complex and variabl
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